The Anti-Racism Bill of 2017 is the response of Black First Land First (BLF) to the “Prevention and Combating of Hate Crimes and Hate Speech Bill” published in the Government Gazette (No 40367) on 24 October 2016 (henceforth referred to as the “Hate Crimes Bill”). The Hate Crimes Bill has fundamental conceptual flaws and the remedies suggested therein are equally incapable of addressing the scourge of racism. The Hate Crimes Bill is understood to be aimed at finally criminalizing racism as a means towards combating racism. However its provisions are more likely to entrench racism and to this end punish black people who are responding to racism. The Anti-Racism Bill of 2017 of BLF seeks to address these fatal weaknesses in the Hate Crimes Bill through the presentation of an alternative Bill for consideration by the National Assembly and the people of South Africa.
This Anti Racism Bill of 2017 aims to:
– end racism
– provide definition and conceptualization of racism that does not harm the main victims of racism being the black people
– give effect to the State’s obligations in terms of the desires of the black majority (which is implied but not adequately provided for in the Constitution) as addressed by this Law. To this end the Constitution must be read in line with the total approach to eradicating racism as indicated in the preamble and the guiding principles of this Law.
– Provide for amendment of the current Constitution to bring it in line with the objective of eradicating racism.
– provide historical context to racism in South Africa
– provide principles to guide this law
– provide for various offences relating to the subject matter of this Law and for the prosecution of persons accused of such offences including related remedial action
– provide for sentences to be imposed on persons who have been convicted of the offences indicated in this Law.
Repeal of Section 25 of the Constitution and the new land clause
Service, places and resources that serve the public
OFFENCES AND PENALTIES
1. Hate Crime
2. Hate Speech
5. Existence, formation and or membership in racist or discriminatory organizations, associations or other entities
Appendix “A” section 25 of the Constitution
Appendix “B” section 276 of the Criminal Procedure Act
Appendix “C” section 297 of the Criminal Procedure Act
Racism is a matter of life and death for black people. It affects all black people irrespective of age, generation, gender, sexual orientation, political affiliation, language, educational levels, geographic location, class position and religious beliefs. Blacks were given false solutions in 1994 in South Africa, the lie of post 1994 democracy rest in denying the truth that white supremacy is materially expressed in land theft by whites from the black majority, beginning in 1652. Also, it is from land theft that white supremacy develops all of its other branches so as to institutionalise itself as an anti-black way of life. At the crux of this anti-black reality is the fact that white secured life is depended on the dehumanization of black people.
White supremacy is the main enemy that must be defeated by blacks to completely obliterate racism to end the institutonalised anti-black reality. The structural logic of white supremacy has ensured continued land dispossession. Since 1994, land dispossession has been sustained by the Constitutional provisions and this situation will continue in perpetuity until the main contradiction in the South African society is resolved. Steve Biko indicated that “the main contradiction in South Africa is ‘white racism” and the only solution to this is “black solidarity”which must in turn completely eradicate white racism.
This law therefore – in order to avoid incorrectly criminalizing the actions of black people or other black entities as that of racism – recognizes what the main contradiction is and what it would take to resolve it. It is consequently important, via concrete mechanisms, to give context to this law on anti racism so as to eliminate situations where blacks and all aspects of black struggle against white supremacy are criminalized. To this end black people will not become criminally liable by law for simply responding to racism.
This law accordingly commits the people of the Republic of South Africa to establish an anti racist, anti capitalist, anti sexist, pro LGBTQIA+ society.
This law recognizes its import as a transitional measure because the end of racism isonly possible in the final analysis when the institutional basis that makes individual acts of racism possible has been eradicated. Therefore, so long as society is organized within the reality of white power, racism shall continue to exist.
In this Law, unless the context indicates otherwise-
a. “Blacks” or “Black people” are those people who are by law or tradition politically, economically and socially discriminated against as a group in South Africq. In terms of this definition, which was provided by Steve Biko; black people in South Africa are those who come from the African communities, the so-called Coloured communities and so-called Indian communities.
b. “Racism” is the power that determines that Blacks are to be brutalized by white supremacy to benefit white people. It serves to protect white privilege while it sustains the economic exclusion of blacks from accessing property that is habitable; education that is free, socialist and black centered; healthcare and every other service that puts people first. It refers to the subjugation of blacks by whites through land dispossession, exploitation of labor and the destruction of their way of life, as willed and dictated to by white supremacy.
