Don't ban "kill the boer" song

Posted by Madibeng Kgwete: 12 April 2011

The ongoing hate speech trial of ANC Youth League President Julius Malema at the Equality Court in Johannesburg is likely to introduce new boundaries within which freedom of speech and freedom of expression can be applied.

According to Section 16 (2) (b) and (c) of the Constitution, the right to freedom of expression does not include “incitement of imminent violence” or “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

Malema’s legal representatives argue in court papers that liberation songs such as "Shoot the Boer" are not sung with the intention to incite violence, harm, degrade or humiliate any person or group of persons.

The songs are "simply part of the heritage of the struggle and must be understood in the historical context of the role of song in liberation struggles all over the world,” Malema’s lawyer, Vincent Maleka, argues.

Meanwhile, a study by TNS Research Surveys has revealed that 74% of metro adults feel that the phrases "Kill the boer" or "Kill the farmer" constitute hate speech.

If the court bans the song or certain parts of its lyrics, that may narrow the space within which freedom of expression can be applied.

If the court grants Malema the right to continue singing the song anywhere anytime, that may also be interpreted as advocating racial hatred.

Now, what should the court do? Allow the song to be sung by (or in the presence of) anyone except Malema? Ban it completely?

Any of the two extremes (permission or ban) appears undesirable at the moment, and the court may need to explore a neutral and innovative solution.

The court should not be so heavy-handed as to force South Africans to forget the past, all because of Malema's actions.

In the same vein, young political leaders should be taught – through court decisions if need be – to realise the power that they have to polirise society through irresponsible public utterances/behaviour.

Under the circumstances, the most appropriate ruling, it appears, would be to prescribe circumstances and conditions under which the song may be sung.

For example, when a public event is held to commemorate the life and times of Peter Mokaba, him who made the song popular, why should “kill the boer” not be sung on such an occasion as part of tributes to the man?

To introduce an outright ban on the singing of the song by Malema or anyone would be extreme, particularly given the fact that no evidence exists to prove that the killing of white Afrikaner farmers (boere) can be linked to the song.