Can you imagine just how shamelessly racist and beyond the pale someone must be if they are insisting on being allowed to wave the old SA flag gratuitously?
AfriForum is so desperate to cling on to this symbol of white supremacy that they are currently engaged in lawfare with the Nelson Mandela Foundation and the Human Rights Commission.
They want to assert a right to freely express anti-black racism. Perhaps we shouldn’t be surprised given what we know about their politics, but we should certainly be disgusted.
The legal battle that was playing out in Bloemfontein on Wednesday was interesting but also a distraction from the real issues. Don’t get me wrong. The law matters, of course, and the question of what speech is protected by the law is an important legal question to settle.
The law, unfortunately, is not all that matters. In this case, the non-legal issues are the most important, to my mind. Why do you want to be able to wave a symbol of colonialism and apartheid casually? Why do you want to trigger memory of black people’s dignity being trampled on by a racist regime who committed a crime against humanity?
What do you gain by doing so? What do you fear losing if you were not allowed to wave the old SA flag gratuitously? I would love to hear a sincere response from AfriForum that is not just a disingenuous rehearsal of general speech rights arguments.
The problem with the legal inquiry is that we often stop there instead of letting the legal battle play out in parallel with moral and political debate. If we did so, AfriForum would be exposed as hiding behind a thin argument about freedom of speech being important (which no-one disagrees with at the general level), when in reality their motives and desires would need examination.
Take, for example, the K-word. How would your vocabulary be diminished if you decided to never use the word even if the law allowed you to use it? It wouldn’t. You would lose nothing.
Unless you have an emotional or political association with the word that you value, and which you would experience as a profound personal loss if you were unable to perform the speech act that is now prohibited.
But surely if you are truly on board with the project of forging an anti-racist SA then it should be a no-brainer that the gratuitous use of the K-word has no place in the making of an anti-racist SA?
Similarly, it makes no sense to claim that you are committed to an anti-racist SA and yet invest so much energy into preserving an entitlement to wave a flag that is a celebration of white supremacy and a reminder of a crime against humanity.
We pick our battles. Not all legal battles that you can win are legal battles that you should fight. That, for me, is the political and moral viciousness that AfriForum’s lawfare is indicative of.
They are nakedly parading their de-prioritising of black pain and of black dignity in favour of delighting in theoretical reasoning which places more value on legal formalities than on substantive and more fundamental values such as dignity and equality.
This tells you everything you need to know about the ideological commitments of AfriForum.
The last thing they care for is building a society in which the deep divisions of the past are healed. Doing so would require them to take greater cognisance of the social and political history of symbols of hatred and of inhumanity.
They do no such. They make trifling legal moves and show off the very white privilege that allows them to be so glib about our painful history of anti-black racism.
There is a lot one can say about the poor legal arguments too. But I think a thorough critique of the legal strategy from AfriForum should deliberately be underemphasised even though the jurisprudence that is developing around hate speech is truly fascinating.
For example, AfriForum trotted out the old high school one-liner, “You will drive the racists underground!” The NMF’s response was pithy and apt, “So what?” I do not understand why people think racists should not be underground. Where must they be? At the Braamfontein market upsetting my Saturday brunch? Let them fester underground, starved of oxygen.
But, equally, some of Advocate Tembeka Ngcukaitobi’s arguments sometimes struck me as more political in character than squarely and narrowly legal in nature. Of course, he is a brilliant orator and a masterful courtroom tactician.
He intentionally chose some of the final rhetoric to close with, such as berating the other side for never weighing up dignity against freedom of expression, and in his soliloquy he deliberately listed all of the great black and white struggle heroes that fought for the value of dignity to be an inviolable constitutional right.
He took a calculated risk to infuse political pamphleteering with legal argument. If the NMF and the HRC do win, it will be interesting to read the details of the court’s analyses because the scope of the judgment will, I predict, be more complicated than the lower court’s declaration and analysis.
Still, in the final analysis, we should ask a basic moral question to anyone interested in casually waving the flag on a Saturday morning while strolling in the park, “Why?”
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