Disasters of Peace: An Exchange - PULP FICTIONS No.1

Christof Heyns, Karin Van Marle

Description

Central to the becoming of a society in the context of posts (postapartheid, postcolonial, postmodern) and in the context of transformations of the political, legal, socio-economic and cultural is the creation of a vibrant and active public sphere. Of particular concern is an insistence on democracy and transparency radically different from strategic and instrumental conceptions – a space for dialogue and dissent, an opportunity for creativity, experimentation and re-imaginings.During the last part of 2004 and the first part of 2005, the Faculty of Law of the University of Pretoria moved to a new building on campus. The artworks at the new building sparked strong controversy in the Faculty. Two members of the Faculty, who found themselves to be in disagreement on some of the issues raised in this debate, set out their views during the Arts and Reconciliation Festival and Conference at the University of Pretoria, on 16 March 2005.About the editors:Christof Heyns is Director of the Centre for Human Rights, Faculty of Law, University of Pretoria. Prof Heyns' article is entitled: In graphic detail: Freedom of expression on campus.Karin van Marle is a Professor at the Department of Legal History, Comparitive Law and Jurisprudence, at the Faculty of Law, University of Pretoria. Her response is entitled: Art, democracy and resisitance: A response to Professor Heyns.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2005
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 4 Mo

Extrait

PULP FICTIONS DISASTERS OF PEACE: AN EXCHANGE

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish, and increase access to, innovative, high-quality and peer-reviewed texts with a focus on human rights and other aspects of public international law especially in Africa.

For more information on PULP, see: www.chr.up.ac.za/pulp

Contact details:

Centre for Human Rights Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.chr.up.ac.za/pulp

Printed and bound by:

CPD PRINT (Pty) Ltd Hatfield, Pretoria

Cover design:

Yolanda Booyzen, Centre for Human Rights

Photograph - Faculty of Law, University of Pretoria

Painting - 'Down on the Farm' by Diane Victor (No 4 of 'The Disasters of Peace')

DISASTERS OF PEACE: AN EXCHANGE

During the last part of 2004 and the first part of 2005, the Faculty of Law of the University of Pretoria moved to a new building on campus. The artworks at the new building sparked strong controversy in the Faculty. Two members of the Faculty, who found themselves to be in disagreement on some of the issues raised in this debate, set out their views during the Arts and Reconciliation Festival and Conference at the University of Pretoria, on 16 March 2005. Reprinted here are edited versions of their papers.

‘Made to measure’ by Diane Victor

‘In sheep’s clothing’ by Diane Victor 2

IN GRAPHIC DETAIL: FREEDOM OF EXPRESSION ON CAMPUS

Christof Heyns Director: Centre for Human Rights, Faculty of Law, University of Pretoria

There can be no doubt in my own mind that the arts play a crucial role in the life of a people. Long ago, for instance, the San believed that their cave wall paintings had a mystical influence on their livelihood and helped to ensure their continued survival. Painting was not just something peripheral to their existence, which they could do or not do as the whim took them. No, it was a matter of life and death. - Desmond Tutu, Foreword, Sue WilliamsonResistance Art in South Africa

Recent events in the Faculty of Law of the University of Pretoria illustrate how art and human rights on a university campus can impact on each other, and in the process challenge conventional wisdom and certainties, and be a catalyst for change.

The facts in short are as follows: In the period 2003 to 2005, a new building for the Faculty of Law was designed and built on the campus of the University of Pretoria. A competition was held to determine who the architects would be. In the documentation describing the values to be captured in the design of the new building, the Dean of the Faculty of Law who played a major role in guiding the process to get the new building erected, referred to the South African Constitution, which in his description embodies the following values:

3

4

    

transparency (accessibility, openness); democracy (general participation, unity in diversity); equality (freedom); human dignity; the achievement of each person’s potential.

The document further emphasised that law as a discipline presupposes continuous debate and highlighted the role of human rights and the African context in the life of the Faculty.

The competition was won by the firm KrugerRoos from Cape Town, whose design won a project award from the South African Institute of Architects. The building was officially opened on 15 March 2005 by State President Thabo Mbeki.

The artworks on public display in the new Law Faculty building came from a variety of sources. They were mostly selected by the Dean of the Faculty of Law, who takes a keen interest in issues of art. The heads of department were informed that individual staff members could decide on the artwork to be put up in their individual offices, but decisions on all art to be displayed in public areas – corridors, conference rooms, etc – would be taken by the Dean. In some cases departments were consulted on the artwork to be displayed in their corridors and other public spaces; in others not.

In respect of the Centre for Human Rights – which functions as an aca- demic department of the Faculty - a set of etchings by Diane Victor entitled ‘Disasters of peace’ was selected for the Centre’s ground floor. The etchings portray certain crimes that have been committed in South Africa – for example specific incidents of child rape and family violence. No consultations took place and no-one at the Centre saw the etchings before they were put up. According to an information sheet provided by the Dean’s office, the objective with these etchings is ‘to horrify’.

