05 Nov 12 | Africa, South Africa, Sub-Saharan Africa
In South Africa, the singing of “struggle songs” remains a bone of contention. Some South Africans contend, along with the courts, that songs should be banned when their lyrics incite violence. Other South Africans regard the songs as a way to remember the anti-apartheid struggle.
On 31 October, South Africa’s ruling African National Congress (ANC), along with former ANC Youth League leader Julius Malema, reached an agreement with the white “minority rights” lobby group AfriForum and the Transvaal Agricultural Union (TAU) to avert the banning of the anti-apartheid struggle song Dubula iBhunu. “Dubula iBhunu” is a vernacular Zulu phrase that translates as “Shoot the Boer”.
AfriForum, along with TAU, and Malema and the ANC in its capacity as political party agreed that:
In the interest of promoting reconciliation and to avoid community friction, and recognising that the lyrics of certain songs are often inspired by circumstances of a particular historical period of struggle which in certain instances may no longer be applicable, the ANC and Malema commit to counselling and encouraging their respective leadership and supporters to act with restraint to avoid the experience of such hurt.
Their agreement has been made an order of the court. The ANC abandoned its appeal against the banning of the song while AfriForum agreed not to pursue the banning of the song. The parties committed themselves to further dialogue to deepen mutual understanding. In practice, ANC leaders will discourage their followers from singing songs deemed “hurtful” to “minority groups”.
Malema “rediscovered” the anti-apartheid song in 2010
ANC Youth League leader Julius Malema “rediscovered” the anti-apartheid song in March 2010 in the process of bolstering his appeal to young black people who feel excluded from the material benefits of the country’s transition to democracy.
The South African Bill of Rights enshrines freedom of expression but explicitly excludes incitement of violence or advocacy of hatred to incite harm on the basis of race, ethnicity, gender or religion.
AfriForum obtained an order from the High Court last year banning Dubula iBhunu. The judgment found that the song referred to white Afrikaans people as rapists and robbers and dehumanised them by calling them “dogs”. “The process of dehumanisation is recognised … as one of the steps leading to genocide.” Malema was found guilty of hate speech.
The judgment included a reminder that South Africa’s jurisprudence regards
the right to dignity as “at least as worthy of protection as the right to freedom of expression… freedom of expression does not enjoy superior status in our law.”
The ANC appealed against the finding. It also lodged an appeal against another case involving the song: a member of the public, Willem Harmse, had taken another, Mohammed Vawda, to court in 2010 as the latter wanted to use “Dubula iBhunu” during a march against crime. Vawda argued that the song’s lyrics indicated “shooting apartheid” while Harmse, a white farmer, argued that the words could cause him personal harm. The high court had found the song to be an incitement to violence.
The appeal in the Harmse case was postponed in September this year in anticipation of the appeal in the case involving AfriForum, which would have come before the Supreme Court of Appeal this week.
The Mail and Guardian, a leading opinion-making newspaper, questioned the ANC’s decision to withdraw its appeal:
The settlement forestalls the testing of a questionable judgment with far-reaching implications. South Africans should be able to understand that what is legally permissible and what is wise or constructive are not the same. The law must leave wider parameters than political morality.
Nevertheless, South Africa has over the past few years witnessed the rise of a public discourse of intolerance that increasingly invokes violence, including Malema’s public declaration that he would “kill for Zuma” in the run-up to the 2009 election. Jacob Zuma subsequently became ANC leader and South Africa’s president. Rather than it being merely about legality or wisdom, the threat of violence has been used for specific political ends: to intimidate detractors and mobilise support.
In resurrecting Dubula iBhunu, Malema was following the example of Zuma, who had revived another “struggle song”, Awuleth’ Umshini Wami (“Bring My Machine Gun”). Zuma used the song as a war cry when his financial advisor faced a corruption trial in 2005, which implicated him, and when he (Zuma) faced rape charges in 2006.
Christi van der Westhuizen is Index on Censorship’s new South African correspondent
27 Oct 12 | Africa, South Africa, Sub-Saharan Africa
Rural people travelled hundreds of kilometres to voice their objections at South Africa’s parliament about a new bill that threatens to impose a separate and unequal legal system on them — just to hear that their submissions are being blocked.
