Amid growing public discontent over racist incidents in South Africa and calls for legislation to criminalise racist acts, civil society organisations and politicians have warned of a long and arduous road before such legislation will see the light of day.
In January this year, the office of the chief whip of the ruling African National Congress (ANC) raised the possibility of enacting legislation that would criminalise racist behaviour or the glorification of the country’s race-based apartheid past.
During last week’s post cabinet media briefing, acting Minister in the Presidency, Nosiviwe Mapisa-Nqakula, also warned that the increasing incidents of racism could unravel the country’s hard-won democracy, indicating cabinet supported moves by the justice department to introduce legislation to outlaw racism, especially hate speech.
Anti-apartheid icon Ahmed Kathrada weighed into the debate, saying on Monday: “The word ‘k**f*r’, despite being outlawed in South Africa today, is evidently still in use. It retains all the maliciousness and hatred that it encapsulated during apartheid.”
Kathrada said in the wake of the most recent racist incidents, several of which featured the k-word, that tougher action needed to be taken against offenders.
“South Africans can no longer accept half-hearted apologies and excuses that having black friends absolves one of racism,” he said.
“I am of the view that existing legislation against racism must be strengthened,” Kathrada said. “Civil society organisations and political parties must canvass parliament to do more in terms of developing stronger policy against racism.
“Law will not change people’s attitudes overnight, but it certainly will clamp down on overt displays of racism.”
However, several legal experts have warned that such legislation would have to be thoroughly tested and that it could be as long as two decades before it came to pass.
The Institute for Justice and Reconciliation (IJR) has been involved in the process to bring to life South Africa’s National Action Plan (NAP) – the plan the South African government committed to introduce during the 2001 United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (the Durban Conference) – as a legal framework to deal with racism in general.
According to the IJR, the idea of criminalising racism had also been expressed as part of the National Action Plan, but it warned that even if it came to pass it would only be in 15 to 20 years time.
South Africa in recent months has seen a number of ugly racist outbursts, especially on social media platforms, which has sparked huge public debate and anger as the country still comes to terms with its divided past, more than 20 years into democracy.
Penny Sparrow, Chris Hart, Matthew Theunissen, Mabel Jansen, and SPCA Matlosana branch manager Suzette Kotze have become infamous and instantly trending topics after making racist and unsavoury public comments.
Mathole Motshekga, who heads up the ANC’s committee which has been tasked to look at drafting legislation to act against racists, said they had gathered in April and were busy discussing the way forward.
“As it will be a long process to implement the legislation I cannot assure South African citizens of when exactly the act will be functional, but as soon as the committee is agreeing on the matter, we will then arrange on briefing the public,” said Motshekga.
He said the ANC was deeply concerned about the continuing incidence of racism in the country.
While the ruling ANC was engaged in discussions around legislation to criminalise racist behaviour, there were a number of other initiatives already underway exploring similar themes.
These include the National Action Plan on racism, a project driven by South Africa government and led by the Department of Justice and Constitutional Development which sees a range of organisations meet to discuss the issue of racism and how best to tackle it.
The Department of Justice and Constitutional Development has received support and input from a number of organisations, including the Nelson Mandela Foundation, the Anti-Racism Network of South Africa, and the South African Human Rights Commission.
Danaline Franzman, chief director of social justice and participatory democracy for the department of justice and constitutional development, said:
“The NAP raises awareness of anti-racism. The National Action Plan will provide monitoring on on-going incidents of racism through establishing the rapid response team reporting to government officials.”
Franzman added that the plan would also entail the promotion of human dignity, raising awareness around issues of equality and discrimination and mobilising support from a wide range of people.
In addition, there was the Hate Crimes Working Group (HCWG), a multi-sectoral network of civil society organisations set up to spearhead advocacy and reform initiatives pertaining to hate crimes in South Africa.
Chairperson of HCWG, Sanja Bornman, said: “We are pleased that the hate racial crimes will finally be recognised in our society and legal system, and that specific legislation will define and introduce these crimes into our criminal justice system. Crimes motivated by racial hatred or prejudice, and intentional unfair discrimination will also be included in the law.”
However, Bornman, too, warned of the difficulties in passing such legislation.
“As a country we need to have conversations about this,” she said. “Wide debates are needed, and more people as possible should participate in public comments on the National Action Plan. A law that criminalises something does not necessarily put an end to it.
“But that does not mean we should not have a law,” she added. “It is a crime to assault someone and assault has not stopped in South Africa. But that is no reason to get rid of the law. Having a law is an important message and statement on the values of our country and creates avenues for justice for victims. We need much more than a law, but a law is a great place to start.”
The IJR said: “Implementing this special legislation will never be the easy task as there are many aspects to be considered, not only the skin colour, but also the ethnicity, gender, religion and culture.”
It is hoped the National Action Plan to combat racism, racial discrimination, and other related intolerances would provide South Africa with a comprehensive policy framework to address racism and racial discrimination at both private and public level.
South African citizens can participate in the process by commenting and submitting their views to the National Action Plan against racism email, email@example.com. The closing date for comments is 30 June 2016.