Our constitutional democracy is founded upon a multi-party system of government in which the right to participate in all aspects of this system of democratic government is recognised by, and enshrined in, the Constitution.

Section 19 of the Constitution, for instance, provides that “every citizen is free to make political choices, which includes the right to form a political party; to participate in the activities of, or recruit members for, a political party; and to campaign for a political party or cause”. In turn, section 18 determines that everyone has the right to freedom of association, whilst section 16 provides for freedom of expression – of course subject to the provision that the latter freedom does not extend to propaganda for war, incitement of imminent violence, or advocacy of hatred – based on race, ethnicity, gender or religion – and that constitutes incitement to cause harm. In addition, section 17 allows everyone the right to assemble, demonstrate, picket and present petitions in a manner that is peaceful and unarmed. The EFF and similar groupings to the left and right thus, in principle, have a right to participate and engage in politics of the day.

Our constitutional democracy is, however, also founded upon the values of human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism, non-sexism, the supremacy of the Constitution and the rule of law. The Bill of Rights consequently enshrines the rights – including political rights – of all people, which may only be limited in terms of section 36 and other specific provisions of the Bill. As such, section 19 and the right to form a political party which is to be registered as such, is for example limited by section 16 of the Electoral Commission Act of 1996 (the Act) which prohibits the chief electoral officer from registering a political party in terms of that Act under certain circumstances. This includes instances where the proposed name, distinguishing mark or symbol, or constitution or deed of foundation of that party contains anything which, among others, “portrays the propagation or incitement of violence or hatred”, or which “causes serious offence to any section of the population” on a number of grounds – including race, ethnic origin, culture or language. 

Therein rests the possible predicament for the EFF and the IEC, given the EFF’s unique and peculiar posture and proposals, as expressed in their “Founding Manifesto”.

Does the EFF’s proposed name, distinctive symbols, or “Founding Manifesto” contain anything which represents such “propagation or incitement of violence or hatred”, or which could cause “serious offence to a section of the population” due to the EFF’s take on race, ethnic origin, culture or language? The answer probably differs depending on whether you view yourself, or are believed to be the “enemy”. I.e. “white monopoly capital and their political co-optees”, “British and Afrikaner capital”, “colonists”, “the post-1994 government [which] has maintained the apartheid and white-supremacist state” and so forth, or the rest – which apparently includes everyone else including “soldiers and the police”.

First, the name. A fighter can be many things. Someone inclined to punch your lights out, or a fiery member of the school debate or sports team not admitting defeat in spite of difficulties or opposition. A freedom fighter, however, may have a more limited meaning. In general and according to the Oxford English Dictionary, the latter is “a person who takes part in a revolutionary struggle to achieve a political goal, especially in order to overthrow their government”. The Oxford US English Dictionary goes even further and describes this designation as “a person who takes part in a violent struggle to achieve a political goal, especially in order to overthrow their government”. A freedom fighter certainly has a particular meaning in context of South Africa’s history. Hence, whether the term, in the case of the EFF in particular, should be viewed as a poetic metaphor or an ominous statement of intent, is open for interpretation. One man’s freedom fighter may well be another’s rebel without a cause.

Secondly, the distinctive logo. Like beauty, it is in the eye of the be(ret)holder. Open for interpretation. It could possibly, if viewed together with the name, assist in clarifying any incorrect interpretations. Whether or not a raised fist clenching an imposing, forward-pointing spear could be seen as representative of a nation’s resolve to live in peace and harmony, may depend on which side of the spear one finds oneself. The EFF logo thus arguably only adds to the ambiguity.

