A popular phrase: “Ke Dezember Boss”, is said to show excitement towards upbeat festivities as the year draws to a close. But after reading a Daily Maverick article by Marianne Thamm on 30 December 2018 titled “Clifton 4th beach: Of slaughtered sheep, drowned slaves and collective rituals” I pondered whether there was much to celebrate in December. The actions and reactions following the Clifton 4th Beach race row incident (and also other similar stories throughout 2018) reminded me of a few famous lines from A Tale of Two Cities, the 1859 novel by Charles Dickens:

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way…”

The passage portrays the contradictions and tensions between love and family, on the one hand, and oppression and hatred, on the other. In the South African context, the passage speaks to the weakness of our much celebrated Rainbow Nation in the form of contradictions and tensions between respect for all (dignity, equality and fair discrimination) and social cohesion on the one hand, and intolerance, racism, xenophobia, hate speech, unfair discrimination, and continuing apartheid in South Africa on the other hand.

The use of anaphora in the Dickens passage emphasised the grim situation and condition at the time during and after the French Revolution. Particularly interesting is the anaphora used by Dickens to show the matching pound for pound between good and evil, between wisdom and folly, and between light and darkness.

Another important quotation from A Tale of the Two Cities reads:

“Along the Paris streets, the death-carts rumble, hollow and harsh. Six tumbrels carry the day’s wine to La Guillotine. All the devouring and insatiate Monsters imagined since imagination could record itself, are fused in one realisation, Guillotine. And yet there is not in France, with its rich variety of soil and climate, a blade, a leaf, a root, a sprig, a peppercorn, which will grow to maturity under conditions more certain than those that have produced this horror. Crush humanity out of shape once more, under similar hammers, and it will twist itself into the same tortured forms. Sow the same seed of rapacious licence and oppression over again, and it will surely yield the same fruit according to its kind.”

What comes through is Dickens’ dithering attitude towards the French Revolution. The events, told and untold, awakened his belief that the ghastly conditions under which the aristocracy (the privileged) subjected the lower classes (peasants/historically marginalised and disadvantaged) eroded their fundamental goodness.

Similarly, incidents such as the Clifton 4th Beach race row awakened my ambivalence towards the Rainbow Nation, and left me meditative on the question: What Rainbow Nation? Like Dickens saw France, I see South Africa as a country with its cities and beaches — such as the beautiful Clifton 4th Beach and the City of Cape Town ranked among the world’s beautiful cities — and its people rising from this abyss described by Marianne Thamm.

Also rising from the abyss depicted during the Truth and Reconciliation Commission hearings, and the peoples’ efforts to move on and forget what they had to go through to be free from apartheid and all its ills and evils, the lives lost and torn apart as they tell stories of their triumphs and defeats as children were flying and bullets flying (like the late legendary Miriam Makeba would say in her iconic song Soweto Blues).

Is there really a rainbow nation in South Africa? The Rainbow nation ideology is integration advocacy which holds the idea that we are all equal regardless of our sexual, ethnic or cultural background. As a national metaphor of South Africa as a melting pot, the Rainbow Nation concept by Archbishop Emeritus Desmond Tutu is characterised by, among others, being democratic, liberal, equal, diverse, multicultural, accepting of one another as a cohesive unit, and putting more value on anti-racism, universalism, secularism and gender equality.

Has the Rainbow Nation existed anywhere in the world? With past and recent South African events, and taking into account international examples, I have no choice but to believe that there was never a Rainbow Nation — at least not in practice; only the myth and fiction of an equal post-race South Africa. Sadly, the Rainbow Nation is a “Beacon of Failure” (see Muxe Nkondo). Unlike Kenya, which addressed hate speech as defined or proscribed under section 13 of the National Cohesion and Integration Act No. 12 of 2008 and created in 2009 the National Cohesion and Integration Commission (NCIC) pursuant to the Constitution 2010, our Rainbow Nation concept has no driving force.

The NCIC’s mandate is to “facilitate and promote equality of opportunity, good relations, harmony and peaceful coexistence between persons of different ethnic and racial backgrounds in Kenya and to advise the government thereof”.

The question I hope we can begin to seriously consider is: What progress has been made in South Africa to instill the Rainbow Nation coherence and to eradicate the ills that render the Rainbow Nation a fallacy? Unfortunately, minuscule progress has been made.

To start with, for example, the Constitution of the Republic of South Africa of 1996 has been abused to normalise and perpetuate inhumane treatment of blacks in South Africa. The best intentions of the Truth and Reconciliation processes have been abused by racists to elevate “pleas for forgiveness” and “regrets for racial remarks” as legal defences.

