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Keynote address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Annual General Meeting of the Hate Crimes Working Group, Cape Town, 30 March 2016

Good morning, I am very pleased to be able to meet with you again and to share with you the progress that has been made since we last met.
Hate crimes happen, in all communities, in all countries.  Hate speech happens, in all communities, in all countries.

Just this past weekend a Muslim shopkeeper who wished Christians a happy Easter on Facebook was killed in Glasgow. Scottish police have arrested a Muslim in what they call a “religiously prejudiced” attack.

Last week an acclaimed University of Auckland hate crimes professor compared an Israeli company employing Palestinians to a German company employing Jews. His comments were viewed as anti-Semitic and he is now leaving his job.

Our own country has, no doubt, also seen its fair share of hate crimes and hate speech – racism, violence against LGBTI persons, attacks on foreign nationals.

Just last night foreign-owned spaza shops were attacked in Katlehong.

Zimbabwean national, Leroy Maisiri, wrote a poem in response to attacks on foreigners in Grahamstown last year called “Dear Mama” – a few lines from it:

“36 whatsapp messages, 16 missed calls later and mama still wants to know how I am.
I try and tell her:
I am okay, I am alive, I am indoors, I won’t go outside again.

42 whatsapp messages later, 23 missed calls and mama still wants to know how I am.
In the midst of loudness have you ever experienced days without sound, in the midst of feet stomping, drum beating, spear handling, have you ever felt the weight of silence.

As the mobs approached, with the snitch of hatred, intention to kill, to end a life based on difference, I have to imagine that type of fear is paralyzing.

I am okay, I am alive, I am indoors, I won’t go outside again.

The story of a foreigner brings backs remnants of Abraham’s story, Moses’ story, Joseph’s story.
Even Jesus as an infant had to flee into Egypt and become a foreigner.

62 whatsapp messages, 30 missed calls, mama desperately needs to know how I am,
the quivering fear in her voice, her insistence for me to distance myself, to abandon heroism.
To “Just stay put”, “It is well, but stay put”.

Mama wants to know how I am
I am okay, I am alive, I am indoors, I won’t go outside again.
I am okay, I am alive, I am indoors, I won’t go outside again.”

No person - regardless of race, sexual orientation, nationality, language, religion or whatever reason – should ever fear having to go outside.

No person should ever feel they must stay indoors or hide because of who they are.

That’s why we need the new Bill.

As you know, the Prevention and Combating of Hate Crimes Bill – the version of the Bill without the provisions dealing with hate speech - was made available to the Working Group in September last year. Comments of the Working Group were received in November.

The Bill initially excluded hate speech and the criminalisation of unfair discrimination from the ambit of the Bill because of the sensitivities and complexities involved, particularly in a multi-cultural country such as ours. 

It was also argued that there is already a civil remedy for hate speech and unfair discrimination, as contained in the Promotion of Equality and Prevention of Unfair Discrimination Act.

However, the events we witnessed in January this year highlighted the need to include hate speech, as a criminal offence, in the Bill. 

The Bill, as submitted to the Working Group, has thus been adapted to include hate speech.  It incorporates the comments of the Working Group and will now subjected a broad public consultation process.   The revised Bill is now called the Prevention and Combating of Hate Crimes and Hate Speech Bill. 

Clause 4 of the Bill creates an offence of hate crimes. 

A hate crime is committed if a person commits any recognised offence, that is a common law or statutory offence (referred to as the “base crime or offence”) and the commission of that offence is motivated by unlawful bias, prejudice or intolerance. 

The base offences most often committed against victims of hate crimes are offences relating to the physical and emotional integrity of the person, as well as offences against the property of the victims, for instance murder, attempted murder, rape, assault in all its various manifestations, robbery, housebreaking, malicious damage to property, crimen injuria and arson.

