Constitutional Hill

Sexual orientation

Open letter to President Jacob Zuma

Jan 19th, 2010
by Pierre De Vos.
209 comments

Dear President Jacob Gedleyihlekisa Zuma

The media is reporting that you may appoint Jon Qwelane as South Africa’s ambassador to Uganda. I trust these reports are wrong and that the rumours about the imminent appointment of Qwelane were started by your enemies. Surely such damaging rumours have been spread by those who wish to re-enforce racist and Afro-pessimistic stereotypes about our leaders. Such rumours will obviously tarnish your name and will re-enforce widely held perceptions about your alleged lack of commitment to our Constitution and the values enshrined in it.

In terms of section 84(2)(i) of the South African Constitution you are empowered to make ambassadorial appointments. In exercising this power, you have a wide discretion to appoint fit and proper individuals of any political persuasion – as long as you act rationally and do not make appointments in bad faith. (You obviously have a sense of humour in this regard as you even appointed the former leader of the official opposition, Tony Leon as South Africa’s ambassador to Argentina.)

As a constitutional law scholar I have to point out that your power is not unlimited. You may not appoint someone as an ambassador if such a person had paid a bribe or if he or she is fundamentally opposed to the values and rights enshrined in our Constitution as this would be irrational, arbitrary or capricious – given the fact that you have a duty to uphold the Constitution and promote the values enshrined in it. You have, I need to point out, a duty – when appointing ambassadors – to act in terms of the law and the Constitution.

When you took office you swore an oath of office (contained in Schedule 2 to the Constitution) and you promised on that glorious day that you would “obey, observe, uphold and maintain the Constitution and all other law of the Republic”. You also promised to “protect and promote the rights of all South Africans and to do justice to all”.

The appointment of Jon Qwelane as ambassador to Uganda will not promote the rights of gay men and lesbians living in South Africa or elsewhere in Africa or the world. In fact, such an act would present a fundamental breach of your solemn promise to uphold and maintain the Constitution and the law as it will encourage hatred, bigotry and even violence against a vulnerable minority of South Africans – something prohibited by section 9 of our Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act.

Qwelane has written that he agrees with the sentiments expressed by President Robert Mugabe that homosexuality:

Degrades human dignity. It’s unnatural and there is no question ever of allowing these people to behave worse than dogs and pigs. If dogs and pigs do not do it, why must human beings? We have our own culture, and we must re-dedicate ourselves to our traditional values that make us human beings… What we are being persuaded to accept is sub-animal behaviour and we will never allow it here. If you see people parading themselves as lesbians and gays, arrest them and hand them over to the police!

He also wrote that “something is rotten in this country, seriously stinking”, referring to the Civil Union Act – which you promised to uphold – as the “stabani Act”. He also slammed the Constitutional Court for wanting “to make this country the “trahssie” capital of Africa.” In addition to his bigoted opinions, the use of the words “stabani” (a derogatory term for gay) and “trahssie” (derogatory term for an inter-sexed person) are particularly repulsive.

He has also equated homosexuality with bestiality and claimed that he prayed “that some day a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the Constitution of this country, to excise those sections which give licence to men ‘marrying’ other men, and ditto women”. Qwelane therefore believes that many South Africans like myself are no better than animals and that we have no right to have our dignity and equality protected.

He is a bigot who hates a group of fellow South Africans who cause no one any harm – for no other reason than the fact that they are emotionally and sexually attracted to members of the same sex. Mr Qwelane hates us because we happen to love differently than he does (assuming that he is capable of love at all).

As you might know, the Ugandan Parliament is presently debating a Bill that would impose the death penalty (which was outlawed in South Africa many years ago) on “repeat offenders” guilty of the “crime” of homosexuality. The appointment of Qwelane as South Africa’s ambassador to Uganda would send a signal to all gay men and lesbians in South Africa, Uganda and the rest of the world that our government does not object to this Bill and that people like myself are deserving of the death penalty.

Worse, it will send a signal to bigoted and homophobic South Africans that our President and the government he leads, at best, turns a blind eye to the humiliation, degradation, assault and killing of gay men and lesbians and, at worse, endorses such behaviour. This would encourage more hatred and violence against gay men and lesbians in South Africa, who are often targeted for attack by hateful bigots who do not believe that every human being has the inherent human dignity that guarantees them equal concern and respect – regardless of their differences from the majority.

The appointment would also constitute a grave affront to the family of women like Eudy Simelane, former star of the Banyana Banyana national female football squad. Simelane was found dead in a creek in a park in Kwa Thema, on the outskirts of Johannesburg after being gang-raped and brutally beaten before being stabbed 25 times in the face, chest and legs - all because she was a lesbian. Many other lesbians have been attacked and killed over the years because of the attitudes propagated by people like Qwelane. In that regard, he has the blood of fellow South Africans – many of them women – on his hands. If you appoint him, you will similarly have blood on your hands.

It is unthinkable that you would appoint as an ambassador a racist man or woman who has written extensively about his or her hatred of black South Africans. This would be rightly unthinkable, given our traumatic past in which so many human beings were oppressed, humiliated and attacked, not because of what they did but merely because of the way they were born. Surely then, it must be equally unthinkable that you would appoint Qwelane as an ambassador to Uganda as he believes that those of us who happen to have been born gay or lesbian are worthy of vilification, hatred and discrimination.