We hear, for example, heart-wrenching stories of farm workers being beaten, grievously assaulted in different ways, and killed by employers and non-farm resident assailants. We also hear stories of farmers being attacked, grievously assaulted and killed. Also, the advent of the Constitution of 1996 and the Bill of Rights have concealed a reconfiguration and redeployment of racial predilections, dehumanisation of others, intolerance and hate speech.

The Rainbow Nation as integration and national cohesion ideology pivots around, among others, the eradication of intolerance, racism and racists, hate speech, unfair discrimination and apartheid. Hate speech has been explained by the European Court of Human Rights in the case of Gunduz v. Turkey, app no 35071/97, 4 December 2003 at para 41, as “all forms of expression which spread, incite, promote or justify hatred based on intolerance (including religious intolerance)”.

In South Africa, the proposed provision on what may be regarded as racist and hate speech in one of the versions of the Prevention and Combating of Hate Crimes and Hate Speech Bill of 2018 offers little hope. In fact, it will make it easier to abuse some of the freedoms and rights in the Bill of Rights, and will allow racists to evade the law.

Consider for example the provision in the bill that excludes from the ambit of hate speech anything done in good faith insofar as it does not advocate hatred that constitutes incitement to cause harm. Expressions of racial hatred or racial vilification in the current South African environment does not need to be physically harmful to be punished. In my view, the bill falls short by saying that you can ethically, racially and genealogically hate others or freely express your hateful convictions or disdain of them in the most divisive way possible as long as it does not harm them.

Aggravating the situation is that existing laws governing unfair discrimination, hate speech, crimen injuria and defamation, and the presence of institutions such as the Human Rights Commission and the Equality Court are proving ineffective.

According to section 9(1) of the Prevention and Combating of Hate Crimes and Hate Speech Bill:

“The State, the South African Human Rights Commission and the Commission for Gender Equality have a duty to promote awareness of the prohibition against hate crimes and hate speech, aimed at the prevention and combating of these offences.”

However, legislating a toothless dog that is not backed by a highly effective legislative and institutional framework will take the crusade nowhere.

Then what? A number of approaches may be considered, including:

Declaration of personae non-gratae (Declaration of undesirability as a person in the jurisdiction of the country):

Perhaps we must consider declaring hardcore and unrepentant racists personae non-gratae; and consider depriving them of their right to citizenship or certain rights in the Bill of Rights. But how then do you declare racist South African-born citizens personae non-gratae?

Constitutional law scholars will surely be quick to tell you that the deprivation of citizenship rights is as contentious as denying that apartheid still exists; and that it is taking things too far. Perhaps more so, to their credit, because that will bring into the fray the challenge under the 1954 Convention Relating to the Status of Stateless Persons regarding people being stateless and under the Universal Declaration of Human Rights that guarantees that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality”. 

Be that as it may, the reality is that states can exercise their citizenship deprivation powers, taking into account the extent to which their legal framework and human rights standards and international law limit state powers of deprivation.

Inserting the abuse of rights provision in the Bill of Rights:

The Constitution of the Republic of South Africa has no “abuse of rights clause” in the Bill of Rights except for the residual traces in the Limitation Clause and the internal limitation of certain rights in the Bill of Rights. Perhaps we should consider entering into a discourse to amend the Bill of Rights in the same way the land question has been handled, and as an outcome of the discourse to insert the abuse of rights clause into the Constitution of 1996.

This will help curb the abuse of the rights in the Bill of Rights over and above constitutional remedies available. The freedom of expression clause, for example, is in my view one of the most abused by racists and hate speech propagandists. Typical abuse of rights clause is found in Article 17 of the European Convention on Human Rights which states that:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

The Belgian Anti-Racism Act of 1981 is an example of how far some countries went to combat racism — in this context putting checks and balances to prevent the abuse of political rights and freedom of association. The Belgian anti-racist legislation was adopted to fulfil the country’s obligation under the United Nations Convention on the Elimination of Racial Discrimination by criminalising various acts including incitement to discrimination, hatred, or violence against a person or group on account of race, colour, descent, origin, or nationality, advocacy of any form of discrimination, hatred, or violence.

The act went further to allow punishment for ‘‘whoever belongs to a group or association that clearly and repeatedly practices or advocates discrimination or segregation [ …], or who lends his assistance to any such group or association.’’ Interesting to note is that on 9 November 2004 the Belgian Court of Cassation rejected an appeal against a judgment by the Ghent Court of Appeal for the offence of belonging to and lending assistance to the Vlaams Blok political party that repeatedly advocated discrimination in what is regarded as the watershed in Belgium to criminalise political racism.

