EFF leader Julius Malema’s recent tirade against white South Africans has left me wondering if his future unguarded speeches will fall foul of the proposed Prevention and Combating of Hate Crimes and Hate Speech Bill.
This bill, which was published for public comment, makes provision for perpetrators to spend up to 10 years in prison. Justice Minister Michael Masutha concedes that it won’t end the scourge of racism, but believes it will serve as an instrument to hold perpetrators legally accountable.
The bill however is not just focused on the criminalisation of racism but has a far wider reach. It sanctions anyone showing prejudice, bias or intolerance on the basis of person’s gender or sex – including intersex – as well as ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism and occupation or trade.
But there are questions around its ability to pass muster in the Constitutional Court. For instance to adduce evidence the prosecutor will consider two things: the interests of the victim and the impact of the offence on the victim. Nothing is said about possible abuses such as false claims of racism or on dealing with those who overplay the race card.
In simple terms the bill will deal harshly with anyone who advocates hatred or incites violence or harm towards any person or group. As long as intent can be proven, incitement does not have lead to actual harm for it to be an offence.
In this bill racism is not premised on power and privilege. So such fancy arguments won’t be entertained and neither the idea that blacks lack proclivity towards racism. In any case this idea that racism hinges on power and privilege is unsustainable.
It suggests that whites who lose power and privilege automatically stop being racist. If this is true then new beneficiaries of power and privilege would also gain a disposition towards racism and yet in Africa discrimination and prejudice has existed without economic or political power. It is has hinged on culture and its associated beliefs.
So for me the best bet is to look at racism in terms of socialization and nurturing. In fact I want to link it to the theory of transactional analysis. This theory was first introduced by Dr Eric Bernie who was a psychiatrist who practised in the early 50s. The theory is a method for studying interactions between individuals. In the course of his treatment Dr Bernie noticed that his patients, and indeed all people, would and could change and assume one of three ego states.
He defined these as: parent, adult, and child. The parent ego state contains all the information we accept as true that we have gathered from authority figures including our parents. The adult ego state is the collection of all information that we have proven to ourselves as being true (using some sort of logic). The child ego state is our natural good and bad side of feelings — love, anger, greed, empathy, etc.
These ego states have nothing to do with a person’s age or social status but are only about how relationships are transacted between individuals. According to Dr Bernie, the simplest transactions are between adult ego states. An adult operates from learned concepts, parent from taught concepts and a child from felt concepts.
So which one is your ego state? I want to think of racism as a human frailty. It is an inherited and sinful condition that can afflict anyone and therefore a claim that blacks are immune from this condition is a claim to superiority.
And sadly it is this claim that has given legitimacy to the actions of the likes of Malema. And it is time we reject this claim and the false sense of immunity that comes with it. Hopefully the incoming Hate Speech bill will help us to just that — provided that major concerns with the bill itself are satisfactorily addressed. The deadline to submit comments is December 1, 2016.