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On “Spud”, laughter and “political correctness”

Jan 13th, 2011
by Pierre De Vos.
91 comments

Imagine the following scenario. Two decades from now an author writes a book taking an affectionate look at life during the wonderful but crazy days of farm invasions in Robert Mugabe’s Zimbabwe. The book, set at a boys boarding school, is then made into a movie and many people — especially supporters of Robert Mugabe and those who yearn for the good old days when whites who stole the land were put in their place — find the movie hilarious. The main character — a young sensitive black pupil entering puberty — is a bit timid, but he gets the (black) girl in the end and everyone can cheer.

There is a scene in the movie where a kind hearted Zanu-PF supporting teacher (played perhaps by an older, slightly washed up, Denzel Washington) chuckles fondly about these crazy whites who cling on to their farms so stubbornly. Why did they not all go back to Britain or Somerset West where they come from? Then he states that he has absolutely nothing against white farm owners or their wives. In fact, he says, he would like to give all those farmer’s wives a good “rogering”. The vast majority of the people in the Harare cinema laughs hysterically at this “joke”.

Let us assume in two decades Zimbabwe is a slightly more sane country, yet the few white farmers and their wives who remain in the country live in fear because every year a few white farmers are killed and a few of their wives are raped by Zanu-PF supporters who yearn for the days when land invasions were officially supported and when good people could still laugh at the stupid whites without the politically correct thought police making a fuss about it.

Of course, neither the book nor the movie would make similar jokes about MDC supporters who used to be tortured and murdered, because now twenty years later the MDC is the majority party in the government.

The same scenario could be imagined about a book and a movie fondly recalling the nineteen seventies in apartheid South Africa, but only, of course, with the white schoolmaster making jokes about “rogering” black domestic workers.

Now I wonder how many of the people who have dismissed the letter of Justice Edwin Cameron in which he objects to the casual homophobia in the movie “Spud”, would have argued that white Zimbabweans (or black South Africans in the other scenario) should get over themselves? How many would have argued that this complaint about the racism in the movie was “politically correctness gone mad”? Maybe there are many principled people out there who would have exactly the same reaction.

But I suspect not.

And why would those who might have complained abut the racism in the movie scenario sketched above be more upset about the racism in my imaginary movies than about the homophobia in “Spud”? One answer would be that they would not find the scenes in my movie funny because they would argue that the movie is racist, that instead of leaving open the possibility of us laughing at racism, the movie actually depicts and endorses that racism by laughing with the racists at the victims of the racism.

But why would they then be perfectly happy to laugh at the homophobia in “Spud”?

In other words, why are so many South Africans prepared to laugh at depictions of homophobia in which the “joke” consists of merely repeating long held and tired beliefs, prejudices and assumptions about the group who forms the but of the “joke” in question? Could it be because the joke is funny to them, not because it is daring, surprising or subversive, but because it is comforting. It reaffirms that their world view — in which lesbians can be “rogered” to make them straight and effeminate gay men can be ridiculed — is still alive and well and that this world view is the dominant one. It comforts them and assures them that they are ok and that they are not prejudiced. It is a kind of comforting and nostalgic laugh about how some things in the world have at least not changed. At least we can still laugh at the moffies.

Does this knee-jerk rejection to Justice Cameron’s letter not reflect an attempt at protecting and safeguarding the prejudices and hatreds of the majority from the so called “politically correct” thought police? And is this reaction to “political correctness” not an attempt to avoid being reminded that being cruel and demeaning to people whom one have always been cruel and demeaning to and who are still raped and murdered in South Africa because they are gay or lesbian is only funny if one endorses the hatred and prejudice which is the cause of so much of the suffering of gays and lesbians who are not as lucky as somebody like myself who are relatively safe from attack and of sufficient status to be mostly left alone?

Now some would argue that this is ridiculous because if we cannot make jokes about someone who happens to be gay or straight, a man or a woman, black or white, what would we laugh about. This is not a good argument. Of course one can make very funny jokes about a gay man or a lesbian. But such a joke will have to surprise or shock or challenge our preconceived ideas or prejudices. Such a joke will at least allow the possibility that we are not merely laughing at the gay man or lesbian, but also, perhaps, at the absurdity of the whole discourse of sexual orientation or the absurdity of the stereotypes that are still so deeply entrenched in our society. Such a joke need not be “kind” to the gay man or lesbian, but it cannot merely describe and endorse the prejudices which every year still lead to the assault, rape and murder of gay men and lesbians.

Now, does this mean that we should ban such jokes? Personally, I would be vehemently opposed to such an approach. This is also not what Justice Cameron had in mind. He did not request that the movie be censored or banned. Unlike a certain City of Cape Town councillor who requested me to delete certain sections of my Blog because it hurt his ego, neither Justice Cameron in his letter, nor myself has ever advocated censorship — even when the feelings or ego’s of a whole group of marginalised and vilified people are deeply affected. If someone wants to make a movie with racist, homophobic or sexist jokes, let them do that.

But let us have a conversation about it. Let those of use who bear the brunt of the racism and homophobia perpetuated in such movies point out our discomfort. Let us hear how the writer of the book or the producer of the movie justifies these scenes. Let us debate the issue and let us not dismiss concerns with heartless and bullying phrases like: “Get over it!” (It is a bit like someone telling a Holocaust survivor reflecting on anti-semitism to: “Just to get over it”. It might shut the other person up but it is not honest and it does not embrace the principle of free speech and robust debate.)

Let us reflect on our own knee-jerk reactions which dismiss as ridiculous any objection to a scene in a book or a movie that makes others uncomfortable or upset them – which we do in an attempt to delegitimise the person and the views he or she is expressing so as never having to confront the easy certainty of your own world view and whatever prejudices might lurk there. And let us — if we feel strongly about it — engage each other and have a real debate.

Why not have a discussion about what makes something funny and what not? Why not ask questions about when a joke can be funny even if it relies on some kind of hurtful or even dangerous stereotype? Why is “The Producers” — a play about a Jewish mogul putting on a musical about Hitler (Springtime for Hitler and Germany / U-boats are sailing once more) — funny, but why would a movie depicting life in Germany during the second World War in which we are invited to laugh at the Jews in Auschwitz who are terrorised by their German guards probably not be funny?

Why do many white and black people laugh at Leon Schuster movies, while they would probably not laugh at a movie in which Nelson Mandela is depicted at a gardener in the household of a rich Afrikaner family?