The prejudice, bias or intolerance towards the victim of the hate crime would be because of one or more of the following characteristics, or perceived characteristics, of the victim or the victim’s next of kin: Race, gender, sex, ethnic or social origin,colour, sexual orientation,religion,belief,culture,language,birth, HIV status,nationality, gender identity, intersex, albinism and occupation or trade.

Nationality, gender identity, HIV status, albinism, intersex and occupation or trade are not mentioned in section 9(3) of the Constitution - but it has been argued that they should be included in the Bill because of the hate crimes that have been committed on the basis of these grounds. This view is endorsed by our Department.

Clause 4 also criminalises any conduct which amounts to an attempt, incitement, instigation and conspiracy to commit a hate crime.

Clause 5 creates an offence of hate speech.  

It provides that any person who - by any means whatsoever, in public - intentionally advocates hatred of any other person, or group of persons, based on the same grounds as listed in clause 4, in a way that incites others to harm such person or group of persons, whether or not such person or group of persons is harmed, is guilty of the offence of hate speech. 

Harm is defined to include damage to property – in other words, economic harm - in addition to physical harm.  It also includes “mental or psychological” harm.  The reference to harm is in line with section 16(2) of the Constitution.

Because of the sensitive and often complex nature of cases of this nature, clause 5 also requires the relevant DPP to authorise any prosecution in writing.

The opinion is held that the phrase “by any means whatsoever” will include all forms of communication, whether by statement, broadcast, advertisement, SMS, WhatsApp, Twitter, Facebook, photograph or Instagram, among others.

We are confident that this will address some of the vitriolic comments we see so often on social media and online.

In the drafting of the Bill we looked at hate crimes laws in other countries, such as Canada, Kenya and Australia.

The experiences of other countries in relation to hate crimes provide useful pointers towards successful implementation.

For example, the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 is a US federal statute that provides funding and technical assistance to state and local jurisdictions to help them to more effectively investigate and prosecute hate crimes.

In terms of the Shepard/Byrd Act, the Federal Bureau of Investigation has tracked thousands of hate crimes under the parameters outlined by the Act. The FBI’s latest Hate Crime Statistics Report, for 2014, showed that the three highest categories of hate crimes were on the basis of race (48%), sexual orientation (18%) and religion (17%).

Internationally, anti-hate crimes activists often argue that government responses to the rise of bias-motivated violence have not always been adequate.

The Organization for Security and Co-operation in Europe (OSCE) collects hate crime data. In 2014, 43 states submitted official information, 36 states submitted official statistics, only 17 states submitted police statistics per bias motivation.

If one looks internationally, it is clear that having a hate crimes law on the statute book is not enough. The success of the law stands or falls on implementation – in other words, official monitoring and reporting mechanisms, adequate police training and the strengthening of a country’s overall criminal justice response.

As Tennessee Williams wrote “hate is a feeling that can only exist where there is no understanding.” Educational and community engagement programs are often used to foster an understanding of diversity.

Countries like France, Sweden, and the United Kingdom have seen the benefit of major initiatives by law enforcement and prosecution services to introduce training and procedures making the implementation of hate crime legislation a major priority.

Ladies and gentlemen,

Ignorance breeds fear; fear breeds hatred.

The Bill is one of the major building blocks in building a society free of hate crimes and prejudice.  I want to thank the Working Group for your invaluable inputs and your support thus far and as we go forward.

It is concerning that opposition parties have already commented in the media on Tuesday, that they are “sceptical” about the Bill. This without, of course, even having seen the Bill. The DA’s Mmusi Maimane has accused us of “making racism a political issue and therefore deciding to table it in Parliament close to the elections.” He says that the current legislation is adequate. And the IFP Chief Whip has said the ANC was acting impulsively.

If anyone fails to see the extent of racism, hate crimes and hate speech in our country, they are simply out of touch with reality.

The Bill will be ready to go to Cabinet within weeks.  President Zuma in his Human Rights Day address gave an undertaking that the Bill will be tabled in Parliament by September this year.

Our Department will leave no stone unturned to ensure that this is done.

I thank you.