South Africans often rightly pride themselves on having one of the world’s most progressive constitutions. Since 1994, our democratic Constitution has included comprehensive protection of all kinds of human rights, from the political to the socioeconomic, environmental, cultural, religious and linguistic.
Gradually, much of the world has come to embrace our approach to human rights, with many countries subsequently enshrining what were once considered second- and even third-order human rights into their own constitutions’ bills of rights.
The driving idea behind the approach adopted by the drafters of our Constitution is the inclusion: the idea that our democracy cannot be complete nor fulfil its promise unless every person from every walk of life has their right to exist acknowledged, their dignity affirmed, and their freedom guaranteed.
These reflections on the central place of inclusion in our constitutional life are particularly apt in June, which is recognised across the world as Pride Month. June is celebrated as Pride in honour of the Stonewall Riots in New York, the start of the LGBTQI+ rights movement in the United States and later, across the world. It also marks the month that same-sex marriage was legalised in that country. The riots are widely considered the watershed event that transformed the gay liberation movement and the 20th century fight for broader LGBTQI+ rights.
We are also barely a month past observing International Day Against Homophobia, Biphobia and Transphobia, on 17 May. The main purpose of the May 17 mobilisations is to raise awareness of violence, discrimination, abuse, and repression of LGBTQI+ communities worldwide. The day is now observed in over 130 countries across the globe.
While the origins of this assertion and celebration of LGBTQI+ rights come from the US as part of the broader civil rights movement there, the movement that began in New York in 1969 has since reverberated across the globe and sparked new conversations about the values of tolerance, non-discrimination, and defeating hate and prejudice in our everyday lives. It inspired, ultimately, the drafters of our democratic Constitution who were determined to enshrine these values into the foundational document of our democracy.
From these beginnings, Pride is now a United Nations-recognised annual global occurrence, and an integral part of the UN Foundation’s Sustainable Development Goals, particularly goals number 5 (Gender Equality), 10 (Reducing Inequalities), and 16 (Peace, Justice, and Strong Institutions).
The question for us as South Africans is what has been done in our country since 1994 to make the realisation of these goals of inclusivity rights protection a reality, and what more can still be done within our resources and abilities.
South Africa’s post-apartheid Constitution was the first in the world to outlaw discrimination based on sexual orientation, South Africa was the fifth country in the world to legalise same-sex marriage, and we are to date the only country in Africa to have legalised same-sex marriage. Same-sex couples can also adopt children jointly, and also arrange IVF and surrogacy treatments. LGBTQI+ people enjoy constitutional and statutory protections from discrimination in employment, the provision of goods and services and many other areas.
Same-sex relationships were outlawed in apartheid South Africa, alongside other so-called “undesirable” sexual practices such as interracial intercourse. Many South Africans were in fact prosecuted and punished for their sexual orientation during apartheid, mainly under the common Roman-Dutch law prohibition on “sodomy”.
Despite this, it is important to assert that pre-colonial traditional African communities in South Africa did in fact embrace same-sex marriages and other non-heterosexual relationships. Our societies in fact have a long and well-documented history of embracing non-traditional and non-binary gender identities, and often found these useful for the promotion of social cohesion and harmony.
Like most social ills that many of us have now come to wrongly identify as an entrenched part of “African culture”, homophobia, transphobia, and biphobia are in fact imported colonial practices. A cursory reading of southern Africa’s pre-Christian and pre-colonial history bears this out.
As the African National Congress, we must make no apology for our determination to reverse the colonial legacy of hate and lead our society in the drive to recover our humane African embrace of tolerance, justice, and love for all people.
That is why in 1993, the ANC endorsed the legal recognition of same-sex marriages, and the interim constitution prohibited discrimination on the basis of sexual orientation. These provisions were kept in the new Constitution approved in May 1996. As a result, two years later, the Constitutional Court of South Africa ruled in a landmark case that the law prohibiting homosexual conduct between consenting adults in private violated the Constitution.
On 9 May 1994, during his address to the people of Cape Town the day before his inauguration as president, Nelson Mandela stated the following:
“In (the) 1980s the African National Congress was still setting the pace, being the first major political formation in South Africa to commit itself firmly to a Bill of Rights, which we published in November 1990. These milestones give concrete expression to what South Africa can become. They speak of a constitutional, democratic, political order in which, regardless of colour, gender, religion, political opinion or sexual orientation, the law will provide for the equal protection of all citizens.”
Some 28 years later, we still hold to these values and consider the words of president Mandela to be our guide and lodestar for the society we strive to build. We are not yet done. It would be a mistake to think that our constitutional and legal protections, and the commitment of our movement to this cause are enough by themselves to turn the tide. If our decades-long struggle against racism and apartheid taught us anything, it is that the price we pay for freedom is eternal vigilance and unwavering commitment.
Too many in our communities still live in mortal fear because of their gender, their sexual orientation, and their sexual identity. Homophobic and transphobic violence are still a part of our reality. We must eradicate this scourge with the same determination we bring to the fight against racism, sexism, and other social ills.
As a last thought, I believe that we should give serious thought to using the power of the state — not just through legislation and the Constitution alone, but also using instruments such as public procurement and positive discrimination — to affirm the rightful place of LGBTQI+ people in our society.
We have used these instruments effectively to promote the economic inclusion and participation of previously excluded groups, such as blacks, women, the youth, and people living with disabilities. While we should admit that the work of empowering those groups is not yet done, is it not time now to extend the net wider and look at legislation and programmes to extend economic opportunities to LGBTQI+ South Africans as well?
As Madiba once said, in another context, our liberation cannot be considered complete until all of us are liberated from discrimination, exclusion, and intolerance. DM