Knowledge is power and, as social institutions, universities are uniquely positioned to advance and disseminate knowledge through their research and teaching activities, including those that are inconvenient or critical.
Teaching generally involves the transfer of established knowledge informed by research which, in turn, is based on critical thought, discovery and creativity. This process, which pushes existing boundaries of knowledge or reason, evidently requires academic freedom and is therefore under severe threat from the so-called “Hate Speech Bill”.
Without being overly philosophical, the notion of academic freedom, for both academics and students, is a vital tool for social justice and an essential component of accountability in democratic South Africa. So important, in fact, that the right to freedom of expression, in section 16(1)(d) of the Constitution, specifically includes “academic freedom and freedom of scientific research”. Without the uncoerced intellectual freedom to exercise our basic rights of freedom of expression and of thought, opinion and belief, we risk a return to anti-democratic authoritarianism.
Let me be clear, I am not advocating for unfettered or unlimited expression of academic freedom. A proportional balance must always be struck between competing rights or interests — this is done using section 36 of the Constitution. In addition, section 16(2) of the Constitution includes a specific limitation clause applicable to the freedom of expression.
My concern is that any restrictions on fundamental human rights, such as freedom of expression, should always be connected to a very high threshold. Disconcertingly, the pragmatic ease with which the right to freedom of expression will be criminalised by the proposed Prevention and Combating of Hate Crimes and Hate Speech Bill, puts it on a collision course with academic freedom.
South Africa already has both criminal laws (such as crimen injuria) and civil laws, such as the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 that have been used to combat hate speech. However, the Hate Speech Bill takes this a step further and into murky waters by proposing to criminalise expressions it deems to be “hate speech”, with a prescribed sentence of a maximum eight years’ imprisonment and/or a limitless fine.
Before focusing on the specific effect on academic freedom, let me highlight a few salient shortcomings regarding the three main elements of the “offence of hate speech”.
First, the definition of “harm” is descriptively broad and does not require a direct causal link between the speech and the harm suffered. As long as the expression could reasonably be construed as being potentially harmful or inciting harm, it is sufficient. As a result, anything from an opinion to criticism could reasonably be construed as “potentially harmful”.
Second, for purposes of criminal sanctions, the element of “hate” requires legal certainty. Without clarity, courts will have to make decisions based on inherently speculative inferential reasoning regarding a perpetrator’s subjective mindset. At what point does a dislike or preference constitute “hate”?
Third, while the extensive list of “grounds” may seek to be as inclusive as possible, being overly inclusive results in being pragmatically divisive. In some instances, this is due to the socially fluid and fast-changing nature of concepts such as gender identity and sex characteristics and, in other instances, this is due to the inherent difficulty of ambiguity in concepts such as social origin and religion.
Considering the shortcomings mentioned above, there is an inevitable collision between academic freedom and the proposed Hate Speech Bill. This is despite the inclusion of the exemption clause — clause 4(2)(b) — which is problematically and confusingly drafted, rendering it effectively self-defeating.
This woeful lack of protection means that, as an academic, you can transfer knowledge to your students, but you are effectively warned to refrain from encouraging critical thinking and engagement because it promotes diverging views. Beyond the classroom, how can we express critical views about our government’s management of, for example, gender-based violence, without potentially undermining social cohesion or offending diverging views of gender and gender identity?
The right to equality and non-discrimination (section 9 of the Constitution) should never be construed as the right to be free from criticism or inconvenient opinions. Free public discourse and constructive academic discussion depend on respect for a diversity of views, whether unpopular or even somewhat offensive. Enacting the Hate Speech Bill as is will result in crossing the Rubicon to an overzealous censure of academic freedom.
Dr Werner Nicolaas Nel is a senior lecturer in the Department of Procedural Law, Faculty of Law, at the University of Johannesburg. His core teaching competency is criminal justice (both national and international) and he lectures criminal procedure, introduction to law, and co-lectures in international criminal law.
