Heritage or hate speech?

Posted on April 12, 2010

Update: 21 May 2010

The struggle song, which includes the words Dubula ibhunu (Kill the Boer) will remain banned until the high court decides otherwise.

On May 21 2010 the Equality Court referred the hate speech case, opened by AfriForum against ANC Youth League president Julius Malema, to the high court. The case was opened after Malema sang the sing before addressing students at the University of Johannesburg and Afriforum complained that the song incited violence against Afrikaans speakers and farmers. The ANC has argued that it is wrong to declare the song illegal because it imposed an absolute prohibition of the words, irrespective of time, place, manner and context.

No date has been set for the high court hearing.

Introduction

The struggle for liberation was played out to the accompaniment of voices raised in song or chanting slogans. Sometimes sombre, sometimes defiant, at funerals, trials, protest marches, union meetings and spilling out onto the streets, songs galvanised the crowds, provided a means of expression, an opportunity to praise jailed or exiled leaders and to vent rage against an oppressive regime.

'Dancing and stamping a war beat into the dust, anti-apartheid protesters regularly used to taunt South Africa's security forces through song... 'Come Tambo, Come on' or 'Bring us Guns.' Sometimes their songs mimicked the war everyone expected and people stomped about pretending to be guerrillas with guns.'¹

In recent weeks the singing of these songs has stirred up a storm of opinion. The courts have ruled that struggle songs may incite racial violence and forbade the utterance of certain lyrics; the ruling party and its allies insist that the songs are part of the country's collective memory and heritage while others hold that the singing of these songs in public threatens the national agenda of reconciliation.

The big question that we as a nation are grappling with is: are these songs history, or hate speech?

Chronology of the debate

In 2003, after a complaint lodged by the Freedom Front, the Human Rights Commission ruled that the song 'Kill the Boer, Kill the Farmer' amounted to hate speech in the context of a post-apartheid society committed to reconciliation.²

On 3 March 2010 Julius Malema, ANC Youth League President sang the struggle song Ayasab' amagwala, which includes the lyrics Dubula ibhunu, (shoot the Boer) at his birthday celebration in Polokwane. He sang the song again on 12 March at a gathering of students at the University of Johannesburg. Jackson Mthembu, ANC Spokesperson defended Malema saying that the lyrics were quoted out of context and should not be taken literally.³

On 12 March, following these incidents, Afriforum Youth attempted to deliver a protest about the increasing numbers of farm murders to the ANCYL and lodged a hate speech complaint with the Equality Court in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act.⁴

On 17 March the Communication Workers Union (CWU) issued a statement calling on Afriforum and others to drop their hate speech charge, explaining that the songs, 'are sung in many of our commemorative and celebratory occasions in honour of our struggle heroes,' and that, 'songs like Uthi sixolele kanjani, amaBhunu abulala uChris Hani, uMshin Wam, Ilenja uBotha, kanye nalenja uMalan, are part of the collective memory of our struggle, part of the collective culture of that struggle, and they continue to play an important mobilisational tool role in the ongoing worker and community struggles.' ⁵

On 18 March the Freedom Front Plus (FF+) announced that, following the charges laid against Malema the previous week, it had taken a decision to launch a 'Prosecute Malema' campaign. The campaign, would gather of signatures via e-mail as well as through a website where a letter, directed to President Zuma, could be signed. According to Adv. Anton Alberts,FF Plus Parliamentary Spokesperson: Economic Development, 'these letters will be given to Zuma to inform him of the public's dissatisfaction with Malema and to place the ANC under pressure to take disciplinary steps against Malema.' ⁶

On 21 March Malema sang the song at Human Rights Day Celebrations. He also raised the ire of the Pan African Congress (PAC) on that occasion, saying that the memory of the Sharpeville incident belonged to the ANC alone, and urging the youth who attended the rally to learn the correct history of the country.⁷ The PAC responded angrily with implied threats to kill or injure Malema.⁸ This, together with the media frenzy surrounding the viral SMS purportedly offering a R2-million reward to his killer briefly drew attention away from the debate around the struggle song.⁹

