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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, in the Debate on the Ministerial Statement on Racism by Minister of Arts and Culture, National Assembly, 24 May 2016

Madam Speaker
Honourable Members

This month, May, 20 years ago the Constitutional Assembly, in this very same Chamber, adopted a new Constitution. A Constitution which had as its first founding values human dignity, the achievement of equality and the advancement of human rights and freedoms.

The Constitution was a negotiated settlement. It put to an end a centuries’ old conflict – a conflict that most people, both here and in the rest of the world, thought was unachievable without a full blown civil war.

As we review our progress over these last 20 years, we can see that we have made much progress in addressing the imbalances of the past and improving the quality of life of all citizens.

But we still have a long way to go.  To overcome 364 years of conquest, colonialism and apartheid - in which wealth was accumulated by white people at the expense of black people - will take both time and concerted effort from all South Africans, especially those who are  beneficiaries of the past.

Yet, some in our country seem to forget how far we have come as a nation. They take it for granted - within their hearts and minds still live feelings of racial superiority, built on the mistaken belief that others are not worthy of the basic respect and human dignity that our Constitution guarantees.

We have seen, in particular over the past year, an increasing number of expressions of arrogance and racism by some. Black people are generally speaking still in less fortunate positions than most whites. Many do not have proper housing or basic services; they cannot afford tertiary education or are not able to secure financial loans. They are angry and their anger is understandable.   This anger is made worse by the fact that white people, who benefited from apartheid, are not using their skills or resources to advance those who were deprived in the past and they are not acknowledging that they benefited from the past. 

Instead, we find an increasing number of incidents of racist expression by white people ranging from assaulting a black woman in a largely white residential area because she was assumed to be a prostitute; to urinating on a black man; to the outrageous comments we find on social media.

Earlier this month, Adv Geoff Budlender write an article in GroundUp and said –
“Those of us who have been privileged need to show a little humility, and a little empathy.  
It’s not a matter of walking around stricken and paralysed by guilt.  It’s a matter of facing and acknowledging the fact that whether we asked for it or not, those of our generation who are white have been the beneficiaries of a monstrous system which created inequalities which persist today.  
Once we have acknowledged it, we can start to deal with it. Inequality creates anger, and denialism fuels the anger.”

And he is correct in what he says about white privilege. All white people benefited from apartheid, regardless of whether they supported apartheid or not.  It would be dishonest to deny it. Most of us – by that I mean, white people – went to good schools, our parents had decent jobs, which paid decent wages. Where there were no jobs, jobs were created for whites – either in the post office or the railways or somewhere else. We had access to the best infrastructure, such as schools and hospitals and our parents usually owned some form of property.

Many white people in our country admit that they benefitted from apartheid. They acknowledge it and therefore they deal with issues of race with greater sensitivity. But others do not and, in fact, continue to see themselves as the victims.

And let’s openly say how whites have continued to benefit since the end of apartheid. Who lives predominantly in upper middle class areas, and who lives predominantly in shacks? Whose children have parents to pay for their tertiary education and whose children cannot even secure a loan because their parents have no security to secure the debt?  From which population group do almost all school leavers or university graduates get jobs?

These are the issues that we need to talk about with each other, as fellow-South Africans, before we start calling each other names.

I found Adv Budlender’s article fairly mild.  What was shocking, however, was that Groundup had to remove the online comments in response to the article as the comments were derogatory, insulting and racist.  I’m sure these reflect the views of only a small minority of white people, but I find it astounding that anyone can have such views and then have the gall to publically express them. 

The Minister of Arts and Culture has outlined the steps that government is taking with regard to achieving Outcome 14 Nation Building and Social Cohesion.  As mentioned one of the initiatives is the development of National Action Plan against Racism, Racial Discrimination, Xenophobia and Related Intolerance (the NAP). The NAP is a comprehensive policy framework which provides programmes and strategies to combat racism, racial discrimination, xenophobia and related intolerance and is a step towards complying with the State’s obligation to give effect to the constitutional value of equality and non-discrimination.

Cabinet recently approved the Draft NAP for public comment and our Department is currently embarking on process of public consultation.

