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.
In recent months both Uganda and Nigeria passed legislation that, in effect, criminalises a sizeable section of its population. The legislation aims to use the criminal law to punish fellow citizens who experience same-sex sexual and emotional desire for fellow consenting adults or who act on such feelings. The South African government claims it is dealing with this threat to the liberty and lives of our African brothers and sisters through “quiet diplomacy”. Here is why this “quiet” approach is deeply hurtful and potentially devastating to many gay men and lesbians in South Africa and elsewhere on our continent.
When large numbers of gay men first started dying of Aids-related illnesses in New York and San Francisco in 1981, the right-wing Republican, Ronald Reagan, was President of the United States of America.
At first, neither President Reagan, nor anyone in his administration took the disease or the fight for life-saving treatment seriously. At the first press conference where an administration official was asked about HIV and Aids (at the time it was often called the “gay disease”), the spokesperson denied knowing anything about it. When he then “joked” that he himself did not have Aids (the joke apparently being that he was not gay), journalists laughed uproariously.
It took Ronald Reagan until 1987 to speak about Aids in public. He only did so after a sustained campaign by ACT-UP, the radical group of mostly gay men and lesbians (many of them dying of Aids-related illnesses), who invaded the US stock exchange and engaged in other forms of civil disobedience to get the government and large pharmaceutical companies to begin to take drastic action on the disease that would eventually kill more than 300,000 gay men in the USA before triple therapy brought some relief.
The famous (and tragically accurate) slogan which spurred members of ACT-UP on to ever more urgent activism to save their own lives and the lives of their comrades was: SILENCE = DEATH.
The absolute silence of politicians like Reagan around HIV and Aids in the USA was, of course, directly related to the fact that in the USA at the time, the disease was associated with sex between men and therefore with gay men more particularly.
This silence was informed by prejudice, shame and embarrassment about same-sex love and same-sex sexual desire. This made it difficult for politicians to even mention the disease, let alone to take action to prevent its spread and to find a cure. (Even Ed Koch, who during this period was the closeted gay mayor of New York, remained silent about Aids.) Despite the fact that there is nothing shameful about consensual same-sex desire (just as there is nothing shameful about different-sex desire), the politicians remained silent, despite the fact that speaking up would have saved hundreds of thousands of lives.
When we are embarrassed, ashamed or disgusted by something or someone, we often choose to remain silent about that person and what he or she has done. This silence protects us from having to confront our own complicated and cowardly feelings and allows us not to feel complicit when members of an unpopular group are discriminated against, physically attacked, raped or murdered.
It also distances us from the person or act we are judging and ensures that we will not be “tainted” that with which we are ashamed, embarrassed or disgusted.
But when we remain silent about the prejudices some people harbour and express about others (for example, if I say nothing when another white person makes a racist statement in my presence) and the often deadly consequences of those prejudices, when we refuse to name the horror of it, when we hide behind euphemisms and generalisations, we are implicated in that prejudice and its perpetuation.
When we are told as gay men and lesbians that we should not “flaunt” our sexual orientation (when the “flaunting” of heterosexuality permeates our society and culture), it sends a signal that the majority believes that who we are as human beings is inherently shameful. It tells us that we must be disgusted with ourselves and must hate ourselves because of who we love and who we have sex with. We are told that we belong in the closet where we will not prick the conscience of those whose silence help to make our oppression possible.
Because gay men and lesbians are a marginalised minority and because the bigotry against us stems from fear, shame and disgust – including the fear, shame and disgust internalised by gay men and lesbians by the silence of others – silence is an extremely effective weapon in the social control and oppression of gay men and lesbians.
“The closet” is a powerful mechanism through which gay men and lesbians are silenced “out of existence”. In societies where hatred and fear of gay men and lesbians are deeply embedded in political practices and religious beliefs, otherwise sympathetic heterosexuals will often maintain a silence about homophobia or will use other rhetorical devices to distance themselves from those who experience same-sex desire in order to escape what they perceive to be the shame and the so called “taint” of homosexuality.
In such societies, when others are vilified, ridiculed, discriminated against, assaulted or murdered because they are perceived not to conform to gender stereotypes or are suspected of same-sex desire or action, many supposedly “kind” and “good” people will remain silent. They will do so to protect themselves, perhaps knowing that their failure to speak up for what is right contributes to the oppression of their neighbours, colleagues and friends.
Similarly, those who experience same-sex sexual desire often impose a silence of the closet on themselves out of fear of being ridiculed, marginalised, discriminated against, assaulted, raped or even killed. There is, of course, no reason to be ashamed or disgusted with same-sex love. There is much reason to be disgusted and ashamed of the bigotry of those who, through their actions and silence, promote or acquiesce in homophobia and the often deadly consequences of such homophobia.
Sometimes absolute silence becomes politically impossible. Those who are not prepared to embrace the full humanity of fellow human beings because of prejudice or self-protection will then hide behind impersonal statements or will make hollow declarations devoid of any real compassion.
It is the absence of any words or actions that display true solidarity with the oppressed minority that is usually the dead give-away. Such statements impose a different kind of silence – even as it pretends to speak about the love that “dare not speak its name” – which can often have equally devastating effects. This silence – which hints at but never names or describes the oppression of gay men and lesbians and its often devastating effects on fellow human beings in full – is the silence of the hypocrite and the closet homophobe.
This, unfortunately, is the quality of the “half-silence” of the South African government about the horrors faced by many people who experience same-sex sexual desire in South Africa and elsewhere in the world.
According to a statement by the South African government it “takes note of the recent developments regarding the situation of Lesbians, Gays, Bisexual, Transsexual and Intersex persons (LGBTI) worldwide” and will be “seeking clarification” on these developments from many capitals around the world. Although the statement continued to say that South Africa “believes that no persons should be subjected to discrimination or violence on any ground, including on the basis of sexual orientation”, it remained silent about the situation in Uganda (and before it, Nigeria and every other country where more repressive laws aimed at discriminating against gay men and lesbians had been passed in recent years).
If South Africa did indeed engage in “quiet diplomacy” with the governments of Uganda and Nigeria (and there is no evidence to this effect) this diplomacy must have been a spectacular failure as both countries adopted repressive laws in conflict with International Human Rights standards and the jurisprudence of UN Human Rights bodies such as that of the UN Committee on Human Rights.
Millions of gay men and lesbians across our continent must yearn for an African government to break the silence about the way their plight is abused by other African governments to distract attention of serious governance problems. Unlike the hypocritical and self-righteous bleating of some Western governments on the issue, a statement by the South African government that named and condemned the homophobic bigotry of fellow African governments would have had a powerful symbolic effect.
It would have broken the silence. And as the example of ACT-UP reminds us: SILENCE=DEATH.
Instead, South Africa in effect decided to remain quiet, hiding behind vague and general language that spectacularly fails to acknowledge the true effects of the bigoted laws passed in places like Uganda. The half silence is even worse: by stating that “clarification” is needed about the oppression of fellow human beings in other parts of the continent our government is hinting that our legitimate outrage may all just be based on a misunderstanding.
For those of us who are attuned to the ways in which our oppression is made invisible through silence and negation, or through the failure to name and confront it in words and deeds, South Africa’s “quiet diplomacy”, and the failure to acknowledge our pain, humiliation and fear, feels like a deadly betrayal.
In may well be that in certain circumstances it would be strategically wise for a government to engage in “quiet diplomacy”. But because of the specific ways in which the silence of the closet create, maintain and perpetuate homophobia across the world, and because of how this silence of the closet terrorises those of us who are gay or lesbian, our government’s silence in this case feels like acquiescence with our own oppression.BACK TO TOP