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Xenophobia – like racism – must be treated as a crime

Publish date: 07 October 2019
Issue Number: 844
Diary: IBA Legalbrief Africa
Category: South Africa

Xenophobia and Afrophobia – the hatred of foreigners from other African countries – are forms of racism. Victims of xenophobia, as with racism, are excluded, discriminated against and marginalised. The Institute for Security Studies’ (ISS) Themba Masuku notes that while xenophobia is not regarded as a crime in SA, the Prevention and Combating of Hate Crimes and Hate Speech Bill – which has now lapsed – is a significant step towards the criminalisation of xenophobia. Under this Bill, any act intended to be harmful or to incite harm or promote or propagate hatred on the basis of, among other characteristics, nationality, birth, migrant or refugee status and language, is a statutory crime. In an analysis on the ISS website, Masuku argues that given the escalation of xenophobia in SA, there is an urgent need to revive the Bill. ‘Government’s calls for tighter borders, strict regulations over businesses operated by foreigners, arrests and mass deportation of illegal foreigners have not worked in the past.’ Furthermore, government interventions do not address the complex root causes of xenophobia, with negative statements by politicians fuelling the situation. He adds the Bill seeks to address the problem of government officials making foreigners ‘scapegoats’ for state failure to deliver basic services. ‘When the Bill becomes law, these actions will be punishable,’ he adds. Noting that xenophobic violence has a negative impact on SA, both at home and abroad, he says the recent retaliatory attacks on SA-owned businesses – MTN, Pick n Pay, MultiChoice and Shoprite operating in other African countries – have sent a strong message from the continent that xenophobic violence will not be tolerated. Masuku says that if government is serious about ending xenophobia, the Bill needs to be finalised. ‘The country cannot survive on its own – it needs integration with the rest of Africa. SA’s prosperity also depends on the extent to which it can attract skilled people and trade on the continent. If the constitutional promise that SA belongs to all who live in it is to be realised, xenophobia – like racism – must be rejected.’

Prevention and Combating of Hate Crimes and Hate Speech Bill (B9-2018)

Full analysis on the Institute for Security Studies website