Laughter can be healing and cathartic. Sometimes it is just mindless fun. Sometimes we squirm with laughter because we are uncomfortable at how shocking or subversive the joke is. But sometimes laughter is dangerously soothing and reassuring (boring mother in law jokes; jokes about how men hate their wives who nag them all day long to mow the lawn; jokes about effeminate gay men) because it tells us that all our prejudices, fears and hatreds are justified and fine, that we are ok, that we never have to reflect on the way we live, what kind of people we are and what our sad and sorry lives have come to.

Hiding in a cave

Nov 29th, 2010
by Pierre De Vos.
102 comments

When that well known Afrikaans “singer” Sunette Bridges made blatantly racist comments and I posted a Blog on it, several readers of this Blog argued either that racism was justified or that it was an aberration. They hardly knew any racist white people and there were hardly any racists left in South Africa, many readers claimed. (Some argued that Sunette Bridges was not well known, but they obviously know little about Afrikaans music and have not suffered through one and a half hours of hell – for anthropological reasons, you see – by watching the smash hit movie Liefling like I did last week.)

I suspect the same readers would not have heard of Annelie Botes (pictured below – no comments about her lack of dress sense allowed), one of the best selling (if not one of the most highly regarded) Afrikaans novelists that sells tens of thousands of books every year. She has now created a storm by making the most blatantly racist comments in an interview with Rapport newspaper.

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In an interview she said she did not like black people.

I don’t understand them!…. I know they are people just like me. I know they have the same rights as me. But I do not understand them. And then I do not like them. I avoid them because I am scared of them…. My neighbour was brutally murdered. For what? When black people are hungry, why don’t they just break in like in the old days and steal food from the fridge and leave? I know where this anger comes from. It has fuck-all to do with apartheid. They are angry because of their own ineptitude.

We all know now that this is not an aberration. These sentiments are rife and are supported either tacitly or more loudly by many white South Africans. Yesterday in the Sunday Times it was reported that Ezanne Jacobs, SIU member in Durban made a racist slur against, Bongani Mpungose in October. Jacobs is alleged to have compared Mpungose to a monkey during a team-building exercise at Giba Gorge, an adventure park near Pietermaritzburg, on October 6. Mpungose was seated with colleagues when Jacobs walked past him with a white consultant and “unexpectedly called me by my name, asking whether I saw my brother and I must go chase him”, a letter says.

These are not isolated incidents and they do not represent the views of a small minority of whites. They represent the world view of large numbers of white people. Today I am not going to rail against these people. Merely calling them idiots and racists will not change anything.

What I am wondering about is this: how do such people live in a country in which they fear, hate or find disgusting the large majority of people who live here? Don’t they know any people who are not members of their own race? Do they ever socialise with black people? If not, why not? Do they know how warped their lives are?

I mean really, it seems to me far too many people are prisoners of the apartheid past. They live in their own private worlds and avoid those who are not like them. How can a writer, for goodness sake, someone who is supposed to know about the human heart and the human condition, have lived such a narrow and sheltered life that after 50 years of living in a country where 90% of people are black, she has never made one black friend, never once had a black lover or a black colleague? What lack of imagination and inability to live a full life lead to such a barren existence? How does one wake up in the morning and face the day if one is so scared and ignorant and so lacking in understanding of those around you?

What is sad is that many white South Africans harbour these kinds of thoughts (although only some are stupid enough actually to say it out loud) and when they do encounter people of another race, they might think they are hiding their racism, but they are not. Don’t they have friends of a different race than themselves? Or at least colleagues which they respect and talk to? What kind of narrow, diminished, lives do such people live? It’s like living like Osama bin Laden in a cave of one’s own making, a prison which cannot but make one bitter and fearful. What sad lives such people must lead.

This reminds me of the words of justice Laurie Ackermann in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice who said in a slightly different context:

The desire for equality is not a hope for the elimination of all differences. The experience of subordination – of personal subordination, above all – lies behind the vision of equality. To understand “the other” one must try, as far as is humanly possible, to place oneself in the position of “the other”.

It is easy to say that everyone who is just like ‘us’ is entitled to equality. Everyone finds it more difficult to say that those who are ‘different’ from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any . . . group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of . . . society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or colour or sexual orientation are less worthy.

It is this inability of so many South Africans to put themselves in the shoes of others who happen not to share their language, their race, their beliefs, their sexual orientation, their gender, that seems to lie at the root cause of all the hate and anger and prejudice in our society. (This kind of self-imposed fear and ignorance cross the racial, sexual orientation, language and gender divide.)

What I cannot understand is why many white people – who are a small minority who, according to its own mythology – has become the “other” cannot see the “other” in fellow South Africans who happen to be black. What lack of humanity and lack of basic decency make it impossible for them to deal with “the other” in their midst?

Is it the structural inequality, the attitudes about racial superiority, the arrogance that comes with 100 years of world domination, that is so deeply embedded in Western culture that still allows white people to believe in their own intellectual and moral superiority and in the basic goodness of their own kind – despite all the revelations at the Truth and Reconciliation Commission of what they and their fathers and mothers and brothers and sisters did during apartheid?

Or does Annelie Botes have a point, sort of, in that many white South Africans are angry, perhaps not at their own ineptitude, but because of the knowledge of their own turpitude and moral corruption and their lack of basic decency and humanity which was so vividly exposed at the TRC hearings?

What people like Annelie Botes do not realise is that one can be liberated from the fear and the hate by opening oneself up to the other – in its many forms. Hiding in one’s cave makes one just nasty and bitter and unhappy. It leads to discrimination and prejudice and long dark nights of the soul. What a waste of human life.

Blaming the victim

Sep 27th, 2010
by Pierre De Vos.
129 comments

A few years ago an outfit called ”The Gay and Lesbian Alliance” (GLA) lodged a complaint against two guest houses in the Cape Town City Bowl and Sea Point areas with the Human Rights Commission, arguing that they were discriminating against women and against heterosexuals because they were only allowing gay men to stay at their establishments.

The GLA was, of course, not a real organisation, but the front for a slightly unhinged man called Juan Duval Uys, who had bamboozled a gullible media into publishing many of his outlandish, bizarre and mostly untrue claims. (Uys proved just how lazy and untrustworthy the media could be: because he had a fax machine and made provocative claims which made for good copy, some newspapers printed these claims as fact without ever verifying whether the claims were true or not.)

In any case, the Human Rights Commission referred the matter to the Commission for Gender Equality (CGE) – not an organisation known for its efficiency and for the diligence and hard work of its commissioners – who, for once, miraculously did its job and investigated the issue before publishing a report on the matter. (This must have been one of the few times over the past 15 years that the CGE was in the news for anything other than allegations of corruption, infighting and mismanagement.)

