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Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at a Workshop on the Recommendations for the Systematic Measurement of Discrimination, held at the Premier Hotel, Midrand, Gauteng, 19 September 2018

Programme Director
The EU Ambassador to South Africa, Mr Marcus Cornaro and representatives from the EU
The Director-General of the Department of Justice and Constitutional Development,
Dr Risto Karajkov
Prof Rajen Govender
Representatives from various UN agencies, Chapter 9 institutions, academia and civil society organisations
NAP Steering Committee members
Ladies and gentlemen, friends

Research undertaken by the University of Oslo on the issue of measuring and explaining discrimination in the workplace states that “discrimination is notoriously difficult to measure…

In order to fully understand discrimination – and thus to be able to take effective steps in the prevention and combating thereof – we need to study the prevalence and causes of discrimination. 

For us in South Africa, the equality clause underpins the other rights in Chapter 2 of the Constitution, providing as it does for the "full and equal enjoyment of all rights and freedoms.” Section 9 prohibits unfair discrimination on certain prohibited, or listed, grounds.

Discrimination is a particular form of differentiation - it is differentiation on illegitimate grounds.
This means that discrimination on the basis of one of the grounds listed in section 9 is presumed to be unfair discrimination, until the contrary is proved.

There is accordingly a presumption that differentiation on the listed grounds will impose burdens on those who have been victims of past patterns of discrimination or will impair the fundamental dignity of those affected.

As you know, the listed grounds are race, colour, ethnic origin, gender, sex, pregnancy, sexual orientation, marital status, age, disability, religion, conscience and belief, culture and language, birth and social origin.

Often - not only in our country, but the world over - there is more than one listed ground at play - more than one area of discrimination - as intersectionality plays a significant role in patterns of discrimination.

In its simplest form intersectionality relates the various attributes that play a role in the discrimination that an individual experiences. It refers to the "overlapping" of social attributes such as gender, race, class, ability, religion, sexual orientation.

This "structure" can be used to appreciate how systemic injustices and social inequalities occur on multifaceted levels.

Intersectionality contends that the traditional notions of oppression such as racism, sexism and homophobia are not independent. Rather these interrelate and generate a system of oppression that generates the "intersection" of multiple forms of discrimination.

Over the past more than two decades, South Africa has passed a number of laws to give effect to its constitutional goals of achieving equality, human dignity and the advancement of human rights and freedoms.

More than 1200 laws and amendments aimed at dismantling apartheid and eradicating all forms of discrimination were approved by Parliament. New and amended legislation was put in place to enforce equality and preventing discrimination.

Yet it would be naïve to expect even the best-drafted laws to eradicate decades and centuries of oppression and institutionalized racism and discrimination.

We know, all too well, that the legacy of apartheid and colonialization remains.

There are still, currently, challenges that we need to face. South African society remains divided. Many schools, suburbs and places of worship are integrated, but many are not.  

South Africa remains one of the most unequal economies in the world. The privilege attached to race, class and gender has not been fully reversed.

South Africa is struggling not only with structural racism, but also with individualized or “personal” intolerances. And we cannot be blind to racial tension that still exists in South Africa today. As Mondli Makhanya wrote in January this year:

“We are not the syrupy rainbow nation that the diminutive archbishop and the first president of “free” South Africa wished us to be. These two great men wished us to be a human representation of the flag.

They so wished us to be, they even believed we had arrived there.

Regretfully not enough practical work had gone into building that nonracial society, which in any case was always going to take decades of effort to perfect.

We celebrated the achievement of a nonracial society without confronting the lingering reality of our past and dealing with the healing process.”

Recent examples of racism, racist incidents, xenophobia and other forms of discrimination abound – with the names Vicki Momberg and Adam Catzavelos becoming household names, for all the wrong reasons.

Other examples include the incident last year when the iconic Cape Town mosque, Nurul Islam, was defaced with blood and snout of a pig. The caretaker allegedly said he called police who sent out a police vehicle but he was told they could not open a case, but only record the incident. We have also witnessed attacks on LGBTI persons, with so-called “corrective rapes” becoming more prevalent.

It is against this backdrop that our Department is working towards the finalization of the National Action Plan and also why we initiated the Prevention and Combating of Hate Crimes and Hate Speech Bill, which has been tabled in Parliament.

Developing specific legislation on hate crimes will have a number of advantages.  It will help create a shared definition of hate crime amongst all those involved in the criminal justice system, will send a clear public message that hate crimes will not be tolerated in South Africa and will provide additional tools to investigators and prosecutors to hold hate crimes perpetrators accountable.

It will also provide a means to monitor efforts and trends in addressing hate crimes, and will allow for effective coordination between government service providers to reduce the impact of secondary victimisation on hate crimes victims.  Secondary victimisation takes place where victims are subjected to further insensitive or inappropriate behaviour or comments by police, health care officials or justice officials.

There are many representatives here today from civil society.

Civil society plays a key role in the realisation of human rights and the democratisation of our society.

The Durban Declaration and Programme of Action recognises the importance of the role and involvement of civil society in combating racism, racial discrimination, xenophobia and related intolerance. Civil society has an essential role to play by holding government accountable.

