Artist Mbongeni Ngema’s controversial song ”AmaNdiya” was banned from public broadcast as it constituted racial hate speech with incitement to harm in terms of the broadcasting code, the Broadcasting Complaints Commission of SA said in a judgement released on Thursday.
”The song as broadcast demeaned the Indian section of the population by accusing the Indians in sweeping generalisations of the oppression of Zulus, of dispossession of Zulus,” the judgment read by chairman Professor Kobus van Rooyen said.
It exceeded the clauses of the broadcasting code allowing for freedom of expression because it ”promoted hate in sweeping, emotive language against Indians as a race” and incited fear among
Indians for their safety.
South Africans are protected by constitutional rights which can overreach the right of freedom of speech, Van Rooyen said.
The complaint that broadcasting the song amounted to hate speech against Indians was brought by the SA Human Rights Commission after SABC’s Ukhozi FM played it during a current affairs programme during which the race issue was discussed.
The judgement, however, accepted Ngema’s claimed intention to stimulate discussion on the negative perceptions some Africans have regarding Indians.
”An argument could be made out that the song is likely to act as a catharsis for those Zulus who feel prejudiced by the economic position of the Indian businessmen… We also accept in favour of the writer, that he intended to begin a constructive discussion that could lead to reconciliation, as stated in the opening words by the writer,” it said.
But the judgement went on to say the song had to be judged objectively according to the norms that applied to broadcasters.
These norms were supported by the Constitution and the
Constitutional Court’s interpretation of those.
”Objectively judged the song amounts to hate speech, in spite of the reconciliatory introduction of the writer. The song itself does not convey the same message.”
Excerpts from a translation of the song include the following inflammatory statements: ”Indians don’t want to change, even Mandela has failed to convince them. It was better with whites we knew then it was a racial conflict”; ”…we struggle so much here in Durban, as we have been dispossessed by Indians”; ”I have never seen, Dlamini, emigrating to Bombay, India. Yet, Indians, arrive everyday in Durban — they are packing the airport full”.
The Constitutional Court has emphasised that minority groups are entitled to equal protection in terms of the constitution. This is based on respect for diversity, Van Rooyen said.
But the song polarised the Zulu and Indian communities by demeaning Indians, and ”… the demeaning of the Indians has a strong hate element to it”. The hatred was based on race.
The combination of all these factors incited harm, the judgment said.
”Whether there is a likelihood of real attack is irrelevant. There would, in our opinion, be a likelihood of fear — a fear based on a reasonable inference, in the light of the emotionally laden language employed.”
The ruling is only binding on broadcasters and does not affect distribution of the CD or live performances of ”AmaNdiya”. – Sapa