Reaction to the etchings, both within the Centre and outside, was both strong and mixed. There were positive responses – eg people saying the etchings demonstrate the need for the protection of human rights. Others were uncomfortable or even offended. One staff member of the Centre said

 5

that ‘men with drills entered our premises unannounced and turned the Centre into a chamber of horrors’.

As Director of the Centre, I asked the Dean to have the etchings removed, which was done within the next few days. The arguments on behalf of the Centre were set out in a document that was distributed to the heads of department of the Faculty of Law.

Essentially the argument was that the Centre had, over the years, spent considerable effort and energy on the imagery used on its posters, publications and on the artworks that hung on its walls. Designs of new book covers, posters, etc are normally displayed for a certain length of time for comments from staff before they are accepted and used. The Centre has in this process developed its own institutional image - including its own balance between the use of images of horror and hope.

The fact that the entire public space on the ground floor of the Centre’s offices was now filled exclusively with these etchings brought about an entirely different balance. It was argued on behalf of the Centre that its freedom to express itself through its choice of art had been compromised. The Centre would in future project itself through art with a very strong message that someone else had chosen. The Centre, moreover, had no say on where which pictures were to be hung, whether this was temporary or permanent, etc, and was prohibited from hanging other pictures as well in its public areas to provide a different balance. Even if the Centre agreed with the message of the etchings, so the argument ran, it would have wanted to be part of the decision. To use the popular phrase, because there was no consultation there was no sense of ownership.

The head of the Department of Public Law then wrote a letter to the Dean of Law, requesting that the etchings be displayed in the corridors of that department. The etchings were moved to Public Law. It later transpired that some of the members of this department did not support this request.

Letters of protest were submitted to the Rector of the University, calling for the removal of the etchings from the corridors where they had now been placed. This was apparently done by more than 20 staff members of the

6

Faculty of Law, including members of the Department of Public Law, although the identity of those who supported the petition was not revealed to the Faculty. The Rector appointed a three-member fact-finding committee, consistinginter aliaof the head of the Department of Fine Arts of the University, to investigate the matter and report to him.

The Rector instructed the Dean to find a solution. The Dean called a heads of department meeting to advise him. The head of Public Law suggested that the two etchings that had elicited the most offence (the ones reproduced at the beginning of this publication) be moved to his office. The heads of department endorsed this suggestion, the Dean followed the recommen- dation, and the two etchings were moved. Subsequently members of two academic departments in the Faculty submitted complaints to the Rector about the removal of the two etchings from the corridors of Public Law.

In an article covering the controversy in theMail & Guardian(18 February 2005), the artist, Diane Victor, expressed her satisfaction at the reaction her work had elicited.

The events described above clearly caused intense controversy and in some cases animosity in the Faculty. An open discussion on the topic was held at a Faculty Board meeting, which was the first time the Faculty as a whole considered these issues.

Most of those who at one point or another supported the removal of the etchings essentially saw the issue as a clash of rights: As explained above, the Centre for Human Rights saw the events at the Centre in terms of its own freedom of expression being in conflict with the freedom of expression of the Dean; those who had called for the removal of the etchings from the corridors of Public Law argued that claims of freedom of expression by those who wanted to retain the etchings were outbalanced by considerations such as the dignity of other staff members and of students and visitors, their environmental rights, and the rights of children who may visit the Faculty, including traumatised children who come for consultations at the Centre for Child Law and may be confronted with the etchings.

 7

The arguments of those who opposed the removal from Public Law were more diverse in nature. Some claimed that artistic freedom was curtailed. Others based their arguments purely on objections to the procedure followed before the etchings were removed (essentially a lack of openness and trans- parency), while others challenged this strict distinction between process and substance, and argued that, irrespective of the merits or demerits of the process, the value of art in challenging and being a catalyst of change weighs heavier than the other considerations that had been advanced. Removal of provocative art is an act of intolerance and narrow-mindedness, and has no place at a university.

The open discussion at the Faculty Board meeting became an opportunity where not only events surrounding the artworks themselves, but decision- making processes in the Faculty in general were discussed, as well as the values of the Faculty and the question how dissent in the Faculty is to be managed. One member of staff poignantly asked why no outcry followed a poster used by students in earlier SRC elections saying ‘Keep the campus white’.

Obviously in a faculty of law, the legal considerations applicable to a situation such as the above are bound to enter the picture, but will not be discussed here. Suffice it to say that the South African Constitution of 1996 protects freedom of expression, and artistic creativity as a form of freedom of expression. Freedom of expression is clearly not an unlimited right. Section 16 itself provides some grounds for limitation, such as hate speech. The Constitution also has a general limitation clause, in terms of which one person’s rights are limited among other things, by the rights of others.

The above sequence of events raises a number of interesting issues that are not just legal in nature. Some of them remain unresolved in my mind; on others the experience described above has placed me in a position to offer some comments.

