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 Spear – as I have written before – has become about far more than about whether a painting resembling President Jacob Zuma with his penis hanging out should be banned because it humiliates Zuma, his many wives and children as well as affronts the dignity of all black men (even those who do not object to the painting) and at a push even black women, or whether it should be protected as a work of artistic expression (albeit a puerile and derivative work of art) at all cost.
Having an intelligent, robust, nuanced, level-headed and sensitive discussion about some of the issues raised by the painting (and publication of it in City Press) has become almost impossible.
Demagogues and populists – with one eye on the ANC elective conference coming up in Mangaung – have shamelessly punted the argument that one’s view of this painting will immediately tell everyone – but especially “patriotic citizens” (often conflated with slavish supporters of the President and the faction inside the ANC he sometimes leads) – whether one deserves to be stoned to death or whether one is worthy of being awarded a government tender or a job as Police Commissioner as a true and trusted supporter of the so called National Democratic Revolution.
Others have argued with considerable vehemence and sometimes startling venom, that if one asks questions about the racial tropes informing the painting or if one questions the wisdom and humanity of the artist because he painted a picture which can be interpreted as playing into stereotypes beloved by white racists, a painting which invests the black phallus with the patriarchal power which makes its exposure so humiliating to some, then one must be an enemy of freedom and liberty and a traitor to the principled of artistic freedom.
This morning Young Communist League National Secretary Buti Manamela said that if the Goodman Gallery does not remove all the “insulting work” from the gallery (including, one presumes, all the work mercilessly mocking the Shivas Regal Communism of his boss – one Blade Nzimande – and the tenderpreneurial thieves protected by party connections) they will close down the gallery. Gwede Mantashe, invoking a non-existent bogeyman and deploying the Stalinist rhetoric of a true anti-democrat stated that “there is a strong liberal offensive against the revolution”, meaning, one assumes, that less and less South Africans want to vote for the ANC and that they, along with anyone criticising the ANC or opposing it, also oppose the revolution and hence is the enemy that must be crushed by any means necessary. Cosatu’s Sdumo Dlamini claimed that The Spear is about people who are opposed to ANC majority rule, as if it was illegitimate to be critical of or to oppose the governing party of the day who was, after all, merely elected for a five year term and could be voted out of government at the next election if the voters decided they have had enough of the greedy kleptocrats.
How does one sensitively discuss the pain and the hurt of Advocate Gcina Malindi who burst into tears in court while arguing Zuma’s case (as well as the painful feelings of many others), in this anti-intellectual, anti-democratic, race-baiting, Jacobin atmosphere whipped up by deeply irresponsible politicians hoping to skim off some fat when Zuma is elected for a second term as ANC President later this year?
How does one engage with the many other questions raised by the work of art in such an atmosphere in which the very idea of engagement, discussion and respect for different views has been rejected as part of a liberal plot against the revolution (a revolution long since sold down the drain by the current leadership of the ANC and the SACP)?
And there are so many questions raised by this work of art. Here are some of them:
Was this painting any good as a work of art or not; did it denigrate Zuma, given his own patriarchal flaunting of his own sexuality; should humiliation of a politician through art ever be celebrated or should it always be condemned and does it make a difference who the politician is; should the right to freedom of artistic expression be balanced against the right of human dignity and if so to what extent; given our history, will the depiction of a black man with his genitals hanging out necessarily evoke feelings of humiliation and anger in some people; do responses to the painting illustrate that a majority of South Africans are prudish, angry, bigoted or even that they harbour racist, sexists and disturbingly anti-democratic views; is the painting being used to enforce the notion that it is illegitimate to criticise the ANC and its leaders as the only legitimate representative of the oppressed; can or should the humiliation of one person ever be viewed as being visited on all persons who share that person’s race and if so, does this view not follow the logic of apartheid which visited the sins of one black person on all black South Africans?
And still some other questions tumble out and over each other to remind us that life is not neat and that the black and white positions taken by the supposed moralists can often seem rather immoral and laughably simplistic.
Would Steve Biko have felt humiliated by the painting and if not, would this have been because he would not have bestowed the power on the (white) artist to determine (once again) how he, Steve Biko, should feel about who he is as a human being; is a culture of law, erudition and civility at all possible in South Africa, given the anti-intellectual attitude of many of our leaders, the dysfunctional nature of our education system and the utter degradation of urban public life in our country; and finally, will most of our leaders and the vast majority of South Africans ever accept the notion that our Constitution demands from us something very difficult, something hard and painful, something counter-intuitive, something brave, namely to accept the rights of others to express themselves, to write rude poetry and paint offensive pictures and to write rude and disrespectful books, no matter how insensitive or hurtful we may find these works of art because the Constitution assumes that we have an inherent human dignity, a dignity that no one can rob us of unless they deny us the right to think for ourselves and to feel real emotions and to make our own choices about what to think, and about who we are, and about who we wish to become.