On 26 March Judge Halgryn of the South Gauteng High Court ruled that it was unlawful and unconstitutional to sing the song because it incites violence. This ruling was made after Delmas businessman Willem Harmse brought the matter to court to prevent a colleague, Mahomed Vawda, from using the words on banners and singing them during a planned march against crime. ¹⁰

This judgement was roundly criticised by the ANC on the grounds that it sought to eradicate struggle history and heritage and was unenforceable. In a statement issued by Jackson Mthembu, the organisation's National Spokesperson, the ANC noted that, 'The high court did not make an effort to get input from the ANC as owners and experts on the struggle song, on its meaning, its history and its purpose.' The statement also expresses the ANC's intention to challenge the ruling in the Constitutional Court.¹¹

In its statement issued on 29 March, COSATU compared the song to 'La Marseillaise', the French National Anthem, whose chorus goes, 'to arms citizens, form your battalions, march, march, let impure blood water our furrows,' noting that while these lyrics may be interpreted as an incitement to murder, the anthem is routinely sung at state functions and sporting events' and that, 'no one would suggest that it should be banned on the grounds that people might take it literally. It is part of France's national heritage.' ¹²

The statement issued by the ANC on 30th March expressed concern about emerging racial polarisation and noted the organisation's intention to file an application to the Equality Court to determine whether the Freedom Front's 'Prosecute Malema' campaign constituted hate speech or not.¹³ The statement contextualised the song within the broader agenda of the preservation of history and heritage and national reconciliation, noting that, 'Struggle songs that capture the mood and the moment were sung to mobilise our people to be part of determining their own future.' Calling for reconciliation based on a shared history and heritage,the statement noted that, 'we must all come together and discuss ways and means of preserving this history and heritage, cautious enough to avoid offending each other. In this process there must be no group that will project itself as having the monopoly of victimhood. We must strive to link the Freedom Park and the Voortrekkerhoogte monuments into a single precinct. We must systematically own all our history and heritage and undo the appropriation of parts of our history and heritage to individual nationalities in the country. We are a single nation that must work together in building our country.' The statement ends with a call to South Africans to remember the lessons learnt from the crafting of the National Anthem, that blends the anthem of the apartheid era with the unofficial anthem of the struggle. ¹⁴ Political parties including the Independent Democrats (ID)¹⁵ appealed to the ANC to desist from challenging the court ruling while youth leaders from the Congress of the People (COPE)¹⁶ and the Democratic Alliance (DA)¹⁷ suggested that Malema's outbursts were divisive and demoralising. The Azanian Youth Organisation (AZAYO), on the other hand, supported Malema saying that 'The song formed part of South Africa's collective history and could not be abandoned to please the liberal media and right wingers for the sake of reconciliation.'¹⁸

On 1 April, Afriforum and farmers union TAU applied to the North Gauteng High Court to ban Malema from singing the lyrics. Judge Bertelsmann issued an interdict banning anyone from singing dubula ibhunu(shoot the boer) and barred Malema specifically from uttering any song of a similar nature. ¹⁹

In the first week of April, Malema toured Zimbabwe, defiantly singing the song with ZANU-PF supporters at public gatherings. When challenged he replied that, 'the court interdict does not apply here,' and went on to make derogatory remarks about an 'untransformed judiciary'. This order will be effective until the first day the matter is heard in the Equality Court, to which the judge referred the issue for mediation.²⁰

On 3 April, Eugene Terreblance, leader of the right wing Afrikaner Weerstandsbeweging (AWB), was murdered on his farm, allegedly by two aggrieved employees. While the vicious attack was universally condemned, concerns were raised about attempts to link it to Malema's singing of the song. While no direct connection between the singing of the struggle song and the murder of Terreblanche can be established, the killing fuelled racial polarisation at a time when tensions were already running high.

