Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
Race, Racism, Xenophobia and Related Intolerances such as sexual orientation discrimination
Pierre de Vos
(Talk delivered at Workshop on the National Action Plan of the South African Government on Race, Racism, Xenophobia and Related Intolerances, 12 March 2013)
In South Africa, the ideology of race, ethnicity, citizenship, and sexual orientation play a curious double role in many of our lives.
On the one hand, our perceived race, ethnicity, citizenship and sexual orientation permeates our lives and can often feel as if it largely defines who we are – despite our best efforts to become singular and unique human beings free from the shackles of these often oppressive identity categories. Yet, if we scratch beneath the surface we discover the deeply ingrained ideology, which is based on the idea that these identity categories say something true and essential about who we are. If we are asked, most of us would probably instantly affirm that we are “white” or “black”, “gay” or “straight”, South African or foreign. We will similarly instantly categorise others in terms of these identity categories – although we will deny it in public or pretend that we do not notice a person’s race or sexual orientation or nationality. Without ever having to reflect on the possible defining characteristics of these identity categories (what exactly makes a person “black” or “white” or “gay” or “straight” or “foreign” or “local”?) most of us “instinctively” classify people according to these categories: We are like US Supreme Court Justice Potter Stewart who said about hard core pornography: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description of “hard-core pornography”; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” I am sure if I ask every single one of you here what race you are or what sexual orientation or what nationality, you will instantly be able to tell me. You know. I know. We all “know”.
Personally I know I am “white” and “gay” and “South African”. Somehow these descriptors are important to me: it situates me within a particular history as a member of an oppressor group (being “white” and therefore somebody who benefited and continues to benefit from the racial status of my whiteness) as well as a member of a slightly less exalted group (being “gay”), who has suffered some form of prejudice and discrimination on this score. How do I know this? Where does this knowledge come from? How was this knowledge produced and what are its effects? Why do I perpetuate this “knowledge” about myself and others? Why am I not a “raceless”, “citizenless” individual with no sexual identity at all?
On the other hand, we are told that all these identity categories are not real, that they are culturally and politically constructed and that these categories are merely ideological inventions and therefore deeply problematic political tools that should be avoided and even erased from our lives. We are told that what the colour of a person’s skin is or where he or she comes from or what his or her sexually orientation is, is completely irrelevant, as a moral organising principle because it says nothing about the personal attributes or characteristics, talents or skills, ethical beliefs, goodness or evil of any person. Some argue that what is required is that we become blind to race (but strangely never to a person’s gender, sexual orientation or ethnicity…..) and that we should literally stop “seeing” what we cannot escape from living. As there is no such thing as race, (but somehow there is such a thing as sexual orientation) or if there is it is like the size of your ears or the colour of your underpants – we are told it says nothing about who we really are. Yes, some of us might like dogs more than others. Some of us might wear pink while others go for Khaki, but these are all irrelevant issues – just as our race, our nationality or (if we are progressive) our sexual orientation is irrelevant.
The question is: if these things are supposedly so irrelevant – if race and other forms of identity are invented, if they are socially constructed and therefore not real – why are they still hanging around and exerting such influence over our lives? Why do we invest so much in these categories? Why would some people go to the end of the earth to “prove” that they are heterosexual? Why do we police the boundaries of race and insist that “real” black people do not act in a certain way or speak with a certain accent? And why are you all looking at me, knowing that I am a white gay guy?
I suspect the answer must be sought in the history of these identity categories, how they came about and how they have been used and continue to be used today to subjugate through classification. These categories did not come about innocently. In all cases the dominant group imposed a hierarchical identity system on society, defining itself as the norm and defining the “Other”, as “not the norm”, and therefore always as a perceived inferior. Identity categories are always dichotomous: “white” versus “black”; “gay” versus “straight”; foreign versus local; male versus female. But the dichotomy serves the function of “Othering” and of putting and holding those who are not in power culturally, politically or economically in check, of making them feel inferior and believing in their own inferiority and (conversely) of making the dominant group believe in its natural superiority and allowing to continue to act in a superior manner even when the facts might not always indicate that this is warranted. This superiority stems from a deeply ingrained belief in the superiority of the values, beliefs, cultural practices of the dominant group. Some say that the assumptions are often so ingrained that they become visible – especially to the dominant group who does not see its values, beliefs and cultural practices as such at all, but merely as common sense assumptions about how the world works and what it entails. The dominance of such beliefs and the identity hierarchy that is maintained by this, helps to promote and/or protect the power, economic prosperity and status of the dominant group. Dichotomous thinking is always hierarchical. It aims to produce and to perpetuate a hierarchy that will be seen as normal and natural and that will be internalised by everyone as the “common sense” way in which the world operates. These hierarchies postulate one group as the norm, a group that embodies the ideal values and standards. At worst the group that does not embody these values and standards are persecuted, subjugated, oppressed and vilified. At best, members of the group that is not postulated as the norm can acquire equal status and may even be treated equally on the condition that they can demonstrate that they have acquired the standards and norms of the dominant group.
