The paintings by Brett Murray and Ayanda Mabulu depicting President Jacob Zuma with his genitals exposed have placed the visual arts at the forefront of discourse in South Africa. The debates have centred on the intersection of the artist’s right to freedom of expression and the subject’s (President Zuma in this instance) right to dignity. What the paintings have brought to attention to the average South African is the tension and/or conflict around these two rights, as well as the broader questions regarding how a nation processes the law to find balance in society that respects individual freedoms all around.
Chapter 2 of the Constitution, the Bill of Rights, forms the cornerstone of democracy in South Africa. The Bill of Rights enshrines the rights of freedom of expression and the right to dignity. Section 16 of this chapter affirms the rights and limitations of freedom of expression, while Section 10 speaks to human dignity. Legal expert Lauren Hastie states the following about the rights to dignity and freedom of speech:
Freedom of expression includes freedom of the press and other media; to receive or impart information or ideas; of artistic creativity; academic freedom and freedom of scientific research. Subsection 2 places certain types of expression outside the realms of the right and not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement of harm. In addition to this subsection the limitation clause in section 36 of the Constitution provides for the limitation of all rights to some extent as no right is absolute. Interestingly in the United States the First amendment of their jurisprudence is highly protective of freedom of speech specifically and their law contains no or very little limitation such as we do in section 16(2) of our Constitution. The limitation that our Constitution provides has specific reference to our past and while it allows for freedom to express yourself, it does not allow one to infringe on another right or to incite hatred that is based on “race, ethnicity, gender or religion”.
“The importance of freedom of expression in freedom of speech allows people to voice their morals and independence as well as their political views. The most topical of the “freedoms” in South Africa currently is the freedom of the press and other media and the freedom of artistic creativity. The importance behind the freedom of the press and other media is based on establishing and maintaining a democratic society as our Constitution’s preamble depicts. In a case before it, the Constitutional Court stated that “the ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate”. The media informs the citizen of the events around them. To what extent should this right be limited and to what extent should the government limit the information which the public are allowed to receive? The right to artistic creativity is also a controversial right as people, politicians and organisations are sometimes the brunt of this right and often defamation is born from artistic expression (paintings, cartoons and theatre) and the right to dignity must in turn be protected proportionally.
On the other side is the right to dignity. This right includes “inherent dignity and the right to have their dignity respected and protected”. Human dignity is a founding value of our Constitution along with equality and freedom. “Human dignity is the source of a person’s innate rights to freedom and to physical integrity” (Iain Currie and Johan de Waal constitutional law authors). In a case before it in 2002 the Constitutional Court stated that the law of defamation lies at the intersection of freedom of speech and the protection of dignity. In another case before the Constitutional Court it held that the onus of showing that a publication was reasonable (i.e. a painting or media statement) was on the media agent (or artist) to show that the publication was reasonable and not negligently made.
All rights are interpreted generously and purposively along the backdrop of the underlying values of the Constitution. All rights are limited as above and in addition can be limited both generally and then if reasonable and justifiable in “an open and democratic society based on human dignity, equality and freedom”. Proportionality must however follow the limitation with due regard to the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.”
In the context of the controversial paintings, the ANC has argued that the paintings infringed on the President’s right to dignity by exposing his genitals. This, it was argued, was an affront also to the President’s cultural sensibilities. In the case of Brett Murray’s painting The Spear, another debate raged on the ostensible colonial and racist undertones of the artwork. Throughout colonial history, black men and women have been objectified as sexual beings. The reduction of black men to a purely sexual being is responsible for the many myths of an almost animalistic and unnatural power that has over centuries entrenched the belief that the black male is to be feared. The painting was believed to feed into that kind of typecasting.
While artistic expression is good in the sense that it allows the artist space to challenge norms, the question still remains: what are the responsibilities of the artist to ensure that the work produced does not infringe on the individual right to dignity? That freedom of expression is inherent in artistic expression is long established. Nonetheless, in societies with a divided history like South Africa, it is clear that the role of artists takes on a deeper dimension than in societies that do not carry the sins of the past and are working towards reconciling and healing. As the debate on the tension between these rights continues, it will be equally important to respect the arts and give them space to raise questions about the society we live in. How this is accomplished will remain an issue for South Africans from all walks of life to engage with.