In the case under discussion, charges of ‘neo-censorship’ were raised on a number of occasions: first when the entire collection was removed from the

8

Centre for Human Rights, and most strongly when the two etchings were removed from the Public Law corridor.

Freedom of expression is of special importance in a university setting. The very life blood of universities is to explore new ideas, to be open to challenges to conventional wisdom, to revisit one’s most fundamental start- ing points with an open mind. It is true, as Richard Rorty has said, that one should not be so open minded that your brains fall out, but if a university is to err in the difficult area of balancing exposure to new ideas with other considerations, it should err on the side of the former. Of all institutions in a society, arguably none has a higher calling to preserve this value than its universities and a centre for human rights has a particular responsibility in this regard.

It is consequently a matter of considerable importance to establish wheth- er censorship was at stake. ‘Censorship’ entails an unwarranted infringement of some-one’s freedom of expression. A question raised in this context must therefore be whose freedom of expression was conceivably curtailed.

It is questionable whether the freedom of expression of the artist was at stake. Her work is displayed widely throughout South Africa (including in different venues at the University of Pretoria, where she teaches) and over- seas (see www.art.co.za/dianevictor/default.htm). Besides, artists can nor- mally not claim a right to have their work displayed in particular public or private spaces – it is up to those in charge of those spaces to make the choice whose art they want to display, if they want to display art at all. In making this decision, those who do so exercise their own freedom of expression.

Was the freedom of expression of the faculty management (the Dean) infringed when the art was removed from the Centre for Human Rights? This could certainly be argued, but then the entitlement of those in power, in any democratic system, has to be balanced with that of the governed. When the manager of a faculty claims an exclusive, unchallengeable right to take decisions on the art that is to hang on its walls on behalf of a department, without any consultation, there is no room left for freedom of expression by members of the department. To give the (current and future) faculty (and

 9

for that matter university) managementcarte blancheto determine what is to be said and what is not to be said on staff members’ behalf, amounts to a significant surrender of agency and their own freedom of expression. Some balance between the freedom of expression of the management and the staff of a university has to be struck.

The decision that the two etchings be removed from the corridors of the Department of Public Law could conceivably be seen as an infringement of the freedom of expression of the majority of that department who supported the request for the art to be displayed in their corridors. This claim is weakened by the fact that a minority in the department held an opposing view, and the head of the department made the suggestion that the two etchings be moved to his office.

Because rights, as a general rule, are not absolute, they can be limited if there is good cause. One person’s rights, for example, can limit another person’s rights. If the issue under consideration is indeed to be understood as a clash of freedom of expression of the different parties, how is the balance between the freedom of expression of the university authorities and the Centre for Human Rights, in the first case, and the university authorities and the majority of members of the Department of Public Law, in the second case, to be struck? Who has the final authority to decide what should be put on the walls of a university – the Rector, the Dean, the heads of the different departments, or the majority (or minority) of ordinary staff members?

It seems clear that, irrespective of what the answer should be to this question, a commitment to democracy and human rights requires that those directly affected should in one way or another be consulted when strong statements are made through art on their behalf. Even if they do not have the final say, their voices on issues such as the method of display, the duration, etc are to be heard and taken into account, otherwise their freedom of expression will not only be limited, but be extinguished altogether. Perhaps one of the sides – or all of them – may even change their views in the process of discussion.

10

As such, the request on behalf of the Centre for Human Rights that the etchings be removed from its walls should be seen as the Centre standing up for its own freedom of expression. Consultation is the only mechanism that recognises the legitimate interests of both sides. The call is consequently not for a veto, but for a voice, and if it comes to that, a vote. This means that noa priori, categorical answer, applicable in all cases, on who is to take the final decision in such a case is possible, or desirable. An uneasy and unresolved balance is called for, to be addressed on anad hocbasis through and after consultation, in a process where all voices are heard.

What about the argument of those who say that, irrespective of the question whether or not the process that was followed was flawed and what the rights at stake were, they do not want to work in or be associated with a place where these works of art are not welcome. From this point of view, it does not matter that much whose freedom of expression is at stake or should prevail. The artistic portrayal of horror through the etchings is a good in itself. It stimulates free thought and open discussion and as such should not be interfered with, once displayed. The holes in the walls where the pictures used to hang symbolise intolerance and narrow-mindedness. Especially in a university environment, these are not trivial concerns and it is important that voices in support of such an environment be heard. However, from my point of view, there are other overriding concerns.

To my mind the argument that such pictures should not be taken down once they have been put up, seems to be based in part on the premise that a decision to remove is somehow more contestable than the decision to display in the first place, and that flaws in the original decision to put up the etchings cannot motivate a subsequent decision to take them down. Such an approach shows undue deference to those in power – to whoever can summon the men with the drills to put up paintings. It also seems to be based on the premise that the end (to initiate open discussion through the etchings) justifies the means (no consultation or discussion in putting up the art). One cannot create a culture of open discussion, through decisions taken behind closed doors. In my view the means used in this case invalidates the objective pursued.