This is so because racism fundamentally concerns the doubting of the humanity of Africans. European colonial racism constructs the false superiority of white identity precisely through the Othering of Africans as irrational, savage, animal-like, wild (‘cheeky’), uncivilised and incapable of self-government.
This construction then becomes the basis for the social, economic, legal, and political organisation of racialised societies in which Blacks generally come to occupy the underclass, the abject poor, the subordinated, “the wretched of the earth”. The historical legacy of this European fantasy we call “white supremacy” is then one of structural racism, white cultural and social dominance, and tremendous economic inequality between Blacks and whites.
The insults, degrading racial slurs, the wounding words as well as the beatings that whites mete out against Blacks are then simply a reflection of this structural problem. They are manifestations of broader social dynamics, activated by unequal power relations where the perpetrators seek to reaffirm their sense of social position and privilege. The acts of verbal and psychical punishment that characterise racial assaults and slurs are a way in which the perpetrator reinforces their sense of identity over their victims, whom they cast as inferior or deviant.
It is therefore puzzling that the mooted solution to this problem as proposed by the ANC government is the criminalisation of racist and other hate speech. If the history of racism is best understood historically as one of oppression rather than mere hate or aversion, why would the solution be to criminalise expressions of racism rather than to address, finally after 22 years, its root causes and endemic effects?
Would apprehending these incidents not as isolated but in structural terms also not expose the ANC government for its failure to deliver substantive justice and redress for Blacks notwithstanding its hyperbolic claim of having “liberated” us? One has to wonder what kind of liberation this is when Blacks are not only routinely labelled monkeys and kaffirs but also experience a deplorable standard and quality of living either through the abject poverty that defines rural and township life or the debt and psychological trauma of urban middle-class life.
There is a serious need then for a critical race literacy of the type that defined the black radical Africanist politics of Robert Sobukwe and Steve Biko. Such critical race literacy – an understanding of racism as a question of power and not of behaviours – would immediately reveal a number of blind spots in the government’s plan to criminalise racism.
The central question here would concern the definition of racism, which, contrary to those with faith in the Oxford English dictionary, is highly contested. As intimated above, a historically sensible definition of racism restricts racism as both prejudice and structural power to white people as a group. To be racist on this definition is matter of “the power to subjugate”.
As many have pointed out, the criminalisation of racism, unless defined in this way, will most certainly rely on a liberal definition of racism as equal-opportunity racism that may result in the prosecution of victims of structural racism (that is, Blacks) who by virtue of their social experience of dehumanisation will predictably rage against white supremacy and racism. And many times, this rage will express itself in the form of a hatred of actual white people insofar as they represent, embody and benefit from structural racism, thereby living off what kills and degrades blacks daily.
That said, the criminalisation of racist hate speech will also result in a clinical and unproductive approach to racism, of searching for “bad” racists rather than focusing on the reality that all white people benefit psychologically and materially from racism and have an interest in maintaining racial inequality.
Criminalising racism will shield the polite racists and the self-perceived “good whites” from confronting the legacy of racism in their lives and white communities. It will give them a good conscience. The cataloguing of extreme and spectacular acts of racism misses the fact of the banality of racism, the fact that it is a permanent reality for Blacks. It also misses the fact that the history of white racism is not only in the form of the conservative, apartheid-type of racism but also the liberal and paternalistic type as well.
The “pin-pricks of racism” and the mere fact of living in an anti-black society are aggravated, not created by the cruel words of white South Africans. This is not to deny that these words do not hurt; of course they do but they hurt largely because they reinforce and mock Blacks’ already subordinate position in society.
On this view, there is little difference between the whites who compliment Blacks for their good English, those who appropriate Black culture and fetishise Black people, those who secretly connive against and undermine their Black colleagues and those that call us kaffirs insofar as all of them share the systemic doubt concerning the humanity of Blacks.
Which of these will bear the brunt of the criminal law and which will not? Properly construed, most Blacks have little desire to be loved by whites; what they demand is the respect that can only come from a world free of the burdens and madness of white supremacy and anti-black racism.
More to the point, the turn to criminalise racism at this point in history is clearly an attempt to avoid more radical ways of undoing white supremacy at the economic, social and cultural level. The idea that racism resides exclusively in people’s hearts and minds and manifests as a form of actions and words – aside from being severely discredited in critical race scholarship – is problematic as it elides a focus on what Biko called “the totality of white power” and the continuation of European colonial domination in South Africa.
It would seem then that what appears as a moral commitment to anti-racism in this criminalisation crusade is actually another form of race denialism, of attempting to save the failing and failed myth of the rainbow nation. To believe that the blunt instrument of law, traditionally a tool for stability and maintaining the status quo, will solve this problem is simply a form of bad faith and a denial of the fact that what is needed, all that is needed, is a dismantling of white supremacy – not only in the form of legal and political spheres but also the economic, social and cultural spheres of life.
Nothing less than a radical re-organisation of society along more African, democratic and socialist lines will restore peace and harmony in this still “unsettled” and “unreconciled” country. Without this form of corrective and substantive justice, the problem and the pain of racism will simply keep repeating itself. So perhaps rather than decriminalising racism, we should criminalise race denialism. But then the whole country would be a prison! DM
Modiri teaches jurisprudence at the University of Pretoria. He writes in his personal (and ideological) capacity.