Given the constitutional prohibition against sexual orientation discrimination and the fact that you had sworn a solemn oath to uphold the Constitution and to promote the rights of all South Africans, the appointment of Qwelane will signal a profound disrespect for the Constitution, the law and for a small but vulnerable section of our society. It would also confirm what some pessimists have been fearing, namely that you are not a man of your word and that you do not adhere to promises made – even when those promises were made under oath in front of the whole nation.

I still hope that the rumours about the appointment of Qwelane are no more than an ugly smear-campaign launched by political opponents to discredit you and tarnish your name and the name of the ANC which you lead. Please Mr President, do not besmirch your name and do not besmirch the name of the ANC, who fought for our liberation and ensured that the rights of gay men and lesbians are protected by our Constitution.

Kind Regards

Pierre de Vos 

Just a jump to the right?

Sep 14th, 2009
by Pierre De Vos.
75 comments

What kind of democracy do we want in South Africa? Do we want a Westminster style winner-takes-all democracy with Parliamentary supremacy in which the majority of the moment can do as it pleases – regardless of the consequences to vulnerable and marginalised sections of society? Or do we want a constitutional democracy in which the majority of the moment is constrained by a set of normative values and human rights safeguards set out in a Constitution in order to bestow equal citizenship on all – regardless our differences?

I am asking because the Mail & Guardian reported on Friday that the National Interfaith Leadership Council (NILC), formed by Rhema church leader Ray McCauley and closely associated with President Jacob Zuma, wants to revisit laws legalising abortion and same-sex marriages.

The NILC last week also attacked FUL for launching a legal challenge against the JSC decision to sweep the Hlophe scandal under the table.  Nthabiseng Khunou, an ANC MP and member of the NILC secretariat, told the Mail & Guardian that the council would “play a role” in revisiting legislation legalising abortion and gay marriage. At least four of the 20 members of the NILC are reportedly ANC members of Parliament and the M&G claimed that the NILC uses the ANC parliamentary caucus’s communication facilities to communicate with the media, as two NILC press statements were sent from the ANC’s offices in Parliament.

When the same-sex marriage legislation was discussed in the ANC caucus before it was passed by Parliament, many ANC MP’s expressed vehement disapproval of the legislation, some doing so in the most ugly homophobic terms. During the public hearings in Parliament on the legislation some ANC MP’s expressed concern that the legislation would lead to the extension of adoption rights to gay couples, blissfully unaware that the Constitutional Court had already extended that right to same-sex couples several years ago.

One hopes that the Mail & Guardian report is a little alarmist and that the majority of ANC MP’s and members of its NEC are neither right-wing, nor homophobic. Nevertheless, it is worrying that there seems to be a growing lobby in the ANC who are right-wing and hate gays and lesbians. After the Polokwane revolution, many commentators argued that the ANC would now move to the left, but that prediction seemed to have been wildly optimistic. Are we seeing a jump to the right instead?

Of course it will not be easy to take away the right of same-sex couples to get married. The Constitution will have to be changed first. And many good people inside the ANC are dead-set against changing the Constitution in order to reintroduce discrimination against gay men and lesbians, condemning us to second-class citizenship.

Some would argue that the Constitution should be changed to allow for the reintroduction of discrimination against gay men and lesbians and the subjugation of woman living in rural areas because that is what the majority of South Africans want. Respect for the dignity of women and gay men and lesbians, so the argument goes, are not in accordance with “African values and traditions”, “Christian or other religious teaching”, “Afrikaner culture”, “public morality” etc. 

This view cannot be squared with the notion of a constitutional democracy. In such a democracy – established by the 1996 Constitution - the views of the majority (no matter how sincerely held) cannot always be used to justify discrimination against vulnerable and marginalised sections of society. Justice Sandile Ngcobo said it well in the Hoffmann v SAA judgment dealing with HIV discrimination:

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.

I obviously subscribe to the notion of constitutional democracy. That is why I believe in religious freedom and the right of religious organisations to discriminate against gay men and lesbians. If a religious group refuses to marry a same-sex couple or prohibits its clergy or ordinary members from loving members of their own sex, I might point out that they are animated by prejudice, bigotry and hatred, but I would not advocate for a closure of the church or for an incarceration of its leadership. Live and let life, I say.

The folks of NILC are a bit less tolerant, it seems, and want the law to reflect their own prejudices and to endorse their own bigotry. This is rather short-sighted as it assumes that one’s own view will always be the majority view. But societal views change and none of us can say with certainty that we would not find ourselves as part of a vulnerable and marginalised minority at some point during our lives. We may discover we are HIV positive or we may suddenly belong to the “wrong” faction in the ANC. It is then that a constitutional democracy will protect us from mob rule.

Pity so many religious leaders cannot understand that it is short-sighted and dehumanising to want to enforce your own views on the society as a whole. Why are they so insecure about their teachings that they want the state to police the teachings of their church? Are they somehow worried that ordinary people would reject the fairy tales they tell every Sunday? Don’t they have any FAITH?

