Hate crimes policy to balance right to dignity, free speech

The proposed Draft Policy Framework on Combating Hate Crimes, Hate Speech and Unfair Discrimination will help to balance the right to dignity and the right to freedom of speech in line with international law.

According to the Deputy Minister of Justice and Constitutional Development, John Jeffery, the proposed policy will also help to create a shared definition of hate crimes amongst all those involved in the criminal justice system, and it will send a clear message that hate crimes will not be tolerated in South Africa.
“It will provide additional tools to investigators and prosecutors to hold the perpetrators of hate crimes accountable and will provide a means to monitor efforts and trends in addressing hate crimes,” said Jeffery on Wednesday 18 September.

Speaking at the National Task Team (NTT) workshop on Lesbians, Gays, Bisexual, Transgender and Intersex (LGBTI) persons in Pretoria, Jeffery said the proposed framework will furthermore allow for effective coordination between government service providers in order to reduce the impact of secondary victimisation on hate crime victims.

The policy framework, which was first muted by Justice Minister Jeff Radebe last month, has already been formulated by the department and is waiting for Cabinet approval so that it can be released for public comment.

The policy aims to lead to legislation that will introduce and refine the concept of hate speech in a way that reflects South Africa’s commitment to high standards of free expression at the same time as combating hate speech; make hate speech a crime; consider making other forms of unfair discrimination a crime; and develop measures to combat hate crime, hate speech and unfair discrimination.

Jeffery said the framework — which he hoped can be put to Parliament soon after next year’s elections — will introduce a further category of newly-defined hate crimes in instances where the “conduct would otherwise constitute an offence recognised at common law or by statute, and where there is evidence of a discriminatory motive on the basis of characteristics such as race, nationality, religion, sexual orientation and the like”.

Definition of hate crimes:

Hate crimes are defined as crimes motivated by prejudice, or based on discrimination, and perpetrated against a person or a group on the basis of their race, religion, national origin, sexual orientation or any other feature that renders them ‘other’ to the perpetrator.

Such crimes violate the constitutional right to non-discrimination by being harmful, inciting harm, intimidation, undermining human dignity, respect and a person’s right to bodily integrity.

Currently, South African law does not provide specifically for hate crime offences. There is limited and inconsistent documentation of hate crimes in the country, which makes these crimes harder to combat. In addition, there is currently no mechanism for reporting or recording hate crimes in South Africa in a way that distinguishes them from other crimes.

Most recently, hate crimes have surfaced in South Africa in the form of attacks, murders and the ‘corrective rape’ of lesbians, xenophobia and racist attacks.

John JeffreyAlthough South Africa’s Constitution expressly prohibits discrimination on the basis of sexual orientation, sex or gender, and numerous laws have been enacted to protect the rights of LGBTI people, Jeffery said the existing legal protection had not filtered down to the level of everyday life.

Changing societal attitudes a major challenge:

The deputy minister said there seems to be a “dissonance” between the formative acknowledgement of human rights as set out in the Constitution and the substantive rights accorded to victims of LGBTI-related crimes, in practice.

“One could very well argue that it is in the area of changing societal attitudes and stereotyping where our biggest challenge lies. It is relatively easy to change legislation and policies, but not so easy to change discriminatory or prejudicial opinions in the hearts and minds of people.”

He said the vast majority of LGBTI people in the country were still side-lined from accessing their rights because of stigmatisation, deep economic inequality, social isolation and cultural exclusion.

“The first step in addressing the issue of crimes against LGBTI persons is to change societal attitudes. We need to create a culture of acceptance and respect. We need to send the message, again and again, that LGBTI persons are not infringing anyone’s rights by simply being themselves,” said Jeffery.

The National Task Team:

The NTT was established by the Minister in 2011 to develop an intervention strategy to deal with violence against LGBTI persons. The team is charged with developing a legislative intervention plan, a public awareness strategy, and LGBTI sensitive shelters.

The NTT workshop coincides with the Crime Victims’ Rights Week, which seeks to promote the rights of victims and encourage communities to report all criminal activities.

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