Constitutional Hill

January 25th, 2010:

NB! – Please sign Uganda Homosexuality Bill petition!

Jan 25th, 2010
by Pierre De Vos.
No comments yet

NB! If you wish to sign this petition please inform Gavin Silber of the Social Justice Coalition at gavinsilber@gmail.com forthwith.

22 January 2010

 Att:      President Yoweri Museveni

            National Resistance Movement

c/o       Ugandan High Commissioner Kweronda Ruhemba
Trafalgar, Apartment 35 B 634 Park Street , Arcadia 0083
 Pretoria
 Tel: +27 012 344 4100
 Fax: +27 343 2809     rkweronda@telkomsa.net

 

Dear President Museveni and leaders of the National Resistance Movement

THE UGANDAN ANTI-HOMOSEXUALITY BILL VIOLATES HUMAN RIGHTS

We, the undersigned, are a group of organisations and individuals from South Africa deeply concerned about the “Anti-Homosexuality Bill” (2009) currently tabled before the Ugandan parliament, as well as sections 145, 146 and 148 of the Penal Code of Uganda that criminalises homosexual relations. For instance, section 145 of the existing Penal Code Act (1950) imposes a life sentence for consensual sex between adults of the same sex.. The proposed Bill goes much further and includes the death penalty for similar offences.  The original Penal Code was introduced by the British Colonial Administration.

This letter is written as an appeal to you in your capacity as leaders of the National Resistance Movement (NRM), the majority party in the Ugandan parliament.  We urge that the NRM campaigns for the proposed Bill to be withdrawn and that  consensual same-sex relations be decriminalised in the Republic of Uganda. These laws deliberately persecute individuals on the basis of their sexual orientation.

As organisations and individuals we do not presume to instruct the Ugandan Parliament but we wish to point out that these laws are human rights violations and they affect every person on the African continent and around the world. 

SOCIAL COHESION: UGANDA AND BEYOND

The Anti-Homosexuality Bill purports to defend Ugandan family life, culture and society against the threats of homosexuality. Persecution of homosexuals and other sexual minorities will not achieve this aim. We support efforts by the Ugandan government to promote social cohesion including strengthening family bonds and parental care. These objectives are not incompatible with the right of lesbian, gay, bisexual, transgender and inter-sex people to equality before the law. Every country on our continent faces potential social instability based on the mass unemployment of young people and poverty which has caused social conflict and displacement across the region. We believe this is the real force tearing at the social fabric. This is true for Uganda as much as for South Africa.  Family life and social cohesion in Sub-Saharan Africa has also been weakened through the HIV epidemic with the passing of many adults leaving our children destitute and many the heads of their households. Violence against children and women is not only a violation of their rights but further undermines family life across the continent.  We experienced this in South Africa in the despair of youth and poor people which fuelled the xenophobic violence of 2008, leaving many refugees and migrants from other African countries dead and hundreds of thousands displaced. Such intolerance directed at groups of people indicates a dangerous lack of social cohesion.  Globally unfair trade and labour practices further undermines the dignity of our working people in Africa, limiting their job opportunities and restricting internal government revenues.  Each of us on the African continent must help our governments and peoples to overcome these social inequalities and human rights violations. Cruel persecution of lesbian, gay bisexual, transgender and inter-sex people may be a useful diversion but it sets a pattern for lawless behaviour that is undermining legality as well as the freedoms and rights of all people.

UNJUST LAWS, THE CONSTITUTION OF UGANDA AND INTERNATIONAL LAW

We all have a basic human right to personal security and psychological integrity and freedom and this includes the right to form loving relationships irrespective of sexual orientation.   The proposed Bill and existing Penal Code promotes and sponsors hate crimes against lesbian, gay, bisexual, transgender and inter-sex persons.  Homophobia is no different from racism, tribalism, xenophobia or sexism as an irrational prejudice which encourages hatred and violence.

The equation of homosexuality with bestiality or paedophilia is misguided and an unjust stereotype. These practices are committed by a minority of people of all sexual orientations.  We support the prosecution of rapists and paedophiles irrespective of their sexual orientation or social status.