On sex, gender, sexual orientation and a world champion

Aug 20th, 2009
by Pierre De Vos.
104 comments

Caster Semenya (pictured) won a gold medal for South Africa in the 800 meters at the world athletic championships amid a storm about her “gender” or “sexual orientation”.  Newspapers report that the International Association of Athletics Federations (IAAF) ordered a “gender verification test” for Semenya a few weeks ago.

The ANC called on South Africans to “rally behind our golden girl and shrug off negative and unwarranted questions about her gender”, said ANC spokesperson Brian Sokutu in a statement on Thursday. “This smacks of racism of the highest order. It represents a mentality of conforming feminine outlook within the white race,” the Young Communist League said in a statement on Thursday. “The [Venus and Serena] Williams sisters were never subjected to such public humiliation as is done by the international athletic body. Is it because they are of American descent?” read the statement.

Of course, most of us will rejoice about this triumphant victory for the young women from my home province of Limpopo.  Personally I am also glad that individuals and organisations who have been conspicuously and criminally silent on the murders of other women who did not conform to feminine gender stereotypes have suddenly decided to give support to Semenya. Better late than never. I cannot wait  to go on a march and toyi-toyi alongside masses and masses of ANC, COSATU and Young Communits League leaders the next time we protest against the homophobia amd gender-prejudice so embedded in our society and  our Police Force.

Maybe this is a “teaching moment” that will educate many of the bigots in our society about the need to respect individuals who do not conform to gender stereotypes – whether those individuals are men who are thought of as effeminate or women who are thought of as masculine or challenge these stereotypes in other ways.

The media reports are, however, tinged with sensationalism, prurience and conceptual confusion. Journalists do not seem to understand the difference between “sex”, “gender” and “sexual orientation”, conflating all three in reports on Semenya.

“Sex” is of course generally thought to refer to the biological characteristics of an individual – whether one is biologically a man, a woman or intersex. For example, if someone has a penis he will usually be categorized as a man and this will refer to his sex. “Gender”, on the other hand, is generally thought to refer to characteristic behaviour usually associated with a person’s sex. People who, biologically speaking, may be classified as women, say, are generally expected by our society to “behave and look like women” (whatever that might mean). “Sexual orientation” again generally refers to whether someone is emotionally and sexually attracted to members of their own sex or members of the opposite sex.

These chategories themselves are open to question as not everyone neatly fit into them.

Of course Semenya does not outwardly display the gender characteristics that our bigoted society usually associates with women. But that is decidedly NOT the point here, as Semenya could not possibly be disqualified from competing as a woman merely because she does not display the gender characteristics traditionally associated with women.

There could only possibly ever be an issue if Semenya’s “sex” (and NOT her gender) was in question. Yet the media talks about her gender being in question, which is just daft. The Star also – completely wrongly – spoke about her sexual orientation – which should also be utterly irrelevant when deciding whether she could compete in a women’s event or not.

In any case, I hope our new star will make people sit up and reflect about their own prejudices around sex, gender and sexual orientation and their assumptions about sex and gender. These chategories are far more fluid and do not always neatly conform to what our culture, society and science tells us they should. Maybe Semenya will help South Africans to confront some of these prejudices in a way that Brenda Fassie never managed to do.

No justice for black lesbians?

Aug 11th, 2009
by Pierre De Vos.
33 comments

Zoliswa Nkonyana was raped and murdered by a group of young men on 4 February 2006 in Khayelitsha because she was a lesbian. Although another young woman witnessed the attack, it is alleged that the witness had only been contacted by the Police after a journalist alerted police to her existence more than two weeks after the murder. (The investigating officer denied this. “I was getting round to taking a statement from her,” said Constable Geldenhuys.)

Now, Constable Geldenhuys might be correct, but in my own experience I would be surprised if the police in Kayelitsha had prioritised the murder of a lesbian. A few years ago when a lesbian was brutally attacked in Kayelitsha by a group of young men who lived down the road from her, nothing I did could convince the police to go and arrest the suspects. I even wrote letters to the MEC for Safety and Security and phoned the station commander and they all seemed singularly uninterested in the case. After all, this was only a few young boys “teaching a lesbian a good lesson.”

The suspects were known to the police. There were at least five witnesses. Yet, up to this very day no one has been arrested for that crime. As the police officer sent to investigate the incident told the victim: “But you are a lesbian, so why are you crying with the police.”

Of course, if the woman who was raped and murdered was not a black lesbian from Khayelitsha, but a young heterosexual blond foreigner, it is inconceivable that the police would not have bothered to have interviewed the witness more than two weeks after the crime occurred. In South Africa some lives are cheaper and more expendable than others, and if you are a black lesbian you better know that your life is not worth much – even in the new South Africa.

On Friday I took part in a protest march to protest the fact that three and a half years after the murder and more than twenty postponements later, the young men alleged to have raped and killed Zoliswa have not yet been tried. One of the demands of the organisers of the march was that the trial be moved from the Kyaelitsha magistrates court to the Cape High Court because a strong suspicion lingers that no justice will ever be dispensed for the murderers in the Kyaelitsha court.