On 7 April the ANC called on its members to be circumspect in singing songs that could be seen and interpreted to contribute to racial polarisation and announced that the organisations National Executive Committee would meet in May to debate and decide on an appropriate political approach to dealing with the questions raised about some of the struggle songs. The statement noted that the political approach should, amongst others, recognise that such songs are part of our history and heritage'.²¹ Several news reports that carried reports about this announcement made reference to instances where the wording of struggle songs that might be regarded as offensive to some sections of the country had been changed. Leaders, including the late Adelaide Tambo and Defence Minister Lindiwe Sisulu, had publicly substituted phrases from Umkhonto we Sizwe (MK) dirge, Hamba Kahle Mkhonto with less inflammatory phrases, singing 'we people of Mkhonto are prepared to live with the boers' rather than 'kill the boers'²² or, 'transform the boers'.²³

On 8 April the ANC formally approached the South Gauteng High Court with an application for leave to appeal the judgement handed down by Judge Halgryn declaring some parts of the liberation song Ayesaba amagwala to be unconstitutional. This application is based on the grounds that: 'The court erred in imposing an absolute prohibition on the utterance, publication and chanting of the words in question, irrespective of the time, place, manner and context in which the words are uttered, published or chanted' that 'the court failed to give any or sufficient consideration to the guarantee of freedom of expression in Section 16 of the Constitution,' and; that the matter should have been referred to the Equity Court for mediation. This statement emphasises the ANC's view that 'the song has historical value in the liberation of South Africa and is of importance in the preservation of our heritage.'²⁴

On 9 April Eugene Terreblanche's supporters gathered in Venterdorp for his funeral. Many came bearing the flags of the AWB and the old South African flag. While leaders across the political spectrum have called for calm, we can only wonder how the story will unfold, how we will resolve the question of history or hate speech and become a nation at peace with itself and its past?

Remember these incidents?

In 2005 police and military police descended on the National Museum of Military History and removed four armoured vehicles from the display and threatened to confiscate the museum's collection of legally registered and disabled small arms, dating back to the time of the Anglo Boer / South African War. Three staff members were arrested on charges of illegal possession of arms, handcuffed, in the presence of then Minister of Arts and Culture, Pallo Jordan and senior officials from his Department, and held in police cells overnight. The staff members were released the following day after the State Prosecutor declined to prosecute them. In 2009 the museum employees sued the Minister of Safety and Security and the Minister of Defence for unlawful arrest and detention and were made an offer of settlement, which they accepted.²⁵ While much was made in the media of the issue of unlawful arrest, few questions were raised about the museum's potentially lethal collection.²⁶

In 2007, Bok van Blerk's debut CD De la Rey became the best selling South African debut album to date. The song 'De la Rey' refers to the long-dead South African War/Anglo-Boer War hero General Koos de la Rey, and includes the lyrics De la Rey, De la Rey, sal jy die boere kom lei? (De la Rey, De la Rey, will you come to lead the Boers?). The song seized the imagination of Afrikaners, many of whom sang along at van Blerk's sold-out concerts, standing at attention and waving old South African flags.²⁷ Van Blerk attributed the success of his song to the fact that it restored Afrikaners' 'proud place' in history saying that it would make them, 'proud of their heritage.'²⁸ De La Rey rapidly became a cult figure, especially for right-wing Afrikaans speakers. The Ministry of Arts and Culture issued a statement in response to the controversy '“ and after a request from the popular Afrikaans magazine, Huisgenoot, to comment on the coded message it was purported to contain. In this statement the Ministry defended van Blerk's right to freedom of speech, but raised concerns about the song being hijacked by right-wingers who want to 'mislead sections of Afrikaans-speaking society to think that this is a 'struggle song' that sends out a 'call to arms',' warning that, 'it would be a terrible shame if a handful of misguided individuals hope to use an innocent song as a rallying point for treason'. In emphasising that the Ministry had no problem with any group mobilising its supporters to oppose the democratic government, providing that opposition was within the terms of the Constitution, The Minstry made the point that, 'During the time the song refers to, the white Afrikaans-speaking communities of the Oranje Vrystaat and Zuid Afrikaanse Republiek were at war with the British Empire,' and concluded that, 'Unless the composer, performer and his audience regard themselves as in a state of war with the rest of the population of South Africa, the song is merely a historical curiosity.'²⁹

Several months after this statement was issued organisers of the Klein Karoo National Arts Festival (KKNKK), at which van Blerk was performing were dismayed to find that AWB posters had made an unexpected appearance in the area. These posters carried the words, ons De la Rey (our De la Rey) above the AWB sign and the words, eendrag maak mag (unity is strength) from the apartheid era coat of arms, below.x³⁰

Though there have been some mutters about another song, our President's signature tune, umshini wami (bring me my machine gun) no one has acted to ban him, or anyone else from uttering it.