The proposed Bill and Penal Code are also irreconcilable with universal and African values of dignity, equality and freedom. The existing Penal Code punishes homosexuals with possible life imprisonment and to this the new Bill would add the death penalty for amongst others the most basic and private expression of their sexual identity. People living with HIV/AIDS who are homosexual would also face the death penalty for engaging in sexual relations.  It is not simply the death penalty that is unacceptable in this case but the very fact of criminalising the identity of lesbian, gay bisexual, transgender and inter-sex people on the basis of their sexuality.

Professor Sylvia Tamale (Dean of Law at the University of Makerere) argues that the Bill is in conflict with the Constitution of Uganda and international instruments such as the African Charter of Human and Peoples’ Rights and the Universal Declaration of Human Rights.  We agree with her analysis. The Bill places Uganda outside of international law and therefore undermines confidence in its entire system of foreign relations.  However, the flagrant abuse of lesbian, gay, bisexual, transgender and inter-sex human rights and the deliberate incitement of hate would place Uganda among legal systems with no justice. This could not be the objective of the national Resistance Movement or any other political party in Uganda.

Professor Tamale holds that the proposed death penalty, life sentences and potential for blackmail of lesbian, gay, bisexual, transgender and inter-sex people undermines individual rights and family life.  She argues that the Bill goes much further than the unjust colonial Penal Code. Privacy, trust and confidentiality are destroyed as those who know a homosexual would be liable for imprisonment for up to three years if they do not report that person to the police. This places counsellors, priests, doctors or teachers who are sworn to uphold confidentiality in an impossible position.  In addition, the Bill would punish all those involved in research or advocacy of  issues pertaining to sexual orientation for up to 7 years in prison.

South Africa has seen the devastating and inhumane effects of state-sponsored discrimination and hate crimes.  The family life of African people was criminalised through the pass laws. People in South Africa remember with deep regret and sadness that barely 20 years ago inter-racial sexual relations were decriminalised as they too were once seen as a threat to society and the family unit. As we move away from this shameful past and learn that a person’s sexuality goes to the core of their dignity, privacy, identity and freedom, we ask you not to entrench the colonial laws against private, adult same-sex relationships.

The Uganda Constitution protects freedom, equality and dignity for all and we urge you to respect this. We ask your Parliament to withdraw this Bill and to amend the Penal Code to respect the dignity, equality and privacy of lesbian, gay, bisexual, transgender and inter-sex people. Chapter 4 section 36 of the Ugandan Constitution calls for the protection of the rights of minorities. Homosexuals must be protected because they are vulnerable, endure hate, stigma, prejudice and state-sponsored discrimination.

Uganda has been through civil wars and dictatorship. Today, it has created a stable democracy. The Anti-Homosexual Bill (2009) will take Ugandan society and all of Africa back in the direction of hate, tribalism, regionalism, xenophobia, sexism and war. Our tasks are to overcome the real deprivations caused by hunger, ill-health, unemployment, unequal education, violence, unfair trade and labour practices. These are the real factors tearing at our social fabric, not the existence of homosexuals who have formed part of all societies at all times.  These are the tasks for which all our governments including the government of Uganda must provide leadership – not the persecution of lesbian, gay, bisexual and transgender people.

We look forward to working with your government and to a speedy resolution of this painful interlude in the struggle for the dignity of every person in Africa.

Sincerely,

 

INDIVIDUALS

 

ORGANISATIONS

The AIDS Law Project

Community Media Trust

Free Gender

The Lesbian and Gay Equality Project

Lesbigay University of Stellenbosch

Social Justice Coalition

Rainbow University of Cape Town

Treatment Action Campaign

BLA in need of a PR makeover?

Jan 25th, 2010
by Pierre De Vos.
72 comments

Some people who have not come to grips with the notion of substantive equality and think that equality is about the equal treatment of everyone under all circumstances, get very cross about the existence of organisations like the Black Lawyers Association (BLA). “It’s racist!” they shout. “It’s discriminatory!” “How very dare they!”

