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A waving flag could be a symbol of pride, or pain.

The old South African flag, once a marker of national pride for the apartheid state, is now a painful reminder of the country’s past. When South Africa became a democracy in 1994 with a new representative flag, the old blue, white and orange flag with its nod to colonialism and roots in Afrikaner nationalism, wasn’t entirely folded away and forgotten.

Concerned that those displaying the flag fail to understand the impact of apartheid, or the efforts to unify South Africa, the Nelson Mandela Foundation has approached the Equality Court to have gratuitous displays of the old flag declared as hate speech as harassment. The specialized court focused on the right to equality and redress of South Africa’s past, will hear the matter at the end of this month.

Mandela foundation wants old flag South African declared hate speech
A new symbol for unity.
Image: AP Photo/Eugene Hoshiko

South Africa’s segregated past is full display in the enduring inequality between black and white South Africans, and the infrastructure and architecture of apartheid still define the country’s landscape. In some cases, old symbols like the statue of British colonialist Cecil John Rhodes or street names dedicated to the architect of apartheid former prime minister Hendrik Verwoerd, were torn down.

In most instances, though, South Africans have learned to live with, and around old monuments. The House of Parliament and the Union Buildings, the seat of government were once symbols of the success of the old system, now have new occupants who would not have been allowed to enter these buildings just a generation ago.

Mandela foundation wants old flag South African declared hate speech
The Voortrekker Monument.
Image: AP Photo/Markus Schreiber

The Voortrekker Monument, inaugurated in 1949, overlooks Pretoria and tells the story of the Afrikaner people’s trek into the South African interior. To balance this narrative, Freedom Park was built as a sprawling outdoor monument to comment on the liberation struggle, on another hilltop nearby. In a similar exercise, in 1999 the Ncome Monument, in commemoration of the Zulu warriors who died at the 1838 battle of Blood River, was erected right across the original 1972 monument commemorating the Voortrekker victory. These juxtaposed monuments are something of a historical conversation, representing the different perspectives of history.

Some conversations are more difficult, though. The Nelson Mandela foundation first approached South Africa’s Equality Court in February last year, following the so-called Black Monday protests in October 2017, when the old flag made its appearance as part of a protest against crime seen as targeting white farmers. The foundation named AfriForum, the Afrikaner Rights group, as a respondent in the case.

Mandela foundation wants old flag South African declared hate speech
Freedom Park.
Image: Gauteng Tourism

The foundation is itself home to statues and memorabilia dedicated to Nelson Mandela, which foundation director Verne Harris concedes was not what the late statesman wanted for his legacy.  For the sake of reconciliation, the foundation has championed a national strategy of generosity, forgiveness and inclusion, reaching across the divide to the former oppressor, as Mandela would have wanted.

We haven’t seen that generosity repaid, so we’re now saying the strategy needs to shift,” said Harris. “If you want to fly a flag that represents a crime against humanity, and insult fellow South Africans, then you need to be held accountable for that.”

Mandela foundation wants old flag South African declared hate speech
Old allegiances.
Image: AP Photo

AfriForum understand the complexity around the old flag and have said they discourage their supporters from displaying it. The vast, vast majority of South Africans find the flag “offensive” and regard displaying the flag “as an act of racism,” or in “defiance” of the black government, explained Ernst Roets, the organization’s deputy CEO. They believe it should be regarded as hate speech.

“Our argument is displaying a flag is not a call to action,” Roets told Quartz. “When you couple that with displaying the old South African flag and making for example a call to commit violence upon black people or something like that—then it’s hate speech.”

Apartheid-era South African flag flown at protest march
Dylann Roof showing allegiance to the old South African and Zimbabwean flags.
Image: Facebook

The old flag has, however, been used as a symbol of exactly that. It’s become a symbol of white supremacy as the so-called alt-right gains a disturbingly louder voice. Before killing nine African Americans, Dylann Roof was photographed wearing a badge of the old South African flag.

Whether in South Africa, or the United States, racism is its own monument to an awful past, and an all too common reality for so many people of color, whether overtly or structurally.

Freedom of speech is an essential right, but when the people who were oppressed under systems like apartheid and Jim Crow have yet to fully enjoy the freedom of all their rights, flying a flag that positively represents historical systems of oppression will be seen as an affront to everyone’s freedom.

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