As it turned out, the CGE rejected the complaint and found that the guest houses were “serving a legitimate interest in… that they seek to create a comfortable environment for gay men where they can express themselves freely. … It is the commission’s view that accommodation of this nature is necessary in our democratic society to protect or advance legitimate interests of the aforementioned groups,” it said.

Rather surprisingly – given the complete dysfunctionality of the CGE – this finding was perfectly correct and in line with the jurisprudence of the Constitutional Court. Because section 9(3) of the Constitution only prohibits unfair discrimination, it is perfectly acceptable to treat people differently based on their race, sex, gender or sexual orientation if the group who complained about discrimination is not one who has historically suffered from discrimination, if the purpose of the discrimination was for a worthy cause and if the effects of the discrimination was not serious.

One must balance the various interests and must ask whether the different treament was fair, given the important purpose of the different treatment and given the effect of the different treatment on the group who previously benefited from discrimination. If the effect of the present discrimination is so severe that it may affront the inherent human dignity of the affected group, the discrimination will not be fair.

Because the complaint related to heterosexuals who argued they were excluded by the guest house, and because the purpose of the exclusion was to provide a safe space where gay men would not feel unwelcome or intimidated and would not face ridicule or harassment by heterosexual patrons, the discrimination was found to be fair. Besides there are thousands of guest houses in Cape Town open to heterosexuals so the effect on them of not being allowed at these two establishments was really miniscule.

For the same reasons, I have no sympathy with rather selfrighteous (and self-serving) ex-alumni of the University of Cape Town (UCT) who are writing bitter letters to the local newspaper about the fact that the UCT administration has endorsed the formation of a UCT Black Alumni Association. According to these latter day converts to equality and non-discrimination, such an Association is racist and discriminatory because it fails to treat all human beings as equals regardless of race.

One should, so the argument goes, embrace the notion that race is absolutely irrelevant and superfluous if one ever wants to achieve a society and an institution that truly moves beyond race and treats individuals as humans instead of as people with racial identities that are of any importance to anyone.

This is of course a rather laughable argument as it is premised on the fiction that race is irrelevant in our society. The sad fact is that race – and sexual orientation - are not superfluous and hence not irrelevant exactly because racism – and homophobia  – are still all pervasive in our society.

If one belongs to the race (or sexual orientation) not shared by the dominant group in an institution or in society one experience the exclusionary effects of one’s race or sexual orientation (whether one believes that race or sexual orientation are constructs or not) rather profoundly. If one belongs to the dominant race group or sexual orientation group, chances are that one will be oblivious to the exclusionary effect that race or sexual orientation has on those who are “othered”. Because one is always on the side of the “winners” who are not discriminated against one cannot see the discrimination that an institution visits on those who are not like the dominant group.

By insisting that race is irrelevant and superfluous, one is insisting on endorsing and perpetuating the fiction that the characteristics, cultural beliefs and (often unexamined and silent) norms of the dominant group are universal and neutral. One is not aware of how the institutional culture expects conformity to this norm (which is not seen as a norm at all, but rather as something natural and neutral) as the price for equal treatment.

Because the dominant norm according to which decisions about inclusion and exclusion are made is so part of the world view of the dominant white group, they cannot see the exclusionary effect that it might have on those who happen not to share their world view, their race, their sexual orientation (because they do not see that there is a dominant norm or world view at all).

Those who dominate an institution therefore often claim that race (or sexual orientation) is irrelevant to them. They claim to be completely blind to these categories but this blindness is a fiction that can only be sustained if one remains blind to one’s own situatedness in the world. Those who maintain this fiction of being able to be blind to race or sexual orientation do so because they do not realise that it is only irrelevant for THEM because their racial or sexual orientation assumptions dominate in the institution and thus dictate how one ought to behave and what one ought to do to fit in and to be treated equally with everyone else.

If one happens to be a student at UCT (as at many other institutions) and one is not white or heterosexual, one finds oneself in a situation where an institutional culture – without deliberately wanting to – excludes and marginalises one because one happens not to be part of the dominant group. It then denies that experience of marginalisation and deligitimises one’s experience of marginlaisation on the basis that one is obsessed with race (or sexual orientation) – unlike the dominant group who is supposedly blind to these things. It is called blaming the victim.

When the institutional culture in which one finds oneself is premised on the fiction that every student is a white heterosexual English person and then denies this assumption by saying that there is no institutional culture or that the institutional culture has absolutely nothing to do with race or sexual orientation, that it merely reflects a universal standard that all normal people will find unproblematic, then the effects of the discrimination can be particularly egregious.

Hence one is faced either with conforming to a set of norms that are experienced as normal – as “just how the world is” – in order to be treated equally, or one has to accept that one will be marginalised and excluded.

In such a situation it is perfectly acceptable – according to the jurisprudence of the Constitutional Court – to form a racially exclusive Black Alumni Association (especially, as is the case here, where that association is not racially exclusive but open to all) to address the effects of past exclusion and marginalisation. As those who are supposedly the victims of this discrimination are white and part of the dominant group, a court will be hard pressed to find that it constitutes unfair discrimination unless it can be shown that the purpose of such an organisation is to perpetuate patterns of past discrimination (something which would be impossible to show in this case as the purpose of the organisation is to overcome the effects of  past patterns of discrimination).

It is funny that those who insist that an institution should never allow any race based corrective measures and should never refer to race are almost exclusively the beneficiaries of past race based discrimination. They are also almost exclusively members of the dominant racial group (or at least not members of the most discriminated against group) who can afford to claim that race is irrelevant and does not matter exactly because their race – and all the assumptions that go with it - serves as a universal and neutral placeholder.

In South Africa race will remain important for a very long time to come. Claiming that it is irrelevant is to claim that the past 350 years never happened and that the effects of the past 350 years have been wiped out by the stroke of a pen. This is obviously absurd and dishonest. It is also self-serving: if the dominant culture at an institution happens to promote and preserve the racial assumptions and culture of one’s own group, one would want to claim that race does not matter because then one could ensure that the status quo is never disturbed or troubled.

Of course we all would love to move to an utopian society in which a person’s race really does not matter to anyone. But we cannot do that by pretending race does not matter now, when it so clearly does. Racism is all around us and pretending that race does not matter now and that racism does not exist is, in my view at least, merely a less toxic form of racism. All we  are doing when we do that is to try and preserve the status quo which benefits ourselves and which we want to normalise and universalise – something that is inherently unfair and also unconstitutional.

Time for a rethink on marriage, my China

Aug 31st, 2010
by Pierre De Vos.
34 comments

Ordinary South Africans, as well as our courts, seem to have a schizophrenic attitude towards marriage. On the one hand many people – as well as our courts – seem to revere the traditional institution of marriage. From a young age boys and girls are told that getting married would be one of the ultimate milestones in their lives and when the day finally arrives (for some) their families often spend vast amounts of money on wedding dresses, catering and the other bells and whistles that would hopefully make the day a memorable, if rather an expensive, one.

