‘Legacy of a monstrous regime’: Why the apartheid flag is hate speech
The Nelson Mandela Foundation explains why it has applied to the Equality Court to get the old SA flag banned
This nation is still healing. We are all still healing. Promises made by the Truth and Reconciliation Commission are still to be delivered. In September 2018, the National Prosecuting Authority announced that it is pursuing 15 TRC-related cases for prosecution. In the TRC recommendations is a list of more than 300 perpetrators of apartheid gross human rights violations that must still be prosecuted, as well as guidelines on measures for the restitution of humanity to all of us who have been victims of the legacy of apartheid.
In October 2017, during #BlackMonday protests across the country mourning the murder of white farmers, a minority of white protesters flew the apartheid flag, almost threatening racial retaliation for the murders. In September 2018, when the Boks triumphed over the All Blacks in New Zealand, a particularly large apartheid flag was sighted by the commentary box at the Westpac Stadium in Wellington. New Zealand rugby commentator Tony Johnson turned to the camera and was decisive in saying: “That flag is a symbol of a regime that no longer exists. And if you believe in what that flag represents, well, I’m not sure we want you in this country.”
Somewhere between soul, and spirit, a great hollow filled with bullets and beatings and memories too terrible for even history to make peace with. A debilitating open secret, it’s in each breath, that menacing whisper of the collective trauma that has never left us. – Lebohang Nova Masango, The House That We Built
On November 30 1973, the United Nations General Assembly passed the International Convention on Suppression and Punishment of the Crime of Apartheid, declaring the doctrine and regime of apartheid a crime against humanity. In 1977, the Geneva Conventions added protocol 1, declaring the practice of apartheid a war crime. That is what apartheid was – a crime against humanity and a war crime.
What is referred to as the “apartheid flag” was adopted in 1928 by the first majority Afrikaner parliament and included the British Union Jack, the flag of the Orange Free State and the flag of the South African Republic as focal points. When the National Party came into power in 1948 and formally introduced apartheid as a national policy, it unsuccessfully tried to amend the flag to remove the Union Jack, referring to it as a “bloodstain”. The flag endured to represent the apartheid state, both internationally and in the minds and hearts of South Africans, as crimes against humanity were committed under its banner.
Displays of the apartheid flag are a rejection of history as it is, and express a desire for black people to be relegated to labour reserves, a pining for the killing, the torture, the abductions, melancholia for the inhumane treatment of black people, the death squads, the curfews and the horrific atrocities committed under the flag.
This was just the latest sighting of the apartheid flag, a symbol the Nelson Mandela Foundation has applied to be declared hate speech, harassment and unfair discrimination by the Equality Court on Monday.
AfriForum opposes the application, stating that it is merely offensive and can hurt people’s feelings, but that freedom of expression must be protected, especially because hate speech only covers words and that not all people who display the apartheid flag intend to seriously demean the dignity of the people who suffered under apartheid.
I barely have words to dignify such a contrived argument. Here, AfriForum is appealing to its constituency and betrays its true purpose – undermining and downplaying the horrific nightmare of the ideology which that flag communicates.
The “it’s just a flag” apologist argument shelters those who seek to terrorise our psyche and trigger our trauma. Let alone the fact that our courts in the New Clicks case confirmed that subjective intention is irrelevant when an expression can only reasonably be construed to have one dominant meaning. Further, hate speech (“propagating, publishing or communicating words intended to be harmful and cause hurt”) is expressly excluded from protection under the freedom of expression provision in our constitution.
There are no genuine or sincere reasons not to have the flag declared hate speech that do not seriously undermine the trauma this country is negotiating. Defence of the flag humiliates the dignity of the victims, both living and no longer, of the legacy of that monstrous regime. This democracy, the miracle of this civic society, is placed in the custody of all of us. We all have the duty to protect it, against populism, against complacency and against the global growth of white supremacy.