When people talk about the transformation of the judiciary and our legal system they will not mention the name of Zoliswa or any of the other victims of serious crime who seldom seem to have even a modest chance of receiving at least a semblance of justice – merely because they had the misfortune to live or have been murdered in a poor black area of town or because they belonged to an unpopular group because of their sexual orientation, their race or their gender.

The day the self-serving and self-interested so called champions of judicial transformation talk about the plight of people like Zoliswa, when they explain that the aim of the transformation of our legal system should be to get the police to seriously and vigorously investigate crimes – even if the victims are poor, black and homosexual – and for every court in South Africa – even those courts in poor black areas – to function efficiently and without the stench of corruption hanging over them, on that day I will take them seriously.

But until they talk about the real issues regarding the transformation of our legal system and focus on completely irrelevant but self-interested side-shows like whether John Hlophe should be Chief Justice, I will continue to dismiss them as self-serving charlatans who (ab)use “transformation” as an empty buzzword to advance their own interests and the interests of their elite friends in an attempt to corruptly “fix” the system to work towards their own advantage – the poor and the marginalised be damned.

If the Justice for Hlophe Alliance was serious about the transformation of the judiciary and our legal system, they would have been at the front of that march and the many others held over the past months to protest against the criminal way in which the police and the prosecutors have dealt with the murder of lesbians across South Africa. They would have issued angry statements (spelling mistakes and all) to condemn the homophobia, racism and sexism still entrenched in our legal system and would have demanded justice for Zoliswa and for others who like her, were murdered merely because they loved the wrong person and whose murderers have not been brought to book at least partly because from the police upwards the murder of a lesbian is not seen as a priority crime.

Of course much is wrong with our criminal justice system and Zoliswa is not the only victim of murder whose perpetrators have not been brought to book more than three years after the murder despite the availability of strong evidence. But the unpalatable fact is that if one is poor, if one is black and if – on top of that – one is a lesbian one is more likely to be killed in South Africa and one’s murder is more likely to be ignored.

That is the real injustice which people who throw that word around should shout and scream about. But real injustice usually happens to politically unconnected people, poor people, people who do not drive in Porche’s or own wine farms, people who could not do you favours when you happen to be in a fix and could not give you a job because they are well connected with politicians or slimy businessmen.

A tale of two interviews at the JSC

Jul 21st, 2009
by Pierre De Vos.
38 comments

When a candidate is interviewed by the Judicial Services Commission (JSC) – either for a promotion or for first time appointment on the bench – he or she must expect to field difficult questions from commissioners. But when do the questioners overstep the line by asking unfair questions not in keeping with the spirit of the process or of the Constitution?

In 2005 Judge Anna-marie de Vos was interviewed for the position of Deputy Judge President of what is now the North Gauteng High Court and was then asked by advocate Silas Nkanunu about her sexual orientation. Referring to the written questionnaire handed in by the judge, Nkanunu wanted to know whether De Vos was not concerned about the perception of other judges of the fact that De Vos had a woman “partner” and not a husband.

This was obviouly an outrageously homophobic question and should not have been allowed by the chairperson. (I would have said this, even if Anna-marie was not my sister.) Section 9 of our Constitution guarantees the right to equality for everyone, including on the basis of one’s sexual orientation and the question clearly was based on the presupposition that there was something strange or wrong with being a lesbian – something the Constitutional Court has explicitly rejected.

When it comes to questions about judicial transformation the issues might be less clear cut.

On Sunday Advocate Dumisa Ntsebeza – perhaps still smarting from his rough treatment at the hands of the SCA when he appeared for Judge President John Hlophe before that court – asked Judge Frans Malan who had applied for one of three postitions on the SCA why he had not “withdrawn” from the race as having a white man at the SCA would not contribute to transformation. There were only four shorlisted candidates for the three posts, three of the candidates being white.

This seems to me to have been an unfair question not comporting with the spirit of the Constitution as it might have created the impression that Ntsebeza believes transformation was only and exclusively about the appointment of black judges – regardless of their values, ideological commitments, experience and judicial temperament – especially given the fact that three of the four candidates for the three vacant positions were white.

As a believer in redress, I would be the first to say that when suitably qualified black candidates are available they should be given preference in appointment to the bench. But this was not the case here and Ntsebeza seems to have overstepped the mark.

On Monday Ntsebeza was at it again, but this time I had no problem with the questioning. As the Mail & Guardian reports:

Advocate Hennie de Vos conceded during questioning that he served as chairperson of the Waterkloof branch of the far-right CP from 1982 to 1987, a time when he said “the supposition still was that South Africa must be divided in areas where black, white and coloured are totally independent of each other”.

He denied the party believed that black people were inferior to whites, and said he left the National Party for the breakaway CP in what was a “dispute between Afrikaners as a small group trying to talk politics among each other” about the merits of the National Party’s tri-cameral Parliament.

The CP took the view that “mathematically” it would be impossible to give whites, coloured and Indians representation, but exclude the black majority, he said. De Vos said he had not been involved in politics for the past 22 years and has for years taken in black law graduates as trainees because he believed it was the best way of transforming the judiciary. Many of the graduates were talented and taken silk, he said.

