The Prevention and Combating of Hate Crimes and Hate Speech Bill was recently released for comment by the Department of Justice and Constitutional Development. While the Hate Crimes Bill has been described as "overbroad", "subjective" and "unconstitutional", one must not lose sight of the potentially positive impact that this legislation may have on various communities in South Africa.
One such community, which is in desperate need of the protection that may be afforded by the Hate Crimes Bill, is the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.
The meaning of LGBTI
"Lesbian", "gay" and "bisexual" are terms used to describe sexual orientation which refers to an individual's enduring pattern of emotional, romantic and/or sexual attractions. The term "transgender" is used to describe those individuals whose gender identity is inconsistent to that typically associated with the sex to which they were assigned at birth. Lastly, the term "intersex" is commonly used in legislation to describe a person with a natural sexual differentiation that is unusual, to whatever degree.
Because LGBTI individuals possess various characteristics that may be regarded as unusual by many, they are often subjected to violence, persecution and other acts which ultimately limit or deny them access to fundamental constitutional rights.
South Africa is one of the few African countries that recognises and seeks to protect LGBTI rights. The country has recognised that sexual relations between members of the LGBTI community are no longer unlawful; criminalisation of sodomy and so-called "unnatural sex acts" was declared unconstitutional in National Coalition for Gay and Lesbian Equality v Minister of Justice. Further, a number of Constitutional Court decisions have recognised that same sex couples have the right to, among other rights, marry and adopt children. These decisions have been given effect through the enactment and amendment of various pieces of legislation.
However, despite this commitment to the protection of and non-discrimination against LGBTI individuals, the social stigma remains. This stigma has seen gender and sexuality-motivated hate crimes become increasingly common in South Africa, in particular in the East Rand townships of Johannesburg where the crime of "corrective rape" is on the rise. Corrective rape is a term used to describe a hate crime directed towards members of the LGBTI community in an attempt to "cure" them of or "punish" them for their perceived '"abnormality", their sexual orientation or because they do not fit traditional gender roles.
The current position
The basis of all individual rights in South Africa is s9 of the Constitution, which reads:
"No person may unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth".
Accordingly, in the context of LGBTI rights, the equality clause forbids discrimination on the basis of sex, gender or sexual orientation, and applies to the state and to private parties. Section 9(2) of the Constitution requires that to promote equality, legislative and other measures designed to protect or advance persons, or categories of persons, may be taken. In order to give effect to this clause, the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) was enacted. PEPUDA seeks to give effect to the letter and spirit of the Constitution by preventing unfair discrimination, protecting human dignity and providing measures to eradicate unfair discrimination, hate speech and harassment, particularly on the grounds of race, gender and disability.
It echoes the traditional grounds listed in s9 as prohibited grounds of discrimination. However, it seeks to provide additional grounds by including any other ground where discrimination on that ground causes or perpetuates systemic disadvantages, undermines human dignity, or adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination based on any traditional ground. The formulation in PEPUDA is extremely broad and effectively acts as a catch-all category, placing the burden on judicial officers to determine whether conduct not expressly listed under the definition of prohibited grounds is, in fact, prohibited.
The need to adopt a broad interpretation due to the lack of express grounds in the legislation was highlighted in National Coalition for Gay and Lesbian Equality v Minister of Justice where the Constitutional Court stated that the concept of "sexual orientation" as used in s9 of the Constitution "must be given a generous interpretation" and thus applies equally to the orientation of persons who are "transsexual" (transgender). Such an approach can only be regarded as unsatisfactory. It must be acknowledged that sexual orientation, gender identity and sexual differentiation, while closely related, are distinct concepts each deserving its own express recognition as grounds to be protected.
Various other pieces of legislation suffer the same deficiency as PEPUDA. While acts such as the Civil Union Act, Children's Act and Domestic Violence Act all recognise rights based on sexual orientation, they remain silent regarding gender identity and sexual differentiation.
The lack of express recognition, especially in the case of gender identity, is not fatal given the "generous" approach adopted by our court to protect LGBTI rights. However, it does raise issues of legal certainty and may lead to doubts in the minds of ordinary South Africans and those assigned with the task of protecting the LGBTI community, such as the South African Police Service (SAPS), about the legitimacy, rights and extent of protection that should be afforded to LGBTI individuals.
The Hate Crimes Bill and the LGBTI community
The Hate Crimes Bill was approved by cabinet on 19 October 2016 and was released for comment at the end of October 2016.
