Can a song stir genocidal passions?

2011-09-17 08:53

‘It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience and the prudence never to practise either of them.”

That was Mark Twain writing about the United States. In South Africa, in the absence of any such prudence, we need to rely on a constitutional wisdom that keeps us on the straight and narrow while we learn to be discerning.

That said, there can be no doubt in anyone’s mind (who understands or was part of the pre-1994 struggle) that the offending song in Judge Colin Lamont’s hate speech ruling against ANC Youth League president Julius Malema referred in the past to the very embodiment of apartheid.

 As such, it was a legitimate political rallying call and a deeply interwoven part of the struggle.

There can be little doubt that the continued and targeted use of the song after 1994 had little to do with the context of the struggle, contributed to divisiveness and was used with mischievous, if not malicious, intent.

Should utterances in the current context that incite rancour and revenge, sow discord and perhaps contribute to attacks on a particular racial group be allowed to continue without sanction?

I think not. Whether there should be a blanket ban on the use of this song is perhaps a matter for future debate.

Any comparison, though, to the song De La Rey is misplaced.

The Afrikaans lyrics refer to a folkloric general and his struggle against the British. The song was penned in the present and incites no acts of violence against another racial group.

There’s the rub. While section 16 of the Constitution enshrines the right to freedom of expression, that right does not extend to the incitement of imminent violence or the advocacy of hatred based on race, ethnicity, gender or religion.

We’re not talking about simply being offensive here. It should perhaps never be illegal to merely offend others. This is, however, about the nexus between offensive and incendiary speech, and the threat it poses to the physical domain of others.

The hate speech provision in the Equality Act, broad as it is, only allows for exceptions in cases of “bona fide engagement in artistic creativity, academic and scientific enquiry, fair and accurate reporting in the public interest or the publication of any information, advertisement or notice in accordance with section 16 of the Constitution”.

While the constitutionality of this, by virtue of its sweeping broadness, may be open to debate, there can be no room for doubting, in this instance, the illegality of words that incite violence and harm notwithstanding the meaning and intent in another historical context.

And so, when in 2002 playwright Mbongeni Ngema wrote a song that incited hatred against Indians in South Africa, he too fell foul of the law.

The song, AmaNdiya, caused a furore by alleging the exploitation of blacks by Indians and by calling for radical redress.

Ngema further alleged that politicians, including former president Nelson Mandela, failed to address these issues.

But according to Mandela, such attacks based on race, tribe, region or ethnicity flew in the face of the very principles for which the ANC had fought.

“African people through the ANC now are in a position to set the agenda for transformation and we are being watched by the world. So everyone has to raise problems in a way that contributes to solving them,” he said.

But that is a moral matter in which Mandela, as a champion of reconciliation, advocates a particular approach. The courts, however, have a clear duty to help minorities who have a special reason to seek protection in the Bill of Rights.

That hate speech is directed at minorities is of particular importance in the balancing of rights.

Judge Lamont sought to draw a line based on law and ubuntu.

Many countries with highly evolved institutions seek to deal with protection of free speech and the limitations of these rights in a similar spirit. If we are unable to exercise the prudence Twain alludes to or the ubuntu Judge Lamont refers to, it’s best we rely on the courts.

» Cachalia is an independent consultant focusing on emerging markets, and a regular commentator on political, social, literary and economic matters 

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