But advocate Dumisa Ntsebeza, one of President Jacob Zuma’s new appointees to the JSC, said he had failed to explain his conversion from right-winger to a promoter of racial parity on the bench. “You are not on trial, but in a sense people here would like to know people they are putting on the bench have the values of the Constitution at heart. I would be a happier person if you are ready to say: ‘I’m a person who was part of a bad past.’ I do not get that sense from you.’”

The CP opposed the negotiating process, refused to be part of it and boycotted the first democratic election. It might well be that Adv De Vos has had a change of heart and now supports the new order, but it seems perfectly legitimate for JSC members to ask him about his past to try and establish how he really feels about the new order.

In my opinion, it would not be legitimate to tell such a candidate that because of his past he was automatically disqualified from appointment to the bench. People do change – although the sincerity of such changes of heart might often legitimately come under suspsicion. JSC members have a duty to probe such a candidate to try and establish whether a candidate had genuinely changed or had merely had a Damascus experience in order to get ahead in the world.

Advocate Ntsebeza’s seems to me to have been legitimate in expressing disquiet at the lack of contrition on the part of Adv De Vos about his apartheid past. Although the questioning might have been uncomfortable, I for one would not want to see someone appointed to the High Court bench who is not fully committed to the new democratic order and may not have come to terms with their own dark past.

Some would say – and reading the letters pages of Afrikaans newspapers there seems to be quite a few such people – that the kind of questioning unleashed on Adv De Vos requires whites to grovel and apologise for being white and that this represents an unfair attack. I see it differently. The Constitution guarantees equality for all and also requires us to respect the inherent human dignity of all – even people we do not like or agree with. But if one wants to be appointed as a judge, one must surely have demonstrated through one’s words and one’s actions that one has rejected a dark past that one might once have been part of.

Otherwise one has no place on the High Court bench. It is not about grovelling but about taking responsibility – something a good judge has to do if he or she wants to become a wise dispenser of justice.

On freedom of religion and the gay music teacher

Sep 3rd, 2008
by Pierre De Vos.
23 comments

Where does freedom of religion end and respect for the constitutional values of equality and dignity begin? I ask because I see some religious groups have expressed disquiet at the recent ruling of the Pretoria High Court that the NG Kerk in Moreleta Park unfairly discriminated against a gay music teacher when it fired him for being in a long term committed relationship with another man.

Judge Dion Basson last Thursday ordered the congregation to pay the teacher damages of R87 000 and to apologise unconditionally for its conduct. He said Strydom’s contract was terminated on the basis that he was involved in a homosexual relationship. The church had failed to prove that Strydom’s job entailed religious instruction, or that the discrimination against him had been fair or justified, the judge found.

According to the Mail & Guardian some religious groups are up in arms, arguing that their freedom of religions is being trampled upon.

Apostolic Faith Mission church president Dr Isak Burger said the ruling is a “serious threat” to religious freedom in South Africa. It subjects the biblically based beliefs and values of the majority of Christians to “pure humanism and an extremely secular and liberal Constitution. It places the Constitution above the Bible and man above God.”

It seems to me this view completely misreads the nature of freedom of religion in a constitutional state, advocating for the right of religious groups to trump the rights of anyone else in all circumstances. It is not based on the notion of religious freedom at all, but on the endorsement of religious tyranny.

In the same-sex marriage judgment Justice Albie Sachs dealt extensively with this issue. In that case some religious groups argued that the recognition of same-sex marriage would infringe on their freedom of religion because marriage is seen by many religious groups as being uniquely between one man and one woman. By extending marriage rights to same-sex couples the state would be trampling on this sacred institution and would thus be forcing religious groups to abandon their deeply and sincerely held belief s about the nature of marriage.

Sachs countered by stating that in a constitutional state there was a need for an accommodation between the sacred and the secular. A balance had to be struck between the need to respect religious beliefs and practices on the one hand, and the protection of the dignity of all on the other. If a state forced a religious institution to adopt certain views in the practicing of their religion, it would trample on their freedom of religion. But this did not mean that the views of some religious groups could justify unfair discrimination against gay men and lesbians in the public arena.

The same principle applies in this case. It would therefore infringe on the freedom of a religion on churches, mosques or synagogues to force them to employ a gay dominee, imam, rabbi  or priest or to force the Catholic Church to ordain woman priests. The same would be true for  forcing them to employ someone giving religious instruction at that institution.

But this does not mean that such groups can be exempted from the general employment rules or the provisions of the Equality Act or the Constitution altogether.

Where a religious group employs an individual in a non-religious capacity, for example, the Constitution demands that they do so without discriminating against anyone. A church that employs a secretary or a gardener cannot prohibit a gay man or a black woman from doing these jobs because that church happens to espouse homophobic or racist views.

This is because these jobs are not directly linked to the religious nature of the institution. A person employed as a typist, a gardener (or a music teacher for that matter) does not give religious instruction and forcing a church to employ such a person in no way forces the church to espouse views or practices that its religion frowns upon or even abhor. The religious freedom of the church is therefore not affected while the rights of all citizens remain protected.

