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Is it really a good idea to make racist behaviour a crime?

The South African government’s intention to pass new laws to criminalise racist behaviour and the glorification of apartheid is right-minded but wrong-headed.

“Coloureds are lazy” – this is the front page headline story of the Cape Times on Tuesday 17 May; a paraphrased quote of a comment made by a member of the public overheard by a third party in an office of a branch of a supermarket. Presumably then the most important story of the day, or the most lucrative story, likely to sell the most newspapers because it throws fuel on the tinder dry racial discourse of South Africans.

Everyone knows racism is still alive in South Africa, as it is almost everywhere in the world. To be clear, there should be no diminishing of the issue. Yet turning asinine comments by bigots into headline grabbing news is just more grist to the media mill.

Focusing on racist statements as the most glaringly obvious symptom of racism is the easiest way to pillory the “enemy”, to name and shame, to hit back. But I have begun to question my own conduct in exposing and reacting to such comments. I have begun to wonder how helpful it is, whether it really get things out in the open as a first step to changing people’s minds, when racism is such an insidious disease with so many hard to spot symptoms.

Social media exploding over racist comments and then the mainstream media reporting on it has now become a cultural meme in the South Africa, with one flare up after another. This year, in amongst a number of lesser incidents, there was an estate agent, an economist, an SPCA manager and perhaps the only one of any significance, a judge. The consequences for most of their careers has been severe. Yet most of them made comments that were perhaps more blatant but no worse than what is commonplace in the comment sections on media platforms across the internet.

Of course, such comments should not go unchallenged, but it is difficult to see what the positive outcome is from all the noisy and overexcited reactions, especially when usually the person making the utterance is almost irrelevant outside of their own family. Is it not a kind of scapegoating, an all too easy way to vent about an injustice lying much deeper in our society? Is it not also dangerously open to exploitation for the personal agendas of politicians?

The Cape Times cover in question.
The Cape Times cover in question.

Racism harms human relations, and the welfare and fairness of a nation. It needs to be addressed through education, social activities, exposure between communities and an informed appreciation of our history and the consequences of holding such racist beliefs. It certainly cannot be legislated out of existence.

In a column on how artworks are being purged at the University of Cape Town, I removed the following line in the final draft, suspecting myself of thinking ill of our government – ‘How long before some fool in government gets on the hobby horse and starts a legislative process [to outlaw artworks deemed offensive or racist]?’

A month later, there are indeed right-minded but wrong-headed moves afoot by government to introduce legislation that they say will explicitly criminalise racism. The chief whip of the ANC and an acting minister in the presidency have both expressed such wishes and there is an existing action plan.

Yet we already have the protection of the Constitution, the Human Rights Commission and the Equality Courts. And most importantly, unlike many other countries with such speech laws, despite a long history of colonial vilification, we happily have a black majority in government, not a minority that needs special protection.

A more vigorous assertion of these existing laws and making people aware of their rights and the recourse that they already have, and supporting them in claiming those rights, together with greater social vigilance, seems more than sufficient. An extremely good case would need to be made to justify enacting new legislation and that case has not yet been made by government.

Criminalising any kind of speech is dangerous. It is a slippery path with many pitfalls. Its scope for abuse is vast. It can push attitudes underground where they are hard to ferret out. Our courts and our existing punitive incarceration-based criminal system hardly copes as it is, and it is a blunt, ill-suited instrument to deal with sick ideas that are nevertheless held closely. People believe racist things. They need to be disproved, not jailed. We urgently need to be decriminalising a whole range of activities rather than adding to the long list. Society needs to deal with this issue, not the police. We can’t wage yet another war against an adjective.

Members of the the South African Police Services. AFP PHOTO / RODGER BOSCH
Members of the the South African Police Services. AFP PHOTO / RODGER BOSCH

The US provides a good example, where previously commonplace antisemitism has virtually disappeared from public display, without a single legal prescription being passed. Jailing holocaust denialist and Nazi apologist David Irving in the UK, a discredited historian ridiculed by his peers, was to me utterly gratuitous.

I believe in the fundamental right of freedom of expression even when I hate what I hear. I do not even support hate speech legislation, though I have been the victim of such speech many times. It is very hard to tolerate, but that is my conviction. Laws against incitement to violence cover hate speech well enough to my mind.

It has often been said by black South Africans that they preferred those Afrikaners who were at least upfront about their racism as opposed to the many white English liberals that couldn’t even admit  their racism. One knew where one stood and could deal with them.

As unpalatable and as perturbing as it is to see unashamed racist comments aired in public, such transgressions of the social pact are not well compared with the violent criminality that is endemic in our society, nor to the daily and relentless abuse of human dignity that too many suffer due to economic hardship and systemic racism.

We do not need any more laws. We do not need a thought police. All of us have a duty to challenge such attitudes and to teach our fellow citizens better manners.

In any event, further criminalising racist behaviour or the glorification of the country’s apartheid past will definitely be a very slow, probably futile process that in the end, if it ever came to fruition, will create a thorny caseload that will become a new problem in its own right. How long before black people are taken to court for being racist by white people with all the means, organisation and clever lawyers at their disposal?

No, we as a society have the means to counteract stupid comments and we have been doing so almost disturbingly well.

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