Many fundamentalists Christians argue that marriage between one man and one woman to the exclusion of all others for life (or at least for as long as it lasts – ask Ray McCauley) is something sacred and God-given and rail against the Constitutional Court and Parliament for extended marriage to same-sex couples. 

Despite the fact that section 9(3) of the Constitution states that no one may be unfairly discriminated against on the basis of marital status, our courts have also endorsed marriage as one of the prime organising features of our society (thus indirectly endorsing discrimination against couples who have not tied the knot). As Justice Albie Sachs wrote in his judgment in Minister of Home Affairs v Fourie dealing with discrimination experienced by same-sex couples excluded from the right to marry:

It should be noted that the intangible damage to same-sex couples is as severe as the material deprivation. To begin with, they are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture. It may be that, as the literature suggests, many same-sex couples would abjure mimicking or subordinating themselves to heterosexual norms. Others might wish to avoid what they consider the routinisation and commercialisation of their most intimate and personal relationships, and accordingly not seek marriage or its equivalence. Yet what is in issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice as whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples. It follows that, given the centrality attributed to marriage and its consequences in our culture, to deny same-sex couples a choice in this respect is to negate their right to self-definition in a most profound way.

On the other hand, statistics show that more and more South Africans enter emotional and sexual relationships and live together without getting married or without planning to get married. The “choice” not to get married is often dictated by the skewed power relations between the parties in a relationship. Often men decline to marry their partner because they do not want to encumber themselves with future financial and other obligations, leaving the women in their lives vulnerable and – at the dissolution of the relationship – potentially in dire straits.

Parliament has adopted legislation that recognises polygamous customary marriages and attempts to regulate such marriages and protect the vulnerable partners in such unions – usually the wives – from the harsh consequences that might flow when such unions come to an end. Many other pieces of legislation have also extended legal rights usually associated with marriage to permanent life partners who are not married.

Section 7 of the Recognition of Customary Marriages Act emphasises the fact that all spouses in a customary marriage have equal status and capacity. This section is aimed at protecting both the existing spouse or spouses and the new spouses in a custmoray polygamous union by requiring that the husband must obtain the court’s consent to enter any further customary marriages. The court must also approve the proprietary arrangements of the polygamous marriage to protect all the spouses. Recently the North Gauteng High Court found in the case of Mayelane v Ngwenyama and Another that a failure to register such a polygamous marriage and obtain the court’s consent would make the subsequent polygamous marriage invalid in the eyes of the law.

After details of this judgment became known, newspaper reports speculated on whether President Jacob Zuma had complied with the mandatory provisions of section 7 of the Act. If he had not, the protections afforded by the Recognition of Customary Marriages Act to his subsequent polygamous marriage partners would not apply. President Zuma or any of his spokespeople have not yet commented on these speculations so its impossible to know whether he is complying with the law and whether his other wives are protected by the law or not.

Incidentally, it is rather peculiar that fundamentalist Christians who attacked the passing of the Civil Union Act because it extends full marriage rights to same-sex couples and is seen as a frontal attack on the traditional (Western) definition of marriage as being between one man and one woman, do not object to the provisions of the Recognition of Customary Marriages Act which extend the definition of marriage to include a union between one man and more than one woman. Maybe black people living under customary law are invisible to them and therefore do not count? Or is it just that American fundamentalist Christian groups who inspire and fund our own home grown activists are unfamiliar with these laws?

A report in City Press on Sunday that Gloria Bongi Ngema, President Jacob Zuma’s fiancée, accompanied him on the state visit to China, neatly illustrates the schizophrenic attitude many South Africans have towards marriage. It also casts doubt on the ability of the Recognition of Customary Marriages Act to protect subsequent spouses in a customary marriage and may pose questions about our President’s commitment to gender equality. But that is a topic for another day.

The presidency explained that full payment of lobola and the traditional ceremonies that accompany the payment had been made and that Ngema was thus viewed as his “fiancée and life partner”. She was thus entitled to the same privileges as Zuma’s other wives – Sizakele Khumalo, Thobeka Mabija and Nompumelelo Ntuli – as the government’s spousal policy now gave her the same status as his life partner and fiancée.

Although the legal requirements of section 7 of the Recognition of Customary Marriages Act had therefore not been complied with, Ms Ngema nevertheless had an official status as life partner of the President. If we leave aside for the moment that the law does not yet protect Ms Ngema and that there might therefore be serious problems with the ability of the law to protect vulnerable spouses in polygamous unions (just as there are serious problems with the law protecting vulnerable partners in non-marital life unions), one must concede that the official policy of the Executive regarding life partners is rather progressive.

Unlike the judges of the Constitutional Court (and – when it suits them – Christian fundamentalists) who have often claimed a special place and status for couples who have formally tied the knot, this policy recognises that practically many permanent relationships fulfil the role of what our law recognises (rather narrowly and unrealistically) as legal marriage.

It suggests that maybe it is time to rethink the way in which our law privileges those intimate relationships which have been formalised in law above other, just as worthy and important, relationships which have not been formalised by marriage – either in terms of the Marriage Act, the Civil Union Act or the Recognition of Customary Marriages Act.

Is it not time that we find a way to bring the law in line with the lived reality of millions of South Africans who are in permanent life partnerships but who are, for various reasons, not legally married? Should Parliament not urgently adopt legislation that extends the rights and privileges as well as duties associated with marriage to permanent life partners and do away with the anachronistic legal rules that punish some couples who do not have a piece of paper called a marriage license while rewarding and protecting others who do? 

Should marriage not really be a private affair of little concern to the state, to be entered into at churches, mosques, synagogues, on wine estates or at other venues of choice, but without any legal significance? Should the law not, in a functional manner, recognise and regulate important intimate relationships with one or more life partners in order to protect the more vulnerable partner or partners – regardless of whether they had entered into a valid marriage or not? In this, our President seems to be leading the way. Should we not applaud him, rather than complain that he has taken his girlfriend on an official trip to China?

Ten countries…. and counting

Jul 16th, 2010
by Pierre De Vos.
28 comments

Argentina became the tenth country (and the first in South America) to provide full marriage equality (including the right to adopt children) to same-sex couples late on Wednesday night. There are now about 250 million people worldwide living in jurisdictions which provide for marriage equity. Here is the list:

2001 Netherlands
2003 Belgium
2005 Spain
2005 Canada
2006 South Africa
2008 Norway
2009 Sweden
2010 Portugal
2010 Iceland
2010 Argentina

When the South African Parliament, following a judgment of the Constitutional Court, legalized same-sex marriage in 2006, many people argued that it would spell the end of marriage as we know it. Some also argued that it represented a full frontal attack on marriage as an institution and that it would lead to the eventual destruction of marriage.

