Hate crimes: a priority?

By: Claire Martens (writing in her personal capacity)

In some parts of Africa, being gay is not acceptable or even lawful. In fact, it is also seen as “un-African”. In order to escape persecution, Lesbian, Gay, Bisexual, Transsexual and Intersex (LGBTI) individuals are seeking shelter under our all-embracing and progressive legal system in South Africa, little knowing that what the law says, and what happens on the ground, can be the difference between life and death.

Every few weeks, the media informs us of another crime committed against an LGBTI person; corrective rape, torture, mutilation and murder. These are only the extreme crimes; the reek of discrimination proliferates everywhere. LGBTI people enter South Africa as asylum seekers, applying for asylum based on the fact that being gay can mean jail, and even death, in some countries. But applicants are sometimes rejected because they have been unable to prove themselves to be gay. While the concept of proving oneself gay is a whole other debate, the issue itself is where such remarks emanate from. It is not that Home Affairs officials do not understand that sexual orientation is protected in this country, or are not aware of application procedures; instead, there seems to be a lack of understanding and acceptance of the LGBTI community. The result is that the manifestations of discrimination have real and vastly detrimental outcomes for those seeking asylum.

This double persecution experienced by LGBTI asylum seekers is just a drop in the pond. The serious crimes get more coverage, of course, and have recently sparked debate on introducing “priority crimes” to the justice system. Commentators have called crimes committed against LGBTI persons, because they extend from both prejudice and the need to inflict serious physical and emotional harm on the victim, “hate crimes”. The victims of hate crimes often come from marginalised groups and are discriminated against based on some aspect of their person. The term “hate” is misleading because a crime can be committed out of ignorance, jealousy or because of peer pressure. Sometimes the crimes are committed out of fear.

Some may question the importance of labelling a crime as a “hate crime”. Some are of the belief that there is a good reason to label something a hate crime, if the label can serve a purpose such as exposing the existence of the crime, defining the emotions behind the crime and as such, indicating the way of addressing it – through tackling the issue of discrimination. Victim Empowerment SA has called for people, who think they have been victims of hate crime, to report it as such.

“The reason that it is important to report that you think you have been a victim of a hate crime is because it is an indicator of a community problem that needs to be addressed more broadly than your perpetrator, and thus your reporting could contribute to a response from the government/police after identifying the prevalence of violence against a particular group.”

A recent press release by South African National AIDS Council’s Women Sector (SANACWS) indicates that there has been a recent lobby to implement hate crime legislation in this country. Some commentators have asked for farm murders to be included in this. Even though I doubt that people in general have reported themselves as victims of hate crime, there is enough media coverage of LGBTI persons being victims of crime based on their sexual preferences, that we cannot ignore that discrimination exists and that something needs to be done to address it; and soon.

One solution which has been suggested as a way of addressing the problem is to make hate crime a priority crime. The term “priority crime” is not new to South Africa. The specialised unit of the Hawks was set up to deal with organised crime, economic crime, corruption, and other serious crimes. Perhaps “other serious crimes” could refer to crimes committed against LGBTI persons.

Perhaps labelling hate crime a priority crime is a concomitant concern to the previous one noted; that there is a need to legislate for hate crimes. Hate crimes could then be legislated as priority crimes. However, even if we are able to introduce legislation into this country which addresses hate crimes, how do you prove it is a hate crime, what kind of punishments would be suggested and would the legislation address the issue of discrimination? Is the issue not more to do with changing social mores than it is about punishing people for their beliefs; as detrimental as the manifestations of those beliefs are? Will labelling a crime committed against LGBTI people a hate crime, and making it a priority, make a difference?

For more on lobbying for hate crimes: http://dailymaverick.co.za/article/2012-06-27-sas-gay-hate-crimes-an-epidemic-of-violence-less-recognised

http://dailymaverick.co.za/article/2012-06-29-lgbti-rights-in-sa-the-constitutional-dream-and-the-not-so-dreamy-reality

Disclaimer: The opinions expressed by the Realising Rights bloggers, and those providing comments, are theirs alone and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

Litigating the Holes in Education

By: Claire Martens (writing in her personal capacity)

Children attending school in a mud structure (photo by Daily Dispatch)

In recent months, the spotlight has shone rather harshly on the holes in South Africa’s education system. Illuminating the deficiencies in the system has been largely the work of a number of non-governmental organisations (NGOs), including the Legal Resources Centre (LRC) and Section 27. I recall that a few years back, Equal Education (EE) was campaigning on the streets of our cities, hoping that government would take heed of their call for better facilities at schools. Since then, it seems that results still aren’t close to being satisfactory. EE then took the next step: using litigation as a tool to compel government to do something.

As everyone in this country knows, using the courts is an expensive exercise. It is not an action which is easily taken, but often used as a last resort. In an article published in the Daily Maverick, the author, Osiame Molefe, notes the litigation was only instituted in the EE case because the lobbying did not yield results, even after a few years. The LRC has also been engaged in litigation to address a number of issues which have been identified through their work. The body of the LRC’s litigious work which impacts on education has grown considerably of late. As one matter is dealt with, another one seems to rear its head. Reports about the education sector are often harrowing reads, and when issues like “love affairs” between teachers and learners are revealed, you begin to understand how bad things have become.

The right to education, as found in our Constitution, is not a right which can be half-fulfilled or left until a later date. The right to education should be immediately realisable. There is a further compelling argument: the longer that the country takes to make that right a living reality for each and every child, the longer this country will be burdened with a cycle of poverty. Without a proper education, you are condemning the youth of South Africa to a lifetime of unfulfilled potential, unemployment and loss of self-respect. Education, even if not the answer to all of society’s problems, goes a long way to solving at least some of them.

The fact that many of the miseries of our education system, which was already severely disfigured by the gross inequalities of Apartheid, are still endemic and prolific, means that it is not possible to stand by without taking action. NGO’s know what the issues are and can do something about it. While litigation is just one form of relief amongst many, and has its own deficiencies, when government does not listen to letters or lobbies, the strength of our legal system is available for harnessing.

NGOs do not litigate as a matter of rote, but often exhaust other avenues in order to address issues which they identify. Unfortunately, litigation is often piecemeal, reactive and sometimes ineffective if court orders are not complied with. However, this does not mean that efforts by legal NGOs have been in vain. The strength of a good precedent is that it can inform policy, reform law and be the foundation upon which other schools can gain relief. However, the question still remains as to whether litigation is the best way forward.

In a recent education workshop, the idea of a silver-bullet for solving education deficiencies was discussed. This is in response to Osiame Molefe who suggests that “nothing short of a comprehensive response that deals with all the facets of the problem will right this situation”. The straightforward answer, to the question of whether one exists, is that there is no silver bullet. The education system is constituted by a number of physical, cultural, human resource and infrastructural facets and it seems to be an impossible task to find a solution upon which everyone agrees. Where does one expend energy when there are issues with all of the facets? Even as legal experts with experience in education matters, participants found it difficult to suggest what this silver bullet would look like. The solution then is to forge forward as a collective; comparing cases, finding the holes and continuing litigation.

We all recognise that if a solution could be found, or a better way employed, we would jump at the chance to change how we confront these issues. Right now, litigation has achieved some valuable outcomes and the negative publicity surrounding the cases has resulted in government action. Although what has transpired is not yet enough to breathe a sigh a relief, and perhaps we never will, the fact that our president is now responding to our recent textbooks cases shows us that litigation is still a legitimate response to a particular issue.

Disclaimer: The opinions expressed by the Realising Rights bloggers, and those providing comments, are theirs alone and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.