c. “Racist” – Following from the definition of racism, one can only be racist if s/he has the institutional power to subjugate or to maintain the subjugation. Therefore, Blacks are ipso facto excluded from this definition.
d. “White supremacy” is the global power that has divided the world so as to serve whiteness (being the interests of whites) at the expense of the excluded and indigenous black people of the world.
e. “Relevant Constitutional rights in sections 9(1), 9(3), 9(4), 10, 16, 7(2) and 8(2) shall mean the following:
i. section 9(1) provides that everyone is equal before the law and to this end has the right to equal benefit and protection of the law;
ii. section 9(3) and (4) intimates that no one has the right (neither the state nor any person) to discriminate against anyone unfairly and that national legislation must be passed and promulgated so as to prevent or prohibit unfair discrimination;
iii. section 10 provides that everyone has inherent dignity and to this end the right to have her/his dignity protected and respected
iv. section 16 gives everybody the right to freedom of expression including the freedom of the press and other media and the freedom to receive or impart information or ideas – it however excludes propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm;
v. section 7(2) provides that the state must respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights, which is the cornerstone of democracy in South Africa; and
vi. section 8(2) provides that a provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
f. “Harm” includes any psychological, mental, economic or physical harm.
g. “Hate crime” shall have the meaning as indicated in Chapter 4.
h. “Hate speech” shall have the meaning as indicated in Chapter 4.
i. “This Law” means “The Anti Racism Law”
j. “Constitution” means “Constitution of the Republic of South Africa No. 108 of 1996”.
k. “Criminal Procedure Act” refers to the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
l. “Victim” refers to any person or other entity in respect of who an offence has been committed as indicated in this Law.
1.3.1 Flowing from the above preamble and definitions, this Law on Anti Racism is accordingly guided by the following principles:
a. Land return as the pre-condition towards ending racism.
b. Blacks can’t be racist.
c. Anti-racism struggle to be led by blacks only.
1.3.2 Land return as the pre-condition towards ending racism
The current section 25 of the South African Constitution (referred to as the property clause) is in fact the clause that turns the 1994 political compromise into a constitutional imperative. The terms of the compromise was basically that in exchange for political power being handed to black people, land and the economy shall remain in the hands of the white minority settler population. Section 25 legalises land theft and legitimises colonialism. Those who negotiated this compromise at the time said that it was a “tactical” move to gain power without too much bloodshed. The logic was that after power was secured the land would be returned. This section therefore was never about redistributing land but rather about securing a political compromise. More than twenty two years into democracy, we know that the compromise has been very bad for black people. This section has rendered our people landless in their own land.
Accordingly this provision of the law which relates to land, recognizes that South Africa belongs to black people; that the land question arises out of the arrival in 1652 of the white settler colonial population, and; that all land in South Africa is stolen property. To this end racism arises from and is built on colonial land theft.
1.3.3. Blacks can’t be racist.
Black people are not responsible for imposing racial prejudice and racism and to this end are not beneficiaries of racism. The struggles of blacks to reclaim stolen land, to end oppression, exploitation and systematic dehumanisation as a response to white supremacy, is not racist but on the contrary a quest to end racism.
The black struggle to obliterate white supremacy is a struggle for the truth, real justice and freedom to self-determination. Consequently, blacks can’t be racist for seeking restoration of their land and property as well as human dignity. Blacks can’t be criminalized for retaliating against the ills of white supremacy and when faced with racist oppression and deception. It is right for blacks to resist being patronized into complicity by white privilege which thrives on dispossession and exploitation – lest giving whites space to continue to prescribe to blacks how to respond to the individual or combined ills of racism that colonialist, apartheid and now neo-liberal and neo colonial regimes have legitimized. To this end; these regimes have in addition to legitimizing injustices, maintained the protection of white privilege and its ill-gotten gains. Blacks are not the architects nor are they the beneficiaries of the racism. Blacks can’t therefore be racist for standing up against racism.
1.3.4 Anti-racism struggle to be led by blacks only
South Africa (SA) is a white supremacist, anti black, racist, patriarchal, capitalist country. It therefore makes sense for blacks to organize themselves around their blackness – on their own terms and free of white supervision – while prohibiting the inclusion in the black struggle of the forces who continue to perpetuate black suffering. It makes no sense and is actually self-defeating for blacks who are victims of racism to put their trust in the perpetrators of racism to struggle to end racism. The presence of whites in black spaces of struggle leads to the dilution of the black liberation project as well as black silence and subsequent erasure. Steve Biko’s call to reject fragmentation of black resistance so as to maintain black solidarity is accordingly instructive.