For example, the colonial encounter embedded the notion of racial groups in our thinking. This was done from the position of the white coloniser, which – in its own mind – represented “civilization”, “culture”, “refinement”, “intellectual prowess”, “moral rectitude”, “beauty” (all politically difficult and deeply contested concepts). In South Africa, a certain so called “liberalism” was associated with the history of the Cape Colony. Thus in 1872, a so called “non-racial” franchise was established, which granted the right to vote to Africans and Coloured males who met “non-racial property qualifications and, after 1892, educational tests”. But this “non-racial” franchise was not racially neutral as the vote was restricted to so called “Westernised blacks”, privileging European over indigenous cultures. “Whites” were not required to satisfy “African” standards but Africans (and Coloureds) were required to satisfy “European standards as the condition for participating in political institutions that originated in Europe. Thus European culture was established as the norm, allowing Africans to vote on the condition that they escaped their culture and race and became more like Europeans. The early leaders of the ANC bought into this notion and fought for the liberal franchise as this would provide evidence that it was accepted that many Africans were civilized Christians. One of the reasons why race and race thinking is so powerful in South Africa (as elsewhere in the world) is because the world we live in is irrevocably influenced (some might say formed) by this colonial encounter and by ideas about the superiority of European culture and beliefs and by extension of whiteness (over blackness). Whether we embrace the logic of the colonially imposed hierarchical dichotomy or whether we wish to challenge it, we often do so from within this system. The truth is that in modern South Africa, we cannot escape the effects of colonialism. Neither can we fully escape the logic of its imposition.
Similarly, the idea that one would be called a homosexual because of your sexual attractions to members of the same sex originated in the late nineteenth century medical discourse in which people who experienced an emotional and sexual attraction to members of their own sex were classified as mentally ill. Thus heterosexuality could be created as the hierarchical opposite of homosexuality with the former as the norm, that which one would expect to encounter, something far superior to homosexuality. The liberal discourse on sexual orientation holds that those homosexuals who can demonstrate a sufficient similarity with the assumed heterosexual culture (getting married, monogamy, children) are deserving of the same rights as they are behaving like “normal” people.
The danger is of course that when we insist on being blind to race or sexual orientation or to the nationality of a person, we are really insisting being blind to the racial hierarchy or sexual hierarchy etcetera, which allows the hierarchy in-tact and allows the perpetuation of ideas about the dominant norm of white culture of heterosexuality of South Africanness that must be aspired to and denies the value of celebrating non-hierarchical and multiplicitious difference.
2.1 There seems to be a fundamental inconsistency in the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance document. The definition of “related intolerances” provided in the document is far narrower than the broader discussion in section 6 around the challenges and measures to be taken to address the problems. In the introductory section (on page 5), the notion of “related intolerances” is defined as meaning “an intolerant and inflammatory attitude or behaviour by a person or group of persons towards another person or group of others based on race, culture, religion, belief or creed”. However, in section 6 the document makes it clear that intolerances go far beyond those mentioned based on race, culture, religion, belief or creed. Thus it discusses problems relating to gender based discrimination, intolerance and even violence experienced by gay men, lesbians, transgender and intersex individuals and discrimination experienced by people living with disabilities. It is unclear why the definition of related intolerances is drawn so narrowly when the document accepts a far wider understanding of the problem. From a conceptual point of view it is important to provide a clear, precise and inclusive definition of related intolerances to ensure that questions about gender discrimination, and discrimination against individuals based on sexual orientation and disability are not seen as peripheral to the governments obligations, something that may be addressed out of goodwill rather than as part of its international law obligations.
