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Gay is okay: Justice may have been delayed, but not denied, after the Qwelane ConCourt judgment


Neo Mokone is the Chairperson of the Black Lawyers’ Association Student Chapter, Stellenbosch University. Thembalethu Seyisi is a final-year law student at Stellenbosch University.

There is no doubt that our ugly past of apartheid extensively and severely limited the expression of black journalists. This includes Jon Qwelane, who was constantly in legal jeopardy, faced constant threats of imprisonment and was left deaf in one ear as a result of police brutality. But that does not give people like him a free pass to spread homophobic views in our society.

After 13 years in the legal system, last week the apex court of South Africa finally delivered justice to members of the LGBTQI+ community. Justice delayed was not justice denied in the Qwelane matter where the Constitutional Court found that the abhorrent article by South Africa’s late ambassador to Uganda constitutes hate speech. This groundbreaking judgment affirms that gay is okay.

In his infamous 2008 article, “Call me what you want, but gay is NOT okay”, Qwelane attributed the split in the Anglican Church to homosexuals. He contended that gays and lesbians were to blame for the fact that progressive quarters of the church demanded inclusivity by ensuring that homosexuals and women were ordained as bishops.

Qwelane further aligned himself with and praised former Zimbabwean president Robert Mugabe’s unapologetic views on homosexuality and deep contempt for the dignity of the LGBTQI+ community, comparing them to animals and their intimate relationships to bestiality. Coming from Qwelane, a black journalist and columnist who enjoyed considerable respect for his anti-apartheid credentials, this opinion sent shockwaves throughout the landscape. Many were perplexed and struggled to reconcile this opinion with the Qwelane they got used to through Just Jon, a Sunday Sun column in which Qwelane attempted to report on what was happening in black communities.

This journalist who used to highlight the crippling conditions and effects of the apartheid system had turned to a vitriolic man spewing bile. Seemingly, his venomous Sunday Sun column, which Qwelane used for years to serve as President Jacob Zuma’s praise singer-in-chief, had finally paid off with a prestigious appointment. Zuma’s appointment of Qwelane as an ambassador to Uganda rubbed more salt into the wound.

South Africa’s recent past is one of violent humiliation, marginalisation and silencing of black people in their land. The South African Constitution of 1996 marked a decisive break from such a grim past by guaranteeing everyone the right to inherent human dignity, equality and freedom of expression, among other progressive rights.

It is in the terrain of the confluence of these rights that the court had to interpret Qwelane’s contestation that s10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) is unconstitutional. Although the court agreed with Qwelane that a part of the section is vague and therefore unconstitutional, Qwelane’s remarks about the LGBTQI+ community did not stand the stringent test for hate speech.

The court was determined to convey that hate speech is not that which offends, shocks or disturbs. Such views are necessary for a vibrant constitutional democracy where freedom of expression is an instrument for accountability and the exchange of ideas between those who govern and those who are governed.

Given our history, the court acknowledged that freedom of expression is a fundamental right and a cornerstone of our fledgling democracy, but it is not a supreme right. There is no doubt that our ugly past of apartheid extensively and severely limited the expression of black journalists in newsrooms. This includes Qwelane who was constantly in legal jeopardy, faced constant threats of imprisonment and was left deaf in one ear as a result of police brutality. But that alone is not a free pass for homophobic views in our society. The court poignantly stated:

“Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eye of the majority, reducing their social standing and acceptance within society.”

The court had no difficulty in finding that Qwelane was advocating hatred, as the article plainly constitutes detestation and vilification of homosexuals on the grounds of sexual orientation. Any reasonable person attuned with the structural subordination and patterns of disadvantage in the LGBTQI+ community in South Africa and in Africa would have reached the same decision.

The insensitive appointment of a homophobe to a position meant to help promote peace, trade and information exchange between South Africa and Uganda is indicative of the unpalatable ignorance of the plights of the LGBQTI+ community. It ought never to have happened as a year before Qwelane’s appointment Uganda introduced the Anti-Homosexuality Bill which sought to increase the penalties for homosexual acts from 14 years to life in prison.

The bill, which by the end of Qwelane’s term had become law, also created a new crime of “aggravated homosexuality”, which was punishable by the death penalty. Although Uganda has since repealed the legislation, the existence of systemic discrimination and inequalities among members of the LGBTQI+ community in Africa still needs sharp focus so as to free the potential of many individuals.

In South Africa, the frontal attack on the dignity of the LGBTQI+ community has led to at least 17 members being brutally killed since February 2021. This does not only offend the human dignity of those affected, but it is also the linchpin of growing inequality in South Africa.

Parliament should ensure that the Qwelane decision serves as a signal to expedite the hate speech and hate crimes bill meant to provide for the offence of hate crime and the offence of hate speech as well as the prosecution of persons who commit these offences. Laws are crucial to maintaining peace and social cohesion, and there should be no further delays. DM


Comments - Please in order to comment.

  • Chris Green says:

    Congrats !! what a non-venomous, unemotional, calm and informative article. More HOPE for action by our lawmakers, but not guaranteed.

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