I never understood this argument. I have never met anyone who has said: “Well, now that gay men and lesbians can get married, I think it is time to divorce my spouse.” Neither have I heard anyone say: “Well, I was going to get married, but now that the homosexuals have spoilt it for the rest of us by organising such fabulous weddings for themselves, I have decided I will rather continue living in sin with my girlfriend.”

The argument that marriage is essentially focused on procreation also makes no sense. As the Constitutional Court pointed out, this argument – if followed to its logical conclusion – would suggest that heterosexual couples who do not plan to have children or cannot have children – either for medical reasons or because they are too old – should then also not be allowed to get married. (And, besides, many same-sex couples do procreate with the assistance of others, so the very premise of the argument is factually incorrect.)

The truth is, of course, that the movement for marriage equality is a conservative one. Its aim is to “normalise” same-sex love and desire and to demonstrate that same-sex couples can basically be just like heterosexual couples. We fall in love, we fight, we have children, we marry, we fight some more, we divorce and sometimes – just sometimes - we live happily ever after. If one is truly conservative and truly revere marriage and monogamy (which, some studies show, is a rather difficult thing to achieve in a long term relationship), one should support same-sex marriage.

But this many conservatives cannot do, because then they will have to let go of their prejudices against gay men and lesbians. And as we know too well, for many people nothing is more precious and more jealously guarded than their own prejudices.

For progressives, the issues are more complex. Obviously, given the fact that marriage still bestows on couples both the full package of legal rights as well as an elevated status in society, marriage should be open to all consenting adults. To hold otherwise would be to discriminate against a group of people for no other reason than because of the moral or religious views of a majority of citizens. It would signal that the state does not believe that the group has the same inherent human dignity than everyone else in society – which is not tenable in a constitutional state.

But marriage is also problematic because it provides special rights for those who have managed to tie the knot. Many people do not want to get married (seeing that it is still associated with patriarchy and the oppression of women) and many others cannot marry because they are the financially and/or emotionally weaker person in the relationship and their partner refuses to marry them.

This refusal is often based on emotional callousness, fear of commitment, or financial considerations. But regardless the reasons, the fact remains that the less empowered partner has no say in the decision at all. Such couples do not enjoy the same status or the same legal protection as married couples do – despite living in relationships that look very much like traditional marriages – and the vulnerable party in such a relationship is therefore not fully protected by the law.

Last year the government tabled a draft domestic partnership Bill to try and address this problem, but nothing has come of it. Perhaps with that serial divorcee and ex-body-builder, Ray McCauley, cozying up with one of the greatest believers in marriage (if not monogamy), President Jacob Zuma, it is not surprising that this Bill has not been taken forward.

The Bill, if it is ever passed, would be bad news for all those men who have girlfriends and do not marry them (either because they are already married or because they do not want to commit themselves emotionally and financially to one person) as it would create some legal rights and duties for people involved in such relationships. Men who have many girlfriends would fear such a law as they would have to start paying up. And it is not every man who wants to be the boyfriend of Khanyi Mbau (or can afford to be).

Christine, give them hell!

Jul 14th, 2010
by Pierre De Vos.
24 comments

Multinational steel retailer, Bohler Uddeholm Africa, is probably going to regret the fact that it ever employed Chris(tine) Ehlers. Hopefully the company will also, at some point, begin to regret that its management is filled with people who act like bigots. Christine Ehlers, who was fired as a sales assistant after her employers discovered that she had begun a series of sex change procedures in 2008, is taking her case to the Labout Court.

Christine is a transgendered person because she was born into the body of a man but realized that she was really a woman and is now altering her body to bring her body in line with her own deeply held view of her sexual status. She claims in court papers that she was fired as a sales representative for the company “on the grounds of her sexual status”. In the papers, she quotes from the findings of a disciplinary inquiry which justified her firing as follows:

It was also determined in discussion with management that the position is distinctly for a male employee and the applicant (Ehlers) [has] already got distinct female features that create a difficult situation…. In the end, the employer has to protect its business and may demand a certain standard of acceptability from its representatives in relation to its customers. I find myself in a difficult situation in that the employee argues that she can still function in the exact same manner as she would have as a man. The employer argues, on the contrary, that it is an international concern that has to protect its image in the market in the metal industry, which is predominantly male-orientated.

Well, this argument is not constitutionally tenable. Section 9(3) of the South African Constitution prohibits unfair discrimination on the grounds of sex, gender and sexual orientation. In the case of National Coalition for Gay and Lesbian Equality v Minister of Justice the Constitutional Court stated that the concept of “sexual orientation” as used in section 9(3) of the 1996 Constitution “must be given a generous interpretation” and thus applies equally to the orientation of persons who are “transsexual” (another, less politically correct, term for transgendered). Christine was thus obviously discriminated against on the basis of her sexual orientation.

But she was also discriminated against on the basis of her sex and/or gender as the job she was doing – as a sales representative – was explicitly reserved by the company for men only. This was not done on the basis that only men could possible do the job (as would have been the case, say, if the job entailed playing for the Springbok Rugby team), but rather on the basis that its customers would not like it if women tried to sell them the company’s products. Her employment as a sales assistant had “compromised the image” of the company in the industry.

Boy what a bigoted industry that must be!

Of course women can also sell stuff – including heavy machinery and other products usually associated with the male world (my car was sold to me by a fantastic woman called Heather) – but the company felt that the customers would not want to buy heavy machinery from a woman, especially (so it seems) not from a woman who used to be a man.

South African Airways used a similar argument after a man who had been accepted for employment as a cabin attendant by SAA, challenged a decision by SAA not to employ him when they discovered that he was HIV positive. In a beautifully written judgment by our present Chief Justice, Sandile Ngcobo, the Constitutional Court rejected this argument by SAA, stating that:

Legitimate commercial requirements are, of course, an important consideration in determining whether to employ an individual. However, we must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests. The greater interests of society require the recognition of the inherent dignity of every human being, and the elimination of all forms of discrimination. Our Constitution protects the weak, the marginalised, the socially outcast, and the victims of prejudice and stereotyping. It is only when these groups are protected that we can be secure that our own rights are protected….

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.