The Traditional Courts Bill uses apartheid-era Bantustan jurisdictions to reinstate a legal system that deprives black rural South Africans from citizen’s rights enjoyed by their urban counterparts. Some 22 million people are affected – almost half of the country’s population.
Women are not usually allowed to speak in traditional courts – male relatives talk on their behalf
The bill empowers traditional leaders, who are unelected and predominantly male, to act as judicial officers in disputes. Penalties can be imposed that range from banishment to hard labour.
Critics have pointed out that the bill continues a colonial practice that violates the principle of the separation of powers by concentrating executive, legislative and judicial functions in the hands of traditional chiefs.
Chiefs dispense executive governmental functions, including allocating land and access to water. Customary law is understood as “living law” developed by communities and is therefore not written down. The bill will allow chiefs inordinate say when applying customary law while also appointing them as presiding officers in such legal matters.
Rural women are particularly adversely affected because they are usually not allowed to speak in traditional courts, and therefore cannot defend themselves. Instead of entrenching women’s right to speak this bill exacerbates this situation by allowing others to speak on women’s behalf. In practice these “others” will be male family members – frequently the same people who have in interest in depriving a woman of her house or land after her husband’s death.
Traditional leaders have been using their influence in the ruling African National Congress (ANC) to drive the bill. The drafters from the department of justice and constitutional development consulted only traditional leaders in the drafting process, and not those most affected – rural people.
South Africa’s constitution obliges its parliament to hear the public’s views about legislation. Parliament held public hearings across the country in April and May this year where many rural people resoundingly rejected the bill.
The hearings were flawed, as traditional leaders arrived with large entourages and tried to prevent community members, especially women, from speaking in some cases. There have been suggestions that many rural people were not informed of the hearings while those who attended were frequently misinformed about the implications of the bill.
The public hearings culminated in September in Cape Town, the seat of the South African parliament. Again, rural women and men travelled from far-flung areas to tell the select committee on security and constitutional development how the bill would exacerbate current power abuses by traditional leaders.
The committee received almost 70 written submissions while more than 20 oral submissions were heard over a four-day period. The vast majority of the submissions demanded the scrapping of the bill and the drafting of a completely new bill
However, it emerged on Wednesday (24 October) that the committee has decided to only consider the submissions made by two government departments and the South African Human Rights Commission (SAHRC), a constitutional watchdog body.
The committee chairperson, Tjetha Mofokeng (ANC), told committee members that he had instructed justice department officials to compile a “working document” for them. On his instruction, the document was limited to summaries of the submissions from the justice department, the department of women, children and people with disabilities and the SAHRC.
Mofokeng, supported by ANC committee members, questioned “the relevance” of the 60-plus submissions by non-state representatives.
Opposition party parliamentarians objected, pointing out that the overwhelmingly negative response from rural participants has to be taken into account.
Dennis Bloem from the Congress of the People (COPE) argued:
Chair, I want to put it clearly, it will be an insult to all the other organisations that have made inputs here to say that it is not relevant. We have spent taxpayer’s money to have a whole week of public hearings to listen to what the people have said. That is the essence and the reason for having public hearings.
The Alliance for Rural Democracy, a group of 30 civil society organisations including the 50,000 member-strong Rural Women’s Movement, called Mofokeng’s actions “brazen” and “deeply insulting”. The alliance called on parliament to clarify its position on the unconstitutional stance taken in the committee, which amounts to silencing citizens’ voices.
Christi van der Westhuizen is Index on Censorship’s new South African correspondent
07 Sep 12 | Africa, Sub-Saharan Africa
South Africa’s parliament is in its final stages of reviewing a bill that, if passed, could have severe implications for press freedom in the country and the African continent. The Protection of State Information Bill (also known as the Secrecy Bill) could result in the imprisonment of journalists and whistleblowers who possess, publish or leak state secrets for up to 25 years.
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30 May 12 | Africa, Digital Freedom, Index Index, minipost
The website of a South African newspaper has been forced to remove an image of a controversial painting of President Jacob Zuma. City Press newspaper were put under pressure from the ruling African National Congress (ANC) who called for the website to be boycotted until the “insulting portrait” was removed. The image, which shows the president with his genitals exposed and is entitled The Spear, appeared as part of a satirical art exhibition at a gallery in Johannesburg, and has caused massive controversy, leading to Zuma taking legal action to have the portrait removed.
