As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The idea that fairness and justice requires identical treatment of all people in equivalent situations regardless the context or the relative power of the persons or institutions involved, is attractive to many powerful and privileged people with vague and undefined liberal inclinations. The problem is that the idea is destructive, illiberal and deeply unfair.
On Monday morning at the Klein Karoo Nasionale Kunstefees (KKNK) in Oudtshoorn – the “N”, here, is as vital as the “R” in Proes street or the “N” in Pniel – I was involved in a discussion on the right to freedom of expression and on whether the KKNK was correct not to invite racists like Steve Hofmeyr to the festival or to provide them with another platform.
The discussion was both frustrating and revealing. Frustrating because not all the speakers avoided the trap of self-indulgence and narcissism. Revealing because it soon became clear that a sizeable number of audience members were unhappy with the decision of the KKNK management not to provide Hofmeyr and other racists with a platform to perform and to take part in debates.
Now, it might well be that some of the speakers at the debate were yearning for the presence of Steve because he dares to express the racist fears and prejudices that they themselves harbour but are too scared, hypocritical or polite to express (at least in public).
On at least two occasions during my three-day stay at the festival, I encountered the most shocking and brutal forms of racism from festival-goers. I suspect that these bruising encounters (I was confronted by the use of the “K” word and an expressed desire to recreate exclusive “whites” only spaces) framed – for me, at least – the discussion I was involved in. (It was, perhaps, of some consolation that one of the encounters revealed such a catastrophic inability to reason, that it made me wonder whether the person was not in need of strong anti-psychotic medication.)
Because I have lived in South Africa for most of my life and am excruciatingly aware of my own continuing struggle to rid myself of the racism, the sexism, the homophobia and the HIV prejudice that still stalk the land like an incurable disease, I have to admit that I usually assume the worst of the (“white”) strangers that approach me in public places.
I try to wear the cynicism about my own kind as a form of armour to protect myself against the hatred and bigotry that sometimes seems to saturate our society, just like the stench of shit saturates the air around those portable toilets in Khayelitsha.
All “white” South Africans might not always realise it, but at least sometimes the horrid actions or words of fellow “white” people are imputed to all “whites” – just as racist logic have always demanded (and still does) that the inexcusable actions or words of one “black” person be imputed to all “black” people.
When I thus encounter fellow “whites” who exhibit some sensitivity about racism and even a tentative willingness to confront their own prejudice and that of others, I often feel pathetically relieved and grateful.
And it does happen – imperfectly; often haltingly and with confused earnestness; sometimes in a disastrously self-righteous and self-congratulatory manner – but some “white” South Africans do try to grapple with the fact that 350 years of colonial conquest and apartheid have deformed our society and, at best, turned us into strangely disconnected beings.
This willingness of “white” people to try and confront race and racism is often reflected in a certain alertness to the way power determines how a specific instance of the politics of race plays out. This happens when us “white” people – not ever having been on the receiving end of structural racism and thus not forced every single day to live with its horrors – nevertheless attempt to get to a place (a place we probably can’t ever get to), where we will constantly be aware of how black people experience the structural violence of racism that surrounds us and that we are often implicated in.
It reminds me of the attitude towards shit captured in a poem of Antjie Krog. In the poem Krog describes the horror of a visit to a filthy toilet while menstruating, with her handbag clenched between her teeth and her blood-red tampon (folded into bank deposit slips) clutched in her hand.
pis ek rillend verstard effens hurkend/ tussen my bene deur/ in ‘n toiletbak tot in die helfte opgehoop/ met minstens vier verskillende kleure kak/ elke senupunt van weersin orent om mal te word/ as maar net ‘n enkele druppel op teen my sou spat. (I piss shuddering, rigid, half squatting/ between my legs/ into a toilet bowl heaped halfway full/ with at least four different colours of shit/ every nerve-ending of aversion alert to go mad/ if even a single drop would splash against me.)
In the debate at the KKNK I argued that if we want to judge the correctness of the decision by the festival management not to provide Hofmeyr with a platform, we must take into account the disparities in power between different people and institutions and the different effects divergent forms of expression have on different human beings formed by different experiences.
We should not insist that as a matter of principle the right to freedom of expression requires us to treat all forms of speech in exactly the same manner. Neither is it conceptually tenable to believe that all decisions to censure a person for what he or she says should be viewed as equally problematic.
And who wields power and how much power that person or institution wields will have a significant influence on whether we decide whether the limitation placed on freedom of expression is constitutionally and ethically acceptable or not.
The test is one in which different interests must be balanced against each other in complex ways. The more drastic the limit on free expression, the more skeptical we should be of that limitation. In contrast, the more drastic the effect of that expression on the human dignity of others, the easier it would be to justify limiting the expression. The number of permutations is infinite and in each case we have to balance all the interests in a manner that protects both the freedom and the dignity of all people.
The state and its institutions have the power to incarcerate and (as we have seen at Marikana) to kill its citizens. The state consequently has enormous power to silence different, controversial or unpopular forms of expression. The spectre of the abuse of state power to limit expression in order to advance narrow political, sectarian or economic interests is high. I am therefore very hesitant to endorse state censorship of expression. In my view, the power of the state should only be used to limit the most extreme forms of hate speech.