In the mid 1990's the display of old flags at rugby matches created controversy but, while rugby authorities expressed their disproval, it was never disallowed. ³¹ In June 2009 Khaya Dlanga reported on his reactions to seeing rugby supporters waving an old South African flag at a match in Pretoria saying, 'that flag is right up there with the use of the word 'kaffir' as far as I am concerned,' and noting that 'the only place that flag must be is in a museum,' And noting that 'I know that it still flies over the Castle of Good Hope in Cape Town that is understandable, it is history.' Dlanga advocates that that old South African Flag be banned on the grounds that 'it will incite violence in the right place and at the right time,' and implying that to remain silent in the face of a public display of the flag should be seen as an endorsement of the values it symbolises. ³²

A couple of months later, In December 2009, Bheki Cele, national chief of police, demanded the removal of an old South African flag from the desk of a Durban Metrorail official after police minister Nathi Mthethwa noticed it by chance in the woman's office. With a large version of the new South African flag taking pride of place on the wall behind her, and a Sharks flag in the window, the woman said that she kept the flag on her desk because she 'found it beautiful.'³³ In commenting on this incident constitutional experts Marinus Wiechers and Pierre de Vos point out that the right to freedom of speech means that people may still display the old flag. Only hate speech and defamation are not protected under freedom of expression.³⁴Wiechers adds a caveat to this: individual establishments may make rules regarding what is permissible in the workplace. Metrorail spokesperson Thandi Mkhize confirmed that institutional policy did not allow for the display of party-political flags or T-shirts or national flags which are no longer in use.³⁵

One the eve of the 2010 Soccer World Cup the City of Cape Town banned the old South African flag from the soccer stadium together with, 'banners or flags with content that can reasonably be considered to be sexist, racist, vulgar, discriminatory, inflammatory or offensive,' tear gas and pointy umbrellas.³⁶

But, within walking distance of the Stadium, and in full sight of the Grand Parade 'fan park', the old South African flag files above the Castle's Leerdam Bastion, together with the Prinzevlag of the United Netherlands; the Union Flag of England and Scotland; the Statenvlag of the Batavian Republic; the British Empire's Union Jack; and the 'new' South African flag, proud symbols of the various powers who have held control over the southern tip of Africa.

What do we make of all this?

You might well be wondering! The events that are unfolding around us present many avenues down which we could wander (and possibly wonder too). Some of you may seize on the issue of freedom of expression, others on the precise definition of the term hate speech. Many may lament the fading vision of a rainbow nation and our apparent failure to give effect to the ideal of reconciliation. Some of you are probably asking, if the song and the flag are banned, what comes next? There are questions to explore about the role of state in general and the judiciary particular in mediating conflict. Is there really anyone out there who believes that banning a song will lead to racial harmony?³⁷Surely the only route is through engaging in robust dialogue? Implicit in many of the responses to the ruling against 'uttering' the song is a difficult question. How do we remember and commemorate the past? As Patrick Craven of COSATU writes, 'we need a wider national debate about how, 16 years into democracy, we remember our years of struggle, especially when we commemorate historical days like 21 March and June 16 or at funerals or memorials services of fallen heroes, when we sing historic songs with similar words from the years of struggle.'³⁸ Can we as citizens of a democracy pick and choose which court ruling to obey and which to disregard? There are a slew of questions to be asked about who owns history. Is there only one politically authorised history? Surely the narratives of our past are more nuanced? Can we speak of collective memory in a nation that is still deeply divided? There are probably some of you who would be interested in exploring the influence of charismatic characters or tyrants on society. Then of course there is the issue of human rights, individual rights and responsibilities. Some may also explore the notion that the re-emergence of the song is symptomatic of a generalised discontent and argue that it is a way of taking courage from the past to overcome the inequities of the present.

