As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The Congress of Traditional Leaders of South Africa (Contralesa) styles itself as “the sole and authentic representative of the progressive traditional leadership of South Africa” because it is aligned to the ANC. The organisation aims to promote and protect traditional leadership, traditional customs and practices and the heritage of the 18 million South Africans who live under the authority of traditional leaders.
However, perusing their website, one cannot help but wonder whether Contralesa (pictured below) is not also spurred on by the far less noble goal of self-enrichment. Contralesa thus complains that traditional leaders are being discriminated against:
Traditional leaders of all ranks, i.e. kings, inkosi (chiefs) and inkosana (headmen), are, like politicians in government, public office bearers. They are entitled to be remunerated in a manner commensurate with their responsibilities and status. The truth, however, is that in this regard traditional leaders are discriminated against. The best that they receive is a basic salary without the concomitant allowances such as medical aid, motor vehicle allowances, pension benefits, etc. Due to lack of uniformity in the manner in which provincial governments treat the institution, some traditional leaders have been provided with motor vehicles, while others have not. Needless to say, this gives rise to resentment and annoyance on the part of those who do not get this form of support.
Kings and Queens currently earn over R900 000 a year, while other traditional leaders earn between R180 00 and R650 000 a year. Not being provided with a free vehicle at taxpayers expense must therefore cause serious financial hardship for traditional leaders, but not to the extent that they are not prepared to engage in robust engagement about important issues of the day (other than the salaries and benefits paid to them by the taxpayer).
Last year The House of Traditional Leaders, packed with the members of Contralesa, submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution. This Committee, set up in terms of section 45 of the Constitution, has to review the Constitution annually, but in the past 17 years they have rejected every single proposal made to it for the amendment of the Constitution out of hand. The Committee is chaired by Nkosi Sango Patekile Holomisa, who also happens to be the President of Contralesa.
At this year’s committee sittings, most proposals were again dismissed, but not the proposals to change the property clauses and those concerning the abolition of the prohibition to discriminate against gay men and lesbians. The House of Traditional Leaders suggested a redrafting of the Bill of Rights so that it would in future be legal to discriminate unfairly against gay men, lesbians and other sexual minorities, and the Review Committee decided to refer this matter (along with the proposed amendments to the property clause) the political parties represented in the National Assembly for discussion and consideration.
This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded.
The decision of the Committee not to reject this dehumanising and insulting proposal out of hand (as it has done with all other proposals over the past 17 years) suggest that Holomisa believes that it is completely reasonable to ask political parties to consider whether they support unfair discrimination against fellow South Africans and whether they believe that it is necessary to endorse the denial of the human dignity of fellow South Africans.
Given South Africa’s history, this is a shocking move. The apartheid government believed that some people were sub-human because they were black or female or gay, lesbian, transgendered or intersexed and enforced a dehumanising set of laws to give effect to this belief and to try and affirm their supposed superiority as white men. But in the very act of enforcing this kind of discrimination, they affirmed the opposite, namely their own moral inferiority.
As a direct response to this history of dehumanisation the drafters of the Constitution, endorsing the view that all human beings possess an inherent human dignity and are therefore of equal moral worth, prohibited unfair discrimination against individuals regardless of their race, sex, gender or sexual orientation.
The House of Traditional Leaders, on the other hand, seems to believe that some of us are not fully human and that it is therefore imperative that the state should be allowed unfairly to discriminate against us merely because we happen to be emotionally and erotically attracted to members of the same sex and because we do not conform to a specific notion of “normality” created and perpetuated by white, colonial missionaries, a norm ironically and tragically adopted by traditional leaders infected with the ideas of South Africa’s colonisers.
It might well be that traditional leaders are not aware that their support for unfair discriminatory measures against gay men, lesbians and other sexual minorities stem from the colonial encounter and that their fear of (and disgust towards) us stem from their internalisation of the values of the colonial master. It might also be that they are not aware that such fear and disgust often stem from an unacknowledged or unwitting anxiety about their own sexual identity.
But the drafters of our Constitution knew that equality is indivisible and that one cannot truly affirm the human dignity of all if one endorses unfair discrimination against a marginalised and oppressed minority merely because such a minority is viewed as different from oneself (or from who one believes or pretends one is).
The fact that the Committee has decided not to reject this deeply reactionary proposal out of hand, suggests that some of its members endorse inequality and prejudice and support an imposition of uniformity and the concomitant suppression of all difference. It suggests an intolerance of those who do not conform to gender or sexual stereotypes or to some other non-existing or ephemeral norm, created and perpetuated to enforce the continued dominance of patriarchy. Either that or the members of the Committee are prepared to flirt with these notions so roundly rejected by the drafters of our Constitution and by the ANC in its constitutional proposals for short term political gain.
In Minister of Justice v Coalition for Lesbian and Gay Equality Justice Albie Sachs noted that: “the success of the whole constitutional endeavour in South Africa will depend in large measure on how successfully sameness and difference are reconciled.” He continued by warning:
Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment. At best, it celebrates the vitality that difference brings to any society.
The acknowledgment and acceptance of difference is particularly important in a society like South Africa where perceived racial differences were used to oppress the majority of citizens. As Sachs pointed out:
The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are. The concept of sexual deviance needs to be reviewed. A heterosexual norm was established, gays were labelled deviant from the norm and difference was located in them.163 What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.
Those who believe that it is reasonable to debate whether some South Africans should be afforded equal concern and respect, are likely also those who believe that the state has a right to impose a standardised form of behaviour on all of us in order to eradicate all forms of behaviour which do not conform with what a small group of pampered patriarchs believe is acceptable (or in their financial interest). This is a small group of powerful men who might well believe that all outward manifestations of love and emotional affection that do not conform to what they believe is in their interest must be suppressed in order to retain and expand their power over what they believe to be their subjects: younger men; all women; and homosexuals.
The proposals must still be debated, but the very fact that it will be debated is dehumanising to those of us who must now wonder whether people like Holomisa believe that we are subhuman and therefore deserve to be unfairly discriminated against, vilified and (followed to its logical extreme) eventually raped and killed. Ironically, some of us will recall the depraved immorality of the patriarchal enforcers of apartheid and will know in our hearts that by the very act of raising this issue, the members of the Committee and the House of Traditional Leaders are merely affirming their own moral inferiority.BACK TO TOP