Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP, at the Annual General Meeting of the Hate Crimes Working Group, Scalabrini Centre, Cape Town
Programme Director,
Chairperson and members of the Steering Committee,
Members of the Working Group,
Members of civil society, Chapter 9 institutions and government departments,
Ladies and gentlemen,
Friends.
In an article called “The psychology of hate,” Professor in Behavioural Science, Nicholas Epley, writes that “from slavery to genocide, society has shown a terrifying ability to disregard the personhood of others.”
In its simplest form hating means dehumanizing. Hate crimes mean denying human beings their very humanity.
Hate crimes are as old as human kind itself. The concept of “us” and “them” and the notion of identifying someone as “other” are not new. One almost invariably thinks of Shakespeare’s Merchant of Venice – a play which some scholars view as anti-Semitic, but is, in modern literature, rather viewed as a criticism of anti-Semitism itself. One thinks of Shylock’s plea for tolerance, an affirmation that we are all human beings, when he asks -
Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions?
Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is?
If you prick us, do we not bleed?
If you tickle us, do we not laugh?
If you poison us, do we not die?
Hate crimes are identity crimes, directed not only at the identity of the victim but also of the group to which they belong. A victim is thus often a symbol of a broader group of people. Although hate crimes can be perpetrated against anyone, it is often the more marginalised groups that are targeted. Hate crimes are different to other forms of crime not just because of the underlying prejudice, but also because of the traumatic effect that hate crimes have on the victims.
We are increasing living in a world that focuses more and more on difference, a world that it becoming increasingly intolerant. There is no shortage of hate crimes in our society. We know of violent attacks on, and so-called corrective rapes of LGBTI persons.
In December last year the SAHRC said that violence against foreigners in South Africa should now be referred to as “afrophobia,” and not xenophobia, with the latest research showing Africans are attacked and not Europeans.
Just this past weekend, we read about a group of boys from an agricultural high school in the Northern Cape who made a video of themselves brutalising a black pupil and raping him with a broom handle. The video allegedly shows a group of white pupils attacking the child. Four schoolboys have since been charged with rape and assault.
In another incident a man from Table View in the Western Cape who racially insulted, assaulted and spat in the face of his ex-girlfriend's domestic worker, was sentenced to house arrest for two years. He would be required to complete 70 hours of community service, with a minimum of 16 hours a month.
We have also observed in recent months, with concern, an increasing trend in the social media environment of expressions of hatred and intolerance. Have we no sense of compassion for one another, or a sense of social cohesion? We must ask ourselves these questions. What has gone wrong in society? And more importantly how do we address this as a societal response?
And the burning question you no doubt will want to ask is, in view of these incidents, where is the hate crime legislation?
The legislative process takes time. From the side of government, we have made significant progress in combating crime in general and hate crimes in particular.
So where are we at the moment? From the Department of Justice’s side, as you may know, we have established a National Task Team (NTT) to develop a National Intervention Strategy on LGBTI issues. This was done by the former Minister of Justice and Constitutional Development, Minister Jeff Radebe, after he received a number of petitions from civil society organisations. The aim of the National Intervention Strategy is to address so-called “corrective rape” and other forms of violence against LGBTI persons.
Our Department initiated engagements with key government departments and institutions to develop the National Task Team. The NTT was constituted by government departments, chapter 9 institutions and civil society organisations that specialise in issues related to LGBTI persons.
We significantly strengthened the participation of NGOs and civil society in the NTT through a process of consultative workshops with all provinces. A rapid response team was also established to track the pending cases in the criminal justice system, as well as to respond as soon as possible, to cases of violence being reported.
An intersectoral communication plan outlining a number of public education and communication initiatives has also been developed. This seeks to popularise inter-sectorial interventions aimed at addressing the violence committed against LGBTI persons, to promote partnerships amongst government, civil society, business and the media in the fight against gender based violence and to encourage communities to report these crimes.
A television advert flighted earlier this year conveyed a national message to South Africans to promote equality, dignity and freedom protected under the Constitution. The television advert was first flighted during the launch of the LGBTI Programme in April 2014. With SABC, 13 million people were reached through the LGBTI TV advert, a further 10 million people through eTV and Community Radio reached a further 6.1 million people.
The National Intervention Strategy followed a multi-sectoral approach. It included government and civil society and related organisations and addresses sexual orientation-based violence and gender-based violence against LGBTI persons through two programme areas, namely Prevention and Response, on a national level.
The ultimate aim is for national, regional and municipal policies, strategies, plans, budgets and legislation to have an integrated, mainstreamed approach to eradicating sexual orientation-based violence.
The key motivations for the proposed changes to the law are included in a draft policy framework. At the moment, for the crimes of murder, assault and rape against specific persons or groups, the applicable law still provides for murder as murder and rape as rape and so forth.
But is it important to stress that our courts are proactively, and even in the absence of specific hate crimes legislation, beginning to address hate crimes. In the recent case involving the conviction and sentence of the man who murdered Duduzile Zozo, Judge Tshifiwa Maumela acknowledged the problem of hate-crimes in South Africa. He sentenced the man responsible for killing Duduzile Zozo, a young lesbian from Thokoza, to an effective 30 years in prison.
In his ruling, Judge Maumela said he wanted to make a difference to all vulnerable groups of society “in (his) own small way.” Judge Maumela said a harsh sentence for the 23-year-old would serve as a warning to those who threatened the vulnerable and he told the perpetrator to reconsider his attitude towards gay people while he served his sentence. “Lead your life and let gays and lesbians be,” he said.
