The controversial political chant “Kill the Boer, kill the farmer” is protected by the constitution under the theme of freedom of speech. This is the interpretation of legal analysts following EFF leader Julius Malema’s chant on Human Rights day on 21 March.
While the chant has sparked outrage both within South Africa and internationally, several legal experts have confirmed that no law in South Africa can prevent Malema from singing this Struggle song.
The South African Equality Court ruled in August 2022 that the chant, often associated with the apartheid-era struggle, does not constitute hate speech or incitement to violence. The court's decision was a blow to AfriForum, a civil rights group that had filed a case against the chant, arguing that it incites violence against the country's white farmers. The court found that the song was protected under South Africa's freedom of speech and expression laws and should be considered a political statement rather than a literal call to violence.
Judge Edwin Molahleli, who presided over the case, stated that there was no evidence linking the chant to farm murders or attacks on white farmers. The court dismissed the claims made by AfriForum’s expert witnesses, including Ernst Roets, who argued that the chant encouraged violence. The ruling emphasised that the chant was a historical and cultural expression rather than a direct incitement to harm.
Malema has defended his use of the chant, paying tribute to the late ANC Youth League leader Peter Mokaba, who popularised the song during the Struggle against apartheid. In a post on social media, Malema reiterated that the song was intended to mobilise political support and had no literal meaning. He also pointed to former president Thabo Mbeki's statement during the Truth and Reconciliation Commission that the chant should not be interpreted literally but rather in the context of South Africa's Struggle for liberation.
However, Malema's actions have drawn sharp criticism from various quarters. Internationally, figures such as US President Donald Trump, entrepreneur Elon Musk, and US Secretary of State Marco Rubio have condemned the chant. Rubio, in particular, expressed concern about the safety of Afrikaners in South Africa, suggesting that those threatened by violence should be welcomed in the US. This has led to growing fears of what some critics describe as a "white genocide" in South Africa, a narrative pushed by right-wing groups.
AfriForum has continued to oppose the chant, calling on President Cyril Ramaphosa to condemn it and take stronger action against hate speech. The organisation has also lobbied for the government to address the issue of farm murders, which they claim have been overlooked by authorities. Despite this, the government has remained silent on the matter, with some suggesting that Ramaphosa is hesitant to criticise Malema due to political considerations.
The court's ruling, while clearing Malema legally, has not quelled the debate surrounding the chant. Political analysts, including historian Pitika Ntuli, have questioned the wisdom of continuing to sing the song, arguing that it serves only to deepen divisions within South Africa's racially charged political landscape.
Ntuli suggested that the song, while a historical expression of resistance, may no longer serve a constructive purpose in modern South Africa and could be seen as provocative by some.
In the aftermath of Malema's performance of the chant, AfriForum has hinted at the possibility of taking the case to South Africa's Constitutional Court, though the legal precedent currently supports the view that the chant falls under protected political speech.
For now, it seems the chant will continue to stir debate, both in South Africa and internationally.
