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.
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?BACK TO TOP