This seems like a sensible compromise also adopted by the Pretoria High Court. To have held otherwise would have in effect exempted religious institutions from the basic rules set out in the Constitution that is aimed at protecting the equality and dignity of all people living in South Africa.  This would have created a situation in which religious institutions are in effect above the law and would have allowed them to engage in the most shocking and inhuman kinds of discrimination against anyone with which they have any dealings.

So this judgment manages to balance the interest of the state against the interest of religious groups in a sensible and pragmatic fashion, refusing to sanction religious tyranny. After all, not all religious groups are homophobic, sexist or racist, while many South Africans are not religious at all. In a country where we are building a culture of respect for diversity and difference churches can therefore not get a free pass. All they can expect is that they will not be forced to adopt beliefs they do not like or that their Bible or Koran tells them are sinful.

This is, after all, not Iran or Germany. We respect different belief systems and do not give preference to the bigoted and homophobic views held by some.

Constitutional Court considers age of consent

Aug 27th, 2008
by Pierre De Vos.
15 comments

The National Prosecuting Authority (NPA) has been taking a lot of flack recently. The President suspended its boss and it has been vilified by pro-Zuma supporters for its handling of the Jacob Zuma case. So I am hesitant to add to its misery. Yet, after reading its submission to the Constitutional Court in the case of Geldenhuys v National Director of Public Prosecution (to be argued on Thursday), I have to wonder whether they could not at least have paid someone to prepare a legally coherent and constitutionally informed document to assist the highest court in the land in this case.

The document reads like a second year assignment and not like a legal document prepared by senior lawyers with at least some grasp of logic and the legal issues involved.

The case deals with an appeal of the Supreme Court of Appeal (SCA) judgment which declared invalid sections of the now repealed Sexual Offences Act which set the age of consent for sexual intercourse at 19 for same-sex sexual acts, while setting an age of consent at 16 for heterosexual sexual acts. The SCA rightly found that these sections unfairly discriminated against gay men and lesbians on the ground of sexual orientation.

The NPA concedes that these provisions had been discriminatory but argues that the age of consent for both hetero- and homsexual intercourse should be set at 18 – and not 16. At the end of last year Parliament passed the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 2007 which fixed the age of consent for everyone at 16 and the NPA is not happy about this, arguing that this age of consent is unconstitutional.

The NPA – in a very thinly argued submission – argues that because section 28(3) of the Constitution defines a “child” as someone under the age of 18 years and because the Constitutional Court has found that the State is under a Constitutional obligation to combat child abuse, the age of sexual consent should have been fixed at 18 and then continues:

Also worrisome is the failure by the legislator to harmonize the age of 16 years in sections 15 and 16 of Act 32 of 2007 with the other provisions in the Act. For instance, section 18 makes it an offence for a person to groom a child under the age of 18 years in order to have consensual sex with such a child. If the person then does indeed proceed to sexually penetrate or violate a child of 16 or 17 years he does not, according to sections 15 and 16, commit a crime! The same discordance is found between sections 15 and 16 on the one hand and sections 19 and 20 which deal with the using of children for child pornography and displaying pornography or child pornography to children (that is persons under the age of eighteen years).

It is unclear from the NPA submission whether it is arguing that the newly adopted provisions are in fact unconstitutional and if so which sections of the Bill of Rights are being breached, whether the Constitutional Court should declare these provisions invalid, and whether the Court should interfere with the right of the democratically elected Parliament to pass legislation on issues of public policy.

The NPA submission reads more like a document written by Doctors for Life or some other group who is arguing from a specific, highly moralistic and impractical, point of view. It equates all sex by individuals younger that 18 with child abuse, which would come as a rather big surprise to all the young people of South Africa who have had (and will continue to have) consensual sex before the age of 18.

It also seems to argue that consensual sex between individuals younger than 18 is no different from child pornography and fails to address the possible policy reasons for outlawing the manufacture and consumption of child pornography, while legalising consensual sexual intercourse between (perhaps even loving and caring) youngsters who happen to be younger that 18.

Surely the reason why Parliament made this distinction was that many young people do have sex with one another and – gasp! – even enjoy it. A law that criminalises all sex between (or with) anyone between 16 and 18 would be impossible to implement. The police would be very busy indeed if they had to run after such couples. At the same time there might well be good policy reasons to protect youngsters from the clutches of the porn industry.

It will be interesting to see how the Constitutional Court deals with this matter. I for one would be rather surprised if they take the NPA arguments  – if one can call it that – very seriously.

John Qwelane, homophobe, at it again

Jul 23rd, 2008
by Pierre De Vos.
52 comments

John Qwelane is a well known homophobe and he has published several hateful articles about gay men and lesbians. I suppose it should come as no surprise that he was at it again this weekend in his column in that august publication, The Sunday Sun.

In the piece Qwelane writes about the Anglican Church’s internal rift over the ordination of gay priests, stating that the “real problem” is the “rapid degradation of values and traditions…” I suppose he is paid to provoke so because his imagination is not as fertile as it could be, he can only laud Zimbabwean President Robert Mugabe for his “unflinching and unapologetic stance over homosexuals.”