If Bohler Uddeholm Africa had been aware of these precedents, it would not have justified the firing of Christine on the basis that its customers wanted to deal with “real men” – which precluded them from employing women as salespersons (whether those women used to be men or not). Given that it has done so, it is almost certain to lose its case in the Labour Court.

Here, being a man was not really an inherent requirement of the job as any woman with the requisite skills could also sell the company’s products to customers. The fact that customers would prefer not to deal with a certain salesperson because that salesperson is a woman (or black, or gay or a Muslim, for that matter) was therefore always legally irrelevant and could not be used to justify the discrimination. As Justice Ngcobo said: prejudice – even the prejudice of one’s customers – cannot ever justify discrimination. “Finish and klaar,” as Jackie Selebi might or might not have said if confronted with this case.

Incidentally, South Africa has one of the most progressive pieces of legislation dealing with transgendered citizens. The Alteration of Sex Description and Sex Status Act of 2003 allows anyone whose “sexual characteristics” have been altered by surgical or other medical means (or anyone who is intersexed) to apply for a change of their sex status with the Department of Home Affairs.

The definition of sexual characteristics in the Act is extremely broad and one needs not have concluded the surgical process of altering one’s body completely from male to female or from female to male to qualify in terms of the Act to have one’s sex status hanged. As long as one has started the process of transferring from a man to a woman or from a woman to a man (and as long as the technical requirements prescribed in the Act are met), the Department of Home Affairs must issue you with a new ID book and passport recording your newly acquired sex.

This Act was necessary to protect the human dignity of transgendered and intersected individuals who previously had to endure terrible trauma when, for example, traveling to another country on a passport that still reflected your previous sexual status. By passing this law our Parliament did a great and progressive thing – not waiting for our Courts to force them to do the right thing.

Good for them. Now, Christine, give those men hell!

Discrimination is indivisible

Jun 24th, 2010
by Pierre De Vos.
87 comments

Back in the heady days after the 1994 election South Africa professed to base its foreign policy on human rights principles. When the Nigerian government executed activist and environmental journalist, Ken Saro-Wiwa, Nelson Mandela called it a “heinous act”. But Thabo Mbeki soon put a stop to such folly, aligning South Africa instead with the Africa block and with its fair share of tyrants and dictators – regardless of any human rights considerations.

It was therefore not surprising when South Africa abstained from endorsing the first ever statement on Human Rights, Sexual Orientation and Gender Identity (which was backed by 66 states including six African countries) read at the United Nations General Assembly at the end of 2008.

The latest outrage came this week when the South African representative to the United Nations Human Rights Council (UNHRC), Jerry Matjila, refused to support efforts at the UN to protect gay men and lesbians against discrimination. The council was discussing a report of the Special Rapporteur on Racism, Githu Muigai, of Kenya, which said that “the identity of each individual is made up of a multitude of components, such as gender, age, nationality, profession, sexual orientation, political opinion, religious affiliation and social origin”. Replying later in the debate, Matjila said the rapporteur’s inclusion of sexual orientation “demeans the legitimate plight of the victims of racism”.

To its credit, the Democratic Alliance – via a statement issued by Kenneth Mubu, a DA MP – deplored this cowardly and reactionary position taken by the South African government and made the following telling point:

In the wake of the recent events in Malawi and Uganda, South Africa’s rejection of the inclusion of sexual orientation as a means of discrimination seems like an act of appeasement to certain African countries with poor human rights records, rather than taking the principled position, and setting an example on human rights which other African states could look to.

Mr. Matjila’s objection and the reasons given for it, display a rather shocking lack of respect for human rights and the values enshrined in our Constitution. His view also endorses a rather formalistic and very limited understanding of discrimination that cannot be squared with the expansive view regarding discrimination endorsed by our Constitution as interpreted by South African courts or by international human rights bodies and experts.

If Mr Matjila really believes that linking sexual orientation discrimination with racial discrimination demeans the victims of racial discrimination, he is obviously a bigot and a homophobe. His view can only be sustained if one believes that there is something inherently shameful or disgusting about being gay or lesbian and that the victims of racial discrimination would therefore be somehow tainted by being associated with the plight of a small and vulnerable minority persecuted in many parts of the world.

If this view is shared by the South African government and of our President, then our government has been highjacked by a group of reactionary, hateful, bigots. If it is not a view shared by our government, it has a duty to clarify its position. As it stands, it is very difficult not to conclude that the government has turned its back on gay and lesbians in South Africa and elsewhere in the world, and that it has endorsed the views espoused by religious hate-mongers and fanatics – the Sarah Palins of the USA and the Yoweri Museveni’s from Uganda, amongst them.

Do we really want our government to become bedfellows of such unsavory characters?

The stance of the South African government is also in conflict with the accepted principle – endorsed by our constitutional text as well as international human rights bodies – that discrimination on different grounds often intersect and that it can only be rooted out if this intersectionality is recognized and addressed.

Individuals are often discriminated against for more than one reason, which makes the discrimination suffered by the victim so much more egregious. A black woman, say, will often experience discrimination both because she is a women and because she is black. It is now widely accepted that a failure to recognize this fact can lead to a masking of some kinds of discrimination and can lead to the endorsement of certain types of discrimination against a vulnerable group.

This is why section 9(3) of the South African Constitution prohibits anyone from discriminating against somebody “on one or more grounds”. One can therefore allege that one has been discriminated against on several grounds, which prevents a court from turning around and saying, well, you claim to have been discriminated against because you are a woman, but you were really discriminated against because you are black, so you lose your case.

It is impossible to compartmentalize the kinds of discrimination suffered by victims (as the South African representative was trying to do) because the degree of the harm suffered by victims often depend on a multiplicity of factors. The cumulative effect of such overlapping discrimination can often be harsh or even deadly – as the family of Banyana Banyana player, Eudy Simelane – who was raped and murdered because she happened to be a black lesbian – can all too tragically attest.

The Report by the Special Rapporteur on Racism was obviously recognising this problem, but the South African representative was either too reactionary or utterly lacking in understanding of the real life nature of discrimination, to recognize or accept this. It is bitterly ironic that a representative from South Africa, a country with a long and sickening history of treating some people as second class citizens because of one or more attributes or characteristics, has displayed such ignorance about the way in which discrimination operates in real life.

It might be that Mr Matjila is a lovely and caring person with love in his heart and that he was merely saying such reactionary and ignorant things because of instructions from Pretoria. It might also be that those who sent the instructions from Pretoria are deeply committed to equality and abhor discrimination of any kind, but have decided to act in this unprincipled and immoral manner, denying the human dignity of a section of the worlds population, in order to gain some diplomatic advantage with tyrants and dictators elsewhere in Africa.

