South Africa probably enjoys some of the best legislative and policy protection against racial discrimination in the world. Our Constitution set in motion the creation of mechanisms for the prohibition of treatment suffered by the black majority under apartheid rule.
But, almost 25 years after democracy, the highest recorded grievances made to the South African Human Rights Commission each year relates to violations of the right to equality, with two-thirds of the complaints classified as race-related discrimination.
In response to this upsurge in hate speech and hate crimes, the government has proposed legislation that criminalises hate speech and hate crimes in terms of the Prevention and Combating of Hate Crimes and Hate Speech Bill. This comes amid our collective excitement at the advent of criminal sanctions against the likes of Vicki Momberg and the “coffin case” convictions, which have“bad” racists sent to jail. Our excitement is understandable. These racial slurs and assaults undoubtedly injure people’s very sense of humanity, their dignity, often in ways that are overlooked. Racism is nauseating, particularly in relation to our history of racial subjugation and the continued dehumanisation of black bodies.
The proposed criminalisation is, of course, intended to go a long way towards promoting social cohesion, in setting clear boundaries for what speech and conduct is acceptable in a rule-based democratic society, and in guaranteeing the prevention of the past atrocities of apartheid. Almost 25 years after democracy, we can all agree that there is a pressing social need to deal with the root of racism in this country once and for all.
Although the Human Rights Commission is not opposed to criminalisation as a tool to combat hate speech and hate crimes specifically, we must ask the broader question of what role criminalisation can play in undoing the structural “othering” of black bodies, or addressing white supremacy. To what extent is criminalisation effective in addressing the underlying economic, social and political power dynamic, in which black bodies tend to occupy the subservient and seemingly perpetual township,characterised by gross inequality between the black and white people?
The answer, supposedly, lies in whether one understands racism historically as a question of behaviour, which can be successfully undone by subjecting it to criminal sanctions. Or whether one understands racism as a question of economic, cultural and political power and oppression perpetrated through slavery, colonisation and apartheid, when racial slurs and assaults were but an expression or affirmation of this power dynamic.
If racism is understood as the latter, then we must ask ourselves:To what extent is criminalisation effective in addressing racism at its very core? How far will we go by hunting down the “bad” or “extreme” racist? If racism is understood in systematic terms, rather than as individual and spectacular incidents, why is our response one that targets the latter?
The truth is, there are other non-extreme manifestations of racism that fall short of hate speech or hate crimes. Some may even look harmless. These range from the seemingly innocuous complimenting of the way a black person speaks English; the way we design and maintain public spaces; the denial of spatial justice; requiring job applicants to be “bilingual”; the immediate and unspoken association of black people with danger, crime and incompetence; to hair policies in schools that require black girls to tame their Afros in a bid to look “neat”. Which of these will be subject to criminal sanction?
This clinical, short-sighted response to racism, through criminal sanctions, is problematic. People who materially benefit from and have an interest in perpetuating white supremacy and racial denialism, while harbouring hatred in their hearts, will never be subject to criminal sanctions. Even the threat of criminal sanction will not change people’s prejudices; it will merely function to stop people from expressing them.
There is an urgent need to understand and respond to racism in systemic terms. In April this year, the World Bank named South Africa as the most unequal country in the world. Today, 55.5% of South Africans live in poverty — and poverty intersects directly with race. Poverty thus has a predominantly black face. Surely these skewed poverty and unemployment rates between black and white people are a result of much more than hateful behaviour?
We need to investigate the extent to which criminal sanctions (either through the Bill or through crimen injuria cases) are effective as a tool to achieve a democratic society free from the denial of access to income-generating opportunities and from racially skewed unemployment and poverty rates.
We must acknowledge the limits of the law as a tool for delivering social justice in the form of criminal sanctions for “bad” racists. We ought to stop thinking about racism as spectacular incidences of hate speech and hate crimes and start having conversations about the systematic nature of racism and white supremacy — which is the real cancer eating away at our “liberated” society.
Gift Kgomosotho is research adviser to the deputy chairperson of the South African Human Rights Commission. These are his own views