Protecting Anti-Apartheid Songs Under the Rubric of Free Speech

by | Jan 12, 2023

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About Marisa Lourenço and Mwai Daka

Marisa Lourenço is a political analyst in Johannesburg, South Africa. She currently works an independent risk consultant advising organisations operating in the southern Africa subregion. Mwai Daka is a PhD student at the University of Gloucestershire in the department of Politics and International Relations. He is also a former Regional Correspondent for OxHRH and is currently an Associate Editor for Democracy in Africa.

Image description: Crowd of women, men, and children pictured dancing to music at Umgababa, South Africa

Music is a common feature of political environments in sub-Saharan Africa (SSA): politicians typically enlist local talent or lead music themselves to bolster demonstrations. Often, these songs harken back to colonial liberation struggles. While this is an established part of politics in SSA, a civil society group in South Africa representing Afrikaner interests recently brought an action on the grounds of political music allegedly perpetuating hate speech against Afrikaners, violating the Equality Act.  Afriforum v EFF [2022] found that the singing of the “impugned song and its lyrics should be left to the political contestation and engagement on its message by the political role players”. Thus, according to a fair assessment of the song’s place in current-day South Africa, it deserves to be protected under freedom of speech.

The case was brought by non-profit civil rights organisation Afriforum, which was established in 2006 to advance and protect the rights of Afrikaans-speaking communities (generally understood as a subgroup of the white population). The first respondent was the political party Economic Freedom Fighters (EFF), a self-proclaimed radical and militant economic emancipation movement formed in 2013 which aims to advance the economic liberation of black people in South Africa. The second respondent was EFF leader and Member of Parliament (MP) Julius Malema, and the third was EFF MP Dr Mbuyiseni Ndlozi.

Following the singing of the first song by Malema, which included the chant “Dubul’ ibhunu”; “Shoot/Kill the Boer”; and the second song also sung by Ndlozi which included the chant “Biza a ma’firebridate; “Call the fire brigade” between 2016 and 2020, Afriforum sought an order declaring the singing of the two songs by the respondents constituted “hate speech” and “unfair discrimination”. Afriforum alleged the songs “advocated hatred on the grounds of race and ethnicity and constitute an incitement to cause harm”, specifically encouraging the murder of white farmers.

South Africa’s Constitution aims to balance the rights to equality and dignity with that to freedom of expression, with the latter regarded as fundamental to a free and open democracy. Under this, it held that Afriforum failed to explicitly show how the EFF – in singing the impugned song – contravened the provisions of the Equality Act. Afriforum did not demonstrate how the lyrics are based on prohibited grounds, nor did it show how the lyrics could be reasonably construed as a clear intention to incite harm or propagate violence.

The word “boer” is not intended to denote white Afrikaners or its “farmers” (its literal translation) in present-day South Africa. Rather, it refers to power dynamics that continue to disempower the majority of black South Africans. What makes the song resonate today is that these power dynamics were entrenched by white South Africans, both English-speakers and those of German or Dutch descent, with the latter called “boers”: this was the group which would eventually implement apartheid. It is worth noting that while white Afrikaners – and white South Africans more broadly – make up less than ten percent of the total population, their economic interests are overrepresented in South African society, owing to vast power imbalances created during apartheid. Thus, they are not considered a minority in the traditional sense as they do not face barriers towards self-realisation.

As Professor Gunner notes, the song has a role in the public life of the state because of the “long cultural matrix in history of politics, song and performance of African society”. Therefore, it should not be interpreted as literally aiming to “agitating and attack” but as “a tool to advance the interests of the land justice”. A fair analysis of the song locates it within the political context in which Malema is pushing for the land reform and radical economy policy. Such songs have played a valuable role in liberation struggles, making tangible moments of political defiance against oppressors. In this case, the song assisted Malema in rallying support for his political objectives and carving out the EFF’s position on economic policy, which is informed by power imbalances stemming from apartheid. The impugned song therefore has a role to play in present-day society, and declaring it hate speech would have significantly curtailed freedom of expression by a previously disadvantaged group that continues to face intense inequality.

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