An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The Ugandan newspaper, The Daily Monitor, has published an inspiring yet sad profile on Val Kalende, an openly lesbian Ugandan citizen who might face the death penalty if a new Bill imposing that penalty for “repeat offenders” of homosexuality becomes law in Uganda. The Bill is being justified on the basis that homosexuality is “un-African” and not in keeping with Ugandese traditions.
This is an oft repeated argument used by many people in South Africa and the rest of the continent to justify practices and beliefs that infringe on the human rights of fellow Africans. Supporters of gender discrimination and some among us who object to gay marriage, for example, often argue that our African culture is based on heterosexual patriarchy. They claim that respect for diversity and the culture of indigenous Africans justify discrimination against women and homosexuals.
Such arguments are simplistic and wrong.
First, culture and tradition are not static. Some people talk about culture and tradition as if these are fixed concepts which speak to some essential aspect of our human nature. If one challenges some aspects of a cultural practice or tradition, such individuals argue that one is attacking the very essence of their humanity. But culture is a product of human development and is ever changing.
It was part of Western culture, for example, to buy and sell fellow human beings as slaves and to make those slaves work for them. Many Westerners wish to forget about this evil aspect of our collective past (and do not see themselves as having the same kind of traditional culture as those who differ from them at all), but the fact remains that slavery was, for a very long time, defended on the basis that to abolish it would be to strike at the very heart of a specific way of life.
Luckily Western culture has evolved and slavery was abolished in the nineteenth century because it was evil, racist and dehumanizing. People who justify the oppression and vilification of others on the basis of their culture, are not making any argument at all about the correctness of that practice. They are merely pretending that culture is static in order not to have to change the deeply held but obnoxious commitments invented by their forefathers (the mothers being busy with better things).
Second, as far as homosexuality is concerned, the irony is of course that the specific form of homophobia and hatred of homosexuality one finds in Uganda, Zimbabwe and (sadly) also in South Africa is a product of Western religion and colonialism. Although there has always been same-sex sexual activity in all parts of the world – including Africa – it was an unholy alliance of Christianity and colonialism that imported the concept of “the homosexual” (and with it homophobia) into Africa.
When Robert Mugabe or Ugandese lawmakers thus claim that homosexuality is un-African, they have a point. In pre-colonial Africa, people were not branded as homosexuals merely because they happen to have sex with members of the same sex. But because there were no homosexuals in pre-colonial Africa (only people who had sex with members of their own sex) it also means that homophobia is un-African in as much as it was imported by colonialism. Mugabe’s homophobia is therefore the product of Western colonialism. No wonder the man is so confused. (In any case, I have always wondered about Mugabe’s homophobia, given the fact that he is so camp that he could attend the Mother City Queer Project fancy dress party as himself.)
What is needed is a discussion on the basic principles according to which we want to develop our culture and traditions (which have been perverted by colonialism). Do we want to do so by mirroring the worst of Western society, thus confirming our own subjugation to the West, or do we want to free our minds and find another way to deal with issues of oppression and marginalisation.
I would suggest that given the African experience with colonialism and oppression, one of our founding values according to which we need to develop and amend our African cultural traditions is that of anti-subordination. We should therefore amend and develop our cultural practices to ensure that they do not subordinate and oppress others merely because they are not like us.
Of course, given the influence of a particularly virulent form of homophobia in the (Western-imposed) Christian religion so dominant in large parts of Africa, it will not be easy for us to throw off the constricting and oppressive yoke of Western imperialism by rejecting homophobia and sexism. Mugabe is a case in point. While he rails against the West, he deploys particular Western notions of homosexuality to subordinate a vulnerable and marginalized group in society.
Like many other of my fellow African brothers and sisters, Mugabe should read some Steve Biko. This might teach them that in order to be free, we need to be critical of the ways in which Western ideas have enslaved us and have made us less humane and less respectful of others.
Val Kalende and other brave gay men and lesbians in Uganda who are speaking out against the colonial legacy of homophobia is showing us the way. Pity too many leaders and ordinary citizens still act like slaves of colonialism. What is needed is a transformation, also of our culture, to free it from the oppressive influences of old-style colonialism.BACK TO TOP