That, however, would not excuse the impugned behavior. It would be up there with the actions of Ronald Reagan and Margaret Thatcher who supported the apartheid government because of strategic reasons. The ANC rightly lambasted those leaders at the time and pointed out that history would judge those leaders harshly for their cowardice and immorality. History, similarly will judge the South African government – who used to support the rights of gay men and lesbians – harshly for trowing a vulnerable and marginalized group to the wolves. Whether it was done because of bigotry or because of pragmatic considerations, it remains shocking and unacceptable.

No blood-filled dreams of dread

May 17th, 2010
by Pierre De Vos.
120 comments

Today is “International Day Against Homophobia and Transphobia”. To mark this day several religious leaders, including Laurie Gaum, Bishop David Russel and Dean Rowen Smith, have called on South Africans to honour the Constitution and have signed a memorandum on the role of “religious fundamentalism and patriarchy” that have caused an increase in homophobia in South Africa in the past few months. The religious leaders referred to increased homophobia on the content and attempts to pass legislation permitting the death sentence for gay people.

muholi04a

The statement comes in the wake of the rape and murder of many lesbians in South Africans over the past few years. This includes the gang rape and brutal killing of Eudy Simelane, former star of South Africa’s Banyana Banyana national female football squad. Simelane was found in a creek in a park in Kwa Thema, on the outskirts of Johannesburg and had been brutally beaten before being stabbed 25 times in the face, chest and legs. As well as being one of South Africa’s best-known female footballers, Simelane was a voracious equality rights campaigner and one of the first women to live openly as a lesbian in Kwa Thema.

Our Constitution prohibits discrimination against gay men and lesbians and over the past 16 years the judges of the Constitutional Court (bless their souls) have steadily extended the same rights accorded to heterosexuals and their relationships to gay men and lesbians and our relationships. In fact, same-sex couples have slightly more rights than heterosexual couples because some of the rights enjoyed by same-sex married couples were extended to non-married same-sex couples before the passing of the Civil Union Act. These rights did not automatically fall away when marriage rights were extended to same-sex couples.

Despite this wonderful legal protection, many gay men, lesbians and trangendered South Africans live in fear. We can be ridiculed, attacked, or even killed merely because we are different from the “ideal citizen” postulated by our colonial masters. This homophobia stems from fear, ignorance and a misplaced endorsement of patriarchy and the perverted morality of right-wing religious groups.

As Susan Sontag remarked, the traditional Judeo-Christian view of morality (thankfully not shared by all Christians), centres almost exclusively on sex and sexual acts. To be viewed as moral within this tradition is either to abstain from sex (as Priests are supposed to do but clearly often do not) or to contain sexual thoughts and acts within the “safe” confines of a patriarchal heterosexual marriage – to be whispered and sniggered about but never to be admitted in polite company.

A world in which poverty, homelessness, hunger and racial discrimination thrives while we live in mansions in Sandton and wear R250 00 watches is viewed as regrettable, but it is not seen as a morally perverse world in serious need of change. We drive, without another thought, past a hungry child begging on a street corner but shout out in horror when we hear that child is selling his or her body to make ends meet. It is said, after all, that the poor will always be with us. But, alas far too many people think that gay men and lesbians can be “corrected” through therapy or – in extreme cases – rape. 

According to this extremely perverted notion of morality, if two consenting adult men or women love each other and have sex with one another, this becomes a perversion that threatens the very existence of Christian morality (the so called “moral fabric” of our society) and is seen as far more problematic than the social and economic deprivation that robs people of their dignity and sometimes their lives. (On a lighter note, I have always wondered what this “moral fabric” might be and have speculated that maybe it is the fabric used to make wedding dresses from.)

Ironically this deeply entrenched Western view of sex and morality was brought to Africa by missionaries and imperialists and has been embraced all over Africa by new rulers and citizens. Often wrongly claiming that a more permissive view on sexuality is “un-African”, many Africans embrace the very homophobia that was imported to Africa by our colonial masters. Those who hold this view do not realise that their minds have been colonised by the imperialists and that they are merely endorsing the kind of hateful views put in their heads by our erstwhile oppressors.

When the Minister of Arts and Culture, Lulu Xingwana, storms out of an exhibition of photographs of Zanele Muholi (see photographs above and below) in disgust because the pictures are viewed as “pornographic” she is displaying for all to see, how her mind has been colonised by her erstwhile oppressors. Xingwana, it will be recalled, said that: “Our mandate is to promote social cohesion and nation-building. I left the exhibition because it expressed the very opposite of this. It was immoral, offensive and going against nation-building.”

Muholi 3578077924_f560855c63

This nation she talks about is a nation who must be built in the image of the ertswhile white colonial oppressor: one that is filled with “pure”, heterosexual, individuals who endorse the patriarchal values of a bygone era, one in which men are men and women know their place and where the individuality and diversity of society is repressed and stamped out in order to exert a deeply oppressive social control over the desires and dreams of ordinary citizens.

What is “un-African”, of course, is not homosexuality, but homophobia. Although different communities in Africa have dealt with same-sex sexuality differently (some accommodating it through according the men and women who were “different” a special role in their societies and other repressing or ignoring such desires and impulses), the notion of “the homosexual” that could be vilified, discriminated against, harassed, raped and murdered did not exist in pre-colonial Africa. It was a concept brought to Africa and along with this concept came the inevitable homophobia now masquerading as African values and cultural traditions.

We have a long way to go to ensure that the legal rights enjoyed by gay men, lesbians and transgendered South Africans are translated into a better life of dignity and respect for all South Africans who do not conform to an outmoded and perverted notion of what is normal and acceptable. The hatred and violence experienced by many gay men and lesbians (especially those who are not rich and cannot afford to live in leafy suburbs where they go to dinner parties and gay clubs) will not disappear before we begin to free our minds of the colonialist ideas about morality.

Sadly, our politicians either remain quiet about this or through their silence or their remarks they endorse the hateful homophobia that contributes to the harassment and violence of gay men and lesbians. How many political parties will issue a statement today condemning homophobia and celebrating the rights of a significant, yet often hated and vilified, minority in South Africa?

Until our leaders speak out about homophobia, the rape and the killing will continue. And like PW Botha, they will sleep soundly at night because they obviously do not take their conscience with them to bed. Unlike Lady MacBeth there will be no blood-filled dreams of dread.

So who are the perverts?

Mar 26th, 2010
by Pierre De Vos.
8 comments

During the same-sex marriage court case and at public hearings preceding the adoption of the Civil Union Act, the South African Catholic Church was one of the groups that vehemently opposed the extension of full marriage rights to same-sex couples. The Church in effect argued that the law should not recognise the equal dignity of gay men and lesbians as we are sinners who, if we act on our emotional and sexual desire, are nothing more than perverts.