The outcome of the case has been described by Eva Brems — Professor of Human Rights Law, at the Human Rights Centre, Ghent University (Belgium) — in an article titled Belgium: The Vlaams Blok political party convicted indirectly of racism published in the International Journal of Constitutional Law, Volume 4, Number 4, 2006, pp. 702–711 as providing “an instance of a democracy defending itself in a legal system that does not provide for party banning”. As reported by Brems, the Court held that the Vlaams Blok party orchestrated a systematic hate campaign against foreigners. To be specific it stated that:

In its propaganda, the party permanently sketches an odious image of ‘‘foreigners’’ in order to fuel, maintain and increase among the population feelings of xenophobia (whether or not already latently present). [ …] The image thus drawn of ‘‘foreigners’’ is that of foreigners as criminals responsible for the feeling of insecurity among the population as a result of all sorts of criminality; of foreigners taking the bread out of the mouths of the [country’s] ‘‘own’’ population, and responsible for unemployment; of foreigners as those who profit from social security at the expense of the hardworking ‘‘own’’ population; of foreigners who benefit from the multicultural society promoted by the classical political parties, to the disadvantage of the ‘‘own’’ population, which is left in the cold by those parties; and of foreigners as fanatics who cannot be integrated because of their culture, religion and customs, and who threaten the identity and the culture of the ‘‘own’’ people. (See Brems p.707).

Introducing extra-territorial prosecution:

Extra-territorial prosecution of hate speech and racism needs serious consideration. A case in point is Adam Catzavelos, a Johannesburg businessman, who recorded a video using the K-word while in Greece on a trip, directing it to black South Africans.

Interestingly, some legal experts in South Africa at the time held a view that he could evade criminal prosecution as his host country might not regard the K-word as a criminal offence.

“The offence was committed in a foreign country so you can’t prosecute him in South Africa unless what he did is also an offence where he recorded the video, then you can have him extradited. The rule is, you are prosecuted where you commit the offence,” advocate Zola Majavu reportedly said.

I do not believe that Catzavelos cannot be prosecuted because he made racist remarks while overseas. His video was circulated on social media internationally and within South African borders. Thus the borderless nature of the platform he used to spew racist remarks entitles the South African prosecution authorities to prosecute him.

Alternatively, legislation such as the Prevention and Combating of Hate Crimes and Hate Speech Bill, and related statutes, must have an extra-territorial jurisdiction reach to make them more effective.

In the case of Catzavelos, such a prosecutorial jurisdiction claim over him would have been enhanced by the fact that Article 2 of the Greek Constitution provides for the protection of human value and dignity which forms a foundation to act against any racist or intolerant behaviour in Greece. Furthermore, the relevant European Union and United Nations conventions prohibiting racial discrimination and related acts have been ratified and incorporated into the Greek national law.

The Greek Law No. 927/1979, for instance, allowed punishment as a misdemeanour, conduct aiming at racial discriminations and acts of public expression of offensive ideas and a refusal of providing goods or services against individuals or groups due to their race or ethnicity.

Will South Africa, made famous by the likes of Archbishop Emeritus Desmond Tutu’s Rainbow Nation; former president Nelson Mandela’s country that belongs to all those who live in it; and defended courageously and selflessly by struggle icons and liberation movements — be able to rise above the devastating consequences of racism, hate speech, unfair discrimination, apartheid and related forms, towards reclaiming its Rainbow Nation trajectory?

Only time and our courage to confront these demons will tell. But, if I were asked to describe the state of our supposed Rainbow Nation in five words I would borrow from Dickens’ Tale of the Two Cities and give the answer: Tale of the Two Countries.

I have not lost hope yet, however. Perhaps because I read and deciphered Toni Morrison’s God Help the Child (2015), a novel full of subalternity shapes and which from a postcolonial frame deals with the challenges of racism and child abuse in the United States of America through the plight of a child named Bride. I derive courage not to lose hope from God Help the Child because South Africa, like Bride, can be likened to a Rainbow Nation child who suffered stereotyping and marginalisation. However, whose road traversed was demonstrative of the human willpower through achieving selfhood in spite of childhood suffering. It can be done.

God Help South Africa the Rainbow Child. DM

This article is written in the author’s personal capacity as a South African and legal scholar. Opinions and suggestions expressed herein are not of the institution the University of Limpopo.