Oppressive legal rules and regulations can have a devastating effect on the lives of ordinary people. Conversely, ostensibly emancipatory legal rules and regulations – including rules and regulations aimed at promoting and protecting the human rights of all people – seldom provide an instant cure for the irrational fear, ignorance, greed, arrogance, superstition, stupidity and hate that lurks in the hearts of some people and lead them to marginalise, vilify, belittle and even assault or kill those who they perceived as being “different” from themselves.
After 1948 race classification and pass laws (reflecting the racist prejudices of the majority of white South Africans) helped to formalise systemic racial discrimination and instantly turned the majority of citizens into potential criminals.
These Apartheid laws did not create racism. Nor did they create the belief – widely shared by many who took part in and benefited from the colonial project – in the inherent superiority of white people.
They simply formalised the logic inherent in the project of colonialism and placed the full might of the state behind efforts to enforce the irrational belief in the superiority of the settlers – the very group whose brutality and cruelty led to much suffering among indigenous people on our continent.
These legal rules had a devastating effect on the lived experience of black South Africans. Until resistance to Apartheid made the enforcement of many of these laws difficult, if not impossible, they could be effectively enforced at least partly because they broadly reflected the values and attitudes of the ruling white elite.
As we all know, in 1994, when South Africa became a democracy and we adopted a justiciable Constitution that outlawed discrimination based on race and affirmed the inherent human dignity of all, it did not miraculously change the material conditions in which people live or the vast economic and social inequalities between many black and white people.
Nor did it miraculously lead to an end of racism and racial discrimination or to the dismantling of the structures, ideologies and beliefs that formed (and, to some degree, continue to form) the basis for racial exploitation and marginalisation of black people in South Africa.
This suggests that the law is a particularly powerful tool when it is used to regulate or enforce the beliefs and values of the economically, socially and politically dominant group in society. But, I contend, law is far less effective as a tool for social change when the legal norms embedded in it do not necessarily reflect the beliefs and values of the dominant social, economical or political class in a society.
The formal legal recognition of human rights norms (which represent an ideal that are often at odds with the beliefs and values of a sizeable section of the population) in the form of a justiciable Bill of Rights, are therefore not always as effective in changing the attitudes of citizens.
Despite this, I continue to believe in the strategic use of (and appeal to) human rights norms. In the right place at the right time on the right issue, specific human rights norms can help to protect the inherent human dignity of everyone. But in the absence of political leadership championing these “imposed” norms and of an active civil society and media promoting these norms, real, fundamental change will often be slow.
I would argue that it is because of this complex dynamic that profound strategic, ethical and practical challenges confront anyone in South Africa or in the so called West who wishes to deploy a human rights discourse to confront homophobia on our continent.
We have to be honest and acknowledge that – sometimes for good reason – human rights are often demonised in certain parts of the world as embodying normative commitments that reflect a specific cultural and racial view of the world, a view that is dominant in the very countries that committed the crime of colonialism.
I don’t think there are easy answers to deal with these challenges. It all depends who speaks, where they speak and about what, I would guess.
But this difficulty does frame the discussion of LGBT rights in South Africa and the rest of the continent.
Not that the matter of protecting the inherent human dignity of gay men, lesbians, transgendered and intersex individuals and gender-nonconformists is not profoundly important and urgent.
Take the Ugandan Anti-Homosexuality Act as an example. This Act reflects the homophobic attitudes of a majority of people living in Uganda. A recent survey concluded that 93% of Ugandans believed that homosexuality was immoral while only 1% believed it was acceptable.
The Act is both shocking and conceptually peculiar. It defines a “homosexual’’ to mean “a person who engages or attempts to engage in same gender sexual activity” and “homosexuality” as same gender or same sex sexual acts. Given the obviously constructed nature of gender (as opposed to sex which is supposedly based on biological characteristics) it is unclear how a judge in Uganda will be able to decide what the “gender” of an accused person or their sexual partner is.
Section 2 of the Act states that a person commits the “offence of homosexuality” not only if he or she actually engages in sex with somebody of the same sex (or gender!) but also if he or she “touches another person with the intention of committing the act of homosexuality”. “Touching” is defined as including touching with any part of the body; with anything else; through anything.
This means that kissing, fondling, caressing “with the intention of proceeding to have sex with somebody else of the same sex” (or gender), commits a crime. If convicted, the person must be sentenced to life imprisonment. The law could thus require a court to sentence a person to life imprisonment for kissing or touching another person.
