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.
NOTE TO READERS: I wrote this piece based on information gleaned from the Lead SA Website and other documents sent to me. Primedia has pointed out (see full letter here) that although a version of the Bill of Responsibilities on the website did not include sexual orientation, other documents did. Although the original version of the document drafted by religious leaders did not include sexual orientation, I have no reason to doubt that the Lead SA campaign did intend to include it in their version and that it made an honest mistake when it published the document that excluded sexual orientation. I therefore apologise for assuming that the campaign did not intend to do so and for claiming that the campaign was homophobic. I am happy to retract the criticism of the Bill (and of Lead SA) based on this assumption. I stand by the rest of my criticism of the campaign.
When the Department of Education, 567 Cape Talk, Radio 702 and others involved in the so called “Lead SA” campaign launched a “Bill of Responsibilities for the Youth of South Africa” this week, I thought it might be a good idea. Rights carry with them responsibilities and promoting both rights and the concomitant responsibilities amongst our youth seems like a good idea.
But then I read the document and was truly appalled. How such a wrongheaded and bigoted document could have been endorsed and promoted by Lead SA and the Department of Education is beyond me. Don’t these people think? If they do, don’t they have any moral compass to guide their thoughts and actions or any notion of what democracy is all about?
Of course, given the fact that the document was drafted by a group of religious leaders, it is not surprising that it gets our Bill of Rights so wrong. The document is shot through with pious platitudes and sickly sweet but morally dubious claims. It is also overlaid with the casual but deadly serious prejudices that sadly infest many who take up leadership positions in organised religious bodies. What is surprising is that the Department of Education and radio stations that pride themselves in getting South Africa talking would endorse this nonsense.
First, the document suggests that it is perfectly fine to discriminate against gay men, lesbians and other sexual minorities. In the sections dealing with equality the document states that the right to equality places a responsibility on everyone not discriminate unfairly against anyone else “on the basis of race, gender, religion, national— ethnic- or social origin, disability, culture, language, status or appearance”. No mention is made of a duty not to discriminate against anyone on the basis of his or her sexual orientation — an obligation that flows directly from section 9(3) of the Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act.
One cannot but conclude that this deliberate and quite glaring omission means that the Minister of Education, 567 Cape Talk, Radio 702, and the Lead SA campaign do not support the prohibition against unfair discrimination against gay youth. In effect these institutions and the Lead SA campaign are endorsing the widespread hatred and homophobia that are also prevalent amongst school children. The silence in this document on the impermissibility of discriminating against gay men, lesbians and transgender youth speaks louder than they might think about the deep prejudices underlying this document.
Given the fact that gay, lesbian and transgender youth are particularly vulnerable as they are still coming to terms with their sexuality — a sexuality they are often told by parents, by their religious leaders, by teachers and by fellow learners are perverted and sinful — it is an outrage that this document deliberately skirts the issue. Gay, lesbian and transgender youth are often relentlessly taunted and bullied by peers — which in extreme cases lead to suicide — yet this document suggests that it is perfectly acceptable to discriminate against them.
According to this deeply odious document, while one has a responsibility not to discriminate against anyone because of her race, one has no corresponding responsibility not to discriminate against anyone because of her sexual orientation. This is not what the Constitution and our law says, so it is misleading. Neither is it what any ethical human being would expect. It is, however, how many bigots — including some religious bigots — think.
How any reputable organisation could endorse this document is therefore beyond me. The fact that the Ministry of Education – who has a duty to uphold and respect the rights in the Constitution – is promoting this document, suggests that it has deliberately and flagrantly decided not to honour its constitutional obligations towards a particularly vulnerable section of society. The Ministry is therefore flouting its constitutional duties and I would argue that in promoting this document the Department is in breach of its constitutional duties to respect, protect, promote and fulfil the rights in section 9 of our Constitution.
The document is also laughably and perhaps quite dangerously anti-democratic. In a democracy, a thousand opinions are supposed to bloom. We are supposed to hold strong opinions and express those opinions — even when such opinions are not popular or even when others (including parents, religious leaders and teachers) do not agree with our opinions. This view of democracy is at the heart of what it means to live in a democracy based on the value of human dignity. In such a democracy we are assumed to have agency and to be able to decide for ourselves what we wish to believe and how we ought to behave — as long as we do not break the law.
But this document suggests that children should be seen and not heard, that they should not upset anyone and hence should not really enjoy the freedom of expression that others take for granted. Children should be passive and obedient creatures who upset no one and express no controversial opinions. What this document demands is that our children should act like passive, unresponsive, scared and obedient automatons without any zest for life, no intellectual curiosity, no belief that what they think matter. This, it seems to me, is a dangerously anti-democratic (even fascist) idea.
First, the document states that the right to human dignity means that everyone has a responsibility “to treat people with reverence, respect and dignity and be kind, compassionate and sensitive to every human being, including greeting them warmly and speaking to them courteously”.
Well, it would be nice if people were generally polite but we have no constitutional duty to treat people with reverence and respect. In fact, I would argue that in a democracy in which we are empowered to decide for ourselves who we are, what we believe and how we want to live, we have a duty sometimes to tell people that they are talking crap and that we do not respect them. How else will they know that they are ridiculous, callous or just plain wrong?
When a religious leader endorses homophobic bigotry I for one will not treat him or her with reverence. I will tell him (because it is mostly a him) that he is harming others and that he is being a very bad person for doing so. A failure to do so would require me to act in a fundamentally unethical manner merely to promote politeness and respect for others. What nonsense.
Similarly the right to freedom of expression does not mean — as this ridiculous document asserts — that we have a duty to ensure that others are “not insulted or have their feelings hurt”. How can we engage in a vigorous exchange of ideas and how can we express ourselves freely if we can never hurt the feelings of anyone? Of course, it is a good thing to try and express one’s beliefs in a logical and rational manner and to engage with the ideas of others seriously, but this does not mean we have an obligation never to hurt the feelings of others. If that were to be the case, I could never express a view, say, that organised religion is often deeply bigoted, that god does not exist or that unbridled capitalism is an evil force in the world.
This document purports to set out a list of responsibilities that are inextricably linked to the rights in the Bill of Rights. But the document does no such thing. It reflects the pious and paternalistic attitudes and beliefs held by many in the field of organised religion. It does not reflect in any way the real responsibilities placed on us by the Bill of Rights. Unlike this document, the Bill of Rights assumes that we are individual human beings whose dignity can only be respected if others also respect our right to say what we believe and think.
In other words the document gets it exactly wrong. Where the Bill of Rights and the law demands that we do not discriminate against anyone because of their sexual orientation, this document is silent. Where the Bill of Rights demands that we should be allowed to express our views and opinions robustly, this document tells us we have a responsibility not to do so if we will hurt the feelings of anyone else. It is teaching our children the wrong things in the wrong way. It is a dangerous document concocted by people who do not like or believe in equality and democracy.
Lead SA should never have gotten involved with this reactionary and paternalistic exercise. They should be ashamed of themselves.BACK TO TOP