Picture: THINKSTOCK
Picture: THINKSTOCK

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THIS year marks the 20th anniversary of the Constitution and SA’s first Bill of Rights. Yet before the year had even got under way properly, we had #PennySparrow, #ChrisHart #AndrewBarnes and various other storms over allegedly racist utterances. And they just don’t end. Just on Wednesday, I saw a tweet that compared President Jacob Zuma to an ape, saying the ape was more intelligent.

I was speechless at the sheer arrogance of it. Despite the outrage, despite the condemnation of Sparrow’s remarks, despite the (really quite severe) potential legal and social consequences, yet another idiot racist ambles in, cool as a cucumber, and repeats the abuse.

We must accept that the Sparrows of this world are not exceptions and their comments are not aberrations. Her posts may have been an extreme version, but they reflect a norm.

South African society and the economy were built on racism and colonial dispossession. Racism was woven into the very fabric of the country. And it remains so.

The Constitution was meant to be the framework for dismantling this racist society. But 20 years on, one has to wonder: has the Most Progressive Constitution In The World failed us?

It depends what we expect of the Constitution. It is a legal framework. If racism remains stubbornly hard to dislodge, we can only blame the Constitution if it has put the brakes on efforts radically to transform society. So far, it has not. Indeed, the property clause in the Bill of Rights — often blamed for the failure radically to redistribute land and other property — has not even been fully tested. Yet people continue to insist that property cannot be expropriated unless compensation is paid at market value.

That is a total misconception.

The Constitution speaks of "just and equitable" compensation. And there is a good argument that in some instances, just and equitable compensation would be nil.

The government does not correct this misconception because it is convenient. It lets the government off the hook when it has to account for its abject failures in the — admittedly highly complex — arena of land redistribution in this country.

I think we expect too much of the law altogether. Compared to real social and economic change, passing laws is easy. It makes everyone feel that something is being done.

Which brings me to the idea of criminalising racism. I have written elsewhere that the Constitution would allow for the criminalisation of hate speech, within certain parameters. But that does not answer the question of whether it is a good idea.

The strongest argument against it is that the utility of such a law is limited. It would not rid SA of racism. It would not create equality. It would not even change attitudes. At best, such a law would stop us from having to be subjected to the crowing of those who continue to benefit from racism.

That may be a good enough reason to do it. But I would feel better if we were as loudly calling for the kind of change — social and economic — that would rid SA of racism altogether.

I have another concern that is more difficult to articulate. I like that our democracy is so noisy. I like the fact that a jogger can give the bird to a blue-light brigade. I like the fact that South Africans shout and toyi-toyi and demand their rights. I like the fact that we can call politicians corrupt and politicians can call us tjatjarag. I even love it that Steve Hofmeyr can take a puppet to the Equality Court. And lose spectacularly.

I also think we need to discuss race and racism in SA. Every day. I worry that a law criminalising racist speech would affect this. Not in an obvious way — I accept that such a law could be carefully constructed so that it targets real racist speech.

In chatting to a number of people about this subject, I have been amazed at how scared they are to speak publicly on it. Me too. As I write, I am wondering if I will have the courage to publish and brave Twitter.

I’ve never really understood the concept of a "chilling effect": a term used by lawyers when they argue that to outlaw certain forms of expression would affect other, legitimate, forms negatively. I get it now.

Meanwhile, the Sparrows of this world are not scared, they are oblivious in their racism and carry on happily with their privileged lives.

• Rabkin is law and constitution writer