2. Repeal of Section 25 of the Constitution and the new land clause
2.1 Section 25 of the Constitution shall be repealed in its entirety and the following shall be used instead:
a. All the land held by whites in South Africa is stolen property.
b. The primary purpose of the redistribution of land to the black majority is for historical redress.
c. All black people have a right to land in South Africa without any payment.
d. The eviction of farm workers and poor people from land is illegal.
e. A new department, which shall be called the Department of Land Redistribution, must be established. It’s sole mandate shall be the redistribution of land.
f. A process must be outlined where land ceilings shall be effected in accordance with the soil capacity of each of the regions and provinces.
h. The value of mortgage bonds must be adjusted to a value that excludes land in determining housing price because land must be offered to all for free.
i. Land occupation by the landless is lawful.
3. Service, places and resources that serve the public
3.1 The following acts by public servants are penalized by this section:
a. Verbal aggression that is racist or discriminatory
b. Denial of land return to the black majority without payment for it, for racist or discriminatory reasons
c. Denial of adequate health care
d. Denial of the rights of women and members of the Lesbian, Gay, Bisexual, Transexual, Queer, Intersex and Asexual (LGBTQIA+) communities for racist or discriminatory reasons
e. Denial of service(s) for racist or discriminatory reasons
f. Physical, psychological or sexual maltreatment for racist or discriminatory reasons
g. Denial of adequate housing, clean running water, electricity and sanitation for racist or discriminatory reasons
h. Denial of adequate land
i. Denial of free quality decolonised education
j. Denial of justice in relation to white corruption and other economic crimes including those committed during the apartheid era
k. Denial of reparations for the victims of the Marikana massacre
l. Denial of a living wage and basic income
m. Paying apartheid debt
n. Enabling, promoting, benefiting from and or participating in capital flight for racist or discriminatory reasons
o. Unequal services in terms of quality and frequency between townships and suburbs.
p. Unequal housing provisions
3.2 The above acts must be prohibited by the internal regulations of public agencies. Moreover, these agencies must accept complaints about such acts and refer those employees who are criminally culpable for prosecution.
3.3 The following acts in private institutions are penalized by this section:
a. Verbal aggression that is racist or discriminatory against black people.
b. Denial of the rights of women and members of the LGBTQIA+ communities for racist or discriminatory reasons
c. Denial of service for racist or discriminatory reasons
d. Physical, psychological or sexual maltreatment for racist or discriminatory reasons
e. Denial of occupational safety
f. Denial of a living wage and basic income for racist or discriminatory reasons
g. Denigrating actions
3.4 The above acts must be prohibited by the internal regulations of private institutions and these institutions must amend their internal regulations accordingly. These institutions must refer those employees who are criminally culpable for prosecution.
Entry to establishments and other spaces serving the public
This section prohibits discrimination on the basis of denying a person or any other entity the right to enter establishments and other spaces that serve the public. It also prohibits the printing, circulation, posting, or mailing or otherwise causing to be published any discriminatory statement, sign or advertisement indicating that the equal and full enjoyment of the facilities, advantages, privileges, goods, services, and accommodations of a place that serves the public will be unlawfully withheld from, denied or refused to an individual; or that an individual’s presence at such a place is undesirable, unwelcome, objectionable or unacceptable.
Municipalities are compelled to enforce this norm.
OFFENCES AND PENALTIES
Individual Acts of Racism
4.1 Individual acts of racism crime involves threats, harassment, physical harm and insults. It is grounded on acts of prejudice, bias or intolerance towards the victim of this crime because of the said victim or her/his family member being black. These acts can be aggravated by circumstances of discrimination based on physical or mental disability, gender, sex, ethnicity, social origin, colour, national origin, nationality, sexual orientation, religion, belief, occupation, culture, birth, language, HIV status. albinism, ancestry or clothing.
