24 October 2016
Our nation is founded on the commitment to build a non-racial, non-sexist and human rights-based society. The Bill of Rights in the Constitution sets out the very basic rights that we all enjoy in a democratic South Africa. The recent racist utterances and many other incidents of vicious crimes perpetrated under the influence of racial hate, despite our efforts over the past two decades to build our new nation on these values, has necessitated further measures to uproot this scourge which is reminiscent of our unenviable apartheid past.
Democracy does not thrive in an environment that is fraught with divisions, hatred and violence hence social cohesion is important for the development of the country and the sustenance of stability. As the media, you are often at the pulse of developments in the country and have reported extensively on racial and xenophobic incidences including the so-called ‘corrective rape’ of LGBTI persons and violent attacks on sex workers.
It therefore gives me great pleasure to announce that today we have published for public comment in the Government Gazette, the Prevention and Combating of Hate Crimes and Hate Speech Bill which was approved for public consultation by Cabinet on 19 October 2016. The Bill creates the offences of hate crimes and hate speech and seeks to put in place measures to prevent and combat these offences.
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.
Although nationality, gender identity, HIV status, albinism, intersex and occupation or trade are not expressly mentioned in section 9(3) of our Constitution 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.
The Bill has been drafted after a thorough study of other similar pieces of legislation internationally, such as those in Kenya, Canada and Australia. Developing specific legislation on hate crimes will have a number of advantages. It will provide additional tools to investigators and prosecutors to hold the perpetrators of hate crimes accountable and provide a means to monitor efforts and trends in addressing hate crimes.
The Bill may be accessed on the departmental website and interested parties and individuals may make inputs until the due date of 1 December 2016.
As government, we are encouraged by the voices of those who stood to challenge the emergence of these remnants of our tragic past, an act which shows that our country is neither racist nor xenophobic. Together let us draw from that consciousness which resists any attempt to take us backward.
You will recall that that during March this year, the Department launched the National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances. The NAP provides the basis for the development of a comprehensive policy framework against racism, racial discrimination, xenophobia and related intolerance. We are grateful to all who shared their inputs through various platforms and commit to speed up the finalisation of the NAP.
We are certain that the Prevention and Combating of Hate Crimes and Hate Speech Bill will build on to the existing measures such as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), 2000 (Act No. 4 of 2000) to combat the social ills of racism, xenophobia and related intolerances. This Act has enabled government to establish Equality Courts in all magisterial districts. Currently, the Department of Justice and Constitutional Development is facilitating information sessions in various communities around the country to raise awareness of the Equality Courts.
Steps are also underway to amend PEPUDA. Upon approval of the proposed draft amendments, a formal public consultation process will be embarked upon. We envisage the introduction of the amendments into Parliament in early 2017. The PEPUDA Amendment Bill will be made available for a public participation process in March 2017.
The Constitutional and legal instruments are only one element of the approach that must be taken to safeguard our democracy. I call upon all South Africans to view the processes underway in a positive manner and to make their contributions to the Prevention and Combating of Hate Crimes and Hate Speech Bill.
In this spirit, I would argue that we should all take the opportunity at hand to contribute towards ensuring that once sanctioned into law, the Bill will assist all of us to deal with recurring incidences of racial, xenophobic and related intolerance.
We are clear that this Bill of itself may not end racism and other intolerances but will create an instrument that will hold those guilty of committing acts accountable before the law. It is important that the final version of the Bill must represent the collective wisdom of the nation and reflect our renewed commitment to uproot these social ills.
Issued by the Department of Justice and Constitutional Development
Spokesperson for the Ministry of Justice and Correctional Services