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.
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.BACK TO TOP