The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations. Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of s 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy and direct its implementation.
The President’s manhood is no laughing matter – at least not for the ANC – whose spin doctors forgot that making a big fuss about something as deliciously humorous as the President’s penis (especially our President with his sexual history and his patriarchal attitudes towards women) has a tendency to draw attention to the very thing (pun intended) one is outraged about and which one demands to be banned. They have also forgotten that one has a tendency to make a fool of oneself if one conflates a work of art with real life and demands that a work of art should be censored for humiliating a real person (albeit a philandering politician). Isn’t that what the old omies of the NG Kerk used to do back in the day?
Did they not watch the movie Howl, about the trial of the publisher of Allan Ginsberg’s long poem of the same name, who was charged with obscenity for publishing the poem. If they had watched this movie, they might have remembered how ridiculous all the state witnesses were made to look during that trial while these witnesses tried to measure a work of artistic expression against a moral standard that was at best vague and at worst impossible to pin down.
I was thus quite amused to read in an ANC press statement that the party “is extremely disturbed and outraged by the distasteful and indecent manner” in which the artist Brett Murray and the Goodman Gallery in Johannesburg “is displaying the person (sic) of Comrade President Jacob Zuma”. The ANC is not happy. Patriarchs like to use their penises for all kinds of things, but usually do not like to have them made fun of in a work of art. It insults one’s manhood, I am told.
Hence the ANC tirade which continues: “This disgusting and unfortunate display of the President was brought to our attention by one of the media houses and we have physically confirmed this insulting depiction of the President”. The ANC does not say what this physical confirmation entailed or whether it had determined whether the penis displayed in the art work is sufficiently similar to that of the President to warrant the conflation of art with reality.
I provide a copy of work of art causing all the trouble below so that those who might not have read City Press on Sunday have the chance to enjoy this provocative piece of art and to consider its meaning and esthetic value for themselves. (Feel free to copy it and send it to all your friends! After all, in a democracy making up one’s own mind about something – also the meaning and value of a work of art – is a human right.)
Afterthought: The poster of which this painting is a parody may not be known to everyone, so I repost it here:
The ANC may not be aware of the fact that section 16(1)(c) of the Constitution states that everyone has the right to freedom of expression, which includes “freedom of artistic creativity”. It is true that no right is unlimited but even where the right to free expression is limited an exception is usually made for artistic expression. Our law often distinguishes between real depictions of individuals and art works and hardly ever allows for the censoring of the latter. For example, section 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act (which prohibits hate speech) explicity makes an exception for a “bona fide engagement in artistic creativity”. Section 3 of the Film and Publications Act contains a similar exception.
The fact that the ANC seems incapable of distinguishing between a work of art and real life will probably ruin their legal case they are planning to launch. The ANC statement says that it has instructed its lawyers to approach the courts to compel Brett Murray and Goodman Gallery to remove the portrait from display as well as from their website and to destroy all printed promotional material relating to the work. But given the protection for artistic freedom in the Constitution and the many exceptions in our law made for the expression of such artistic creativity, I am am almost 100 percent certain that the ANC’s proposed legal action will not be successful. In a democracy, courts seldom order the censoring of a work of art – even if that work of art makes fun of the President and his philandering patriarchal ways. I quote the rest of the ANC statement in full for your further gratification.
We have also detected that this distasteful and vulgar portrait of the President has been displayed on a weekend newspaper and its website, we again have instructed our lawyers to request the said newspaper to remove the portrait from their website. It is in our view and we remain steadfast in that the image and the dignity of our President as both President of the ANC, President of the Republic and as a human being has been dented by this so-called piece of art by Brett Murray at Goodman Gallery. We are also of the view that this distasteful depiction of the President has violated his individual right to dignity as contained in the constitution of our country.
The same gallery has displayed the logo of the ANC without the permission of the ANC, with the inscription FOR SALE on it, both these portraits are a clear calculation to dismember and denigrate the symbols and the representative of the ANC, chief amongst them, the President of the ANC. The ANC believes in both freedom of the press and artistic expression. The vulgar portrait and the dismembering of the ANC logo by Brett Murray is an abuse of freedom of artistic expression and an acute violation of our constitution, apart from being defamatory. That is why we have instructed our lawyers to approach the courts in-view of these violations and the defaming nature of the so-called President Zuma portrait titled ”The Spear”.
African National Congress
As this is a work of art, there is no chance that any half decent judge would grant the orders requested by the ANC, first, because there is no law that prohibits an artist from making such a portrait and second, because if there were such a law it would be unconstitutional. That is why I have taken the liberty to reproduce the artwork here and why I have invited my readers to distribute it widely. There is no place in our democracy for this kind of Christian Nationalist-like moral outrage and the concomitant attempts at censorship of artistic expression.
All the ANC has done is to make themselves (and our President) the laughing stock of the country. In fact, if I was a conceptual artist I would have taken the ANC statement, superimposed it over the ANC logo, and framed it before asking the Goodman Gallery whether it wanted to display my work of art. My work would be humorous, yes, but would also make an important point about artistic expression. I am sure I could have gotten a few thousand Rand for it, too.BACK TO TOP