The Act also states that a person who attempts to commit the offence of homosexuality commits a felony and is liable, on conviction, to imprisonment for seven years.
This means if you attempt to kiss or caress another person “with the intention to commit the crime of homosexuality” you are guilty of a crime and must be sentenced to seven years’ imprisonment.
The Act states that a “victim” of homosexuality cannot be penalised for any crime committed as a direct result of his or her involvement in homosexuality. This means that a person who claims to have kissed or caressed somebody against his or her will is a victim and will not be convicted.
This section does two things: first, it allows one of two parties to a sexual act to protect themselves against prosecution by claiming to be the victim which renders it more likely that one person will testify against another. Second, if you assault or kill another person because you alleged the person allegedly tried to have sex with you, you cannot be penalised for this. It is a legal provision that endangers the lives of every Ugandan who experiences same-sex sexual desire.
The Act further states that a person who purports to contract a marriage with another person of the same sex commits the offence of homosexuality and shall be liable, on conviction, to imprisonment for life.
Hopefully many South Africans would be horrified or at least slightly disturbed by the provisions of the Uganda Act which sanctions the persecution of gay men, lesbians, transgender and intersex individuals by the state.
When we turn our gaze northwards and condemn such forms of state-sanctioned persecution, the danger is that we may lose sight of the fact that neither our wonderful Constitution nor the laws enacted to give effect to it always protect our gay and lesbian brothers and sisters in South Africa.
This is so because neither the Constitution or the law, nor the occasional seemingly half-hearted statements of some of our politicians have managed completely to turn the tide against the deeply entrenched homophobia of many South Africans. A recent survey found that 62% of South Africans say that homosexuality is immoral while 18% said it was acceptable.
This attitude can be deadly. A column, written by my friend Herman Lategan and published in Rapport newspaper last Sunday, provides a deeply troubling reminder of this. I leave you with my translated extracts from his column:
It happened a few months ago, but the incident still nags at me. Maybe because it hardly caused a ripple.
Why would it?
He worked and lived in Ceres. Fruit growing district, the smell of apples and pears at harvest time. On cold winter’s mornings, light snow, smoke curling from the chimney’s of the small farmworker houses.
On Saturday 22 March David Olyne (22) arrived at his work, “Family Food and Meat Market”. His manager and friend, Heather Muller, speaks with a soft voice over the phone, in birdlike beautiful Ceres Afrikaans.
“He was sad that day,” she says, “because the previous night he was at a party where somebody broke his heart.
“I told him he should not be so down, I will allow him to go home early, then he could tell me everything about the party on Sunday.”
He left work. His hair still looked so beautiful.
That Saturday night close to the dam, a group of teenagers sat drinking when a man invited them to come and watch him kill a “moffie” (“faggot”).
According to news reports, he was already bloodied and tied up with barbed wire when the teenagers arrived on the scene.
The attacker cracked open David’s head with a rock. He then jumped on his head while shouting “voetsek”.
The young man groaned. Then the attacker took branches from the tree and placed it on top of him, before lighting it.
The teenagers (14-18 years old) left and did not say a word. It was only the next morning that somebody went to check whether David was still alive and then alerted a woman. It was the woman who told the police about the mutilated body.
On his Facebook page, which is still “live”, there are several pictures of David, also one in which he cracks a smile wearing huge sunglasses.
One of the last posts on the page was done on 3 December 2011, also a Saturday night. “’n lekker aandtjie uit gehad .nuw w3 wek wek wek (sic).” (Had a great night out. New week. Wek wek wek.”
“He was my left hand and my right hand,” Heather tells me on the phone.
“Ooh he could make the best coffee and we always had sooo much fund laughing together.” For fun David sometimes dressed in drag.
His mother and father do not own cell phones and work respectively as a farm worker and a domestic worker.
“The mother who raised him, a white woman in town, did not want to go and identify his body,” Heather says.
“She was too upset, she wanted to remember him the way he was. So I went to the morgue. David had been badly burnt. From his hips to his head and his hair had also burnt off, except for a tiny tuft of hair right at the top.”
“And so, you know, I still thought,” says Heather, “that same hair which was his pride and joy, now there was hardly anything left of it. God, my dear friend, what did you do to anyone? Nothing.”
“And now… all that remains of his pride is a small tuft of hair.” DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.