“I am proud that in South Africa, when we finally won the chance to build a new Constitution, we included sexual orientation in our laws, because we knew from our bitter experience that an injury to one is an injury to all.”
Ever hip to the public voice which new media gives to retired archbishops, Desmond Tutu used a video message to convey this view to the United Nations, on the subject of discrimination against gays and others of non-heterosexual gender orientation or identity.
It might seem like the Arch was stating the obvious – a trivial truism for enlightened South Africans – but it turns out his moral leadership was sorely needed.
Supposedly possessed of one of the most progressive, liberal constitutions in the world, South Africa appears to believe that sexual orientation is a “new concept” that requires “study”.
According to diplomatic sources, Jerry Matjila, our representative at the UN’s Human Rights Council (HRC), belatedly agreed on Tuesday to sign a proposed statement to make the Universal Declaration of Human Rights explicitly applicable to all people, including those who are lesbian, gay bisexual or transgender (LGBT).
At the time of writing, no other African country has indicated support for the measure, known as the “Sexual Orientation and Gender Identity (SOGI) statement”.
It is no less embarrassing for the continent that South Africa appears to remain of the view – expressed in an alternative resolution put before the UN HRC – that the matter needs study and clarification.
The issue of discrimination on grounds of gender identity was extensively studied, debated, negotiated, and enshrined in our own Constitution fifteen years ago. That it should be declared “new” by the very people whose rights were for so long violated on the basis of mere identity is, quite frankly, astonishing. Even more astonishing is the argument Matjila put forward last year, when he said granting LGBT individuals explicity human rights protection “demeans the legitimate plight of the victims of racism”.
This position is a spectacular failing of moral leadership on a continent where homophobia is not only rife, but is all too frequently the subject of discriminatory laws and violent vigilantism.
Even in South Africa, Jacob Zuma is on record has having said: “When I was growing up an ungqingili [a gay] would not have stood in front of me. I would knock him out,” adding that gay marriage is “a disgrace to the nation and to God.”
Although he apologised with a nod to the South African Constitution, and last year condemned the imprisonment of a gay couple in Malawi, Zuma’s apparent homophobic instincts are not rare in Africa.
Gilbert Ongachi of Gender Links wrote that: “Homosexual acts are illegal in many African countries. … It is Africa’s silent slaughter. Hundreds of gays and lesbians are raped, abused and murdered every year, simply because of who they choose to love.”
The fears of LGBT Africans are entirely justified in light of the publication of names and photos of alleged gays in Uganda, South Africa’s epidemic of “corrective” rape, vigilante killings of homosexuals and activists like the late David Kato, and draconian laws with punishments that extend in some countries to execution for supposedly “gay” sex acts.
However, the UN High Commissioner for Human Rights, Navanethem Pillay, is clear that tradition and custom cannot justify human rights violations.
“If we are all entitled to the full range of human rights and to equal protection of the law then, I believe, it can never be acceptable to deprive certain individuals of their rights, indeed to impose criminal sanctions on those individuals, not because they have inflicted harm on others or pose a threat to the well-being of others, but simply for being who they are, for being born with a particular sexual orientation or gender identity,” she told the UN HRC last year. “To do so is deliberately to exclude a whole lot of people from the protection of international human rights law. It is, in short, an affront to the very principles of human rights and non-discrimination.”
There are a few nits in this statement worth picking. For one, it is vulnerable to the claim that it is invalid, because sexual orientation is a choice and not a natural inclination. Even if this were true, the principle of law limited to protecting others from harm remains valid. The statement should not have been open to such simplistic rhetorical obfuscation.
The same goes for the religious belief that homosexuality is a sin. That’s fine; believe that if you must. However, that does not give you the right to impose your belief on others, or harm others because they commit a sin in terms of your faith, no matter how superior you think your particular religion is.
Principles such as basic human rights transcend cultural practice, religious strictures, and ordinary law. This is why Bills of Rights exist in constitutions. They express a set of universal moral principles, against which all law and custom must be measured.
That is the key principle stated by Pillay: liberty ought to be limited only by the commensurate rights of others.
“I understand that sexual orientation and gender identity raise sensitive cultural issues, but cultural practice can not justify any violation of human rights,” said UN secretary-general Ban Ki Moon earlier this year, noting that racism, the oppression of women, and inhuman punishments were also once seen as “cultural practice”.
What Voltaire is reputed to have said about free speech – “I disapprove of what you say, but I will defend to the death your right to say it” – holds true for any other private action that does not infringe on the life, liberty or property of another. One could go further, and argue that it is especially important to acknowledge such rights if you disagree. Uncontroversial rights (like inoffensive speech) do not need protection. You should grant protection for beliefs or actions with which you disagree, in order to legitimately claim protection for your own private beliefs or actions even in the face of disagreement by others. You should grant such protection especially to minorities, because you might find yourself in a minority on some other issue, and not wish to be forced to give up your honestly held principles to the tyranny of the majority.
So in a sense, it is beside the point whether or not Zuma (or any other politician) disapproves of homosexuality. We need not get mired in acrimonious arguments about the moral validity of the views people hold about gays, lesbians, heterosexual, bisexual, polyamorous, monogamous, transgendered, transsexual, or intersex people. People will differ, and some views will be offensive.
It is not for us to lecture homophobes on errors of their views. It is, however, appropriate to lecture them about using violence (or advocating law) to enforce their views on other human beings. I would expect no less myself, if I started to assault, rape, imprison or kill homophobes because I consider such people to be inferior and not worthy of basic human rights.
After all, the universality of those rights is exactly what South Africa’s struggle was all about. Sadly, in the ongoing worldwide struggle for freedom and non-discrimination, our country is fast ceding the moral high ground it once held.
We ought to be ashamed.