Qwelane goes on to claim that “you regularly see men kissing other men in public, walking holding hands and shamefully flaunting what are misleadingly termed their ‘lifestyle’ and ‘sexual preferences.’” The constitution also comes under fire when he writes that he prays that politicians will some day have “the balls” to rewrite the constitution “to excise those sections which give license to men ‘marrying’ other men, and ditto women.”

“Otherwise at this rate, how soon before some idiot demands to ‘marry’ an animal, and that this constitution ‘allows’ it?” he asks. “And by the way, please tell the Human Rights Commission that I totally refuse to withdraw or apologise for my views,” because, he adds, “wrong is wrong.”

This is hateful stuff. Ignorant stuff. The kind of thing written by a man who is not very secure about his own sexuality. To equate homosexuality with bestiality is the kind of primary school argument used by bullies to denigrate gay men and lesbians and is not worthy of anyone with an IQ of more than 60. We all know most people who like to have sex with animals are heterosexual. (I will rather not talk about the strange morality in South Africa which abhors bestiality while seeing nothing wrong with killing and eating animals!)

David Bullard was fired from the Sunday Times for writing a far less offensive column – albeit on race and not sexual orientation. Qwelane is right, of course: wrong is wrong and being a hateful bigot is always wrong.

It was also wrong of the newspaper to publish this drivel. Maybe illigal too, but that is not the point. Even a tabloid like the Sunday Sun should show a modicum of responsibility and should not propagate hatred of gay men and lesbians. Just last month a Banyana Banyana player was murdered because she was a lesbian. This kind of column gives implicit legitimacy to such crimes and Qwelane and those in charge of the newspaper should be ashamed of themselves. They have blood on their hands – or soon will – because others will be killed in the name of this kind of hatred.

The editor of the Sunday Sun is Linda Rulashe (lrulashe@sundaysun.co.za) and the senior general manager for RCP Media is Sarel du Plessis (sduplessis@naspers.com). I’ll make sure to write them a letter to ask them how they sleep at night. And the next time a lesbian is murdered I will phone them to ask whether they do not feel at least a little bit ashamed for aiding and abetting this kind of crime. Feel free to do the same.

On the Daily Voice and the “M” word

Jun 12th, 2008
by Pierre De Vos.
11 comments

I am not in the habit of reading the Daily Voice tabloid published in Cape Town. It is not the screaming headlines, the picture of a bare-breasted woman on page three, the bad lay-out or the even worse writing that makes me avoid this publication. Nor is it, I would hope, any elitist or superior attitude on my side that stops me from reading this publication.

Fact is, it hardly contains any news worth reading about and I find it boring.

But yesterday I bought a copy of this newspaper (tagline: “ons skrik vir niks“) because of the 5 centimeter high front page headline reading: “MOFFIE HOOKER STEEKED ME”. The article continues on page 7 (headline “YOUR BUNNY OR YOUR LIFE”) and reports that one Zami Zulu had appeared in court on charges of robbery and fraud because it is alleged that he robbed an 80 year old man and stabbed him.

It is strange that this newspaper thinks it can get away with this kind of language. I do not think I am particularly prissy or precious, and I am not personally particularly offended by the use of the “M” word because I know it reflects badly on the person uttering it or deploying it – not on me. But newspapers have a constitutional responsibility not to encourage or perpetuate hatred or disgust of others – especially of minority groups. By using “moffie” in such a derogatory way, the newspaper is perpetuating the stereotype of gay men as violent and disgusting and giving permission to their readers to ridicule and laugh at gay men.

Such a newspaper would never in a million years print a headline referring in a derogatory way to all black people as “kaffirs” or all Muslims as “Towel Heads”. Yet the Daily Voice editors think nothing of using this headline that will reinforce stereotypes and give permission for homophobia and even violence against gay men and lesbians.

The Daily Voice is actually a member of the press council of South Africa and subscribe to the South African Press Code that is enforced by the Press Ombudsman. Section 2.1 of this code states clearly:

The press should avoid discriminatory or denigratory references to people’s race, colour, ethnicity, religion, gender, sexual orientation or preference, physical or mental disability or illness, or age.

I am sure when confronted with this deeply homophobic headline, the editor of the newspaper will defend himself by arguing that this is how its readers talk and that some gay men in the community in which the newspaper is read also refer to themselves as “moffies”.

I do not think such an argument should succeed. First, as the Constitutional Court has made clear in the case of Hoffmann v SAA, societal prejudice can never be used to justify discrimination. I would argue this would also mean that societal prejudice against gay men cannot justify using a pejorative term like “moffie” merely to sell more newspapers. The Constitutional Court has made clear that gay men and lesbians have the same inherent moral worth as anyone else and that this means that everyone in society has a duty to respect their human dignity – at least in public.

Second, there is a huge difference in the harmful effect of words when used by the targeted group themselves and when such words are used by the dominant group as a way of ridiculing the vulnerable group and of perpetuating the hate and revulsion of that group by society. In the first case the words can be empowering. At the very least the words lose their sting because they are not used by the powerful group to denigrate and humiliate the marginalised group. In the second case the words merely perpetuate hatred and revulsion against an already vulnerable and reviled minority.