4.2 Penalties for the offence of individual acts of racism crimes
4.2.1 Any person who has been found guilty of individual acts of racism crime is liable upon conviction to a sentence as indicated hereunder:
a. in the case of the accused having no relevant previous convictions – to a term of imprisonment of a minimum of ten (10) years; or
b. in the case of the accused having relevant previous convictions – to a term of imprisonment of a minimum of twenty years; or,
c. to any other sentence as contemplated in section 276 or 297 of the Criminal Procedure Act which the relevant forum deems meet and which is within the penal jurisdiction of the said forum.
4.2.2 Any person who attempts to commit any act aimed at participating in the commission of aindividual acts of racism crime is guilty of an offence and liable upon conviction to a sentence as indicated hereunder:
a. in the case of the accused having no relevant previous convictions – to a term of imprisonment of a minimum of five (5) years; or
b. in the case of the accused having relevant previous convictions – to a term of imprisonment of a minimum of ten years (10); or
c. to any other sentence as contemplated in section 276 or 297 of the Criminal Procedure Act which the relevant court deems meet and which is within the penal jurisdiction of the said court.
4.2.3 Anyone who incites, directs, commands, recruits, aids, promotes, instigates, procures, advises or encourages any person to commit a racism; or who conspires with any person to commit an act of racism, is guilty of an offence and liable, upon conviction, to a sentence as indicated hereunder:
a. in the case of the accused having no relevant previous convictions – to a term of imprisonment of a minimum of ten (10) years; or
b. in the case of the accused having relevant previous convictions – to a term of imprisonment of a minimum of twenty (20) years; or
c. or to any other sentence as contemplated in section 276 or 297 of the Criminal Procedure Act which the relevant court deems meet and which is within the penal jurisdiction of the said court.
4.3 Hate speech is provided for as follows in this Law:
a. Any person who, via any communication, intentionally conveys to any black person(s):
i. in a manner that advocates hatred in relation to any black person(s) or group of blacks; or
ii. in a way or circumstance that is threatening, insulting or abusive towards any black person(s) or group of blacks,
and who indicates an intention:
iii. to incite others into harming any black person(s) or group of blacks, irrespective of whether or not such person(s) or group of persons is indeed harmed; or
iv. to stir up violence against, or to bring into contempt or to ridicule, any black person(s) or group of blacks based on race, physical or mental disability, gender, sex, ethnicity, social origin, colour, national origin, nationality, sexual orientation, religion, belief, occupation, culture, birth, language, HIV status. albinism, ancestry or clothing, is guilty of the offence of hate speech.
b. Any person who intentionally distributes or avails any electronic communication which amounts to hate speech as indicated in paragraph 4(3)(a) above via the medium of an electronic communications system, which in turn is accessible by any public member or can be accessed by or specifically directed to a particular person who can in turn be regarded as a victim of hate speech, is guilty of an offence.
c. Any person who intentionally, in whatever manner, displays or makes available any material capable of being communicated and which amounts to hate speech as indicated in section 4(3)(a) above, which can be accessed by a particular person or directed at a specific person who can be regarded as a victim of hate speech, is guilty of an offence.
4(4)(a) Any person attempting to commit, or who executes, any act directed at her/his participation in the commission of an offence referred to in section 4(3)(a) above is guilty of an offence and liable upon conviction to a sentence as indicated hereunder:
i. in the case of the accused having no relevant previous convictions – to a term of imprisonment of a minimum of ten (10) years; or
ii. in the case of the accused having relevant previous convictions – to a term of imprisonment of a minimum of twenty (20) years
4(4)(b) Any person who incites, directs, commands, recruits, aids, promotes, instigates, procures, advises or encourages any person to commit; or who conspires with any person to commit an offence contemplated in section 4(3)(a) above is guilty of an offence and liable, upon conviction, to a sentence as indicated hereunder:
i. in the case of the accused having no relevant previous convictions – to a term of imprisonment not exceeding five (5) years; and
ii. in the case of the accused having relevant previous convictions – to a term of imprisonment of a minimum of twenty (20)yearstheir.
4.5 Racism: flowing from the definition of racism as indicated in, section 1(2)(b) of Chapter 1 herein, this offence means to arbitrarily and illegally restrict, annul, devalue or impede the exercise of individual or collective rights on the basis of the victim being black and in respect of which the perpetrator is white.
4.6 Penalty for racism: punishable by a minimum of 20 years of deprivation of liberty. The crime is aggravated if committed by a public servant or a private individual providing public service – such as those with economic power, for example, an employer – or committed with violence.