2.2 It is important that the NAP identifies social and economic exclusion as a major obstacle in achieving substantive equality and that this is linked to the racial disparities in our society. As indicated above, the link between social and economic exclusion and especially racism and racial discrimination is very strong. As the effects of apartheid and the concomitant racial discrimination had and continues to have significant material effects, economic redress must be an important aspect of any policy addressing racism and racial discrimination. However, the suggested measures identified in addressing this are vague to the point of being meaningless while also skirting more controversial but probably more effective mechanisms to address the social and economic inequality and exclusion. To be meaningful, a far more detailed action plan is needed to address the social and economic inequality in the country. For example, what does it mean to state that what is needed is to “intensify efforts to improve education”. Experts are divided on how to improve education. Improvement may also be addressed in ways that perpetuate instead of dismantling inequality. Because education in former “white” schools are usually of a much higher standard than in former “black” schools and because geography as well as access to school fees still largely determines access to schools, an improvement in schooling might well perpetuate patterns of discrimination, disadvantage and harm that tracks closely the apartheid era racial divide. Any programme to improve schooling will not address the problem unless it contains and explicit plan to address the inequalities in education that continues to exist. But how will this be effected? The plan is silent on this. Also, while section 6.4 points out that many plans have been adopted to address racism in schools, it is unclear how related intolerances are dealt with in schools. It is also unclear whether these policies are in fact effectively implemented and if the human resources exist to implement such policies effectively. Whether teachers are being trained in this is also not clear.
2.3 The goal of deconstructing notions of racial superiority and inferiority is another important one set out in section 6.7 of the NAP. However, once again the suggested measures proposed in the plan are weak to non-existent. The suggestions talk about promoting certain goals and calling upon institutions of higher learning to do so, but does not set out concrete measures that would entice, encourage or put pressure on such institutions indeed to change. Change does not happen easily. Even institutions in which the racial demographics of both lecturers and students have changed have not necessarily embraced the new paradigm of knowledge production. This is because tradition forms of knowledge production are deeply entrenched and will not be dislodged without concrete and determined steps. Vague promises and assertions will probably not change the manner in which these institutions operate and what knowledge is viewed as important and as having a high status within the academic sphere.
2.4 The section on gay men, lesbians, transgender and intersex individuals correctly identifies stigma as well as violence targeting members of the LGBTI community as problems. However, once again the measures suggested to address this are weak or vague. Providing materials in schools to educate youth on LGBTI issues will probably not address the prejudice and stigmas as intended. This is because without the active participation of teachers and the school leadership, such materials will not have any impact. What is required is therefore to educate teachers and to ensure that issues around LGBTI prejudices and stigma is integrated into the curriculum – just as other issues relating to racism, racial discrimination, sexism and gender discrimination needs to be incorporated in mainstream curriculums have any impact. Delivering materials to schools will not have the desired impact as it is unclear how such materials will be used in the schools and whether it will be incorporated into the mainstream curriculum. It is also proposed that hate speech legislation be enacted. This is curious as the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 also contains a prohibition against hate speech on any of the grounds listed in section 9 of the Constitution, which would include sexual orientation. This means hate speech against gay men, lesbians, transgender and intersex individuals is already prohibited by our law. It is unclear what further law is required to prohibit hate speech if such a law already exist.
2.5 Far more important is the question of why both the existing hate speech provision as well as the existing non-discrimination provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act are not as effective as hoped and why more people do not approach the Equality Courts to challenge unfair discrimination against them on the basis of race, gender, sexual orientation, disability, religion or related grounds. The Act envisaged an easy to use and inquisitorial process driven by Equality Clerks, to assist those who cannot afford a lawyer to access the Equality Court and to challenge discrimination and hate speech. However, statistics show that the courts are underutilised and that many people who are discriminated against never go to court. Any effective policy aimed at empowering individuals to use the law to challenge discrimination and hate speech would have to involve steps to popularise the Equality Courts and to empower individuals to make use of these courts. This could be done through comic books, TV soap operas, radio dramas and many other innovative mechanisms. However, I have not been able to find any engagement with this issue in the document.
2.6 One of the most challenging questions skirted by the Plan is whether racial discrimination, discrimination based on gender or sexual orientation or disability and overt expressions of racism, sexism and homophobia, transphobia and disability prejudice should be dealt with in terms of the above mentioned Equality Act or whether a criminal sanction should be imposed. While the Equality Act at present prohibits discrimination and hate speech and empowers courts to impose penalties against those found guilty of discrimination, this is not a criminal sanction and those found guilty are not found guilty of a crime. One argument is that in order to give teeth to the legal prohibition against discrimination, discrimination should be criminalised. However, difficult questions about the right to be presumed innocent until proven guilty in criminal cases or the ability to prove such crimes may arise as discrimination is often indirect –something recognised by the South African Constitution and by the Equality Act – which requires a shift of the onus to the accused once it has been shown that a person has been treated differently from others. If unfair discrimination was made into a criminal offense this may be unconstitutional. Perhaps for that reason, the document does not engage with the issue.BACK TO TOP