The murder of Anele Bhengu, a young lesbian woman whose mutilated body was found dumped in a ditch in KwaZulu-Natal last month, has reinvigorated calls for the passing of the long-delayed hate crimes bill.
Stricter laws are all well and good, but in themselves are not sufficient to curb the harassment, assault and killing of vulnerable minorities.
The department of justice currently has 42 pending cases of hate crime on its books - 30 murders and 12 rapes. Three of the murders took place in June - Pride Month.
After meeting with the national task team on the rights of LGBTIQ+ people on Thursday, deputy minister of justice & constitutional development John Jeffery said: "Out of the 42 pending hate crimes cases, approximately 29 cases were reported from 2020 to date. Of these, 16 are on the court roll with remand dates with the remaining 13 cases under investigation.
"It must be highlighted that the cases on the template are being actively monitored with government departments, the National Prosecuting Authority and civil society to ensure that these cases are thoroughly investigated, and prosecutions follow."
Jeffery said the surge in attacks is of extreme concern, and that they "put the dignity and welfare of all people of different sexual orientation, gender identity or gender expression in South Africa at heightened risk. Individuals in these communities are not only subjected to hate crimes, at the same time we are also seeing allegations of homophobia and bullying of LGBTIQ+ learners in our schools."
Jeffery agrees that passing the hate crimes bill - full name the Prevention and Combating of Hate Crimes and Hate Speech Bill - will not be a "magic switch" that will end discrimination based on sexual orientation.
After Bhengu's murder and in response to a renewed outcry for the bill to be enacted, he said: "It won't make a huge difference . The missing link is the attitude of people."
The hate crimes bill, first tabled before parliament in 2016, has not yet been passed into law. According to the first draft of the bill, the boundary between free speech and hate speech would shift and the threshold of exceptions to freedom of expression would be lowered to include ridiculing or insulting a person based on their race, gender, religion, sexual orientation, trade or occupation.
This is a far broader definition of hate speech than that already contained in the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, as well as in the constitution.
The second draft of the bill, released in 2018, contains some fairly significant amendments. One of these, in response to a submission by a coalition of comedians, excludes from potential prosecution "any bona fide artistic creativity, performance or other forms of expression, to the extent that such creativity, performance or expression does not advocate hatred that constitutes an incitement to cause harm".
Professional comedians are therefore allowed to make statements that might otherwise be deemed to be racist, misogynist or homophobic, for example, presumably on the assumption that their intention (we hope) is to expose ignorance and bigotry rather than fuel it.
The second draft of the bill was approved by the cabinet but since then has languished in some neglected corner of parliament. This might be because its definitions remain potentially too broad: in its current form it allows for the criminal prosecution of anyone who tells a minority-bashing joke in a bar or around the braai. Whether this is good or bad is a matter for a different debate.
What matters is hate, and hate crime, and why some people feel that they may verbally and physically attack those of different racial or sexual persuasions.
Legal prohibitions against hate crime are still in their infancy in SA. In the US, several states have passed such laws but the associated problems persist.
In an essay published on The Conversation in March, University of Indiana law professor Jeannine Bell wrote: "Law enforcement struggle to identify hate crime and prosecute the offenders. Even though 47 states have hate crime laws, 86.1% of law enforcement agencies reported to the FBI that not a single hate crime had occurred in their jurisdiction in 2019, according to the latest FBI data collected. In many cases, police have received inadequate training in making hate crime classification."
The passing of the bill in SA will not necessarily deter hate crimes. On the plus side, it might allow for more punitive sentencing, given that offenders would be tried not just for "ordinary" murder but for hate-propelled murder.
The idea that passing a law will stop such monstrous acts is
naïve, a bit like thinking the 10
commandments of the Bible would stop anyone from coveting their neighbour’s ass
This, however, raises another question. Is not all murder, or at least most murder, fuelled by hatred? The murder of Bhengu, the motive for which is suspected to be that she was lesbian, is an extension of the hatred of women. Without taking away anything from the besieged rights and dignity of LGBTIQ+ people, heterosexual women face similar hatred.
It is the male perception that women are pliable, ownable objects that leads to rage being acted out upon them, and the same is true for those of other sexual dispositions, reviled in the same way because they do not conform to the whims of patriarchy.
Whether crimes motivated by hatred are directed at women or members of other racial and sexual groups who offend the ignorant sensibilities of bigots, the idea that passing a law will stop such monstrous acts is naïve, a bit like thinking the 10 commandments of the Bible would stop anyone from coveting their neighbour's ass.
The bill is needed, yes, for the visible censure of those intolerant and violent individuals who act out their inadequacy and anger on the bodies of those they see as weak or deviant. But, as Jeffery said, what is really needed is an attitude change. The people who can help bring this about are the police in their response to hate crime, teachers in their inculcation of tolerance and understanding, and above all parents, from whom children learn how to treat other humans.
Punishment is necessary, but we are also in need of urgent preventive measures. There is a danger that communities and individuals might relax into a sense of complacency once a law exists to punish the perpetrators of hate crimes. No-one, however, should shrug off the responsibility for creating a more tolerant and caring world. We cannot leave it up to the courts. They can't fix this. Only we can.
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