THERE WAS a recent proverbial storm in a teacup in South Africa over artist Brett Murray’s contentious The Spear painting depicting President Jacob Zuma with his genitals exposed.
The ruling African National Congress (ANC) found it demeaning, racist and a violation of President Zuma’s dignity and wanted it removed. Some civil rights groups, however, saw the painting as a sign that freedom of expression was alive and well in South Africa.
The tension pitted two inherent constitutional rights against each other: dignity of the individual and freedom of expression. The painting has left artists, writers, comedians, satirists and social commentators divided over the issue.
At this Crop Over period it is a useful reminder that freedom of expression guaranteed under our Constitution should override any temporary discomfort caused by lyrical content so long as it is within the bounds of decency.
Some may well understand the initial reaction to the painting, notwithstanding. Many South Africans, black and white, have weighed in to point out that though the satire was broad and clearly political, it was motivated by Zuma’s public and private conduct.
President Zuma went to court seeking to have the painting declared illegal, banned from pubic exhibition and expunged from the Internet. In the process he wanted to erect a new legal standard for the protection of “dignity” that would dramatically curtail freedom of speech and of artistic expression.
Fortunately, the court rejected Zuma’s contention that the offices of the president of the ANC and the country had constitutional rights to dignity and privacy. It held that such rights belong only to individuals, to which his counsel conceded.
In our view, the holding of public office, far from shielding an individual from awkward scrutiny, ought to justify much tougher and more intrusive commentary.
There is nothing particularly African about cultural conservatism, or about political fickleness. We are seeing symptoms here. Any constitutional right to human dignity should not be a right to protection from embarrassment.
Human dignity is the fundamental right of the individual to equality and to freedom. It is intimately bound up, too, with the right to form opinions and communicate them – that is, it does not exist without freedom of speech.
In a constitutional sense, dignity is not the same as reputation in the common law sense. It is deeper, more resilient and more important than that. Our law on these questions is not quite yet settled, and in some ways limits the scope for artistic expression and political satire.
Politicians in particular may exploit this but the courts should strike a balance in favour of freedom of expression. Only in the arena of free, robust and sometimes hurtful exchange can we have the kinds of conversations on how best to strengthen our democracy.