In different contexts different individuals and private institutions do not have the same power to circumscribe forms of expression that are hateful, unpopular, strange or that threaten the commercial interests of individuals or companies.
If a private individual decides not to invite Steve Hofmeyr to dinner because of his racist views or because he sings Die Stem, it would have no effect on Steve or those who think like him or support him.
If a large company refuses to sponsor a festival where Hofmeyr performs, it will have a more drastic (but not absolute) impact on his freedom of expression. Seeing that he would still be able to attend other festivals, organise his own concerts (in Orania and elsewhere) or to take to his Blog or Twitter to express his bigotry and – indirectly – that of his supporters, the limitation on his freedom of expression is not absolute.
But from both a constitutional and ethical point of view, this is not the only factor to consider. The nature of the expression and the nature of its effect on others must also be considered. Now, from an ethical point of view I would contend that it is undesirable for an arts festival catering to a diverse audience to refuse to host artists or to disallow the performance of plays merely because the material may offend certain sections of the public.
This is so, first, because it would make it more difficult for others to see the performances or plays and second, because festival-goers should ideally have a choice to buy tickets and to attend the plays or performances it chooses, based on their tastes and values. But, thirdly and most importantly, the offensive words or ideas do not call into question the basic humanity of anyone, nor does it disrespect the inherent human dignity of anyone.
Performances and plays that offend the sensibilities of some do not undermine the constitutional injunction to respect the inherent human dignity of all. In fact, one could argue that censoring such performances and plays would in fact infringe on the dignity of individuals, because it would treat people as empty vessels with no agency of their own. Individuals are treated as passive bystanders in whose interest decisions should be made in the name of “good taste” or “respectability”, which will be decided on by a few gatekeepers who may well bend to the wishes of large corporate sponsors who might wish to censor any radical critique of corporate greed or complicity in exploitation.
In most cases the specific worldview, political orientation, religious views, other values and cultural assumptions of individuals will mediate their response to the work of an “artist” (I use the latter term generously to include the concerts of Hofmneyr).
A very religious person may be extremely offended by an artist like Jack Parow who swears heavily on stage. A homophobic bigot may find two men or two women kissing on stage disgusting or disturbingly erotic. A progressive person may find a play based on an Ayn Rand novel offensive because of the message of selfishness or the lack of empathy for the vulnerable people reflected in the play.
In fact, at the KKNK several conservative theatregoers walked out of an Afrikaans adaptation of Anton Chekhov’s The Seagull because they were disgusted with the use of swearwords like “naai” and “fok”. (Personally I loved the play, but I believe those who walked out had every right to do so.)
The examples I provide above centres on reasonable disagreement about our values and about how best we can live an ethical or meaningful life. Such reasonable disagreements are the lifeblood of a democracy.
Freedom of expression must be protected exactly to allow this reasonable disagreement to flourish (even in the form of irrational outrage and the expression of disgust). A space in which many ideas (also ideas that are unpopular or that offend the majority) can be expressed, safeguards the freedom of individuals to choose for themselves what to think and feel and how to live their lives. In a democracy it is not desirable that the management of an arts festival (committed to constitutional values) decides on behalf of festival-goers about matters of taste and decorum.
But I contend that the matter is different when we deal with a performer who incessantly makes racist, sexist or homophobic statements and denies the basic humanity of others or where a play uncritically endorses and perpetuates racism, sexism and homophobia.
In an open democracy racism, sexism and homophobia cannot form part of a debate in which reasonable disagreement remains in play.
When we begin to treat the question of whether some people are fully human (and thus deserving of respect and concern regardless of their race, their sex or their sexual orientation) as part of a reasonable debate (and when those who contend that some people do not, hold considerable social and economic power), we legitimise the racism, sexism and homophobia and create an atmosphere in which the denial of the basic humanity of people who are on the constant receiving end of bigotry are legitimised.
We send a signal that it is not shameful, nor a basic attack on the humanity of fellow citizens, to question their right to exist equally and in full dignity with others. We claim the right to treat individuals not as humans but as things over which we may exert godlike authority. We create a space in which it becomes acceptable to deny others the sense of well-being and self-respect that we demand for ourselves. We endorse, either directly, or through omission, the attack on their humanity and in the process we dehumanise ourselves.
When we do not signal that we consider the racist, sexist or homophobic views objectionable, we create the impression in the minds of many festival-goers (and the wider community they belong to) that their hatred and bigotry and their refusal to recognise the full humanity of black South Africans is a reasonable, even noble, response to what they perceive to be the confusing and threatening world they live in.
Forms of racist, sexist and homophobic speech are thus fundamentally different from other forms of expression which we disagree with or that make us uncomfortable.
Because such forms of racist speech potentially have far more devastating effects on the well-being of “black” South Africans (whom “white” South Africans systematically oppressed and attempted to rob of their humanity over 350 years), a decision by the KKNK not to provide a platform for a person lauded in certain circles partly because he proudly engages in racist speech is not only permissible but, I would argue, an ethical (if not a legal) imperative.BACK TO TOP