A storm in a T-shirt?

2013-11-09 16:55

Opinions are sharply divided whether drawings and expressions by three high school learners in KwaZulu-Natal on T shirts depicting inter alia, iconic leader Nelson Mandela and put on public display in a shopping mall which the ANC found offensive go against the "values and ethos of the Constitution".

In case you're been out of the loop,I am talking about a political rumpus which has erupted between the ANC and the DA in KwaZulu-Natal whether the T shirts bearing the faces of President Jacob Zuma, former president Nelson Mandela and ANC national executive committee member and former police commissioner Bheki Cele, with derogatory captions, and which were displayed at a shopping mall in Westville last Tuesday do constitute a valid complaint or not.

An incensed ANC found the derogatory captions offensive whilst the DA's provincial leader Sizwe Mchunu retorted that the ANC was being "excessive, hysterical, and not in line with our Constitution," He went on to say that the DA acknowledges that "art, by its very nature, ought to be questioning, provocative and at times irreverent" I agree but......

But the ANC would have nothing to do with that line of argument . In rebuttal an ANC member in the KwaZulu-Natal legislature Siboniso Duma reportedly moved a motion demanding that Education MEC Peggy Nkonyeni launch an investigation.

To the million dollar question.

What gives?

Last week the printed and electronic media was abuzz with reports on the cartoon by Zapiro depicting the Hindu Deity Ganesha in what Hindus saw a as an insult and an assault on their religion , portraying it in negative light thereby reinforcing stereotypes. That matter is going to the Equality Court or the Human Rights Commission for resolution.

Now we have what is dubbed in, one newspaper, as the "T-Shirt saga" which has stirred a tempest of protests from the ANC and its allies.

Is this latest saga concerning the drawings and expressions on T shirts symptomatic of a society, let alone a country, making a mountain out of a mole hill and in the process heading towards an implosion? What about the constitutional guarantees of freedom of artistic expression?

In my opinion this is an issue, one amongst many, that is slowly but inexorably tearing society and our beloved country apart. Readers of this blog will recall the controversial artwork depicting President Zuma with his genitals exposed that produced a violent reaction.

With this in mind, several questions and issues spring to mind. Is this another case, as liberal comentators have alluded to in op-eds , to quote Shakespeare "much ado about nothing"?

At this point in time, the ANC is facing many internal and external threats, and so I wouldn't go to that extent that by including Nelson Mandela, their iconic trump card, the ANC is making something out of nothing to score political points. I venture to opine that there is a valid complaint, but I would not like to second guess what our erudite jurists who, if called upon to adjudicate, would decide. This is an issue that is ripe for hearing and consideration by the Constitutional Court.

I do know that in the case of political expression the permissible parameters are fairly wide and in other jurisdictions, courts have allowed a generous margin of appreciation in favour of those engaged in artistic expressions involving public political figures. Like lawyers, politicians are expected to have thick skins.

We have two diametrically opposite views with three high school learners and their school caught in the cross fire. This raises another question Are there colliding rights involved? The DA seems to being saying to the ANC, once against to quote Shakespeare, "methinks thou protesth too much"

The answer to that, with all due respects, which is a loaded question but one that merits a response. From a laypersons perspective the answer depends on which side of the political divide one is located. As a lawyer I would rather be stoical by saying that, like I said there is a valid complaint which needs the intervention of our erudite jurists, I venture to say in the Constitutional Court.

So does the ANC protesth too much, is an issue that a court of law must decide. No lawyer worthy of his salt would take a stance on that without a comprehensive and exhaustive research into the thinking of jurists from much more advanced and mature jurisdictions, like Canada and the USA. However, what this saga is unearthing is clearly that the nation is not completely healed and we need to sit down in ernest and talk to one another and get a deep understanding about things like racism,xenophobia ,religion and culture. The T shirt saga, trenches on African culture, and a deep sense of reverence upheld by indigenous Africans vis-a-vis their elders and values that inform their worldview

Trenching on that the question would then be,how far does the principles enshrining freedom of expression go? Like in the case of Zapiro, as it is claimed, is it permissable to be irreverent and provocative and yet protected under the Constitution?

In response allow me to make this clear for the benefit of discerning readers and critics. There is no hierarchy of rights in the constitution. In other words no right is superior over and above other rights. However, as our courts have been at pains to point out that if and when the foundational rights of freedom, equality and human dignity are involved automatically this would trigger an enquiry as to whether or not there was a violation and if so was it permissible or impermissible and this depends on the facts and evidence as carefully examined and dissected by our courts.

This T shirt issue is one that is going to linger for some time. Someone put it to me at a supermarket queue that if were called to settle the saga where everyone emerges a wizened winner, how would I go about achieving that?

Well, as I answered, I would not follow and adopt the same posture of truth and reconciliation that the TRC tried to bring about with fatal results. I say this against the background of a case before the Constitutional Court where Azapo valiantly tried to stop the TRC process and the fact that for many victims it proved to be a sham, I would not gloss over the visceral pain and injustice that many of the victims of apartheid experienced.

So I would contextualise every slight as one magnified manifold in their minds as being a manifestation of the immunity that former apartheid practitioners were afforded and further as a sign of arrogance. We need to address that. We have a constitution that is founded on the principle of "rule of law" and this we must enforce. The problem is, people don't understand the constitution, no one explained to former victims and people disadvantaged by discrimination, what the rights entail in practice.So until we do that, we rather brace ourselves for more of this to come. We're just 20 years into our constitutional democracy, the wounds are still raw, the inequality gap is ever widening and poverty stalks the land like a ravenous wolf. We need to and we must talk about these things and how best to resolve them. Artistic expression is one way, but not in a manner that opens up wounds.

Saber Ahmed Jazbhay

follow me @jazlaw24

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