Now the Pope, the very head of the Catholic Church, has been directly implicated in mishandling the case of a paedophile priest in his former archdiocese of Munich. According to the New York Times, the then Cardinal Joseph Ratzinger was copied in on a memo from his deputy in which the priest was transferred to parish duties in Bavaria that brought him into contact with children. As a result of that decision by the then vicar-general, Father Gerhard Gruber, the priest was able to continue abusing boys, for which he was later tried and convicted.

One suspect the authority of the Catholic Church to confidently condemn others who have not abused or exploited anyone but have merely decided to stop living a lie and to follow their hearts, have been fatally compromised. As is often the case, Zapiro captures the hypocrisy of the Pope in a stark visual image.

26mar10xzapiro-344

Moral code? Nah, let’s rather get rich quick and oppress women and gays

Mar 9th, 2010
by Pierre De Vos.
45 comments

It is, to say the least, rather ironic that President Jacob Zuma has called for a national debate on the “issue of a national moral code” around the same time that it emerged that he himself was flouting the law, that his Minister of Arts and Culture holds hateful views about gay men and lesbians, and that Julius Malema has enriched himself at the expense of the poor and has failed to pay any taxes on his ill-gotten gains.

Now that is what I call chutzpah! Unfortunately, the President’s recent actions and utterances as well as his resolute silence about flagrant unethical behavior by members of his own party and his government, suggest that this chutzpah is born out of ignorance, bigotry and a lack of an own, constitutionally acceptable, ethical compass.

Making the proposal, our President said that using one’s own culture to judge others is unconstitutional. According to Zuma:

Each one of us must be respected. That’s what our Constitution says. No matter how you feel — some of us have very strong feelings about some of the things — we respect the Constitution, no matter how we feel…. We cannot be expected, all the time, to be respectful to others when others are not respectful to us and others.

The President is wrong on so many counts, spectacularly and ignorantly so.

It is nonsense to say that it is unconstitutional to use one’s own culture to judge others. What kind of fascist mind-set is that? The Constitution guarantees for everyone the right to freedom of thought and opinion. In our personal capacities we have a constitutional right to use our own cultural, religious or ethical beliefs to judge others, and we all do – all the time.

If one happens to be a Catholic, say, or an African traditionalist, and holds homophobic and bigoted views about gay men and lesbians, one is free to hold such opinions and to express them – as long as it does not amount to hate speech. If one is a feminist and one happens to believe polygamy is a sexist and patriarchal institution designed by lecherous and immoral old men to enforce the sexual and economic exploitation of women, one is equally free to hold and express such opinions within the limits of the hate speech laws.

For example, we have no constitutional duty to respect the values, beliefs and practices of pedophiles, rapists, murderers, racists, sexists or thieves.

Moreover, the President cannot hide behind the Constitution to avoid criticism of his own beliefs and actions which many people believe to be exploitative and immoral and lacking in honesty and integrity. Of course, depending on one’s own ideological, religious, moral or ethical views one may agree or disagree with this belief, but everyone has a constitutional right to hold and express their views on the moral probity of the President. A moral code that precludes us from either supporting or opposing the President’s private and public statements and actions will directly conflict with the rights in the Constitution and could therefore not be of any use to the President.

In a heterogenous society like ours with its many different cultures and beliefs, it would of course be prudent to strive to understand and respect the beliefs and cultural practices of others in as much as those beliefs and practices do not conflict with the values enshrined in our Constitution. But some beliefs and practices (like the President’s polygamous lifestyle based on sexism and patriarchy or Minister Lulu Xingwana homophobic hatred of black lesbians) would harm others and would perpetrate more hatred and prejudice against women and against gay men and lesbians and it would thus be unethical (but not unconstitutional) to harbor or express such prejudices in a personal capacity.

What our President does not seem to understand is that some beliefs and practices – whether inspired by our cultural and religious views or our own sense of morality - are themselves inimical to a constitutional state based on the values of human dignity, equality and freedom and as such we have an ethical duty to reject them. The government of the day also has a constitutional duty to protect people from such practices (although the beliefs on which they are based are usually beyond the reach of censure) through legislation and law reform by passing hate crimes laws and by outlawing cultural and religious practices that subjugate women, say, or endorse societal prejudice against gay men and lesbians.

The President and cabinet members – who have a duty to uphold the Constitution and the law – do not only have an ethical but also a legal obligation to reject such harmful beliefs and practices or at least not to endorse them in public. This is something dear Minister Lulu has failed to grasp. Thus she objected to works of art that portrayed black women in intimate situations because it “stereotyped black women” and refused to open an art exhibition where these works were displayed.

By saying this, the Minister revealed how immoral she herself is and how she has failed to uphold the values enshrined in the Constitution. If she believes that depictions of black women in intimate poses stereotype black women, she must obviously believe that it is a bad thing for black women to be intimate with one another. If she was not a homophobic bigot, she would have celebrated those works of art as affirming the life experiences, with all its complexities, of black lesbians. Instead, she revealed just how immoral she was by endorsing hatred and prejudice against black lesbians, the very attitudes which have led to the murdering of many black lesbians in South Africa over the past few years.

President Jacob Zuma’s moral code is a non-starter if it does not take the Constitution as its starting point. But as Zuma is not a great fan of the law or the Constitution – unless he can use it to escape prosecution for bribery and corruption – he has reportedly tapped a religious group headed by soon to be twice divorced Ray McCauly to lead the discussion. Heaven help us. That is like asking Schabir Shaik to lead a discussion on business ethics and anti-corruption measures.

Any discussion about a moral code will have to take as its starting point respect for the human dignity of all. It will have to assume that a shared constitutional morality is based on a REJECTION of cultural beliefs and practices which refuse to respect the human dignity of some members of society because they happen to be gay and lesbian, or because they happen to be women or because they happen to be white or black or colored or Indian or they happen to be poor.

Such a code would also have to embrace respect for values of integrity and honesty and will have to reject a value system which valorizes materialism and the bling culture above all else and endorses breaches of the law or stealing from the poor “because we have not struggled to be poor” or because the theft or criminality is perpetrated by persons of a particular race or political party. Such a code would therefore require a complete rethink of the moral values of a large section of the present leadership of the ANC – including that of the ANC Youth League Leader, the Minister of Arts and Culture and the President himself.

Nah, not going to happen. Let’s rather get rich quick by stealing from the poor and by oppressing gays and women while flouting the law. I am sure our President will support a moral code based on these “sound” values. After all, it would not require any change in behavior from many in the present government leadership.

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