|Inside the South African Constitutional Court|
When I immigrated to the United States in 1985, I marveled at the U.S. Constitution. It protected everything. I left a place where it was constitutional to discriminate – in fact it was required that one discern between races when it came to where people could live, who could vote and many more deplorable statutes.
I had arrived from South Africa, at a time when the discriminatory laws of apartheid were receiving the massive international outcry that ultimately brought my native land, rightfully, to its knees.
In 1990, Madiba Nelson Mandela was released from his life term on the invidious Robin Island, apartheid died, Afrikaner power ended with de Klerk out, and so the ANC became the ruling party of the Republic of South Africa.
The future of the post apartheid era was bright, certainly in terms of what such oppression had yielded; it bore a promise of “never again”. The Truth and Reconciliation Commission dispensed with the ‘baddies’ on both sides; and in a way that would belie any avenging majority. The result was that now the South African ANC led Parliament legislated a new Bill of Rights; a Constitution that protected all, including gays, lesbians, bisexual, transgender, and inter-sex (LGBTI) persons, one of the most progressive in the world. Indeed this Constitution specifically prohibits discrimination based on sexual orientation and gender identity.
The Constitution of the Republic of South Africa, 1996, was approved by the Constitutional Court (CC) on 4 December 1996 and took effect on 4 February 1997 and is the supreme law of the land. No other law or government action can supersede the provisions of the Constitution.
The process of drafting the Constitution involved many South Africans in the largest public participation program ever carried out in South Africa. After nearly two years of intensive consultations, political parties represented in the Constitutional Assembly negotiated the formulations contained in this text, which are an integration of ideas from ordinary citizens, civil society and political parties represented in and outside of the Constitutional Assembly.
In the USA we implore the vision of the “founding fathers”(urgh deplorable term!) and the resulting Constitution; I believe both constitutions were similarly implicit in their intent, where the U.S., a country founded on immigrants had sought in their pioneering and quest for independence, to ensure that no one ever suffered prejudice such as the right to worship in freedom, the imperative of separation of church and state and also the absolute right to pursue happiness. Slavery was brought to an end and all should be perfect. But we the LGBTQI community especially know that it is anything but!
When it comes to discrimination against LGBTQI people, in comparing South Africa, at this moment in time, to the United States- the U.S. is Champion; it wins hands down! My country of naturalization has actually taken on an apartheid-esque statute in the form of The Defense of Marriage Act of (DOMA.) This may well be worthy of some comparison to South Africa’s apartheid beacon, the notorious Group Areas Act, which separated races based on a classification system, which in effect determined where people could live, ensuring that people of color and those with fair skins could not live as neighbors.
Perhaps an over simplification, the justification at the time, was that unless races were separated, the white minority would be at risk of extinction in S.A.; where people of color far outnumbered the white population. Similarly now in the U.S.A. the antiquated DOMA lingers long, despite the introduction recently of repeal legislation, as it pampers to that furrow of fear from a lashing religious bigoted right conservative Congress. No to mention those who continue to condone this umbrella of hardship, which serves to exclude LGBT same sex couples from over 1,000 rights under the U.S. Federal law.
South Africa prides itself on the international acclaim its Constitution affords it, as the most democratically progressive country in Africa, evidenced by its Government site, and hence ought to assume the responsibility to lead as such..
Enter Jon Qwelane, of South Africa, the 2010 Envoy appointment to Uganda. There could not be a more unabashed homophobe than this ex-Journalist who published ant-gay speech and refused to apologize. President Zuma appointed Qwelane as South African Ambassador to Uganda and ignored the pleas of the South African Gay (LGBTI) community and the concerns from abroad.
This last week, to add insult to injury, Qwelane was found guilty and fined by the South African Equality Court. This Court ruled in response to a complaint filed by the South Africa Human Rights Council against Qwelane – accusing Qwelane, who at the time was a journalist writing for the Sunday Sun, of hate speech.
In his ruling on the matter back in 2008, press ombudsman Joe Thloloe found that the Sunday Sun had breached the South African Press Code on three counts. These were:
- Publishing denigrating references to people’s sexual orientation in the column by Qwelane;
- Implying that homosexuals are a lower breed than heterosexuals; and
- In the cartoon accompanying the column, which was also disparaging of homosexuals.
