Law is a blunt instrument with which to tackle psychosocial injustices, writes Eusebius McKaiser.
Racism should not be criminalised. The state will feel like it is doing something and simply become complacent instead of doing the hard work of rooting out the structural drivers of racism.
The truth is that racism is complex. It is sustained by deep structural injustices in the economy and odious attitudes and beliefs held by racists and displayed in racist institutions.
You cannot legislate anti-racist attitudes. Penny Sparrow won’t stop having white supremacist attitudes and beliefs just because racism is criminalised in a comprehensive hate crimes statute. Her racism will simply adapt and find expression away from the criminal justice system’s reach.
Law is a blunt instrument with which to tackle psychosocial injustices. We have hard work to do, and the law has its limits, I’m afraid.
Despite the excellent socio-economic rights jurisprudence we have, for example, the material conditions of most South Africans are undignified. That is because law is normative but impotent in the face of a materially broken social reality.
That’s not to say hate crimes are inherently unacceptable. One can, in justice theoretic terms, make a case for why special crime categories should be introduced into a legal system to punish familiar forms of oppression that are so commonplace they ought not to be dealt with under general laws prohibiting harms like murder.
It’s right for the law to show vulnerable groups the state affirms their right to dignity. A society may understandably then wish to draw particular attention to the hatred that motivates racism-fuelled crimes or, say, homophobia-fuelled crimes.
But that is all theory. The gap between our existing laws protecting women and the persistence of gender violence is instructive on the limits of the law when it comes to dealing with complex, noxious social phenomena. Racism is no different.
Obviously a high school debater could retort, at this stage of the dialectic, that criminalising racism and eliminating its structural causes aren’t mutually exclusive.
But that is why high school debaters are habitually quick with logical moves but notoriously lacking the experiential knowledge that comes with observing, over time, how states, institutions and indeed human beings actually behave versus how they ought to which brings me to the crux of the matter.
This current government has a woefully poor empirical record when it comes to tackling the structural drivers that sustain racism.
This government has not dealt effectively with the land question.
This government has not eliminated apartheid spatial geography. This government has not helped to reduce deep levels of poverty and inequality that disproportionately affect the victims of colonialism and apartheid.This government has shown no leadership in getting white South Africans and corporate beneficiaries of racism to both introspect meaningfully about their privileges and to become partners in dismantling the injustices that account for their social and economic dominance still.
And this government has not helped to imbue black consciousness into our social fabric and public discourse to ensure that black people assert and take seriously their – our – inherent moral equality with white people.
In other words, our government hasn’t even begun to chip away at structural racism. If anything, as you will recall, President Jacob Zuma claimed earlier this year structural racism had been eliminated.
Why did he lie?
Because telling the truth about structural racism means telling the truth about an ANC government that has not tackled racism effectively.
Sure, we should all tackle it: citizens, corporate South Africa, the state and civil society, but my worry about this much-punted bill aimed at criminalising racism is that it can distract us from doing the hard work of dismantling structural racism.
I too want racists to face the consequences of their racism. And I was delighted when old laws like crimen injuria helped us to see some racists face the music, but I am worried, nevertheless, that a lazy government will rest (again) after passing an anti-racism bill, imagining it now has a good story to tell.
That is hasty because the battle lies elsewhere. It is largely economic and psychosocial.
* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma. His new book - Run, Racist, Run: Journeys Into The Heart Of Racism - is now available nationwide, and online through Amazon.
* The views expressed here do not necessarily reflect those of Independent Media.
THE STAR