We are under attack, in what is possibly the most serious threat to the LGBT community in our democracy’s history. South Africa’s traditional leaders are making a concerted effort to reverse the right to equality guaranteed to gays and lesbians under the Constitution.
This alarming assault on our rights – primarily from the archaic Congress of Traditional Leaders of South Africa (Contralesa) – comes on two fronts.
The first is in the form of the Traditional Courts Bill. This proposed law aims to entrench the power of traditional leaders, such as chiefs, in rural areas. It will allow them to conduct trials and hand down judgments according to ‘traditional culture and custom’.
And, as Contralesa has made clear, traditional culture does not in their view include the rights of lesbians and gays, or the equal rights of women.
The one saving grace of this outrageous legislation is that the bill is clearly in conflict with our Constitution and would, if passed and made law, likely be struck down by the Constitutional Court.
But not so fast… The wily chiefs have thought of this and have another plan of attack. If the bill is unconstitutional, then why not simply change the Constitution? And that’s just what they’re planning to do.
The House of Traditional Leaders, which consists largely of Contralesa members, have sent a proposal to the Constitutional Review Committee in Parliament recommending that section 9 (3) of the Constitution be amended.
They propose that the term “sexual orientation” be removed from section 9 (3), which currently prohibits unfair discrimination on the grounds of sexual orientation. It’s this protection that has led to changes in our law to ensure that we are treated equally, including the legalisation of marriage.
“If section 9 (3) of the Constitution is amended we could head down the path to seeing laws passed to deprive of us of our rights…”
If section 9 (3) of the Constitution is amended as the traditional leaders would like, we could head down the path to seeing laws passed to deprive of us of our rights. We could theoretically lose employment protection and marriage and adoption rights. We could be refused permission to hold gay events and even laws criminalising gay sex could be enacted.
Considering that our community continues to be the target of discrimination, including the murder and rape of lesbian women even with the current Constitutional protection, imagine our lot without this defence.
In the past, the Constitutional Review Committee has rejected every single proposal submitted to it for amendments to the Constitution, but frighteningly this time it did not.
Instead it has forwarded the proposal to the political parties in Parliament for their comment; the first step towards making this amendment a horrific reality.
You may be interested – although probably not surprised – to learn that the Constitutional Review Committee is chaired by none other than Nkosi Sango Patekile Holomisa – the President of Contralesa.
Constitutional expert Pierre De Vos is horrified by these moves.
“The decision of the Committee not to reject this dehumanising and insulting proposal out of hand (as it has done with all other proposals over the past 17 years) suggests that Holomisa believes that it is completely reasonable to ask political parties to consider whether they support unfair discrimination against fellow South Africans and whether they believe that it is necessary to endorse the denial of the human dignity of fellow South Africans,” he writes on his blog.
He adds: “The proposals must still be debated, but the very fact that it will be debated is dehumanising to those of us who must now wonder whether people like Holomisa believe that we are subhuman and therefore deserve to be unfairly discriminated against, vilified and (followed to its logical extreme) eventually raped and killed.”
So there we have it. We have a fight on our hands. The question is, ladies and gentlemen, how will you play your part to ensure that we are not once again downgraded to second-class citizens? The time for apathy and ignorance is over.
â€¢ An online petition has been launched telling the chairperson of the Constitutional Review Committee that we will not stand to have our rights trampled on. Sign it here.
â€¢ Read more about the proposed amendment to the Constitution from Pierre De Vos.
â€¢ Read more about the Traditional Courts Bill from Lance Weyer and Melanie Judge.