The upcoming Hate Crimes Bill: A welcome development in the fight against xenophobia and hate crimes in South AfricaPosted: 5 August, 2016 | |
Author: Gideon Muchiri
LLD student, Department of Jurisprudence, University of Pretoria
The Department of Justice and Constitutional Development (DOJCD) of South Africa is working on the Prevention and Combating of Hate Crimes Bill, due for tabling in Parliament in September 2016. This Bill, if enacted into law, will strengthen the role of law enforcement officials including the police, the National Prosecuting Authority (NPA) and courts in holding perpetrators of hate crimes, including xenophobic conduct, legally accountable for not only the criminal acts committed, but also for the hate motive. The new law will foster a rights-based approach to enhancement of the rights of victims and thus send a clear and unequivocal message to the society that crimes motivated by hate and xenophobia will not be tolerated in South Africa and are subject to punishment.
May 2016 marks eight years since the 2008 country wide xenophobic violence rocked the country resulting in the deaths of 62 people. Impunity for xenophobic conduct and the weak application of rule of law in the country were found to be some of the main reasons why the xenophobic attacks and indeed hate crimes recur in various parts of the country.
Xenophobia remains a serious legal and human rights problem in South Africa for which pragmatic interventions are required. It has been noted that widespread public ignorance of how hate crimes such as xenophobia manifest as distinct offenses often diminishes the ability of law enforcement agencies to deal with them effectively. Xenophobia and other hate crimes are not just normal crimes; they are “message crimes” intended to speak to the entire “hated group”. That is why is has always been important to isolate hate crimes from normal criminal conduct and address them with a specific law.
In addition to the lack of a hate crime law, South Africa does not have a proper monitoring mechanism for xenophobia related crimes. It is practically impossible to determine the number of deaths attributed to it or even the true cost of xenophobia in the country. Responses to xenophobia and other bias-motivated crimes have not always been adequate. This proposed law is an acknowledgement that South Africa is ready to confront and slay the dragon that is xenophobia.
Jurisprudence from South African courts shows that xenophobia related cases have been prosecuted under the criminal justice system. The SA Equality Act, the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) as well as section 9 of the Constitution are some of the tools that have been available to the state to use to fight hate crimes such as xenophobic conduct. However, neither of the two is specifically tailored to fight xenophobia. PEPUDA’s provisions only indirectly mention xenophobia.
It has been difficult to get convictions for xenophobia-related offenses tried under the current criminal justice system. Landau and Misago, writing in 2009, decried the overt lack of interest demonstrated by the NPA to prosecute xenophobia related cases. It is important to note that the NPA has prosecuted only a “handful” of xenophobia related cases since 1994. Very few perpetrators were charged and “even fewer” being convicted.
There has also been the problem of apparent bias or even focus by the State and its institutions in fighting racism and racial discrimination at the expense of xenophobia and other hate crimes. PEPUDA has severally been applied to fight racial discrimination and racist conduct. A good example is the high profile case of Ms Penny Sparrow, in which the Equality Court in KwaZulu Natal ordered her to pay a civil remedy of 150,000 Rands fine for hate speech. The new law brings some focus to other hate crimes.
At the present time, the police are inhibited and often do not gather enough evidence about the hateful motive in xenophobic attacks which is necessary to secure convictions. By specifying xenophobic conduct as a distinct hate crime, the new law will give law enforcement officials impetus to seek relevant evidence to improve the chances of conviction for hate crime offenders.
Clause 4 of the new Bill creates the offense of ‘hate crimes’ arising from criminal conduct which is motivated by unlawful bias, prejudice or intolerance. Usually, prejudice or intolerance that leads to the commission of hate crimes is motivated by inert qualities of the victim which are real or perceived. The new Bill provides that these qualities will include but are not limited to the following attributes: nationality, race, sex, sexual orientation, gender and gender identity, ethnic or social origin, religion, belief, culture, language, birth, HIV status, occupation or trade.
The offense of hate speech is created under Clause 5 of the new Bill. The clause outlaws intentional advocating for hatred against any person or group of persons, based on the same grounds as listed in clause 4. This will handily deal with anti-foreigner rhetoric, public mobilisation and hateful speeches which have led to xenophobic violence in the past.
That other hate crimes are also covered by the new Bill is a welcome development. Normally, there are two main elements that characterise hate crimes. The first factor is that the outward act is considered a criminal act under existing criminal law of South Africa. These include murder, assault, destruction of property, looting, hate speech, rape. Secondly, for conduct to be considered a hate crime, it should be inspired or motivated by hatred or prejudice based on an inert aspect of the victim. These aspects may include, as is the case for xenophobia, the nationality of the victim. For other hate crimes sexual orientation, race, religion among others, are the motivating factor.
Furthermore, the new legislation will provide the South African law enforcement agencies the legal basis needed to obtain better evidence to unearth the prejudicial motive in cases of hate crimes. For instance, the police will have the legal mandate to obtain mental assessment to prove the offenders were motivated by hate attitude. Other players such as health care providers will be able to cooperate more if they know that the evidence they provide to law enforcement is of value. Judiciary officials will have to develop some guidelines on handling of hate crimes.
The new law will also enhance the prospects of improved monitoring of xenophobia attacks and hate crimes. It will be easier for the NPA to not only keep track of trends and but also the records of the number of certain types of crimes prosecuted, severity of the crimes, the number of convictions et cetera. Better tracking and monitoring will help in mapping out hotspots of hate crimes which will in turn help in preventing the occurrence of number of hate crimes.
The South African Constitution guarantees equality and an array of human rights for all. The Constitution states that “to achieve equality, legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination, may be undertaken”. This constitutional provision will be handily fulfilled with the coming into place of the new law.
For refugees and other categories of non-nationals, religious racial minorities, minorities, lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, disabled persons and others targeted for hate crimes, this Bill is a game changer which will promote and protect their Constitutionally-guaranteed rights.
 http://www.justice.gov.za/m_speeches/2016/20160330_HateCrimes.html#sthash.vhQulwe4.dpuf (Accessed 19 June 2016).
 South African Human Rights Commission (SAHRC) “Report on the SAHRC investigation into issues of rule of law, justice and impunity arising out of the 2008 public violence against non-nationals” (2010) 8.
 Centre for Human Rights at the University of Pretoria (CHR) “The nature of South Africa’s legal obligations to combat xenophobia” (2009) 81.
 Misago J P, Landau L & Monson T Towards tolerance, law and dignity: Addressing violence against foreign nationals in South Africa (2009) 13.
 Landau L & Misago J P “Who to blame and what’s to gain? Reflections on space, state, and violence in Kenya and South Africa (2009) 44 Africa Spectrum 103.
 The Constitution of the Republic of South Africa, 1996, s 9 (2).
About the Author:
Gideon Muchiri is a LLD student at the Department of Jurisprudence, Faculty of Law, University of Pretoria.