Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
4 May 2011

A positive duty to protect sexual minorities

There is a worrying ambivalence at the heart of our government’s attitude towards the protection of the life, human dignity, right to quality and the protection of bodily integrity of sexual minorities in South Africa. Yesterday, a meeting was held between representatives from the Department of Justice (DOJ), National Prosecutors Office (NPO), Department of Social Development, crime victims empowerment groups, the South African Police Service (SAPS) and activists from organisations including Luleki Sizwe, Triangle Project, Free Gender, End Hate Crime and Rape Crisis to discuss the problem of hate crimes against lesbian, gay, bisexual and transgender people .

It is heartening to hear that the meeting went well and that it was announced afterwards that a special hate crimes task team is being set up. According to the Cape Town-based organisation Luleki Sizwe, Tuesday’s historic move shows that the government “has made a concerted effort to make [the] LGBTI community feel welcomed and heard by their government”.

This welcome development signals that some officials in government (as opposed to a majority of our most important and powerful politicians) are actually serious about preventing unfair discrimination against the LGBTI community and is willing to explore ways of promoting the achievement of equality for all members of our community.

Other signals emanating from the highest echelons of our government have, of course, been rather more worrying.

The President has made statements suggesting that gay men and lesbians deserve to be assaulted because they happen to be gay or lesbian. He has appointed a viscous, homophobic, bigot as the South African Ambassador to Uganda. Our government representative to the United Nations Human Rights Council (UNHRC), Jerry Matjila, last year refused to support efforts at the UN to protect gay men and lesbians against discrimination, saying that the rapporteur’s inclusion of sexual orientation “demeans the legitimate plight of the victims of racism”.

(The naked prejudice encapsulated by this statement becomes clear if one pauses to reflect on the — absolutely correct — outcry that would have ensued if he had said that including “race” in a report on discrimination would demean the legitimate plight of gay men and lesbians.)

Now this same Mr Matjila has been appointed as the acting Director General of the Department of International Relations and Cooperation. This suggests that some of our government Ministers reward those whose official utterances reveal a deep-seated prejudice against (and even a revulsion of) members of the LGBTI community. No wonder so many police officers seem reluctant to investigate crimes perpetrated against gays, lesbians and other sexual minorities and why the police is widely feared and reviled in the LGBTI community.

Last week Ms Noxolo Nogwaza, a 24-year-old member of an Ekurhuleni gay rights group, was stoned to death in KwaThema outside Johannesburg on April 24. As has been the case with many other such cases, members of the police appear to be extremely reluctant to even contemplate the possibility that her death was connected with her sexual orientation. Police spokesperson Tshisikhawe Ndou said investigators do not currently consider the murder a hate crime. “‘Purely’ rape, murder,” he is quoted as saying. Nogwaza’s body was found in the same township where Eudy Simelane, a former midfielder for the national women’s football side, was gang-raped and murdered in 2008.

Talking to activists and ordinary members of the gay, lesbian and transgender community, one hears horror stories about the homophobia and bigotry of police officers. I have been told by a young gay man from a township near Cape Town that he was ridiculed, laughed at an eventually chased away from the police station when he attempted to report that he had been raped by a much older man. When he refused to leave, he was threatened with arrest because: “jy is mos ‘n fokken moffie” (“you are a bloody faggot”). Meanwhile, the nine men accused of killing Zoliswa Nkonyana, a lesbian from Cape Town, have appeared in court too many times to count and the case has suffered from endless delays.

Despite yesterday’s encouraging development, there is clearly still a huge gap between how most South Africans (including many politicians, government officials and members of the Police) view gay men and lesbians and how the Constitution requires them to act towards members of this community. This is not surprising. One cannot change the hateful and bigoted attitudes of the vast majority of the South African population merely by passing a Constitution and subsequent legislation that prohibits discrimination against members of the LGBTI community.

Section 7(2) of the Constitution places a positive duty on the state to realise the rights enshrined in the Bill of Rights. In order to protect sexual minorities from unfair discrimination and in order to promote the achievement of full equality for all, the state has to do more than pass legislation. What is required is to educate and sensitise citizens to promote respect for sexual diversity.I would argue that this positive obligation requires the state to implement education programmes in schools to foster respect for members of the LGBTI community among school children. (One may also argue that workplace and other forms of affirmative action measures need to be implemented to address the systemic discrimination faced by gay men and lesbians in our society.)

It also requires the state to train government officials and members of the SAPS to treat all gay men and lesbians with dignity and respect. The Human Rights Commission as well as that useless Commission for Gender Equality also has a role to play to promote respect for the rights of sexual minorities. Perhaps because this is not a popular course of action amongst many of our leaders and because many citizens would get upset if the government and relevant Chapter 9 institutions actively promoted respect for the dignity of members of the LGBTI community, very little has been done to address the serious prejudices about sexual difference that are so prevalent amongst many members of the public.

It would, of course, be helpful if our President led the way on this and regularly made a clear and unambiguous statements about the need to respect the dignity of members of the LGBTI community. But that is probably not going to happen because it is unclear whether our President actually believes that gay men, lesbians and other sexual minorities deserve to be respected and protected. Besides, even if our President had a change of heart and now respects the equal dignity of all, this issue is not a vote-catcher and our President has not shown a willingness to say or do things that would upset too many people who form part of any of a number of factions within the ruling party.

Given this reality, the forming of a task team is perhaps as much as we might hope for at present. Meanwhile, especially poor and black women who happen to be lesbians will continue to live in fear.

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