It’s been more than a decade since calls were first made for South Africa to enact hate crime laws, in large part motivated by horrific attacks against LGBTIQ people.
Finally, in October 2016, the government published the Prevention and Combating of Hate Crimes and Hate Speech Bill. The first draft was put out for comment and the Department of Justice received some 75,854 submissions from institutions and individuals. The Bill was revised and on 14 March 2018 a second version was approved by Cabinet.
Once made law, it will allow judges to consider prejudice, bias or intolerance (such as on the basis of race, religion, culture, gender identity or sexual orientation, among others) in a crime as an aggravating factor in the sentencing of perpetrators.
Activists argue that while it is indeed already illegal to assault, murder and rape, the consequences for crimes motivated by hate need to be more severe than ordinary crimes. This is because, they say, hate crimes are ‘message crimes’ that harm entire communities, making millions feel unsafe to live their lives normally.
The Bill also commits the authorities to collect and report details about hate incidents for the “effective monitoring, analysis of trends and interventions and to provide quantitative and qualitative data” on hate crimes.
More controversially, the legislation further seeks to criminalise hate speech with up to three years in jail, a provision not supported by many who believe it is too broad and unconstitutional and that there are already sufficient provisions in the law to deal with hate speech.
We asked the Hate Crimes Working Group, which monitors hate crimes and has lobbied for hate crime laws, for an update on the Bill and when it is expected to come into effect.
What is the status of the Prevention and Combating of Hate Crimes and Hate Speech Bill?
At the moment, the Bill has been approved by Cabinet, tabled in the National Assembly and referred to the Portfolio Committee on Justice and Correctional Services. Right now it is still in the portfolio committee and we are waiting for it to be opened up for public comment.
What will happen next? How far away is it from becoming law?
Next will be opening it up for public comment [again]. Once this happens, it will be published in the Government Gazette and any individuals or institutions who wish to comment will be able to make submissions sharing their views and concerns. After taking into account the opinions of the public and civil society, the department will determine whether the Bill should continue as is or be subject to further research and revision. The amount of time before the Hate Crimes Bill becomes a law is not definitive. It could be opened for public comment any day now and the length of time for which it will remain that way is undetermined as well. It could be 30, 60 or even 90 days. A longer period of time is desirable but for right now we are not sure that will be the case.
How does the Hate Crimes Working Group feel about the current version of the Bill?
The Hate Crimes Working Group is absolutely thrilled to have substantial hate crimes legislation so close to becoming law. While there are several things about this Bill that could be improved, the Bill that is about to be put out for public comment is an enormous step in the right direction, and a clear signal that we are attempting to live up to South Africa’s ideals of equality and justice.
What could be improved in the Bill?
In our submission to Parliament on the 31 of January 2017, we outlined some of our major qualms with the Bill and offer suggestions for its improvement. One such issue is the lack of a clear definition of transgender, which our document provides. Similarly, there is no definition of racism, which should be added. Along these lines, there are several other issues that need to be addressed before the Bill becomes law.
Are there still concerns about the hate speech aspects of the Bill?
Some do still have questions about the incorporation of hate speech into the Bill but, while this is important, we are more focused on ensuring that we get protection to vulnerable groups as soon as possible in order to prevent hate crimes and to save lives. Section 16 of the Constitution provides that the right to free speech does not extend to “incitement of imminent violence,” or “advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm,” which is why intimidation and threatening someone with a weapon are already criminal acts.
Are there other concerns?
While the Bill lays out important steps for collecting and analysing data on the reporting and prosecution of hate crimes, it is not currently costed. Much of the prevention section of the Bill requires that the public and relevant officials (judges, police officers, prosecutors, etc.) are educated and trained on the social context and legal status of hate crimes. However, these education campaigns still need to be accounted for in the various departments’ budgets. The Department of Justice and Constitutional Development has released a memo explicitly stating that implementation of the Bill won’t cost anything, and we take issue with this assertion.
Is the Hate Crimes Working Group satisfied with the process of enacting the Bill so far? Has government listened and heard civil society?
We are absolutely thrilled that the Bill is moving through Parliament again, after remaining completely stagnant for several months. They have listened to us in a way that we are happy with. However, we are not entirely happy with the slow rate of progress after its introduction to parliament. Parliamentarians claim that they need more time in committee before the Bill is put out for public comment. We do not agree with this due to the obvious fact that they can discuss the bill in committee concurrently with the period of public comment. They should put it out for comment as soon as possible to speed up the process. The longer it takes for the Bill to pass, the longer victims of hate crimes will go without justice.
Does the criminal justice system have capacity to make the Bill’s provisions a reality?
We believe that the criminal justice system indeed has the capacity to increase fines and sentencing lengths for the people who are convicted of hate crimes and that this is an area which requires focus on the part of our government. The constitutional guarantees of safety and equality are paramount to South African society. Furthermore, the wording of the Bill means that people can only be prosecuted for a hate crime when they have committed an act which is already illegal under the law. Presumably, these people are already being prosecuted for their crimes, because it is already illegal to assault, rob, and murder people. We hope that the Bill will motivate the criminal justice system to follow through with investigations and prosecutions. The data regarding criminal motivation and demographics of a victim are already collected in police reports and simply need to be monitored.
What does the Hate Crimes Working Group plan to do in terms of further engaging with the legislative process?
Once the Bill is open for comment, the HCWG plans on submitting a written response and requesting a slot to present our opinions orally at Parliament. Depending on how long the Bill is initially opened for comment, we may also intervene by asking for more time. Given the significance of the Bill, it is important that members of the public are given enough time to familiarize themselves with the implications and respond. For the decision to be truly democratic, an appropriate amount of time must be allocated to allow for widespread participation.
Do you think that the Bill will succeed in what it sets out to do?
Sending a message that these crimes are not acceptable in South African society and tackling the impunity long associated with them is a good in and of itself. We fully intend to continue to work with the government to ensure that intervention and prevention programmes are properly implemented.