But is this enough?
It seems that, in spite of the public outrage from both black and white South Africans to the recent racist utterances, these utterances continue.  People seem to think they can just say sorry and then carry on as if nothing happened.  This is why we need to criminalize racism.

The proposed Prevention and Combating of Hate Crimes and Hate Speech Bill initially excluded hate speech from the ambit of the Bill because of the sensitivities and complexities involved, particularly in a multi-cultural country such as ours. 

However, the events we have been witnessing since January this year highlighted the need to include hate speech, as a criminal offence, in the Bill. 
The Bill will provide that any person who, by any means whatsoever, in public, intentionally advocates hatred of any other person, or group of persons, based on a number of grounds – in this case, race - 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, will be 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 provision is constrained by section 16(2) of the Constitution which provides that freedom of speech can be limited if the advocacy of hatred is based on race, ethnicity, gender or religion and if it constitutes incitement to cause harm.

Perhaps we should debate whether this limitation - namely the incitement to cause harm - is still appropriate or whether causing extreme hurt and offence is not enough to trigger the limitation.  In Germany and Rwanda, after the holocaust and the genocide respectively, laws were passed criminalizing the denial of the holocaust and the promotion of genocide ideology. 

Last year, in accordance with German law, a person was convicted and sentenced to 20 months in prison for denying the Holocaust.  In 2013 Rwanda passed its law against “genocide ideology” and related offences. The Act is far-reaching: one may not deny, justify or downplay the gravity of genocide, and one may not mock, insult or ridicule a genocide survivor.

The argument that this is something unknown in other jurisdictions is wrong. In fact, in the drafting of the Bill we looked at hate crimes laws in other countries, such as Canada, Kenya and Australia. France is currently working on a new bill that will criminalize the denial of the Armenian Genocide.

The Bill is one of the major building blocks in building a society free of racism, hate speech and prejudice.  It will be released soon for public comment, before it is introduced into Parliament.

If I may respond to the Democratic Alliance: On the 4th of January the Hon Mmusi Maimane expressed support for criminalising racist statements. He tweeted:“#PennySparrow comments are racist. They are an insult to me and to our party. We have too many of these in SA & we must criminalize these.”

But, 3 months later, in April, the Hon Maimane does a complete turn-around and tells the media that he is now “sceptical” about the Bill and that the ANC is making racism a political issue. The Hollow Man is at it again.  No policy position, breathing hot and cold, devoid of substance.

But then it’s not surprising, given that the DA never takes a stand against racism where its own members are concerned. We saw DA councillor Chris Roberts being fined a mere R10 000 for calling a colleague in the UDM a “bobbejaan”.

When the Hon Kohler-Barnard distributed a racist Facebook post glorifying apartheid Prime Minister PW Botha, and calling for the return of apartheid rule, who defended the decision to lift her suspension? None other than the Hon Maimane.

When the Hon Mike Waters posted a racist picture depicting Black ANC voters as dogs, the DA defended him by saying he was not the originator of the picture. No disciplinary process was instituted and the Hon Waters continues to be not only a Member of the DA, but a DA whip, nogal.
When DA councillor in the Nelson Mandela Bay, Knight Mali, complained about racism in the DA, they suspended him.

And when DA councillor, Winston Campbell, resigned from the party, – and forgive me Speaker for the unparliamentary language but I’m quoting directly from an IOL media report – he said:
“I was called a ‘bruin man’ and ‘hotnot’ when I stood as a candidate for the DA’s North Gauteng leadership. What hurt most is that nobody had the guts to defend me or condemn these racist attacks.

Honourable Members,
It’s time to root racism out, decisively, for once and for all.
If the DA and other parties don’t want to, the ANC will.

As Ahmed Kathrada correctly says:
“I am afraid, that if we do not commit to tackling racism now, South Africans will continue reading headlines of individuals who very blatantly use the k-word, call black people monkeys or baboons and dehumanise and attack others based on race.  
I fear that racial tension will continue bubbling under the surface of our society, and that sweeping, false generalisations, such as ‘all whites are racist’, will start emerging. We cannot allow South Africa to retrogress towards the divisions and attitudes of the past.

I thank you.