Threading through the arguments in defence of the songs and the flag is the notion of their enduring value. However offensive they may be deemed to be in the present, they have a role to play in relation to our collective memory/memories of the past '“ whether we treasure or despise them. But as Aubrey Matshiqi says so eloquently, 'the thing about collective memory, however, is that it is seldom about the past. It is almost always about the present.' And, 'Another thing about collective memory is that it is sometimes deployed selectively, especially when it is employed in support of a political strategy. What we choose to remember about our past is sometimes part of an attempt to gain social, economic or political advantage at the expense of others.' ³⁹ Which begs the question, what role may the symbols like the song and the flag, and even the weapons of war play in this process?

There's clearly something simmering that has to do with the currency of the symbols, the use to which they are put and, the need to distance them from everyday life. Khaya Dlanga reacts quite angrily to the display of the old flag at a rugby match saying 'the only place that flag must be is in a museum.'⁴⁰while the Ministry of Arts and Culture rather dismissively relegates De La Rey to the status of a 'historical curiosity', ⁴¹ and a Sunday Times editorial notes that, 'while these songs can't be expunged from our history, they belong mainly in our archives and other repositories of historical knowledge and symbolism such as the Apartheid Museum, Freedom Park and the Voortrekker Monument'.⁴²If this material is to be consigned to storage, metaphorical or otherwise, the questions we need to ask are: who has guardianship of it; who has access to it; who decides when and how it can be brought out and how it may be used and under what conditions. It is untenable to think that the archival fragment '“ the song or the flag '“ may be banned. But, if that fragment is deployed in contemporary society in a way that is problematic, there may be good cause to mediate the contemporary intervention. It is not the fragment itself that is the problem but the manner in which it is used. It's fine to keep military vehicles in a museum, but not to use them to mount an attack on the neighbours!

If you're reading this blog, it's probably because you're museum archive or heritage professional or student, or someone with a keen interest in the sector. Like those of us at the Archival Platform, you're probably wondering what to make of all this, discussing what this all means for the way in which we constitute the archive and make it accessible. And, like us too, you're probably having to answer questions posed by other people, confused at the way in which the words 'history' and 'heritage' are being bandied about in a discussions which seem to be about something else altogether. So here's a first attempt, a work in progress, something I'm thinking about, talking about, trying to make clearer and more helpful.

The struggle songs, the old flag, the memory of De a Rey, the small arms in the museum collection are all archival items. Whether they're in formal collections or simply tucked away in people's attics or memories they're fragments from the past: guarantees against forgetting that allow us to remember the past. Whether they are traces of a past we treasure or despise, they remind us of our history in all its full complexity. For that reason we expend effort on preserving them. But to what end?

We have seen that under different conditions, people walk these items out of the archive, and use them to do things in the present: to commemorate, to mourn, to celebrate to incite and so on. It is not the symbols of the past that are at issue, it's the contemporary actions and activities '“ and the effects of these on us as individuals, groups and a nation - that have to be considered critically.
The Archival Platform is concerned that the business of memory stays open, that the record of the past is inclusive and expansive, not skewed by prejudice or current political interests and that no part of the past should be repressed. We will continue to ask the hard questions, to ask what is in the public interest, not just in the present but also for the future.

End notes

¹History or hate speech? Apartheid-era songs open old wounds. Peter Goodspeed, National Post, 2 April 2010

²For as long as it stands, all South Africans need to respect the judgement of the Johannesburg High Court banning the words 'dubul' ibhunu' (shoot the boer) from ANC celebrations. Sunday Times, 4 April 2010

³ANC OK with Malema singing 'shoot the boer' Politicsweb, 11 March 2010

⁴How kill the Boer lyrics injected life in to our political discourse The Sunday Independent, 4 April 2010

⁵CWU Response on singing of a song 'dubulu amabhunu' by ANCYL President Julius Malema. Politicsweb, 17 March 2010

⁶Anti-Malema campaign from Freedom Front Plus. Mybroadband.co.za, 18 March 2010

⁷PAC hijacked ANC's Sharpeville uprising plans '“ Malema. Imraan Karjolia, Eyewitness News, 21 March 2010

