The proposed Constitutional amendment removing sexual orientation from protection against discrimination, alongside the Traditional Courts Bill, are grounds for deep concern. What’s next – public flogging, the stocks and an Iron Maiden once a month?
In May 2011, a 13-year-old lesbian was raped in Atteridgeville, Pretoria. We can’t say for sure whether this rape was an attempt to “cure” her of lesbianism. But in June of that same year, Noxolo Nkosana was given a clear signal that her lesbianism was part of the motivation for her assault by two men, who reportedly taunted her with shouts of “Hey you lesbian, you tomboy, we’ll show you”. Then they did “show her”, stabbing her twice with a knife.
Nkosana was not raped, but Noxolo Nogwaza from KwaThema township near Johannesburg was stoned, stabbed and raped by eight men in April 2011. She died as a result. Many similar stories can be told, and have motivated increasing pressure on the government to consider recognising “corrective rape” as a hate crime.
Corrective rape is not the only threat faced by lesbian and gay people in South Africa. The Out LGBT Well-Being (Out) and Unisa Centre for Applied Psychology community survey (pdf) in 2003 revealed widespread verbal and physical abuse motivated by homophobia, but also the finding that 62% of those who encountered such victimisation did not report their experience to the police.
In her 2004 paper Arranging Prejudice: Exploring Hate Crime in post-apartheid South Africa, Bronwyn Harris suggested that “Institutionalised heterosexism and homophobia, combined with negative social attitudes towards lesbian and gay people, create the conditions for hate crime and the reluctance to report it to the authorities. An important reason for this is the tendency towards the sensational, dramatic and exceptional, by the media. This selective bias in media coverage contributes to a tendency not to notice or report ordinary everyday experiences of hate victimisation”.
I doubt the situation has changed much. After all, why would you think the police would care when those higher up the food chain include a homophobic Chief Justice, and a President who believes that “same-sex marriage is a disgrace to the nation and to God” – so much so that he’s willing to appoint a homophobic ambassador (Jon Qwelane) to a country (Uganda) that considered a bill legislating the imposition of the death penalty or life sentences on homosexuals?
Meanwhile, the House of Traditional Leaders has submitted a proposal to the Constitutional Review Committee, suggesting an amendment to section 9 (3) of the Constitution, which reads “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex… colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”.
It might come as no surprise that the House of Traditional Leaders is well-stocked with members of the Congress of Traditional Leaders of South Africa (Contralesa). The Constitutional Review Committee of the National Assembly, who will consider the proposed amendment, is chaired by ANC MP Patekile Holomisa, president of Contralesa.
For a little insight into Holomisa’s attitude towards social justice issues, consider his response to the Traditional Courts Bill, currently the subject of a public participation process. The bill, he says “is being rammed down our throats by a government that is half-hearted on the issue of traditional leadership and a government that is half-hearted in its support of traditional authority”.
An assortment of 20 or so civil society groups and individual activists also don’t like the bill, and stand in support of the UCT Law, Race and Gender Research Unit’s submission to Parliament. As its submission makes clear, the proposed bill “overtly privileges the interests of traditional leaders over those of other rural residents, in particular rural women”.
The bill removes checks and balances on the power of traditional leaders, eliminates women from decision-making and allows forced labour as punishment. You can never ask for legal representation in matters before a traditional court and there is no mechanism for opting-out of the system. Clearly half-hearted in its support of traditional authority, then, in that it stops way short of the public floggings that one might imagine Holomisa to think a minimally acceptable power to be enjoyed by himself and his fellow Neanderthals.
Over the last 17 years, the Constitutional Review Committee has rejected every proposal made to it for amending the Constitution. This one – to remove sexual orientation as grounds for protection against discrimination – has somehow made it through to being put forward for deliberation in the National Assembly. Simultaneously, the protection offered by the Bill of Rights on the grounds of sex or gender would seemingly be ignored in traditional courts.
It is surely beyond the realms of possibility that either the Traditional Courts Bill or the Constitutional amendment in question will be passed. But the fact that it’s possible for anyone to think it reasonable to propose them, or to defend them is cause for shame on the part of those that do and anger in the rest of us.
And we do get angry – the people of Twitter, for example, spent an entire day being angry about a racist airhead, many going so far as to report her to the Human Rights Commission. Somehow, though, what’s trending on Twitter seldom gives one the impression that human rights are at stake when women, gays or lesbians are told they’re less human than the rest of us. DM
Rousseau is a voluntary exile from professional philosophy, where having to talk metaphysics eventually became unbearably irritating. He now spends his time trying to arrest the rapid decline in common sense exhibited by his species, both through teaching critical thinking and business ethics at the University of Cape Town, and through activities aimed at eliminating the influence of religious ideology in public policy. When not being absurdly serious, he’s one of those left-wing sorts who enjoys red wine, and he is alleged to be able to cook a mean Bistecca Fiorentine.
"Take a chance, won't you? Knock down the fences which divide. Tear apart the walls that imprison you. Reach out. Freedom lies just on the other side." ~ Thurgood Marshall