In this regard, it is important to address the misconception that, in the absence of specific hate crimes legislation, those who commit hate crimes will get away with it. They do not get away with it - they still face the full might of the law, as the racial assault case that I referred to earlier and the Duduzile Zozo case proves. Our courts are handing down appropriate sentences and where prejudice, hatred or bias is established, this is often found to be an aggravating factor, used to impose a harsher sentence.
Our department has made significant progress with the Policy Framework on Combating Hate Crimes, Hate Speech and Unfair Discrimination. The Policy Framework is a result of intense research and will provide for the development of measures to combat hate crimes, hate speech and unfair discrimination.
The Policy Framework seeks to introduce a further category of newly-defined hate crimes in instances where the conduct would otherwise constitute an offence, recognised at common law or by statute, and where there is evidence of a discriminatory motive on the basis of characteristics such as race, nationality, religion, sexual orientation and the like.
The Policy Framework has largely been finalised. The next step is to open it for public debate. But we want to have as wide a public participation process as possible on this and will seek to consult civil society and members of the public on the draft Policy Framework.
We envisage that the debate will be highly contentious, because of the element of hate speech and the balance that needs to be achieved between freedom of speech and prohibiting hate speech. And in our country, the line between freedom of speech and hate speech is a fine one. One only has to think of some of our liberation struggle songs.
Some may argue that it forms part of our history and our culture of liberation, to others it may constitute hate speech. Or when a pro-Palestinian organisation drops a pig’s head at a prominent retailer in order to protest the availability of Israeli goods, is that freedom of speech or is it hate speech?
On this issue of striking a balance between freedom of speech and hate speech, journalist Ferial Haffajee makes some valid points in her City Press article titled “Treading the tight line of tolerance.”
Discussing the fatal attack at satirical French magazine Charlie Hebdo earlier this year and how this impact on the issue of free speech in South Africa, Haffajee says: “South Africa has, by and large, weighted the right to dignity (even of the powerful) more highly than it has free expression. With our past, South Africa has established an almost zero-tolerance approach to offence and provocation.
The Paris shootings were numbing, but it was not long before Charlie Hebdo’s provocative style was held up to the toughest South African scrutiny in columns and on social media this week. It’s how we roll.
Our society would not countenance a Charlie Hebdo here – if there was one, it would not survive commercially, and would be subject to court and other civic action. Tolerant and open societies must allow for offence and provocation, but set limits for when this tilts into hate speech – that limit must be set by the courts.”
In addition to the draft Policy Framework, our National Action Plan Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (“NAP”) has been revised as decided by the Cabinet. The public is to be consulted on the revised text and the NAP is currently being revised and edited by the Foundation for Human Rights, so as to be in line with new UN Guidelines.
Developing specific legislation on hate crimes will have a number of advantages. It will provide additional tools to investigators and prosecutors to hold the perpetrators of hate crimes accountable and will provide a means to monitor efforts and trends in addressing hate crimes. But it also doesn’t mean that our hands are tied, in the absence of specific legislation. The work done by our LGBTI Task Team is an example of what we can do in the interim.
Another facet of the debate is that there are some who will argue that we do not need specific hate crimes legislation - as the law already charges perpetrators with e.g. rape, murder or assault. And, they argue, if a motive of prejudice or bias is established, then it becomes a factor to be considered in sentencing. This is another aspect that we shall have to debate when public participation takes place.
It is also interesting to look at international developments in the area of hate crimes legislation. Last year, the Home Office and the Ministry of Justice in the UK published a study on hate crimes in England and Wales. The data covered police-recorded hate crime, which shows that between 2013 and 2014, 44,480 hate crimes were recorded by the police. This is an increase of 5% compared to the previous year, of which:
- 84% were race hate crimes
- 10% were sexual orientation hate crimes
- 5% were religion hate crimes
- 4% were disability hate crimes
- 1% were transgender hate crimes
According to the study it is possible for one hate crime offence to have more than one motivating factor which is why the above numbers sum to more than 44,480 and 100%. It’s interesting to note that they only have 5 specified hate crimes categories and there were increases in all 5 categories, being race, religion, sexual orientation, disability and transgender identity.
The UK Law Commission released a report in May last year and recommended reforms to ensure that their criminal justice system is able to make a stronger and more coherent response to hate crimes.
The Commission recommended that a review should be conducted to ascertain how the criminal justice system could best provide protection for those subjected to crimes of hostility, which characteristics should be protected by specific criminal offences, how such characteristics should be identified, and what role sentencing should play alongside the offences.
Their courts also address hate crimes through enhanced sentencing and their courts have the power to increase the sentence imposed for any other crime where there is hostility, based on any of the five hate crime characteristics.
But the Commission’s research found that enhanced sentencing powers were being under-utilised, because the hostility element of hate crime was often not investigated fully and the courts were not given the evidence needed to enhance sentencing.
These are also factors which we would also have to consider in relation to our draft policy framework. So, in short, there are many issues that need to be considered and consulted upon and is thus not something that we are, from the side of government, prepared to rush to push through.
Ladies and gentlemen,
In concluding, I wish you all a very fruitful AGM and, from the side of Government, I want to commend the Working Group, in particular for the work being done in monitoring hate crimes.
The Hate Crime and Bias Monitoring Form, which was developed with the aim of collecting information about the nature and impact of hate crimes in South Africa, is a valuable tool in the fight against hate crimes. This assists us in government by providing statistical data to support and develop policies and to improve our response to hate crimes.
I thank you.
