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.
Traditional leaders were the big losers during the constitutional negotiations that produced our world class Constitution – and rightly so. Most traditional leaders willingly collaborated with (and was co-opted by) the apartheid regime, playing an important (and, for them, often lucrative) role in the administration of the pass law system. This history detracts from claims made by some traditional leaders and their supporters that traditional leaders are the true custodians of African culture and tradition and that they speak on behalf of the vast majority of South Africans.
Given the unsavoury entanglement of most traditional leaders with the apartheid regime and given the fact that most traditional leaders are not completely supportive of democratic rule and are enthusiastic supporters of discrimination on the basis of sex, gender and sexual orientation, arguments by traditional leaders that their unique powers should be entrenched in the Constitution and that their interests and beliefs (corrupted by the process of colonialism and by apartheid ideology) should trump those of other South Africans, were roundly rejected by the drafters of the 1996 Constitution.
But over the past few years – as the ANC turned sharply to the right under President Jacob Zuma – traditional leaders have made a comeback. Despite losing the argument at the democratically elected Constitutional Assembly back in 1995, they have not stopped agitating for a return to the days when it was perfectly legal to discriminate against women and gay men and lesbians and when they wielded power (in those days, on behalf of the apartheid state) over big sections of the South African population. It therefore does not come as a surprise that the Congress of Traditional Leaders (Contralesa) yesterday again urged President Jacob Zuma to appoint traditional leaders to his cabinet and then voiced its long-held opposition to same-sex marriages. People attracted to partners of the same sex were urged to consult traditional healers, diviners, family and community elders “to find out what is wrong with them”.
It is unclear whether members of Contralesa will follow their own advice and will also approach traditional healers to find out what is wrong with them and why they harbour such an irrational fear and hatred of gay men and lesbians. Personally I blame the white missionaries for the fragile state of mind of many traditional leaders. After all, it was the missionaries who imposed a version of their colonial morality on large sections of African society. This colonial morality included the notion that who one has sex with must say something fundamental about one’s moral character and must mark one as a distinct person – either as a heterosexual or a homosexual, as either pure and monogamous or lustful and depraved.
Before the missionaries corrupted us with this essentially ridiculous notion that who we have sex with says something important about who we are and whether we are good or bad people, concepts such as homosexuality and heterosexuality were not known to us. Yes, people had sex with members of the same sex or the opposite sex, but we did not call those people gay, lesbian or heterosexual. We just called them human beings. It was only once the missionaries convinced us to classify people on the basis of their sexual desires and actions that homophobia could blossom into the deadly disease it is today.
Before the arrival of the missionaries, some communities might have censured certain kinds of sexual behaviour, but such censure attached to sexual acts and not to whole groups of people simplistically reduced to the sexual acts they engaged in. The opposition of traditional leaders to same-sex marriage can therefore not be divorced from the facts that colonial beliefs and habits have irrevocably changed the way we think and live on the continent. It is sad that many traditional leaders are so steeped in colonial culture (a bit like fishes swimming in the sea who are not able to realise that they are in water) that they would find it difficult to recognise that their own homophobia is largely the product of colonialism.
Interestingly, this antagonism towards relationships that do not conform to the colonially-imposed idea about marriage as being between one man and one women to the exclusion of all others, do not extend to polygamy, which – not surprisingly – the men of Contralesa fully support. Picking and choosing between the many prejudices passed on to us by the white colonists and selecting to embrace only those prejudices that help to prop up their patriarchal power and rule, traditional leaders may have slightly less legitimacy and a less valid argument than they might imagine.
Our Constitution is aimed at addressing the effects of colonialism and apartheid and to protect everyone from the prejudices and hatred that formed such an integral part of colonial life in South Africa. That is why section 9 of the Constitution prohibits discrimination on any ground, including on the basis of race, sex, gender and sexual orientation. That is also why section 30 and 31 of the Constitution explicitly subordinate the enjoyment of cultural rights to the other rights in the Bill of Rights. Any cultural belief or practice that discriminates against somebody else on the basis of race, sex, gender or sexual orientation is therefore unconstitutional as the right to equality trumps the right to culture and tradition (even if that tradition was subverted by colonialism).
Similarly, section 211 of the Constitution states that although the institution, status and role of traditional leadership are recognised, such recognition is subject to the rest of the Constitution – including the right to equality and the provisions in our Constitution that entrench democratic rule. This provision thus essentially relegates traditional leadership to the symbolic realm. The constitutional position of traditional leaders in South Africa is therefore not that different from the constitutional position of Queen Elizabeth: good for some gossip and for colourful depictions on tourist postcards, but essentially powerless. That is why traditional leaders cannot rightfully demand any rights for themselves that would be in conflict with the democratic nature of our system of government or that would effectively discriminate against women or gay men and lesbians. It would be like old Lizzy demanding a seat in David Cameron’s cabinet.
These provisions of the Constitution that relegate traditional leadership to the symbolic realm reflect the ideology and principles of the ANC at the time when negotiations for a new Constitution took place. People like Govan Mbeki wrote extensively on how the traditional chieftanship was reshaped to serve the apartheid project, while the women’s movement actively organised during the constitutional negotiations in order to defeat the conservative forces represented by the traditional leaders.
It is now difficult to remember that there was a time, not so long ago, when progressive ideas were dominant in the ANC. Back then, the ANC was the party that opposed patriarchy in all its manifestations and took a principled stand against discrimination of all types. It was a party that believed in the importance of redistributing wealth to the many previously oppressed citizens of our country – and not only to the few politically connected looters and tenderpreneurs and those living at a certain R250 million compound at Nkandla.
It was during that time that the ANC and its leaders acted as a midwife to our modern Constitution. It was a time before people like Cyril Ramaphosa realised they could use their political connections to get appointed to lucrative positions on the Boards of companies that exploit workers and often treat them like only half human beings.
Back in 1995 when the new Constitution was being negotiated by the democratically elected Constitutional Assembly, the ANC’s status as governing party had not yet provided its members with widespread access to power and money. That access to power and money corrupted many of its existing members, drove many other principled individuals away and attracted a good number of new members who never joined the struggle when it was dangerous to do so, but flooded the party once it became clear that membership could bring untold material reward.
Whether the ANC of today would agree with the progressive stance taken by the ANC of 1995 against the exercise of undemocratic power by traditional leaders and against the potential discriminatory effects of some (but not all) customary (and colonially imposed) beliefs and practices of traditional leaders, is an open question.
Lucky for those of us who believe in progressive values, these provisions are entrenched in the Constitution and cannot be amended by the ANC because it will probably never again achieve a two-thirds majority of votes necessary to do so unilaterally. Meanwhile we can only hope that the traditional leaders will awake from their colonially imposed slumber and will realise that their opposition to same-sex marriage demonstrate an embarrassing inability to rid themselves of the remnants of the colonial prejudices forced upon all South Africa before the advent of democracy.BACK TO TOP