South Africans discuss whether the song ‘Larney Jou Poes’ by Cape Town band Dookoom is political hip-hop or hate speech: When does an artistic expression of anger become incitement to violence or “romanticising” of imminent violence?
‘Larney Jou Poes’ was published on youtube.com on 15 October 2014. It was viewed more than 50,000 times during the first month.
The song tells the story of a farm uprising in the Western Cape, De Doorns, and allegedly is a reflection on the land issue and the plight of farm workers in light of the protests. In the song, Dookoom frontman Isaac Mutant is saying:
“Farmer Abrahams had many farms
And many farms had Farmer Abrahams
I work one of them and so would you
So let’s go burn ’em down.”
Civil rights group Afriforum said that the song is a “vulgar form of hate speech” and that it would take the matter to court unless the band retracted the song and video. The band didn’t retract the song, and Afriforum so far has not gone to court. It has, however, submitted a complaint to the South African Human Rights Commission.
A finding of incitement or advocacy of hatred by a court would be binding, according to Sheniece Linderboom, who is head of the Freedom of Expression Institute’s law clinic.
Freedom of expression versus incitement of hatred
Section 16 of the South African Constitution protects freedom of expression. But freedom of expression does 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 to cause harm.
Afriforum said the song “romanticises violence”. But the band told the Mail & Guardian that their intention was to spark debate, and that they felt they had been “relatively successful” in achieving that. They said they were careful not to show anyone being harmed in the music video.
“The intent was to express anger at an issue of social injustice through our art. We wanted to highlight the plight of the farm workers. The video is a metaphor. We don’t want to burn down farms. The farm is not burnt – we merely ‘made our mark’ on the land,” said band member Damian Stephens, whose stage name is Human Waste.
The following is an excerpt from an article published by Mail & Guardian on 17 October 2014:
“The question is whether, in the context of the speech, it [the song] amounts to hate speech or protected expression,” says Dario Milo, partner at law firm Webber Wentzel and a media and information law expert. Critically, this context is music.
“Here the first important point is that the speech argued to be objectionable is contained in a song. It might be different if the words were chanted at an emotionally charged gathering, where there may be a likelihood of physical harm resulting. So the context of the expression suggests that it cannot amount to hate speech,” Milo says.
The second key issue, according to Milo, is that the Constitution defines hate speech narrowly, “and rightly so … the Constitution makes it clear that the speech must advocate hatred based on, for example, race, and constitute incitement to cause harm. You must therefore instigate or actively persuade someone to cause harm”.
Again, context is crucial to the Dookoom debate.
This is not just a philosophical or academic debate, as the law sometimes exempts artists from being found guilty of hate speech in the interests of protecting freedom of expression. Artistic expression is exempt even in the Equality Act, which defines hate speech more broadly, says Milo. He thinks this would apply in the Dookoom case.
Linderboom points to the Promotion of Equality and Prevention of Unfair Discrimination Act. Here artists are exempt from hate speech if their “artistic expression” is deemed bona fide.
“Bona fide artistic expression is expression made in good faith – in other words, without intention [to harm],” Linderboom says. But the test for hate speech, as stated in the Act, and the practical application thereof, “is a little more foggy”, she adds. The Act’s provisions are broader, but are not necessarily in line with Section 16 of the Constitution. Linderboom says this needs to be addressed.
The South African Human Rights Commission is currently assessing the case.
Mail & Guardian: What is hate speech?
Hate speech is defined in section 16(2)(c) of the Constitution as the “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. The intended “harm” does not have to be physical; it can also be psychological, in terms of the emotional distress caused by insults based on racial or gender abuse, or other grounds. The “incitement” part requires a level of propaganda of hateful ideas. According to Yvonne Burns’ Communication Law (2009), “hate propaganda is not legitimate speech. It is a form of harassment and discrimination that should be deterred and punished, just like any other behaviour that harms people. Free speech cannot be degraded to the extent that it becomes a licence to harm.”
What is incitement to violence?
Section 16(2)(b) of the Constitution prohibits “incitement of imminent violence”. The US has adopted a test to see if offensive speech creates a “clear and present danger” of violence. South African courts have not yet decided on the matter, but the context in which a statement is made is important to judge if the speech is likely to incite immediate violence. The violence being incited must be unlawful violence to fall within this exception to free speech.
The photos on this page are screendumps from the music video ‘Larney Jou Poes’ which was published on youtube.com
» Mail & Guardian – 17 October 2014:
Rap song could test SA’s hate speech laws
“Freedom of expression versus hate speech or advocacy to incite violence is once again in the news, thanks to a song penned by rap group Dookoom.”
» City Press – 16 October 2014:
Rap song full of hate speech – AfriForum
By Rebecca Jackman
» City Press – 12 October 2014:
Why is Dookoom so angry?
“There are irate farm workers, pitchforks and tyres, and the word ‘poes’ is used every few seconds, but brazen new hip-hop metal outfit Dookoom wants to spark conversation, not violence. Grethe Koen asks the band tough questions”
What is ‘hate music’?
Music intended to hurt and intimidate someone because of their race, ethnicity, national origin, religion, sexual orientation or disability. Similar to hate speech.
“While it is an anti-censorship organisation, Freemuse does recognise that there may be occasions on which free speech can legitimately be restricted. In general we judge on a case by case basis and are guided by international conventions such as the United Nations International Covenant on Civil and Political Rights. Such documents themselves tend to recognise that there are occasions where speech may legitimately be restricted. For Freemuse to be anti-censorship is not to say ‘anything goes’.”
Dr Martin Cloonan, Chair of Freemuse executive committee
» Read the United Nations’ International Covenant on Civil and Political Rights
» Read more on freemuse.org about hate music