I am not one those people.

In a country where, 16 years after the advent of democracy, less than 20% of practicing advocates are black and where work are often dished out on the basis of links to the old boys network (reinforced by old school tie loyalties, language and racial affinities and prejudices and friendships forged on golf courses), it would be impossible to argue that race and sex do not play an exclusionary role in the legal profession.

Many women and many black lawyers do not do as well as they would have done had they been white men. In that context, it seems perfectly acceptable for an organisation like the BLA to look after the interests of its members and to agitate for changes to the legal profession to contribute to the real transformation of the profession and to eliminate the implicit or explicit racism and the sexism which limits the professional opportunities of (especially young) female and black lawyers.

This is a matter of principle as our Constitution prohibits unfair discrimination based on race and (as the Constitutional Court found in the Van Heerden case) places a positive duty on the State to promote the achievement of equality, by adopting legislative and other measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination in the past”.

I therefore have some sympathy with the BLA who this weekend issued a statement threatening to go to court to force the Ministry of Justice to speed up the process of passing a new Legal Practice Bill. BLA general secretary Babalwa Mantame told a newspaper on the weekend that the BLA was considering launching a “class action” to persuade the courts to force the Minister to introduce the Bill. The report say the BLA has issued a newsletter to its members announcing that the BLA and its partner – the National Association for Democratic Lawyers (Nadel) – would a seek class action against the Justice Ministry over the Bill’s slow progress

The reason for the unhappiness of the BLA is that it believes the Bill – if passed – will give black lawyers more government work. Mantame told the media that Justice Minister Jeff Rabebe and his Ministry were sitting on a key piece of legislation on which work began a decade ago. She said the Legal Practice Bill would – among other things – stipulate employment equity and BEE rules for any law firm wanting government work. Mantame said Radebe had promised to speed up the Bill’s path to Parliament, but with no results.

There are two interesting questions that arise.

First, given the Constitutional Court’s articulation of the separation of powers doctrine in the Glennister case and other judgements, will the court really order the Minister to pass this piece of legislation if the BLA follows through on its threat? I suspect the Court will only consider doing so if it finds that the failure to pass the Bill constitutes a fundamental infringement of one of the rights in the Bill of Rights (in this case the right to equality and the positive duty to pass legislation designed to address the effects of past discrimination in education and in the legal profession).

The problem is that in an obscenely unequal society like South Africa in which much of the inequality is race and gender based, much still needs to be done to address the effects of past discrimination and it would be rather difficult for a court to decide that this piece of legislation is more important than, say, the taking of other measures designed to ensure that the children of poor parents get a decent education or that poor people in Khayelitsha get toilets (but this time with walls).

Why should the court prioritise the needs of middle class black lawyers above the needs of working class and poor citizens who might be far worse off than the lawyers who happen to be members of the BLA? Given this obvious problem I suspect a court challenge will not get anywhere.

Which brings us to a second question, namely whether the BLA could not have framed their concerns in a way that appeared more sensitive to the broader context of poverty and deprivation and thus appeared less selfish and blatantly self-interested. Surely most reasonable people can agree that it is important to address racial discrimination and the effects of racial discrimination in order to build a more just society.

But we can also agree that giving black lawyers more government work will be great for the few black lawyers who have made it but will not really address the systemic problems in our legal system which prevent many young black men and women (and some white women too) from becoming the successful lawyers that will eventually reap the benefits of receiving government work which will, in turn, enable them to drink Moët et Chandon and Johnny Walker Black and drive around in Porsche Cayenne’s.

It seems to me the hard work in transforming the legal profession is less about providing access for a few black lawyers to the untold riches associated with government contracts and more about breaking the stranglehold of the old boys network and opening up access to the profession to a far wider pool of young people of all races and sexes.

Not that I begrudge established black lawyers their work and that I do not think providing them with access to more government work is a good thing. But from an ethical and a public relations perspective the BLA might want to think about the ways in which to frame its concerns so it looks less elitist and self-interested and more principled and concerned about the plight of the poor and the marginalised in our society.