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.
Earlier this month Uganda’s “Ethics and Integrity Minister” Simon Lokodo announced that his government planned to re-introduce an “anti-homosexuality bill” to provide for the imposition of the death penalty on individuals found guilty of “homosexuality”. While a spokesperson for President Yoweri Museveni later claimed that the government had no such plans, the original announcement again raises questions about the use of religion and culture to justify the criminalisation of an entire group of people.
I met Jonathan in 1997 in Kampala, Uganda. At the time I was a lecturer at the University of Western Cape (UWC) and had travelled with the UWC moot court team to participate in the All Africa Human Rights Moot Court competition at the University of Makerere.
Lecturers and students were all staying at Livingstone Hall (I am not kidding), a student residence on the Makerere campus. On the first night in Kampala, I joined a group of lecturers and students and walked to a shebeen (I was told that in Uganda these were called “kafundas”) just outside the main gate of Makerere University campus.
We each bought a Tusker quart from the women behind the table serving as a bar counter and made ourselves comfortable on small plastic chairs. This was at a time when South Africans did not yet have as bad a reputation in the rest of the continent for being arrogant and xenophobic, and local patrons eagerly pressed us for more information about Nelson Mandela and the transition to democracy.
At some point a tall, reed-thin, man in his late twenties – wearing a crisp white shirt, formal pants, and formal leather shoes – pulled up a plastic chair next to me and introduced himself as Jonathan. He worked as a food and beverages manager at a five-star hotel in the city and was studying part-time towards a management degree. Jonathan had high cheekbones and prominent teeth and as we talked and joked, he often touched his face with his long, elegant, fingers.
After I finished my second Tusker, Jonathan got up and signalled that he was getting us another round. When he returned with two full bottles of Tusker he touched the small earring in my right ear with his ice-cold fingers and asked: “Why are you wearing this?” I smiled and gave him (what I hoped was) a knowing look. “So, you are not married.” He was making a statement, not asking a question. He delicately placed his hand on my knee and smiled back at me. “Neither am I.”
We had come out to each other entirely in code.
As the South African contingent of students and lecturers were getting ready to walk back to Livingstone Hall, Jonathan looked at me intently and told me that he was renting a room a few blocks away. “I have my own entrance,” he said. “No one will see us.” I hesitated, almost agreed to go with him, but then shook my head. “It is too difficult.” As we said goodbye and hugged, he squeezed my bum and whispered in my ear: “Your loss.” Then he turned around and walked to the bar to get another Tusker.
A few nights later we went back to the shebeen, but Jonathan was not there, and I never saw him again.
It would be a lie to claim that I often think about Jonathan, but when I read last week that the Ugandan government may be planning to re-introduce the death penalty to punish “homosexuality”, he was the first person I thought about.
Jonathan must be in his early fifties now. Does he now manage the five-star hotel he worked at when we met, or does he own his own hotel? Is he safe? Is he happy? Did he marry and have children to protect himself from exposure and possible imprisonment? Did he flee the country? How did he feel when he heard that a minister in his own government wished him dead because he desires men and not women?
It is important to ask these questions because when people argue that “homosexuality” (by which people really mean same-sex desire) is “sinful”, that it is “un-African” or not part of “our culture”, the arguments are often strangely abstract and disembodied. The people being condemned are seldom present and visible; they remain faceless “homosexuals”, more a colonially imposed construct than flesh and blood individuals with hopes and fears and dreams.
Maybe I am naïve, but I suspect most people would find it more difficult to argue that somebody deserves to die for no other reason than that he or she desires consensual sex and intimacy with another adult of the same sex, when that person has a name, a history, a face – somebody like Jonathan, with his crisp white shirt, beautiful hands, and easy smile. As the recent Afro-phobic attacks reminded us, it is easier to hate a group of people if they have been dehumanised and turned into a generalisation, an abstract construct.
For LGBTQ people in Uganda – people like Jonathan – life remains perilous, despite the announcement by President Museveni’s spokesperson that there are no plans to reintroduce the death penalty to punish “homosexuality. The current Ugandan Penal Code Act of 1950 prohibits “carnal knowledge of any person against the order of nature” (s 145(a)), “unnatural offences” (s 146) and “gross indecency” and provides for sentences of between 7 years and life imprisonment. These provisions – which are used to punish same-sex desire – have been directly imported from the colonial British penal laws.
Such laws are often defended on the ground that they reflect the religious or cultural beliefs of the society. In South Africa, people who defend the right of individuals, restaurant, hotels, wedding venues, or shops to discriminate unfairly against people on the basis of their sexual orientation, also invoke religious and cultural beliefs and argue that these beliefs trump the right of LGBTQ individuals to be treated as fully human.
In a heterogenous society like ours, it is important for the law to respect different cultures and different religions and beliefs (including non-belief in a God). The devastating impact of colonialism on indigenous South African culture adds further urgency and weight to the demand that culture be respected and protected. It is therefore a mistake (both strategically and ethically) to dismiss the claims of individuals who argue that they are acting in accordance with their religious or cultural beliefs and that the law should not punish them for doing so.
But neither religion nor culture is static; it changes over time – as the recent decision by the Dutch Reform Church to allow its ministers to conduct same-sex marriages illustrates. Moreover, neither religious nor cultural beliefs are beyond criticism. Some beliefs are harmful, or even evil. When that is the case, the beliefs should not be valorised by the law, but should be subjected to critique and should be rejected.
Let’s think of an example.
During the apartheid era, the Dutch Reformed Church decided that apartheid was biblically justified. This religiously inspired belief was evil and helped to further legitimise the system of racial oppression.
A person who argued then (or tries to argue today) that he or she is justified in supporting and promoting apartheid because this was part of his or her religious beliefs and was hence beyond criticism, would rightly be scoffed at and even vilified because the belief caused (and continues to cause) profound harm to the vast majority of South Africans. The fact is that this belief cannot be justified, and no one should legally be permitted to rely on it to allow them to harm others based on their race.
Similarly, invoking your culture or religion to justify the criminalisation of same sex desire or discrimination against LGBTQ people does not absolve you from ethical responsibility for the potential harm caused by your beliefs. It also does not give you a right to have laws passed that embody your religious and cultural beliefs when those laws will harm others.
It is true that the law should bend over backwards to accommodate the religious and cultural beliefs and practices of all South Africans. But the law should never bend over so far that it deliberately harms others for no other reason than that some people in society have embraced a belief that harming others is what their beliefs require.
Of course, if one is deeply committed to promoting and enforcing one’s harmful beliefs, one might well disagree with this view. One might try to justify this by invoking abstract concepts like “homosexuality” and by refusing to acknowledge that your beliefs are having a devastating impact on a flesh and blood person, somebody like Jonathan, with his crisp white shirts, beautiful hands, and easy smile.BACK TO TOP