Thirdly, the manifesto. Does the EFF’s “Founding Manifesto” then perhaps clarify any incorrect interpretation of the meaning of their name and logo? That also requires elucidation. According to the Preamble of its 25-page “Founding Manifesto”, the EFF “locate” their proposed “struggle for economic emancipation…within the long resistance of South Africans to racist colonial and imperialist, political, economic, and social domination”. Accordingly, the EFF “intend to elevate this resistance to a decisive victory to vindicate the justness of the cause of liberation wars”. It also intends to “with determination and consistency, associate with the protest movement in South Africa and will join in struggles that defy unjust laws”. One could possibly contend that the text and apparent support for a continued liberation struggle, merely reflects the thoughts and ideas of the spirited and feisty “commissars” of the movement – albeit in a rather warring tone. However, the EFF’s description of its own “character” as a “radical and militant economic emancipation movement that brings together revolutionary, fearless, radical, and militant activists” aimed at “pursuing the struggle for economic emancipation” against its “enemy” (which is identified as “white monopoly capital and their political co-optees”), does appear to be coming pretty close to calling a spear a spear. 

Moreover, the statement that the EFF is “guided by revolutionary internationalism and solidarity that defined the politics of the July 26 Movement which led the Cuban Revolutionary struggles” may further shed some light. The “July 26 Movement” derived its name from the failed armed attack on the Moncada Barracks, a military facility in the city of Santiago de Cuba, on 26 July 1953. That movement was subsequently reorganized by, among others, Fidel Castro, Raúl Castro, and Ernesto “Che” Guevara into a guerrilla force who overthrew Cuban dictator Fulgencio Batista. When the EFF’s “Commander-in-Chief” and his “Central Command Team” state that “you are going to be forced to share” after describing themselves as a “militant” movement comprising “militant activists”, inspired by “the July 26 Movement”, one cannot help but wonder whether the order of battle, modus operandi and intended tactics are just hot air, or a pressure cooker about to blow.

The EFF is obviously right about the fact that South Africa remains a deeply unequal society – especially in relation to socio-economic conditions. They are also spot-on when they say that under the watch of the African National Congress (ANC) government, corruption has proliferated, service delivery has declined and quality of services – especially to the poor – has deteriorated. The persistent inequality perpetuated by, among others, failed policies of affirmative action and Black Economic Empowerment, has to be remedied. This, however, must be done in context of the Constitution. The Constitution enshrines the rights to create a political party, to organise political activity, to associate and to speak freely. It does, however, also require of everyone in South Africa to respect the Constitution, the Bill of Rights and each other. Not that the EFF’s proposed policies are necessarily unconstitutional (never mind that the EFF refrains from referring to the Constitution even once), but the manner in which those policies are communicated does appear to be ignorant of the fundamental value of non-racialism.

Accordingly, the EFF’s manifesto could be interpreted as a bona fide and boisterous call for socio-economic equality. It could, however, also be construed as a very militaristic and racist call for forceful and violent action aimed at reclaiming wealth and economies from “colonial and neo-colonial masters”. Depending on the reader, that is. What needs no interpretation, however, is the highly polarising and offensive choice of words in the text of the manifesto. The offensive references to a great number of South Africans – white South Africans in particular – who are being referred to, without any distinction, as “white supremacists”, “colonists” and “imperialists”, even in context of our post-1994 constitutional democracy, needs little explanation. Besides, unfounded assertions such as “those political parties whose agenda and political programme is to continue with white supremacy and the imperialist domination of South Africa” and that “between 1994 and 2004, white farmers evicted more than 1 million farm workers from land”, can hardly be viewed as furthering mutual respect or unity in our diversity. These statements go beyond the realm of addressing persistent inequality and skewed socio-economic conditions and arguably border on outright racism.

The IEC now has to consider whether, in terms of the Act, the EFF is propagating or provoking violence, or evoking emotions of aversion or hatred. The IEC will also have to carefully interpret whether the EFF is causing serious offence to any section of the population on grounds of race, ethnic origin, culture or language. If so, the IEC may of course not register the EFF as a political party. All things are obviously subject to interpretation. Following Nietzche, “whichever interpretation prevails at a given time is a function of power and not truth”. Whether based on the balance of power, or truth of the matter, an interpretation that allows for the EFF’s registration may, arguably, require a stretch of the imagination. However, since the bedrock of their political practice will be “mass organisation” and “activism”, being registered as a political party should be inconsequential to the EFF.

by Adv Johan Kruger, Director: Centre for Constitutional Rights