Is Berlin's new anti-discrimination law a step in the right direction?

In the summer of 2020, when race riots ravaged urban centres in the United States, and the UK saw its own share of Black Lives Matter protests, Germany's capital Berlin came up with the timely announcement of a new anti-discrimination law. 

Although the city earned much praise, the law raised some compelling questions, such as why was it needed at all? And more importantly, what lay before it?

Basic research into legal protection in Germany against everyday discrimination, made for dire reading.

The German constitution makes it constitutionally illegal to discriminate against any individual on the basis of race, religion, gender and ethnic identity, but that's exactly what's wrong with it: it’s a constitutional article with no further legislation to describe or define the meaning of the term 'discrimination' or what constitutes a 'racial or ethnic identity', or any procedures of how discrimination complaints would be treated and justice served.

For example, if someone wants to register a complaint, do they go to the police or pursue their case through a civil court, says Armaghan Naghipour, policy advisor at the Berlin State government department for Justice, Consumer Protection and Anti-discrimination.

Armaghan says, 'the constitution forbids discrimination but doesn't explain what it is and how it can be enforced, there was no legislation until the European Union recommendations of the year 2000'.

In the year 2000, the EU recommended all its member countries adopt anti-discrimination legislation. In 2006 Germany got its first anti-discrimination legislation.

'That only covered the private sphere of life and work, so if someone in their private capacity discriminated against someone else, then yes, or in the workplace, but it did not cover those in public office,' Armaghan explains.

In layman’s terms, a public servant could easily discriminate against a member of the public and there was no specialist legislation to prosecute the public official through criminal court or civil court.

In more basic terms, a teacher, professor, police officer, or civil servant could say or do something openly discriminatory and in most cases nothing could be done about it.

Decades of darkness 

Between 1949 and 2020, Germany had no specialist anti-discrimination legislation to protect its citizens from discrimination it might face at the hands of public officials. 

Armaghan says that Berlin was awash with allegations of racial profiling by the police and at the foreign office which deals with visas and residency permits. 

The most recent legislation, which came into effect in June 2020, covers German citizens from discrimination faced at the hands of public officials and was pushed through the Berlin State government by the Green political party.

It is aptly led from the front by Armaghan, the daughter of political refugees from Iran. This struggle was real for her, and the challenge to draft this bill into law was more of a personal mission. 

She explains that the new law 'helps victims get justice!'.

Although the new legislation doesn't criminalise discrimination, it does allow victims to take civil action against the public entity – in case a police officer discriminates against a member of the public, that person has the right to take the Berlin State government to civil court and demand financial compensation.

Armaghan reluctantly agrees that the rest of Europe might be ahead of Germany - 'it takes a while for the institutionalised mindset to go away', she says.

In the UK, racism and religious discrimination are often prosecuted in criminal courts, be it private or public sectors.

The French law enacted on July 1 1972, forbids all forms of discrimination in the workplace, based on sex, political and religious discrimination and racial discrimination. It also introduced criminal sanctions. 

The French brought in more amendments and legislation further in support of the 1972 law.

Germany, with the largest number of ethnic minorities  in Europe, at nearly nine percent of its population, has lagged far behind its European counterparts in introducing legislation meant to protect them from everyday racial discrimination.  

Armaghan says institutionalised discrimination based on race and religion is a recurring problem in Germany, 'I remember once my professor, while I was studying law at university, said about me when I entered the class - Oh here comes the princess from the Orient - I didn't think it was funny.' 

Under the new law, Armaghan could have taken her university and eventually the Berlin State government to civil court for what was a clearly racist remark.

But it was in the decades of darkness, when the legacy of Germany's discrimination against ethnic and religious minorities was written.

Where are you from? 

Isabel agrees with Armaghan, saying, 'discrimination here is institutionalised, it starts from 

kindergarten, children of colour get more detention than other white children, when you eventually make it into the workplace, you have to work much harder to prove yourself than others'.

Isabel Kwarteng Acheampong is a 25 year old rising performance artist in Berlin. She was born to a Ghanaian dad and a German mother in a small farming community in western Germany. 'I'm very typically German in that way, I come from a village which has more cows than people, I even speak in the local accent. But still I very often get asked where are you from? And even if I say Germany, they say but where really, it's almost like the people cannot believe that a German can look like me, of mixed race', says Isabel.

'We (ethnic minorities) don't have a voice here,' she complains.

Her performances now have a strong sense of activism, and she often helps with the Black Lives Matter movement in Germany, and says, 'I try to communicate my message through my performances.'

'I was once followed by a racist guy, who was shouting at me and threatening me, when I called the police they simply said, look you are a foreigner you shouldn't be in these areas, I said I'm German this is my country too, they just wouldn't register a complaint. I think the policy is, if you don't register a race related complaint then there is no racism problem in Germany', Isabel says.

According to the German Federal Anti-Discrimination Agency (ADS), a number of reported cases of all types of discrimination rose by almost 10 percent to 1,176 – a third of which are racism related.

As examples of everyday discrimination, the report cites ads for rented apartments that say 'no foreigners', or nightclubs where some visitors aren't allowed entry citing 'people like you' always cause trouble, and the bosses who say a colleague who made a racist joke 'didn't really mean it'.

In 2019, according to the report, one out of three people with migrant roots looking for housing within the last 10 years said they had experienced discrimination. At the same time, 41 percent of all respondents in a representative sample stated they had serious or very serious reservations about renting an apartment to an immigrant.

According to another statistic, unemployment rates among those of a migrant background in Germany is more than twice as high as white Germans at 12 percent versus 5 percent.

Many observers believe this is only the tip of the iceberg as many ethnic minorities tend not to officially report incidences of racism due to language limitations, fear of reprisals, and/or fear of not being believed by the police – like in Isabel's case.

'No need'

But there are apologists ever ready to step into the fray and defend public officials from widespread allegations of racism and discrimination.

Horst Seehofer is Germany's Interior Minister and one of the more controversial politicians in mainstream politics ever since the rise of the far-right across Europe.

His often disparaging comments about refugees and asylum seekers were brushed aside as pandering to the right-wing base. Then came his 'Islam doesn't belong to Germany,' and that 'Germany has been shaped by Christianity' comments in March 2018. He did offer a complete U-turn soon after, but sincerity is hard to latterly judge in such contrasting statements.

Seehofer came out openly as a staunch defender of the police, with arguments against the new anti-discrimination law in Berlin, threatening not to send extra police forces from other German States to help bolster security plans for major international sports or political events in the German capital.

His argument: 'it is very important to me that federal police officers do not suffer any disadvantages if they are deployed in Berlin to provide support'.

Seehofer says he wants to protect the police from unfounded allegations of discrimination, especially as the new law places the burden of proof on the accused, which means those police officers who are accused of discrimination, have to prove that they did not discriminate as opposed to the alleged victim of discrimination having to provide extensive evidence.

Armaghan clarifies that even if police officers are drafted in from another state, it's the Berlin State government who would be responsible for their behaviour while on duty in the capital city.

But research planned to investigate widespread allegations of racial profiling by German police forces has now been cancelled as Seehofer saw 'no need' for it.

The law makes it easy for victims of discrimination to lodge complaints, and if found legitimate, receive compensation from the State of Berlin. 

It also sounds like a piecemeal rapprochement. Much of Europe discrimination cases are handled in criminal courts and not civil courts.

While the country is slowly dealing with its equality and social justice issues, it is already decades behind some of its European counterparts with still a long way to go.

The impending economic downturn caused by Covid 19 might not help speed up this modern day reformation.