The Sunday News
Lulu Brenda Harris
MILLIONS of migrants in South Africa’s shores are set to receive further legal empowerment under a new hate speech bill currently under discussion in the country’s parliament.
South Africa is home to millions of migrants, asylum seekers and refugees, who come mostly from across Africa to seek better opportunities.
The Prevention and Combating of Hate Crime and Hate Speech Bill has 17 characteristics aimed at curbing hate and of particular importance has been the introduction of intolerance towards victims, stemming from victimisation arising from nationality, migrant or refugee status, albinism, HIV status, occupation, or trade and political affiliation.
This means if a hate crime is committed, which contravenes the hate speech bill, offenders would be liable to be fined and imprisoned.
Speaking at the closing event of the Africa Day gala dinner last week in Johannesburg, Premier of Gauteng, David Makhura, acknowledged he had been given a task to push for the hate crime and hate speech bill.
“We do mourn the passing of fellow Africans in that first year of xenophobic violence but we also celebrate many successes that we have waged together ever since then. I have been given a task to push for the hate crime bill to be passed and this will address a lot of problems,” he said.
The premier said issues of hate speech affected many, as African migrants and other blacks are insulted in South Africa.
“If you look at something, it is not called such but I want to call it ‘white twitter’ in this country. It is not talked about but white twitter is the most racist because people’s names are not really there. If you want to see the most racist people on social media look at what they say.
“The users insult anyone of a dark skin colour. White twitter is not twitter for white people, it is for racists. Every time anything happens, the insults hurled at black people, just by virtue of being black, are shocking.
“They have no regard so this hate speech bill will help us deal with hate speech and hate crimes regardless of where they come from, perpetrated by anybody that is why I want to take that task,” he said.
Makhura admitted it was inadequate for government to speak out alone but needed the backing of legal sector in stopping such crimes.
“I know it’s not enough to be the voice of the government, we need the legal people on our side to protect the migrants here in our province,” he said.
Acting Judge of the South Gauteng High Court Civil Regional Magistrate: Johannesburg Justice Dario Dosio, gave a background of how the Prevention and Combating of Hate Crime and Hate Speech bill originated.
“As we are all aware during outbursts of the xenophobic attacks, asylum seekers may be targeted and may be prone to leaving South Africa due to the threats made to their lives, which directly impacts on their asylum seeker status. In terms of Section 1(1) of Refugees Act, a person ceases to qualify for the refugee status for the purposes of this act if he or she voluntarily returns to the protection of the country or nationality that they left,” he explained.
Justice Dosio said South Africa has been plagued with unprecedented outbursts of xenophobia attacks for a few years and in order to protect themselves, many who had sought refugee status lost this while returning to their country of origin, which meant the country had to curb xenophobia and related intolerance.
“The creation of the hate speech bill is to be applauded. This bill was approved for public consultation on October 19, 2016. It gives effect to the republics obligation to the constitution and international instruments to address issues concerning race, racial discrimination, xenophobia and related intolerance.
“This bill clearly lists offences of hate crimes and the prosecution of offenders and imposition of commiserate sentences for the transgression of these offences. This bill is conflict and sensitive and after the bill was gazetted to the public in March 2018 hundreds of thousands of submissions were received from institutions and individuals, all these submissions were currently being dealt with by the Justice Department.”
The legal expert noted that the qualifying criterion for hate speech is a clear intention to be harmful or to incite harm or to promote or propagate hatred on the basis of the grounds currently existing in Section 9 of South Africa’s constitution.
“This means if there should be a hate crime committed, which contravenes the provisions of Section 4 of the hate speech bill and in terms of Section 6 of this bill, an offender on first conviction can be fined or imprisoned for a period not exceeding three years and in subsequent conviction, to be fined or imprisoned for a period not exceeding five years.
“Damage 2 or the loss of destruction of property or the loss of money will be regarded as an aggravating factor by the court imposing this sentence. However, if a crime is committed which falls within the ambient of section 51 (1) of the Criminal Law Amendment Act 105 of 1997, which is for example premeditated murder then the provisions of the latter act will become applicable and compelling in substantial circumstances life imprisonment will be imposed,” he underlined.
Justice Dosio, however, noted there has been much criticism levelled against the creation of this hate speech bill, as others argued that it is unnecessary in that there is existing relief available to victims of hate crimes namely in the form of Common law, Criminal injuria and in addition the existence of the Promotion of the Equality Act but stressed more could be done to curb xenophobic attacks.
“In fact this hate speech bill will augment the existing means that are currently available to victims and will further empower and provide additional tools to prosecutors to hold the perpetrators of these crimes accountable. In the interim I may suggest and pending finalisation of this bill, victims targeted by hate crimes must employ the existing mechanisms to hold members of our community accountable for committing hate crimes based on discrimination or migrant status. They can obtain relief from the common law as well as the Civil Penalties under the Promotion of the Equality Act.”
“In conclusion I implore Premier Makhura to escalate the urgent need to finalise this bill in order that the submissions made may be hastily dealt with in order that this bill may be promulgated and made into law as soon as possible. This will directly impact in upholding the import and nature of the constitution and hopefully curb xenophobic attacks,” said Justice Dosio.
African Diaspora Forum (ADF) chairperson, Marc Gbaffou, who fights to serve foreigners’ rights in South Africa praised Premier Makhura for protecting migrants in Gauteng province.
He encouraged other South African leaders to emulate the works he was doing to serve migrants’ interests.
