Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
13 February 2013

What do we really mean when we say “never again”?

The Holocaust Centre in Cape Town is hosting an exhibition entitled In whom can I trust? It depicts the persecution of homosexuals in Nazi Germany in all its many facets. This is a slightly edited version of the talk I gave at the opening of this exhibition on Tuesday 12 February 2013. – Pierre de Vos

The South African Constitution is in many ways a historic and inspirational document. As you all know, it was the first justiciable Constitution in the world to include an explicit textual prohibition against sexual orientation discrimination in its Bill of Rights. Because of the progressive way in which our Constitutional Court has interpreted this specific provision, South Africa’s anti-discrimination and pro dignity constitutional jurisprudence affecting those of us who are gay, lesbians, intersex or transgender is held up around the world as an example to be admired and followed. This guarantee holds immense promise. On paper, it affirms – both as a practical matter and on a symbolical level – our equal status, our moral citizenship and our sense of self-worth. In the Constitutional Court judgment declaring invalid the criminal prohibition on voluntary same-sex sodomy Justice Albie Sachs provided an expansive definition of what this promise of equality should entail especially for members of the LGBTI community:

(Incidentally, I suspect his judgment is probably the first and only court judgment in the world which opens with these words: “Only in the most technical sense is this a case about who may penetrate whom where.”) That’s Albie for you! In any case, what Albie Sachs wrote in that judgment as that:

equality should not be confused with uniformity; in fact, uniformity can be the enemy of equality. Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment. At best, it celebrates the vitality that difference brings to any society.

This is the promise made by our Constitution: the establishment of a society in which difference is celebrated; a society in which none of us ever have to pretend to be what we are not, merely to fit in and to avoid stigmatisation, discrimination, abuse and physical violence; a society that allows us to live our lives as we please; a society that allows us to interpret and continuously to re-interpret what our sexual orientation (and the many other aspects of our identities) mean for us and for how we wish to live our lives with dignity and respect.

That is quite a promise, I would say?

I suspect that some of us present in this room are lucky enough to go about living our daily lives almost feeling as if this promise has already been fulfilled. I know I do. Our race, our class our gender our education, the support of family and friends, a healthy self-image, a steady job in a friendly environment, and many other factors help to insulate us from some – if not always all – the realities faced by fellow LGBTI South Africans.

But even those of us who are privileged in so many ways must surely know that the reality is quite a bit different for most South Africans and that we are far from achieving the society promised by our Constitution. As this exhibition (and recently also the media, who seems to finally have discovered that there is a rape epidemic in South Africa), as they remind us: it is not safe to be a women in this country; it is not safe to be a lesbian women in this country; in fact, it is often not safe to be any kind of Other in our society in which respect for difference is at best professed by politicians and others shouting empty slogans, but in which respect for difference is seldom lived. There are often so many words, but so few actions to back up the words.

As I said, for many the gap between the soaring Constitutional Promise highlighted above and the lived reality of everyday life is vast. There are many complex and often interlinking reasons for this and it is beyond the scope of these brief remarks to try and highlight all these reasons. One obvious reason is that the Constitution is based on a set of normative commitments (or values, if you will) that do not yet live in the hearts of a majority of South Africans. One of the major tasks faced by our society is to begin to address this gap between the values enshrined in the Constitution and what people believe and how their beliefs influence the way they act. This needs to be done by first challenging and then changing toxic attitudes and beliefs (as well as the structures which create and perpetuate these toxic attitudes and beliefs) that cannot be squared with the promise of the Constitution.

I happen to think that one of the many ways in which we can begin to do this work is by revisiting our past and by coming to a better understand of, and then promoting, a more nuanced and multifaceted understanding of what made our past so horrific. South Africa’s Constitutional Court often invokes our apartheid past when it interprets the provisions of the Constitution. In many judgment the Court has argued that one way to view this Constitution is to see it as a document that acts as a prophylactic – a condom of sorts – to protect us against repeating the mistakes of the past and to ensure that we never again – through our active participation or our passive acquiescence – allow any sector of society to be dehumanised and oppressed. We can only understand what the Constitutional provisions mean if we understand what past horrors these provisions are trying to prevent from reoccurring.

This is a powerful and important narrative. Given the strong hold that the apartheid narrative has on our imaginations, the narrative of “never again” has the potential to speak to people and to their own lived experience. But never again, what? Never again a form of racial oppression in which white supremacists dehumanised, discriminated and oppressed the black majority, yes. This is a horrible memory we still live with and, I fear, that many white South Africans too easily dismiss as something of the past that should be forgotten. Instead of forgetting the past we should remember it, should insist that it never be forgotten. Because if the Constitutional Court is correct that our Constitution is ultimately a document that – interpreted and understood with the correct kind of historical self-consciousness  – protects us all from repeating the unspeakable errors of the past, this kind of continuous remembering is an important weapon against tyranny and evil.

It seems to me what this exhibition reminds us of is that when we remember the past injustices, we run the risk of doing so selectively. How is it possible that I only discovered during my Phd studies that homosexuals were also persecuted in Nazi Germany? Some forms of injustice are difficult to identify because they reflect the attitudes of a time or assert the beliefs of the powerful or the dominant. In current day South Africa those who wish to justify the continued sexism homophobia, prejudice against people living with HIV, and xenophobia in society (to name but a few), would have a tendency to forget – a kind of wilful forgetting – yes, forget the way in which women and gay men and lesbians and HIV positive people and foreigners have been marginalised, dehumanised and oppressed in the past.

Conversely, those of us – comfortable in our middle class gay and lesbian existence – might find it difficult to make common cause with oppressed people who do not share our class or race or gender background, and run the danger of forgetting that the oppression and sometimes persecution of gay men and lesbians during the apartheid era was not the only form of oppression that we should ensure never re-occurs. I am often shocked when a gay man says sexist things or when a white homosexual turn out to be a racist. Shocked but not surprised.

The challenge, so it seems to me, is really to try and remember a different kind of past. Or perhaps to discover a different kind of past that we never really knew existed, an uncomfortable past, a past in which we might have been both oppressor and oppressed. I love quoting Evita Bezuidenhout who said, speaking about the Truth and Reconciliation commission and the moral amnesia of many white South Africans: “The future is certain, it’s the past that is unpredictable.” We will not begin to narrow the gap between the promise of the Constitution and the lived reality of people if we are not prepared – all of us – to confront our own unpredictable past. And once we have confronted this past, instead of retreating in shame into silence, to make common cause with others and to act, to the best of our abilities and in whatever way we believe is strategically wise, in order to challenge and fight the many different kinds of prejudices and forms of oppression in society.

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