The Daily Voice is a rubbish paper but it is read by hundreds of thousands of people in Cape Town. It is therefore a potentially powerful influence on what people think and how they behave towards a still vulnerable and marginalised minority that suffers from stigmatisation and – in extreme cases even violent and deadly attacks. Using words like “moffie” is therefore deeply irresponsible. It is also in breach of the code the newspaper had signed on to. If I thought the paper’s editor had any shame I would have said he should be ashamed of himself.

Arrested and convicted for being HIV positive and gay in Egypt

Apr 14th, 2008
by Pierre De Vos.
9 comments

Out of Egypt – our fellow African country up north – comes the disturbing news report that four HIV positive men and one of their friends had been convicted and sentenced to three years in jail for being HIV positive and thus assumed to be homosexual. The defense lawyer for the five, Adel Ramadan, said the judge convicted the men of the “habitual practice of debauchery,” a term imported from the British colonial times but now used in the Egyptian legal system to denote consensual homosexual acts. The Egyptian Daily News reports as follows:

According to Human Rights Watch (HRW), 12 men have been arrested since October 2007 in a spreading hunt for people suspected of being HIV-positive. “The arrests began when one man, stopped on the street during an altercation, told officers he was HIV positive. Police arrested him and the man with him, beat and abused them, and began picking up others whose names or contact information they found through interrogating the first detainees,” HRW reported.

All the men were charged with the “habitual practice of debauchery,” a term which in Egyptian law includes consensual sexual acts between men. According to HRW, Doctors from the Ministry of Health subjected all the detainees to forcible HIV tests without their consent. The organization said the Forensic Medical Authority performed forcible and abusive anal examinations on the men to “prove” they had had sex with other men.

A prosecutor informed one of them that he had tested positive for HIV by saying: “People like you should be burnt alive. You do not deserve to live.”

In addition to reports of abuse while in detention, the prisoners who tested HIV-positive were held in hospitals, chained to their beds, for months. After a domestic and international outcry, the Ministry of Health ordered the men unchained on Feb. 25.

Why do we not get to read about this flagrant abuse of human rights in our local papers? While the newspapers report every move from Zimbabwe, every farm invasion and every utterance from Mugabe’s thugs and while opposition parties and now even the ANC seems to be clamouring for President Mbeki to “do something” about Zimbabwe, there is not a peep from anyone about this scandalous abuse of the rights of innocent and defenseless individuals in another African country.

Is it perhaps because the victims of this abuse are not white, heterosexual farmers, but gay HIV positive men? Or is this silence caused by an unnecessary and callous sensitivity for the religious convictions of those in charge of the USA supported dictatorship in Egypt?

If this had happened to white gay men living in Zimbabwe and if the perpetrators were some of Mugabe’s thugs, we surely would have been told about it. Even the notoriously homophobic South African press would have discovered newfound sympathy for the plight of the men and would have written editorials about the need to respect and protect the rights of HIV positive individuals regardless of their sexual orientation. The Democratic Alliance would have issued statement after statement in defense of these poor young men and Gordon Brown would have waded in about the inhumanity of it all.

Yet, this has not happened. Some would rightly point out that we get more news from Zimbabwe and we demand more immediate action from our government on Zimbabwe because it is our neighbour and what happens there affects us directly. They might also argue that more people are affected by the attempts by Mugabe and his security chiefs to steal the election there than by the homophobic persecution of HIV positive men in Egypt.

But the fact remains that in our world there is only space in our tiny little callous hearts for that much moral outrage and at the moment most of that space is taken up by our indignation at the Mugabe regime. Yes, some of this concentration of our energies has to do with the proximity of Zimbabwe to South Africa, but I guess some of the focus on Zimbabwe must also have to do with the fact that white people have been thrown off their farms in Zimbabwe – the rule being that when things happen to heterosexual, HIV negative, white people it is always more newsworthy and more worthy of our moral outrage than when things happen to poor and marginalised individuals like the HIV positive homosexuals in Egypt.

I am not saying that we should not be outraged at the attempts by Mugabe to steal the election up north or that we should not vilify President Mbeki for saying that there is no crisis in Zimbabwe. There clearly is a huge crisis in that country and it will affect us one way or another and the way our President has dealt with this question is nothing short of scandalous.

I am, however, pleading for some perspective. There are many other countries where many evil things happen – often worse than what is happening in Zimbabwe. Egypt is one such country. There is no democracy in Egypt (not even the sham kind that Mugabe has instituted in Zimbabwe) and under the guise of religion, gay men (and now it seems hIV positive men) are persecuted there in a way that would be unthinkable even in Zimbabwe.

I am therefore waiting for a statement from the DA and from the ANC condemning this barbarous actions by the Egyptian government. What about having a special summit of the African Union where President Mbeki can be appointed mediator in this dreadful affair to try and get the Egyptian dictators to see reason? It will never happen, of course, because those gay HIV positive men in Egypt are not white or heterosexual and they are citizens of a country that are mollycoddled by both the West and by fellow African countries because of their strategic importance and because of their oil.

So the arrests and persecution will continue in Egypt long after Robert Mugabe has retired to his farm in Zimbabwe and Morgan Tsvangirai has taken over State House. And as we say in Afrikaans: nie ‘n haan sal daarna kraai nie. This is how our Western influenced morality works in South Africa.

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