South Africa’s Shocking Constitutional Review of its Sexual Orientation Rights

Activists are concerned as decades of lobbying and progress for LGBTI rights in South Africa are under threat. Nelson Mandela: ” Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another”

By Melanie Nathan, May 04, 2012.

The Gay Flag of South Africa Photo taken on Freedom Day

Since the end of Apartheid and the inception of South Africa’s new constitution some twenty years ago, the country has been lauded for its lead on the entrenchment of anti-discrimination rights that renders it one of the few in the world to protect sexual orientation and gender identity in its Constitution. Gays and lesbians (LGBTI) enjoy full equality in South Africa.

Notwithstanding this South Africa has never managed to escape the brutality of rampant homophobia which is underscored by the high incidence of so called “corrective” rape in its townships, the deployment of an anti-gay ambassador to  homophobic Uganda,  and its failure to lead the decriminalization of homosexuality in the rest of Africa.

Now the time has come for a Constitutional review and gay rights activists fear the worst. There is a move to consider a change to the Constitution’s provisions on sexual orientation and property rights have been referred to party caucuses for consideration.

Die Burger a local Afrikaans newspaper reported on Thursday that Parliament’s constitutional review committee has made the unusual move of referring these proposals to political parties.

Madibe Nelson Mandela sought to ensure protection against all forms of discrimination in South Africa at the time the new Constitution was formed. Now LGBTI activists fear that African traditionalists and religious fundamentalists are interfering by seeking a direction to bring South Africa back to draconian pre-apartheid era, where homophobia will be ingratiated rather than the protections the Constitution currently provides.

Once a year, the committee considers proposals from the public on possible changes to the Constitution. Normally it rejects most of the proposals, but at a recent committee meeting, these proposals were the only ones not to be thrown out.

There was a proposal that section 25 of the Constitution (enshrining the right to property and the rights of property owners and of society as a whole) be amended in order to create a new window period for the submission of land claims, while the PAC proposed that section 25 be scrapped and replaced.

Sexual orientation
The House of Traditional Leaders made a proposal regarding scrapping the sexual orientation section from the bill of rights contained in Chapter 2 of the Constitution. The Constitution reads: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

ANC MP and review committee chairperson Chief Patekile Holomisa told Die Burger that none of the 17 constitutional amendments since 1996 have been handled by the committee, and that with the exception of two cases (allowing and then scrapping floor-crossing between political parties), the Constitution has never been drastically amended.

Holomisa said the proposed amendments could mean comprehensive changes in people’s lives, and the committee wanted to play a greater part in constitutional amendments than it had done in the past.

However, he said the mere fact that the amendments were being discussed in no way implicated that they would be accepted. They will be discussed by the committee once feedback had been received from party caucuses.

Yet activists such as Eugene Brockman the designer of the Gay Flag of South Africa notes:-

“I am truly concerned that decades of lobbying and progress for LGBTI rights in South Africa are under threat.The constitutional review committee of South Africa are actually allowing for discussion on scrapping protections for “sexual orientation” from the South African constitution. The house of traditional leaders have put forward that the inclusion of “Sexual orientation” should be discussed, in over 80 applications put to the constitutional review committee, they allowed for “sexual orientation” and land rights to be discussed. Gay rights equal human rights, there should no discussion period!”

 SA GLAAD’s Cobus Fourie told me that they are alarmed that the equality clause of the Bill of Rights is even considered for amendment to summarily wipe out the rights of a significant portion of the South African society:

“We have always been very proud of our very progressive Constitution. We hope that the Congress of Traditional Leaders and political parties keep this profound statement by our first democratically elected president, Nelson Mandela, in mind: ” Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another”

The mere fact that entrenched rights are being discussed in this fashion imposes an ominous dark cloud and causes a shiver. Surely these being constitutional rights, entrenchment ought to be ensured, to such a degree that they the rights should be untouchable. Any amendment or change will be unconstitutional.

The mere fact of the discussion is further indicative of the pervasive homophobia in those parts of South African society.  If Nelson Mandela had his full faculties at this time, he would be seriously disturbed by this move.  President Jacob Zuma should  show leadership on this critical issue and  come out immediately and speak against this in clear and bold terms.

PLEASE SIGN the Petition at


Nkosi Patekile Holomisa Not Fit to Serve the South African Constitution
By Melanie Nathan, May 07, 2012.
South African ANC Member of Parliament  Nkosi Patekile Holomisa is in the hot seat; he is faced with a conflict of interest, a controversial issue and a remark that renders him unfit to serve in any elected and appointed positions.

Melanie Nathan
Twitter @melanienathan1

21 thoughts on “South Africa’s Shocking Constitutional Review of its Sexual Orientation Rights

  1. Can we perhaps get an online petition against this disgusting move going? I’m sure we can spread it around rapidly. It’s a small, but potentially effective move.

  2. I’m not sure whether you’re from SA, but this seems like conjecture to me. South Africans are very vocal about issues that we feel strongly about. Just look at the E-tolls and debates around th Secrecy Bill. We’ll do the same thing if any of our section 9 rights are in jeoprady. Plus, I thinka as a society we are progressive enough not to let Traditional Leaders ruin our Constituion.

    1. I am South African – expat – was an attorney there during apartheid era! Moved to USA. I was there in 2011 as key note speaker for CT Pride and also met with DOJ at Parliament for the formation of the task force vs Corrective Rape.
      Messing with LGBTI rights in this fashion is a grave insult! Messing with the Constitution is a grave insult. To threaten to take away rights is of grave concern! The fact that it even got this far is a grave concern. This is not a toll road we are talking about. I am very clued in to the homophobia in SA and Africa in general and what the traditionalists are doing – unlike the secrecy act situation and the toll road situation – is taping into a wider homophobic context – therein lies the danger.

      Even though the SA Con. is progressive in this arena – much of the populace have yet to truly step out of homophobia ….

      1. Melanie, did you ever run into Terrence Crawford-Browne in SA? Before his return to SA as a banker, and before his involvement in trying to limit armament expenditures by the SA government, he made many friends here in Minnesota.
        I was in Pretoria in 2006 and couldn’t get in touch with him. When I visited him back in the 1980’s he, his wife and kids lived in Kloof near Durban, and he took me sailing at Pietermaritzburg. His activities have gotten much more serious since then and I hope he is all right.

        Meanwhile, I and my straight wife of 45 years, are hoping Minnesota will vote down the “pro” marriage constitutional amendment proposed for a November ballot here.

        Also we live near the Anoka-Hennepin district but not in it.

        Interesting to read your excellent comments.

        1. Hi Frank, No actually never met him.I have been living in US since 1985. I go back periodically. Was in SA last year. Hope to go back this year, later,. I have a keen eye on Anoka Hennepin. In fact we are interviewing the young Plaintiffs from the case against the district today here in San Francisco., They came in for a big award ceremony last night with a group called NCLR. It was very moving and I will have an article up about it soon. Please take a look at our MN work on the movie site Thanks for making contact.

  3. The point to be made now is that the Traditionalists and anyone at all should not mess with the Constitution. Rights granted by a constitution are firmly entrenched and should NOT be up for review. One cannot TAKE AWAY rights. One can only ADD them. That should be the focus – more than on the obvious homophobia. If you focus on the constitutional aspect of this then you can use examples such as …”how would you like it Mr. Chief Traditionalist if the idea of protecting “race” came up for review? ” Because if you take a review of one group, then you are setting a precedent for reviewing any and all groups in the future!!

  4. Hi Melanie,

    THANK-YOU…for your open, honest and excellent choice of words in your blog!


    Genevieve Goodall-Booysen
    Married South African Lesbian

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