When ‘Phansi FIFA, phansi’ is forbidden speech

Our police detention while exercising freedom of expression at our favourite Durban venue – the wonderful South Beach FIFA Fan Fest – on the weekend, followed by (taped) discussions with police, together leave me worried. They should worry you too.

Police officials say they received orders from City Manager Mike Sutcliffe that FIFA’s property rights overrule our foundational constitutional rights in a vast area stretching from the Moses Mabhida Stadium across the beachfront.

‘We can charge you and detain you until the 11th of July, FIFA is over!,’ shouted a top officer during my interrogation on Saturday.

And upon politely questioning Sutcliffe about whether we could use Durban City Hall steps for Saturday’s anti-xenophobia rally, my Centre for Civil Society (CCS) colleague Baruti Amisi (a Congolese refugee) received this email reply last Thursday: ‘It appears you are not a South African and are clearly uninformed about the role of FIFA. In brief, we are an independent country and except for the stadium precinct, FIFA have no role in running the city.’

Getting permission for the rally was, as ever, like pulling teeth. The police were informed in writing on June 19 but it was last Friday afternoon before rally approval was granted to a coalition that included the KwaZulu-Natal Refugee Council, Diakonia and the Durban Social Forum.

A group quickly brought 1000 fliers to the beach to let people know. Minutes later, visiting doctoral candidate and filmmaker Giuliano Martiniello, research student Samantha Sencer-Mura and I were accused of ambush marketing and incitement.

I was detained for hours during the both early games’ half-times, missing (thank goodness) the pain of seeing my favourite Latin American teams clobbered by Europeans. The top-heavy security force included police generals, crime intelligence, the commercial branch and even the National Intelligence Agency (NIA).

We are, of course, lovers of soccer and the World Cup and haters of FIFA, like most people who give this distinction a moment’s consideration. The Zurich crew will take home R25 billion in profits, pay no taxes, ignore exchange controls, trickle nothing down, commercialise all aspects of the game, copyright words like ‘World Cup’, overcharge for everything, declare ‘exclusion zones’ that stretch for miles, muffle journalists with no-criticism accreditation requirements and trample on our freedom of expression.

Moreover, many bitter players and fans believe Joseph Sepp Blatter’s main legacy is the quaint – or, hinted Lord David Triesman, formerly chairman of the English Football Association (FA), a few weeks ago, bribe-friendly – refusal to adopt goal-line technology needed to correct egregious referee errors. (Blatter instead, apparently, focuses all FIFA’s camera-power on potential ambush-marketers in the crowd.)

Illustrating how constrained our rights are, I asked one police superintendent (name withheld), ‘What if I say “Viva Argentina!” in the fan park? No problem? What if I say “Phansi FIFA phansi”?’

‘Then you’re wrong,’ he answered. ‘You can’t say, “Phansi FIFA phansi”.’

Sutcliffe’s control fetish appears to be the central barrier. As a police superintendent put it, ‘He’s the one who has instructed us that we must enforce. He comes in our meetings.’

‘And what does he say? He says he doesn’t want any anti-xenophobia?’

The police superintendent replies, ‘No distribution of pamphlets, especially which mention xenophobia.’

Ah, the underlying problem had emerged. The reason the pamphlet was banned was not just procedural – it was political. ‘You are reminding [people"> of xenophobia. Even myself I had forgot about that thing, but now you write it down.’

‘Do you think it is not a problem?’ I asked. Surely Durban police know that a city councillor is amongst those still being tried for the xenophobic murder of a Tanzanian and Zimbabwean last year, and that the streets and worksites are thick with tension and insults against immigrants and refugees.

His rebuttal: ‘It happened. Then government stopped it there.’

‘I’m sure you know that Jacob Zuma said xenophobia’s a problem,’ I replied, and that after meeting his national executive in May, the president ‘said the ANC branches must work against xenophobia’, I reminded the superintendent.

‘There is no xenophobia’, he insisted – but nervously.

Such denial parrots African National Congress (ANC) spokesperson Jackson Mthembu’s written statement earlier that day: ‘The reported xenophobic attacks by South Africans on foreign nationals, particularly from the African continent, after the conclusion of the 2010 FIFA World Cup in South Africa, is baseless and without any rational’ (sic).

And yet the army is occupying the town of Denoon precisely because the threat could explode into 2008-type violence.

Behind Sutcliffe’s arrogance in declaring such a large a constitution-free zone, is the constitution drafters’ ambiguity, with the Bill of Rights potentially interpreted as allowing corporate property rights to trump human rights. Section 8(4) gives foundational rights to ‘juristic persons’, i.e. institutions including for-profit businesses like FIFA.

In 1996, alongside former ANC Member of Parliament Langa Zita and Darlene Miller (a sociologist at the Human Sciences Research Council (HSRC), we formally warned a constitutional court certification hearing that this provision could ‘undermine the constitutional rights of natural persons to freedom of expression, freedom of association in organs of civil society, access to information, the rights to life, security of the person, and a safe environment’.

So it seems we were right, sadly. Likewise, in the US, a similar degeneration of political rights occurred this year when the supreme court lifted limits on corporate spending to influence elections.

According to professors Chris Roederer and Darrel Moellendorf – in their Juta Press book Jurisprudence – our case is an example ‘of the law serving to stabilize capitalist property relations’ because ‘the final Constitution contains no assurance that when the rights of juristic persons conflict with those of natural persons, the rights of the latter shall prevail’.

On the other hand, the 1996 constitutional court ruling against us did at least concede that section 8(4) ‘recognises that the nature of a juristic person may be taken into account in determining whether a particular right is available to such a person or not’.

That’s why the stance of the city manager and police honchos is so counter-revolutionary, against the ANC’s attested democratic values. The right to inform about a xenophobia rally during a half-time break surely should be declared a ‘particular right’ overriding FIFA’s exclusions, given how much is at stake.

If they don’t come to their senses, will we again face police detention as we leaflet the FIFA Fan Fest and stadium crowds demanding, firstly, our constitutional rights restored, secondly that FIFA finance some new township soccer pitches before they leave town with the cash and thirdly that they adopt goal-line technology!

BROUGHT TO YOU BY PAMBAZUKA NEWS

* This article was originally published by the Centre for Civil Society (CSS).
* Patrick Bond directs the University of KwaZulu-Natal (UKZN) Centre for Civil Society (CSS), which has a World Cup watch and anti-xenophobia project.
* Please send comments to [email protected] or comment online at Pambazuka News.