In an arresting and prescient article currently doing the rounds on Twitter (written by Achille Mbembe in 2006 as the Zuma Tsunami was gathering force), the Cameroonian intellectual warned against the dangers brought about by the Zuma-supporting “marriage of millenarianism, nativist revivalism and politics”, which for a long time was the backbone of white supremacy in this country. “The emergence, now, of a ‘democratic mob’,” wrote Mbembe, “led by self-appointed champions of the poor who claim to speak for the ‘common man’ is itself the result of recent seismic shifts in the realm of South African political culture”.
All South Africans – including those who deny the continued existence of white privilege while smugly pointing disapproving and judgmental fingers at the ANC without seeing the need to do any introspection and those exploiting the racial fault lines for short term intra-party election purposes – would do well to read Mbembe’s searingly honest piece in which he warns us, it seems to me, against the dangers of not thinking for ourselves and of closing down debate and contestation and artistic expression because it is potentially difficult and hurtful – all in the name of some form of perverted, dignity-denying, notion of racial solidarity.
Even more dangerous is the shift away from the project of non-racialism to a re-segregation of the public sphere. To the continuing denial of white privilege, many blacks are responding with an exacerbated sense of victimisation and disempowerment. In the name of the “right to self-definition”, they are paradoxically recreating and consolidating the mental ghetto – a lethal device white rule so effectively used in order to inflict on them maximum psychic damage during the times of bondage…
Having lost political power, many whites have retreated into safe enclaves, hoping to one day leave for Australia instead of fully exercising their citizenship and creatively renegotiating the terms of their belonging to the new nation. Further evidence of nativist reassertion are the on-going controversies concerning the use of Afrikaans at the university of Stellenbosch and the opposition, including among white liberals, to any kind of economic redress after so many centuries of looting, exploitation and theft…
If, historically, white nativism has always been about racial supremacy and the defence of immoral privilege, black nativism has always been a by-product of dispossession. As a form of cultural and political protest, the task of nativism is generally to create a common language of grievance. Because nativism is never attached to any concrete social or political programme of reform, it can never be a progressive force. In practice, it always tends to repeat the sorry history it pretends to redress. A real danger for South Africa today is that the country may be sliding back into a situation where, once again, the language of racial destiny becomes so all-encompassing as to render impossible other ways of connecting the various fragments of the nation.
How then do we talk about The Spear at all in this climate of rage and fear which demands absolute loyalty to the group and an abdication of human agency in favour of a narrow self-serving solidarity? How do we talk about the manner in which it is being used and exploited by shameless politicians, yes, but also about the need to show respect and understanding for the deeply embedded memories and feelings of apartheid generated humiliation and grievance, without trading in our hard-won freedom for a version of conformity enforced on us by some ANC leaders or populist rabble-rousers masquerading as communists?
How does one listen to and demonstrate respect for the genuine feelings of fellow South Africans without succumbing to the Jacobins? How do we vigorously defend the right to freedom of expression and artistic freedom, the right to think and feel what we want and to express those feelings and thoughts in the most robust and even rude forms, the right not to have to conform to the official ANC-enforced view about a painting just because one is black and thus expected to show solidarity with the philanderer from Nkandla or just because one is white and is supposed to be fearful of being branded a racist or is supposed to keep a patronising yet smug silence – a la Samantha Vice?
I would suggest that perhaps one may start by engaging in a robust and honest discussion about the nature of human dignity, which is a value running like a golden thread through our Constitution and underpin most if not all the rights protected in it and is also a right protected by section 10 of that Constitution. In my view (set out in a rather simplistic manner in the short space available here), the concept of human dignity is much abused.
I would contend that dignity is based on the assumption that humans have an intrinsic moral worth. They have this worth – and therefore have dignity – because they are rational agents. In other words, we have dignity because we are free agents capable of making our own decisions, setting our own goals, and guiding our own conduct by reason. One treats somebody else with dignity if one does not treat that person as a means to an end. In one understanding of dignity, one I favour, what is required of all of us when we are called upon to respect the human dignity of others is not that we always need to act selflessly and with a morbid and obsequies respect for the personal feelings of others. Rather, we are called upon to respect others enough to treat them as human beings who are capable of rational thought and reasoning. Thus we may never manipulate people, or use them to achieve our purposes, no matter how good those purposes may be.
At the evil heart of apartheid was the racist belief that black people did not possess the same ability as whites to be rational beings, capable of robust rational engagements, capable of making up their own minds of what to think, how to live and what actions to take. In a world that truly respects the human dignity of all, what is therefore required is NOT a censoring of ideas, of art, of books because they might hurt us or threaten our sense of worth, but rather what is required is to allow the flourishing of a million ideas, of modes of artistic expression, of thoughts and beliefs and arguments and aesthetic representations – exactly because it is assumed that because we possess an inherent human dignity we will be able to engage rationally with these ideas and modes of expression and that – no matter what ideas might be expressed or what aesthetic representations we might be exposed to, it will not have the ability to rob us of our humanness – our ability to engage with the world rationally.
That is why freedom of expression is such an important and valuable right. If we endorse the policing of the thoughts and actions of individuals and the imaginations of artists and poets, we strike at the very heart of what it means to be human and at the protection of human dignity.BACK TO TOP