Hate Crimes in South Africa: legislation is sorely needed

  • 08 Oct 2018 | by The Hate Crimes Working Group

Hate Crimes in South Africa: legislation is sorely needed – Blog

Hate crimes are not simply crimes committed against vulnerable groups. Hate crimes are committed against individuals because of a prejudice the perpetrator holds against an entire group of people, but which is directed at an available victim. For this reason, hate crimes don’t only impact the victim of the crime, but also have devastating effects on the entire community that the victim belongs to (or is perceived to belong to).

This is why hate crimes are different to other crimes; they serve as a message of intolerance and they serve to intimidate and harass not just the victim, but whole communities. As a result, they undermine social cohesion and the creation of a society based on equality.

How serious is this issue?

Media outlets often report on incidents of hate crimes, yet an accurate indication of prevalence is hard to come by. Part of the reason hate crimes legislation is needed is because it would enable government and civil society to have more accurate statistics relating to hate crimes. Currently there is no related official crime category, nor monitoring of hate crime. So even when such a crime is committed, it is not officially recorded as a ‘hate crime’ in government statistics.

In the absence of official monitoring, the work of recording hate crimes is currently being done by several different civil society organisations in various sectors and being is collated by the Hate Crimes Working Group. These efforts are aimed at building a systematic and accurate evidence base that can inform policy-makers of the nature and extent of hate crimes in South Africa; the impact of these crimes on social cohesion; and the trends in government and civil society responses to incidents of hate crime.

What will legislation achieve?

The objective of hate crimes legislation is not only to prevent hate crimes (which no law alone can really do), but also to enable government and civil society to receive vital information about the nature and prevalence of this type of crime in order to help provide appropriate tools for tackling hate crimes. 
In other countries, hate crimes legislation has been backed by extensive training for a variety of service providers, targeted policing strategies as well as the development of prosecutorial guidelines on hate crimes.

Currently police in South Africa rarely investigate evidence of specific prejudice as a motivating factor in an offence. Hate crimes legislation also has symbolic value: it sends a clear message to society that such crimes are not tolerated. Hate crimes legislation that includes robust duties for stakeholders and is fully implemented will be a powerful tool to combat these crimes

Why is specific hate crimes legislation necessary?

Distinguishing hate crimes from other types of crime in policy and legislation is necessary for three reasons:

  1. It enables greater monitoring of violence motivated by prejudice and helps authorities to track trends of hate crime around the country so as to determine where specific interventions are necessary. Greater monitoring may also provide an early warning of possible mob violence motivated by prejudice, such as xenophobic violence.
  2. It helps recognise the social impact of hate crimes because of the message such crimes send to a victim’s community. Currently an assault motivated by a person’s race or sexual orientation, or the burning and looting of foreign nationals’ shops may only be treated as an assault or public violence, respectively, and are thus not responded to accordingly by the criminal justice system. Addressing hate crimes consistently through the courts, public statements and other means would help send a clear message that hate crimes will not be tolerated and offenders cannot commit such crimes with impunity.
  3. It introduces a multi-sectoral, comprehensive approach to addressing hate crimes, currently lacking in government and civil society responses. Hate crimes require a variety of service providers including police officers, hospital and clinic staff as well as court officials to develop strategies to prevent or respond to hate crimes. This may include requiring police to investigate evidence of a prejudice motive, hospitals and clinics to take steps to prevent secondary victimization when assisting hate crime victims, and prosecutors and courts to apply the available tools.

Hate speech not only has a negative effect on the dignity of the target, but also plays a role in contributing to negative attitudes in society towards a specific group. It can create a hostile environment for entire communities. It is clear that guidelines that provide more clarity as to what constitutes hate speech are keenly needed.

It is also clear that the current piecemeal approach of the judiciary has led to a situation of uncertainty regarding this very important issue. This uncertainty can be efficiently dealt with by hate crimes and hate speech legislation.