Now however, with this ruling, The Equality Court sees it differently. On Tuesday it found in favor of the complainant, the South African Human Rights Council. “The article and cartoon propagates hatred and harm against homosexuals. Homosexuals as represented by the complainant have suffered emotional pain and suffering as a result of the action of the respondent,” read the ruling. Qwelane was ordered to pay R100,000 ($15,000 USD) in damages, and make an unconditional apology to the LGBT community.
An interesting dilemma looms in my primitive comparison; the United States Courts have recently issued a spate of rulings asserting that DOMA is unconstitutional. Yet the law subsists and has since President Bill Clinton signed it into law. This Law prohibits American same sex couples from over one thousand federal rights, such as immigration equality with the right to sponsor a same-sex spouse (albeit, married legally in a U.S. State or overseas) for a green card.
As I examine the hardship of my community suffering prejudice in the U.S.A. I must wonder whether the suppression of homophobic speech, which according to the U.S. Constitution falls under the right to “freedom of speech,” may result in a stronger likelihood in a repeal of DOMA.
Imagine if we could silence the Rick Warrens, the Maggie Gallaghers, the Scott Liveleys and those whom they influence. Imagine never hearing a hateful word about the de facto being of gays, lesbians, et al.
In the South African context, the question now will be whether the South African Equality Court has impinged upon Qwelane’s right to free speech or ought hate speech be excluded from such right? Is a law that restricts hate citing speech unconstitutional and how does one distinguish between “views on homosexuality” and ‘the incitement to harm.’
When the complaint was first lodged, Qwelane, asserted: “And by the way, please tell the Human Rights Commission that I totally refuse to withdraw or apologize for my views. I will write no letters to the commission either, explaining my thoughts…” wrote Jon Qwelane, “Call me names, but gay is NOT okay…” published in the Sunday Sun in 2008.
While Tuesday’s ruling by the Equality Court means Qwelane is going to have to eat his words, compelling questions remain:
1. How do we reconcile South Africa’s all inclusive constitution with the fact that President Zuma’s envoy, now guilty of hate speech, remains seated in Uganda, a Country which ironically criminalizes homosexuality; was this done because Qwelane fits in with the raging hateful sentiment that prevails against a country that is still calling for a Kill the gays bill? This is a coveted position and my sources say that Qwelane’s fierce loyalty to Zuma during the President’s rape trial in Johannesburg, has and may well insure favors are at the core of this appointment.
2. If we believe that Qwelane is entitled to his “views” and that his freedom of speech was curbed by an unconstitutional law, is it acceptable that a man who has stated he is anti-gay, heads the ticket for representation of South Africa – a Country that is determined not to ever oppress any singled out portion of its population again – in a Country that is calling for life and death penalties for homosexuals?
3. Either way, should Qwelane be recalled from Uganda for his anti-gay views and because he has been found guilty in the Equality Court?
This is what Martin Ssempa had to Say about the Zuma appointment back in 2010: President Jacob Zuma should not to jeopardize Uganda/South African relations by cancelling Mr. Jon Qwelane as Envoy to Uganda. “We would like to support your wise decision to send Mr. Jon Qwelane as South African envoy to Uganda and request that you do not listen to the homosexual extremists who are demanding that you disqualify him, and rather send an extreme homosexual propagandist. We have also learnt that because of Mr. Jon Qwelane views which are strong on traditional marriage, and who does not put sodomy as a major pillar of his foreign policy agenda, homosexual groups are demanding that you cancel his appointment.”
Ultimately, as the law stands in South Africa, we indeed see limitations on freedom of expression; yet for LGBTQI people perhaps the words of HRC Spokesperson Vincent Moaga speaks for us all – anywhere and everywhere: “For us this is one of the major victories on our part to continue to fight and eradicate inequality.” Regarding the ideal of freedom of expression, he said: “We are always of the view that people have a right to freedom of expression, but then that there are limitations within that right, and some of those limitations are well set out in the Equality Act.”
It would seem that in the struggle to eradicate oppression and in this case against LGBTI persons, South Africans are indeed faced with limitations; whereas in the USA while retaining the right to freedom of speech, albeit hateful, we continue to oppress our LGBTQI community with laws that are unconstitutional.
“Section 16 of The S.A. Constitution provides that everyone has the right to freedom of expression, including “freedom of the press and other media”. However, among other caveats, this right does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. What people crying “hate speech” often seem to forget is this last clause: incitement to cause harm.
Another law addresses hate speech, the Promotion of Equality and Prevention of Discrimination Act, which states: “[N]o person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; or promote or propagate hatred.” And, although “a clear intention to be hurtful” may be broader than “incitement to cause harm”, such intention still needs to be proven.”