The proposed legislation seeks to "create the offences of hate crimes and hate speech and to put in place measures to prevent and combat these offences". Accordingly, the Hate Crimes Bill, in addition to addressing the increasing number of racial incidents in South Africa, seeks to provide for other types of criminal conduct in the form of hate crimes and hate speech. One of the main aims of the draft bill is to give effect to South Africa's obligations in terms of the Constitution, international law obligations and international human rights instruments regarding various intolerances that are present in society.
Section 3(1) of the Hate Crimes Bill states that a hate crime is the commission of an offence recognised under any law which is motivated on the basis of the perpetrator's prejudice, bias or intolerance towards the victim of the hate crime in question, because of a characteristic or perceived characteristic of the victim or his or her family member. Characteristics which may form the basis of such prejudice, bias or intolerance include gender, sex (including intersex), sexual orientation and gender identity.
Section 4 of the Hate Crimes Bill creates the crime of hate speech, providing that any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that either advocates hatred towards any other person or group of persons; or is threatening, abusive or insulting towards any other person or group of persons, and which demonstrates a clear intention to incite others to harm, stir up violence against or bring into contempt or ridicule any person or group of persons based on gender, sex (including intersex), sexual orientation, culture or gender identity is guilty of the offence of hate speech.
Consequently the Hate Crimes Bill goes further than PEPUDA and many other pieces of legislation, by expressly providing for the characteristics of gender identity and intersex, in addition to the traditional grounds of sexual orientation and gender. The inclusion of such characteristics can only be regarded as adding to legal and social certainty regarding the recognition, protection and enforcement of LGBTI rights. Further, it removes the need to adopt a broad approach to the interpretation to the terms of "sexual orientation" and "gender" in order to accommodate the rights of LGBTI individuals. Therefore, the use of the specific characteristics acts as a reaffirmation of the recognition of the rights of the LGBTI community and will promote awareness of this recognition among law enforcers, and the population in general.
In addition to adding greater certainty and reinforcing recognition, the Hate Crimes Bill seeks to provide the protection and the achievement of justice for those who are discriminated against for possessing various LGBTI characteristics. Based on the definition of hate crime and hate speech, it is clear that any unlawful "corrective" action taken against a member of the LGBTI community based on their sexual orientation, gender identity or sexual differentiation, including corrective rape, gender based violence or the communication/promotion of such violence, may constitute a hate crime or hate speech within the scope of the Hate Crimes Bill.
The Hate Crimes Bill provides that any person who commits a hate crime is guilty of an offence and liable, once convicted, to a sentence as contemplated in s6(1) of the Bill. Further, any person who attempts to commit, or performs, any act aimed at participating in the commission of a hate crime is guilty of an offence and is liable, once convicted, to a sentence as contemplated in s6(1). Section 6(1) provides that any person who is convicted of an offence referred to in s3 is liable as contemplated in s276 or s297 of the Criminal Procedure Act. These sections allow the court to sentence the person and impose a conviction it considers appropriate and within that court's penal jurisdiction.
Section 6(3) of the Hate Crimes Bill states that any person guilty of hate speech is liable, in the case of a first conviction, to a fine or to imprisonment for a period not exceeding three years, or to both a fine and imprisonment; and for any subsequent conviction, to a fine or to imprisonment for a period not exceeding 10-years, or to both the fine and imprisonment.
The criminalisation of hate crimes and hate speech committed against the LGBTI community further ensures that perpetrators are held accountable and reinforces commitment to justice. The imposition of a fine or imprisonment will further act as a deterrent, as perpetrators of "corrective" activities will be mindful of the sanctions that will flow from such actions.
The introduction of the Hate Crimes Bill seeks to broaden the protection afforded to those in society, especially the LGBTI community, whose constitutional rights have traditionally been restricted. The Hate Crimes Bill not only reaffirms the recognition of and the need to protect LGBTI rights, but also seeks to ensure that perpetrators of Hate Crimes are prosecuted.
In conclusion, while the Hate Crimes Bill may be flawed in various respects, its potential positive impact, especially in the context of the LGBTI community, must not be ignored. By broadening definitions, the Hate Crimes Bill has the potential to extend protection and remedy the deficiencies in previous legislation effectively, and allows for the realisation of the LGBTI community's fundamental constitutional rights to equality, dignity and security of person.
Bowles is a a candidate attorney at Hogan Lovells South Africa. The supervising Partner was Candice Pillay.