Burning the flag a powerful symbol of free speech

Nkosikhulule Nyembezi

When the DA capped its campaign with an election advertisement, launched on Sunday, showing the SA flag in the background, with the opening title “This election is about survival”, the audience was baffled as the act produced increasingly painful, harsh and violent memories of unfulfilled promises and dreams of a prosperous nation.

With the flag burning in the background, a voiceover says: “The ANC will lose the majority vote for the first time in 30 years but will do anything to stay in power.”

In reaction, President Cyril Ramaphosa, various politicians, and ordinary citizens condemned the burning of the flag, saying the DA was being disrespectful and sending a wrong message to the world, labelling it treasonous.

The furore over a communication strategy initially intended to encourage voters to make deliberate political choices in the May 29 national and provincial elections raises grave questions about how our society can, or should condemn or censor free speech in fear of political pressure.

The national flag is probably the most emotionally loaded symbol in South Africa – even if the emotions it stirs are often contrary. We display it in government buildings, and our athletes proudly drape it around their shoulders as a sign of our unity in diversity and triumph over the historical challenges we face as a nation.

At the same time, protesting citizens have, on rare occasions, burned it in disgust at our government’s corrupt and unaccountable actions. More publicly, we reverentially draped the flag on the coffins of national heroes – and its colours continue to be used by artists to condemn the dishonourable acts of many entrusted with our hopes and dreams.

While I disagree with the DA’s burning of the flag as an election campaign strategy, I believe that the electorate must invalidate repeated public attempts by politicians, in particular, to criminalise the act because the symbolic act of burning the flag has become a type of expression protected by the right to freedom of expression in the Constitution.

Indeed, some of the Constitutional Court’s most eloquent words in defence of free speech teach us that “the Constitution recognises that people in our society must be able to hear, form and express opinions freely,” that “freedom of expression is the cornerstone of democracy,” it is valuable both for its intrinsic importance and because “it is instrumentally useful in protecting democracy, by informing citizens, encouraging debate and enabling folly and misgovernance to be exposed”.

As such, we should ask in the context of these elections for the extent to which the DA’s burning of the flag also helps the search for truth by both individuals and society generally because if society represses views it considers unacceptable, they may never be exposed as wrong as open debate enhances truth-finding and enables us to scrutinise political argument and deliberate social values.

Similarly, in the US, the Supreme Court ruled that “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

Yet, today, the public reaction to the DA’s flag burning shows that some in our nation support a ban on flag burning. And it is a vocal half.

The Constitution may offer instant legal protections to politically controversial speech, but it does not generally instantly protect a political party or election candidate from the onslaught of public outrage.

And we have seen in other fields how the fight over the hearts and minds of the young generation has become one of the most heated political battles in South Africa – witness the debates over the teaching of racism and land dispossession, over sex education, over the history curriculum in general and so on.

Fearing condemnation or censorship of their free speech, candidates may offer voters a blended diet of election promises rather than face a vituperative backlash. And charging citizens with treason would be a novel penalty.

The pressure on candidates to censor themselves and their election campaigns – and to eliminate engaging and provocative communication strategies just because they may touch on politically sensitive topics – hurts our democracy and the ultimate ability of voters to choose their elected representatives freely.

An election campaign that feeds voters unquestioning patriotism – or, for that matter, unquestioning anything – and squelches any initiative they may take to explore controversial issues is not likely to produce free-thinking, independent-minded citizens.

Yet once again, the DA’s critics are taking it too “literally”, reading its advert as an outline of a critical policy when surely it is an emotive match thrown into one of the SA’s most divisive political campaigns directed at political arsonists of proven ability.

It works as a provocation because flag-burning has a warm and unique place in democratic SA’s political history that the elite in our society has conveniently overlooked. It does not serve as quite the same flashpoint elsewhere in the country, and anyway, when non-South Africans who are victims of xenophobia and prejudice gather to burn a flag, it is often the South African one they burn. There’s just something very flammable about that flag.

Of course, it is easier to burn our flag wherever you happen to be because if you burn your national flag in a wide range of countries, including Algeria, France, Portugal and Switzerland, you can face a hefty prison sentence. Denmark, on the other hand, allows the burning of its flag but bans attacks on foreign flags for fear of starting a war.

Those countries are not as blessed as we are by a Constitution that has enshrined freedom of speech since 1994.

Burning the flag has become a powerful symbol of that free speech - and the history of this iconoclastic act should warn those threatening treason charges and retribution that they will not get a free ride to trample rights.

The fact that many South Africans hold it as a self-evident truth and that citizens can burn flags reveals how strongly resistance to power lives in SA’s history.

This furore has exposed to voters those politicians in government who threaten a political party or candidate because of a fetish over a piece of cloth but appear to have no problem trampling all over the very principle of freedom the flag is supposed to symbolise.

* Nyembezi is a human rights activist, researcher and policy analyst

Cape Times