4.7 Discrimination: this offence means to arbitrarily and illegally restrict, obstruct, impede, devalue or annul the exercise of collective or individual rights on the ground of race, physical or mental disability, gender, sex, ethnicity, social origin, colour, national origin, nationality, sexual orientation, religion, belief, occupation, culture, birth, language, HIV status, albinism, ancestry or clothing”
4.8 Penalty for discrimination: punishable by a mimimum of 20 years of deprivation of liberty. The crime is aggravated if committed by a public servant or a private individual providing public service, or committed with violence.
Diffusion and incitement to racism and discrimination
4.9 Diffusion and incitement to racism and discrimination: this offence means to disseminate, through any media including mass media, ideas grounded on racial superiority, or to justify and/or promote discrimination or racism for the reasons indicated above; and to incite violence against (or to persecute) black people on the ground(s) of racial superiority or for discriminatory reasons.
Media companies will not be penalized for airing statements from third parties that include racist comments or for reporting on or discussing news related to racism.
Media outlets must grant preferential spaces or scheduling to anti-racism educational content for at least 20 minutes bi-weekly for television stations, 40 minutes bi-weekly for radio stations, one page a month for newspapers and magazine, and a monthly “space” on digital newspapers and websites.
4.10 Penalties for diffusion and incitement to racism and discrimination: punishable by a minumum of 20 years of deprivation of liberty. The crime is aggravated if committed by a public servant; a public authority or individual with economic power. When the act is committed by a media worker or a media owner s/he will not be able to allege immunity in this regard. Media companies will be penalized, via economic sanctions and suspension of its license to function, subject to regulation, for airing or reporting statements from third parties that include racist comments or for reporting on or discussing news related to racism, if such actions indicate a bias towards promoting racism and discrimination.
Existence, formation and or membership in racist or discriminatory organizations, associations or other entities
4.11 The existence or formation of organizations, associations or other entities that are for blacks only and that provide a platform for black people to organize themselves around their blackness and seeks the oppression of no one is legally allowed. Membership in such organizations, associations and or other entities is also allowed.
4.12 The existence or formation of organizations, associations and or other entities that justify and/or promote discrimination or racism as defined above, or incites hatred of, violence against, or the persecution of persons or groups of persons on the ground(s) of discriminatory or racist reasons is prohibited. Membership in such organizations, associations and or other entities is also prohibited.
4.13 Penalty for existence, formation and or membership in racist or discriminatory organizations, associations or other entities: punishable by a minimum of twenty (20) years of deprivation of liberty. The crime is aggravated if committed by a public servant or a public authority.
4.14 All white supremacist anti black organisations and civil society formations are prohibited by this Bill.
4.14 Any person who intentionally and unlawfully, totally or partially, commits or calls upon others to commit violence against black people so as to bring about their extermination as a people, is guilty of the offfence of genocide.
4.15 Penalty for Genocide: Upon conviction of this offence the accused shall be sentenced to a term of imprisonment for a minimum period of twenty five years. The perpetrator(s) or other person(s) who are directly or indirectly involved in the commission of this offence shall be subjected to the same punishment. If the convicted are public officials or authorities, this will be an aggravating factor regarding sentence.
Ending racism requires multiple points of engagements. In the main it is land redress that shall curb the power of white supremacy. However, there is also the urgent need to re-educate society so as to establish an anti-racist ethos and behavior.
This law provides for anti-racism education in the schools from primary to tertiary level education.
Anti Racism Courts
Provision is hereby made for the establishment of special anti racism courts.
Anti Racism Media Tribunal
The establishment of a special Anti Racism Media Tribunal to monitor the media for acts of racism is hereby provided for.
Anti Racism Barometer
A special Annual Anti Racism Barometer, which reports acts of racism and the measures taken to address them, is hereby provided for. The Barometer shall be the function of an Anti Racism Council – which is an equivalent of a Chapter 9 Institution – with the specific responsibility of intervening and monitoring acts of racism and reporting to Parliament on an annual basis.
It is hereby established that a reparations process be undertaken to address the historical and contemporary injustices suffered by black people. Such a process shall be led by the Anti Racism Council. The reparations process shall seek to measure the extent of black loss as a result of colonialism focusing on land, labour and the destruction of the African way of life. Also the process shall seek to measure the benefits accrued to the settler population resulting from colonialism and apartheid, as expressions of historical points of the oppression of blacks people.