Explanation and Comments by Mr. Gay South Africa
By Melanie Nathan, May 07,2012.
On Friday last week I reported that the South African Constitution 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. However, now group of empowered traditionalists have launched a Constitutional review, bringing those rights into question
This weekend South African groups and activists came together and started to form a unified alliance, a coalition of all LGBTQI interests, to protect the Constitution, to organize protests and advocacy against the very idea of what seems to be a baseless quest to deprive a minority group in South Africa of its entrenched Constitutional rights. A Facebook page was launched as well as petition on change.org and within hours hundreds of signatures and comments started to pour in.
Not only is this an insult to the LGBTI community in South Africa, but the very notion of a discussion to take away rights, is offensive to what the South African Constitution represents, especially in the context of a post-apartheid South Africa.
After discussions with various parliamentarians, Lance Weyer, Mr. Gay South Africa 2011, released his statement, which provides an excellent explanation about the process and on many levels is reassuring but at the same time should not be seen by the coalition or others as a reason to abate the pressure by the LGBTQI activists and community.
Weyer, said in East London:
“A great storm has erupted on social networks relating to a proposal before a parliamentary committee which seeks to have the section of the constitution that speaks to the right not to be discriminated against based on sexual orientations removed. Some have claimed that this has already reached parliament, which in fact it has not – and likely never will. Firstly I need to set everyone’s mind at ease – absolutely nothing is going to happen to sexual orientation rights!
It is all politics – dangerous politics, but mere noise and no action.
In order for everyone to be clear on what has happened, I’ll try to explain the process as best I can. In our democracy, anyone had the right to make a proposal to amend the constitution, and indeed many proposals have been made to the Constitutional Review Committee over the last 17 years. Few have made it past the Committee for further discussion. What makes this proposal of particular significance is that it seeks to amend an aspect of Section 9, the Bill of Rights.
To understand why this happened, you need to look at the politics of the situation.
Last year The House of Traditional Leaders, packed with the members of The Congress of Traditional Leaders of South Africa – aligned to the ANC – submitted a proposal to the Constitutional Review Committee (CRC) of the National Assembly to amend section 9 of the Constitution. This Committee, set up in terms of section 45 of the Constitution, has to review the Constitution annually. The Committee is chaired by Patekile Holomisa, who also happens to be the President of The Congress of Traditional Leaders of South Africa, which might be a conflict of interest in itself.
At this year’s committee sittings, most proposals were again dismissed, but not the proposals to change the property clauses and those concerning the abolition of the prohibition to discriminate against gay men and lesbians. The proposal to amend sexual orientation rights, and one concerning property rights, were then (apparently) referred to parliamentary caucuses for consideration.
We have still not established that what has been reported is actually what the CRC decided.
It would not be the first time that CRC decisions were incorrectly stated in the minutes by its own secretariat; and it would not be the first time that Parliamentary matters were misreported if they were misreported. If indeed one or both issues were referred to party caucuses that would not be the first time: the proposal to raise the bar in disqualifying sentenced persons from sitting as MPs has previously been so referred, and precisely nothing happened. Needless to say the opposition caucus was in favour of making exclusion more stringent but the matter has never resurfaced. You may deduce from this that referring to caucuses is one way of killing an idea that keeps resurfacing.
The ruling party ANC Chief Whip of parliament himself has distanced the party from any debate around this matter and affirmed that the Constitution and the Bill of Rights remains the cornerstone of democracy in South Africa.
That such a suggestion has even been made in the first place is concerning, but we must remember that in a democracy everyone is allowed to comment. Traditional Leaders are notorious with regards to anti-gay sentiments so this should come as no surprise to anyone who follows the news. In recent months Traditional Leaders have been trying to test their political weight, with little success. As Pierre de Vos calls it: “Affirming their own moral inferiority”.
Currently in the review phase is the Traditional Courts Bill, which is certainly unconstitutional in its current form, and could drastically increase the persecution of rural women and LGBTI people if it comes into law unchallenged. For more on this see:
This experience has proved one thing, that the South African LGBTI community has the power and drive to mobilise in numbers should the need arise. I’ve already come across many most online as well as a couple of petitions against this particular proposal. I believe that it is important to have the LGBTI visible so that government realised that we will fight for our rights – and importantly also the rights of others.
LGBTI people in SA need to be shaken out of their complacency and inertia where it concerns the future – this does show that it is possible in theory to scrap gay rights and we should all be always vigilant. It would be great if this energy could be transferred into fighting causes that effect members of our community that are currently grossly underrepresented, namely corrective rape of rural and township lesbians and the proposed Traditional Courts Bill.”
This statement should in no way be interpreted as a reason for complacency. The very suggestion that the sexual orientation and gender identity rights be called into question is highly offensive and a great insult to the LGBTI community in South Africa. It is tantamount to calling into question the right of people of a specific color to be protected against racism under the Constitution, which goes to the core of an assault to a post-apartheid South Africa.
Besides the lessons that Weyer suggests which includes the imperative quest for the South African LGBTI community to transfer its apathy to a fight against rampant South African Homophobia, one must emphasize the most important lesson that should come out of this message which the traditionalist and others must hear:-
“The Constitution is there to protect all rights duly entrenched; hence you cannot take away a right already entrenched for any single group – by doing that you set a very dangerous precedent and endanger each and every protected group – accordingly rights cannot be subtracted they can only be added.” Melanie Nathan, firstname.lastname@example.org ; @melanienathan1