⁸I'd rather go to jail '“ Malema. Ido Lekota, Sowetan, 30 March 2010

⁹ANC shocked at Malema death-threat SMS. Mail&Guardian Online, 1 April 2010

¹⁰ANC defends struggle songs. Sipho Masondo, The Times, 31 March 2010

¹¹ANC response to South Gauteng High Court ruling on the struggle song Ayesaba Amagwala. Issued by Jackson Mthembu, ANC National Spokesperson, 26 March 2010

¹²'Shoot the boer' like the Marsellaise '“ COSATU. Statement issued by Patrick Craven, COSATU national spokesperson, March 29 2010

¹³ANC to take FF+ to court over Malema campaign. Mail&Guardian Online, 30 March 2010

¹⁴Statement from the officials of the ANC. Issued by Gwede Mantashe, ANC Secretary General, 30 March 2010

¹⁵ID appeals for racial tolerance. Polity.org.za, 29 March 2010

¹⁶Fear, anger at Malema song. Hlengiwe Mnguni, News24.com, 12 March 2010

¹⁷Fear, anger at Malema song. Hlengiwe Mnguni, News24.com, 12 March 2010

¹⁸Zanu-PF sings Malema song. Candice Bailey and Lovemore Moyo, Saturday Star, 3 April 2010

¹⁹How kill the Boer lyrics injected life in to our political discourse The Sunday Independent, 4 April 2010

²⁰Wake up and worry about the real threats to our democracy. Pierre de Vos, Constitutionally Speaking Blog, 6 April 2010

²¹ANC media statement on the meeting of officials. Issued by Gwede Mantashe, Secretary General on 7 April 2010

²²ANC changes Tune on Song. Cape Times, 8 April 2010

²³Julius Malema silent as ANC stops race songs. The Times, 7 April 2010

²⁴Statement issued by Jackson Mthembu, National Spokesperson, African National Congress, 8 April 2010.

²⁵Govt surrenders in war museum arrest case. Statement issued by Webber Wentzel, Politicsweb.co.za, 11 March 2010

²⁶See, for example, Military museum staff arrested for 'illegal arms possession'. Digital Journal 5 March 2009

²⁷The De la Rey uprising. Yolande Groenewald, Mail & Guardian Online, 16 February 2010

²⁸The De la Rey uprising. Yolande Groenewald, Mail & Guardian Online, 16 February 2010

²⁹Ministry of Arts and Culture on Bok Van Blerk's supposed Afrikaans 'struggle song' De la Rey and its coded message to fermenting revolutionary sentiments. Statement issued by Ministry of Arts and Culture, 6 February 2007

³⁰AWB's De la Rey posters axed. SAPA, News24.com, 2 April 2010

³¹Cele accused of abuse of power over old flag incident. Legalbrief.co.za, 10 December 2009

³²Old South African flag must be banned. Khaya Dlanga, Mail & Guardian Online 1 June 2009

³³Cop Boss enraged over old flag. Dries Liebenberg, Beeld, 8 December 2009

³⁴Cele accused of abuse of power over old flag incident. Legalbrief.co.za, 10 December 2009

³⁵Cop Boss enraged over old flag. Dries Liebenberg, Beeld, 8 December 2009

³⁶Old flag banned from Cape Town Stadium. SAPA, Cape Times, 2 March 2010

³⁷See Banning songs will not lead to harmony. City Press, 4 April 2010

³⁸'Shoot the boer' like the Marsellaise '“ COSATU. Statement issued by Patrick Craven, COSATU national spokesperson, March 29 2010

³⁹Songs and flags bother you? Try growing up. Aubrey Matshiqi, Business Day, 9 April 2010

⁴⁰Old South African flag must be banned. Khaya Dlanga, Mail & Guardian Online 1 June 2009

⁴¹Ministry of Arts and Culture on Bok Van Blerk's supposed Afrikaans 'struggle song' De la Rey and its coded message to fermenting revolutionary sentiments. Statement issued by Ministry of Arts and Culture, 6 February 2007

⁴²This one's a song not worth singing. Sunday Times editorial, 4 April 2010