Who knows whether Brett Murray and the Goodman Gallery regret their decision to exhibit The Spear artwork which caused such an uproar in May last year?
The work was denounced by ANC leaders as insulting to President Jacob Zuma and must also rank as probably one of the lowest points in our democratic life.
Tradition and culture were used as handy defences to clamp down on Murray’s right to artistic expression and the ANC, so keen to protect its president, unleashed its vitriol on the artist and the gallery with ANC secretary-general Gwede Mantashe and Blade Nzimande leading the pack.
So, almost 20 years into South Africa’s hard-won democracy, freedom of expression remains a fraught subject; whether it is art as a form of expression or bureaucratic rules within government institutions that are designed to clamp down on dissent or a jogger giving the finger to a noisy passing presidential blue-light brigade, we often seem uncomfortable with “offending” those in power.
It is trite to say that any democracy demands the free flow of ideas and with its many intractable challenges, South Africa needs more robustness in its public discourse and not less, if the real problems and points of underlying contention are to be properly surfaced, debated, and the opportunities for consensus explored.
We have come a long way from the days of the banning of Steve Biko’s defiant I Write What I Like. Apartheid not only banned leaders, it banned thought, ideas and their free expression.
However, there are worrying signs that indicate a retreat towards a new form of conservatism. Recently we were reminded of an apparently new strain of illiberalism. The Film and Publication Board banned the screening of the film Of Good Report at the Durban Film Festival on the basis that it was too explicit in its treatment of a predatory relationship between a pupil and her teacher.
Following an outcry and an appeal against the banning of the film, the Appeals Tribunal has now unbanned it. The Film and Publications Board was criticised for its narrow-mindedness and “rigid interpretation of the law”.
And this first and unwelcome banning of a film in the democratic era has provided a moment for us to reflect also on the indirect means of censorship that exist within our society and which may lead citizens to think twice about speaking out against those in power.
Just 20 years ago, South Africa was immersed in the final negotiations that led not only to a mostly peaceful transition to democracy, but also to the final constitution of 1996. Our constitution enshrines the right to freedom of expression in section 16 of the Bill of Rights, which includes “freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; academic freedom and freedom of scientific research”.
Although the list is non-exhaustive, it is notable that the constitution makers chose to specify these particular forms of free speech.
As South Africa enters the 20th year of freedom, it is an apt time to look back and commemorate those extraordinary years of dialogue and principled commitment to civil and political freedoms. It is also the time to ask hard questions about what sort of public discourse we want: A polite one, in which people self-censor and repress their real feelings?
Or a robust, thick-skinned one, in which people can feel confident that they can raise any issue honestly, safe in the knowledge that their right to speak is respected and will be greeted not with intolerance or even violence, but with an equally vigorous rejoinder?
What about humour?
In one famous constitutional court case concerning the (in)famous “Laugh it off” T-shirts that lampooned the hypocrisy of big corporates such as SA Breweries, Justice Albie Sachs began his judgment with the memorable question: “Does the law have a sense of humour?”
He might as well have asked whether South African society does.
While it was good to note the growth in the number of satirical artists prospering on TV - think Loyiso Gola and Chester Missing - or on stage (think Nik Rabinowitz and Trevor Noah), the treatment of Murray last year indicated that South Africa was a long way from a social consensus about what constitutes “acceptable” political satire and what offends the principle of human dignity, which is also a foundational constitutional value.
Zuma himself has brought an array of ill-judged lawsuits against cartoonist Zapiro. The lawsuits have now, sensibly, been withdrawn and Zapiro continues to prick the consciences of those in power.
What Zuma’s lawsuits against the cartoonist have shown though is the inability in some parts of the body politic to appreciate the nuance - and indeed importance - of political satire to democratic life.
What is the “natural” South African approach to such forms of free speech? Is such an equilibrium point eternally elusive, given the socio-economic and cultural divides in the country and its painful past?
People need to be able to express their anger, frustration, dismay and discontent in different ways. Might that mean dumping excrement on the doorsteps of those with power or offending the president with sharp artistic irony, for instance?
Whatever the “answer”, it must mean organising opportunities for people to discuss their views and differences, across the complex social boundaries that exist in our city and our country.
We should also look for inspiration from our elders. Who better than Emeritus Archbishop Desmond Tutu, with his irreverent sense of humour, his fearlessness in saying what needs to be said on an array of diverse topics from inequality to Palestine and especially when dealing with foolishness from a political party or leader?
There lies deep in the heart of our society a regenerative and often deeply subversive element that is constantly challenging power and formulating different means of expression through new forms.
As we celebrate Tutu, so we should celebrate this subversive tendency; it makes our democracy stronger, because these expressions of democracy are varied and reach across race and class.
Sometimes they provide a lens into the shape and form of our democracy and the way in which it is deepening and so they should be welcomed, not repressed.
It may be a messy, clumsy, even at times offensive process, yet it is important that we try to understand contrasting forms of expression and what they might mean for active, activist citizenship and our democracy in its third decade.
*Judith February is the executive director of the Democracy, Governance and Service Delivery Research programme at the HSRC
Richard Calland is Associate Professor in the Public Law Department at the University of Cape Town
**The views expressed here do not necessarily reflect those of Independent Newspapers
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