igh hopes
that the repeal of the
law crime
of criminal
– promised
by the ruling African
National Congress to take place in Parliament in April or May, 2016 – were
dashed when the draft repeal Bill had
not been submitted to Parliament by the
year’s end. Inquiries revealed that the
Ministry of Justice postponed tabling of
the Bill indefinitely because the repeal
could raise the possibility of unintended
consequences. No date has yet been set
for the Bill’s submission to Parliament.
The ANC’s recently established legal
research group that initiated the repeal
process had declared that defamatory
statements made through the media
should not be considered a criminal offence and civil litigation should be used
to pursue defamation claims. The continuing delay raised doubts whether the
ANC intends to proceed with the repeal.
Though criminal defamation is infrequently used in South Africa, similar
laws have been used and abused in
many other African countries to stifle
criticism of presidents and other political
leaders. In those countries, many editors
and journalists have been jailed – some
for lengthy periods – on charges brought
against them for publishing criticism of
government policies and conduct.
Many charges have been trumped up
while some have been based on allegations of publishing false news, where the
arbiters of the falsity are government officials. South African journalists fear that


So This is Democracy? 2016

in the climate of ruling party hostility towards the press the authorities could be
tempted to try to curb the critical press
with recourse to similar abuse of the
criminal defamation law.

Draft Hate Crimes Bill raises alarm
Journalists’ fears have been heightened
by the publication in the closing months
of 2016 of a draft Bill under the title
of Prevention and Combating of Hate
Crimes and Hate Speech.
Journalists and civil society organisations were dumbfounded by the content, which proposes sweeping inroads
on freedom of expression and freedom
of the media. Several organisations –
among them the SA National Editors’
Forum (SANEF), Freedom of Expression
Institute (FXI) and PEN South Africa –
have used the period provided for public participation to make highly critical
submissions on the Bill.
The offences outlined in the Bill are
framed extremely broadly, extending to
conduct and speech normally regarded
as irritating or even offensive but not
meriting a criminal charge. The Bill impinges on what would be regarded as
humorous commentary on the mores
of society and has alarmed some comedians. While one comedian supports
the Bill because too many people have
“gotten away with a slap on the wrist
for hate speech”, three of his colleagues
expressed grave concerns that the Bill is
“too broad and very restrictive” and that
it will prevent them from making critical jokes about the conduct of leading
politicians and officials.

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