Furthermore, civil society groups have built up vast experience and expertise in working with victims of racism, racial discrimination, xenophobia and related intolerance.

Government must harness this experience in order to assist in developing and implementing laws, regulations, policies and actions directed at the prevention of racism, racial discrimination, xenophobia and related intolerance.

Civil society has also increasingly taken on the role of supporting policy makers, advancing advocacy and assisting the poor in articulating their needs. 

The UN requires that governments tap into this expertise in developing and implementing laws, regulations, policies and actions directed at the prevention of racism, racial discrimination, xenophobia and related intolerance.

The complex and multifaceted nature of racism and racial discrimination requires a diversity of expertise that civil society is able to provide.

Civil society actors can contribute to research and policy analysis by collecting relevant data and identifying trends on racism, racial discrimination, xenophobia and related intolerance.

They can also provide training, legal aid and capacity building to groups or individual victims of racism, racial discrimination, xenophobia and related intolerance, and undertake awareness-raising activities.

Civil society actors are key in preventing and combating racism and should partner with government in so doing.

The role of government in respect of human rights is threefold: promotion and protection of human rights and the prevention of human rights violations – or differently phrased, prosecution, protection, and prevention, better known as the so-called “3Ps”. Section 7(2) of the Constitution expressly commits the state to respect, protect, promote and fulfil the rights in the Bill of Rights.

We believe that the proposed National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP) will help us to do that.

The NAP lists, as one of its core objectives, the collection and analysis of data regarding racism, racial discrimination, xenophobia and related intolerance.

Based on this responsibility, the DoJ&CD as the department tasked by Cabinet as the focal agency to coordinate the finalisation and implementation of the NAP, requested and received technical assistance provided by the European Union under the Socio-Economic Justice for All (SEJA) programme, to analyse the existing data sources and methods of data collection on incidents of racism, racial discrimination, xenophobia, and related intolerance in the public and private sector.

The Analysis of Methods of Data Collection on Incidents of Racism, Racial Discrimination, Xenophobia, and Related Intolerance project, funded by the European Commission, aims to provide Technical Assistance (TA) to our Department to “analyse the existing data sources and methods of data collection on incidents of racism, racial discrimination, xenophobia, and related intolerance in the public and the private sector.”

The TA project commenced in May 2017 and spans a period of 18 months.

Following the inception meeting between the DoJ&CD, EU and technical experts in May 2017, the technical experts presented a Project Inception Report in June 2017 which outlined the methodology and project plan for the TA.

The project has the following 3 outputs:

  • Output 1: A Comparative Report on International Best Practices on Collection of Data on Discrimination;
  • Output 2: A report on the State of Data Collection On Discrimination in South Africa;
  • Output 3: Recommendation on Systematic measurement of Discrimination

Outputs 1 and 2 have been finalized.

Output 3 is the final analytical part of the work where the available data sources and inputs are weighed in terms of the needs of assessing, monitoring and reporting discrimination.

The proposed NAP further envisages that the DOJ&CD will conduct a baseline study which will serve as the basis to measure improvement in the country following the implementation of the NAP. It moves beyond issues of perception.

It will be used to make recommendations on the protection needs for vulnerable and marginalised groups. The baseline study will take account of current laws, policies, programmes, activities, needs and human and institutional resources for the elimination of racism, racial discrimination, xenophobia and related intolerance.

For implementation to be successful, one needs data and it is envisaged that disaggregated statistical data will be collected to help us identify -

  • Patterns of racism;
  • The obstacles to the elimination of racism and discrimination that should be overcome, paying special attention to contemporary and emerging forms of racial discrimination;
  • Access to justice for victims of racial discrimination;
  • Punishment of perpetrators;
  • Programmes to combat racial discrimination;
  • Knowledge about the prohibition of racial discrimination among the general population and among potential victims;
  • Perpetuation of racial discrimination by the mass media (including television, radio, Internet, newspapers and magazines);
  • How the curricula reinforce the principles of equality and non-discrimination at all levels of education, and
  • The availability and accessibility of key human rights documents and other materials safeguarding equality and non-discrimination in national and local languages as well as in simplified form.

It is further envisaged that the Department will under the leadership of the national coordinating structure develop an Early Warning system linked to a Rapid Response Mechanism initiated by the DOJ&CD. 

The DOJ&CD will also ensure that accurate data and statistics are collected and published on the number of racist and xenophobic offences that are reported to the police, on the number of cases that are prosecuted, as well as on the reasons for not prosecuting and on the outcome of prosecuted cases.

It is envisaged that government will, in collaboration with government departments, Chapter Nine institutions, the Foundation for Human Rights and other civil society bodies working with these issues, develop a database with the names of service providers who provide assistance on these matters which will be linked to the Rapid Response Mechanism. 

Former President Mandela called racism a blight on the human conscience, when he said that – “

“The idea that any people can be inferior to another, to the point where those who consider themselves superior define and treat the rest as subhuman, denies the humanity even of those who elevate themselves to the status of gods.”

I would argue that that not only applies to racism, but to all forms of discrimination and prejudice.

The work undertaken by this project, with the valuable assistance of the EU and the technical experts, will assist in bringing us one step closer to fighting discrimination in all its forms.

I thank you.