As Joburg prepared to celebrate Pride this week, an esteemed panel discussed the gap between our constitutional rights and the reality experienced by LGBTI people. The results made me question if this deep chasm can be bridged any time soon.
Titled, “Bridging the gap between constitutional rights and homophobic realities”, the roundtable discussion was hosted by the Helen Suzman Foundation. The aim was to address homophobia in today’s society, particularly violent LGBTI hate crimes such as ‘corrective’ rape and murder, and what strategies, both by civil society and the state, are available to remedy the situation.
The question at hand was whether South Africa’s much-vaunted progressive Constitution – which specifically protects the right to equality of lesbians and gays – is making any difference to lesbian women who are attacked and then further face a homophobic and uncaring criminal justice system.
The government was represented on the panel by Andries Nel, the Deputy Minister of Justice and Constitutional Development. The Judiciary was there in the form of openly-gay Constitutional Court Judge Edwin Cameron. Eusebius McKaiser, the openly-gay radio host, commentator and academic, also took part.
It was however, the presence of Ndumie Funda – the passionate founder and director of Luleki Sizwe, a corrective rape lobby group – that energised the meeting. Her intimate experience in dealing with the rape and murder of lesbian women in the Western Cape grounded the discussion – helping to avoid it becoming a purely academic undertaking.
The packed room – containing a mix of all types, from young black activists to Northern suburb liberals – was gripped by Funda’s emotional opening comments. She expressed her anger at the debates and discussions about the abuse of lesbian women that seem to lead to little or no action. She railed against the lack of change.
“We must be practical – enough of the talking and writing theses – we must take action. The violence against lesbians in the Western Cape is escalating and women are not coming forward with their stories because they feel that they have no protection,” she said.
“What is the government doing about the people who are dying? The Constitution is not there on the ground. People are dying on the ground. We are running out of time.”
Funda revealed that she was personally being targeted thanks to her increasingly public work and that her home had recently been broken into. “I am being harassed. I am getting threatening phone call and sometimes I even need security guards,” she said. “I don’t want to be a celebrity but I will fight until the last drop of my blood.”
Justice Edwin Cameron and Ndumie Funda
Funda also expressed her frustration at the slow progress of the hate crime task team recently set up to bring together government and activists in a bid to find solutions to the crisis. “The task team has not got very far. Your task team is delaying,” she accused Nel.
Nel, whose Department of Justice is playing a key role in the task team, praised Funda as a brave woman. Coming across as somewhat beleaguered, he explained that the task team is collecting information and researching the issue of hate crimes. He said that its members have been working constantly and that they would hold a three day workshop in October.
He admitted, however, that “while the task team is a good foundation, it is not enough”. He said that a society that is interlinked with the values of the Constitution is the goal but that this cannot solely be achieved by the law and that it won’t be quick or easy.
Nel pointed out that most of the anti-gay violence was faced by the poor and the working class. “We also need socio-economic transformation,” he said.
He was challenged by Phindi Malaza from the Forum for the Empowerment of Women (FEW) about the criminal justice system’s poor record in dealing with LGBTI attacks. She also claimed that reporting hate crimes to police was often fraught with further prejudice and discrimination. “The benefits of the Constitution are enjoyed primarily by the middle class,” she said.
Nel admitted that homophobia in indeed present in the criminal justice system, as it is elsewhere in the rest of society. He assured the audience, however, that the government is committed to overcoming this challenge.
He also said that the task team has been given the direct contact details of senior officials who could take up complaints about homophobic police. “From the side of my department, homophobia and hate crimes are not acceptable. We will oppose it and we will transform our criminal justice system to deal with it,” said Nel.
Eusebius McKaiser chose to address the issue of more subtle homophobia, pointing out that discrimination against LGBTI people does not usually take the form of violence. He spoke about his childhood as an effeminate boy who bore the brunt of verbal and emotional abuse from his peers and family.
Eusebius McKaiser and Andries Nel
“Homophobia is the default position in society – and most people are unaware of it. Homophobia happens not just in black communities but in liberal and suburban homes,” he said. He argued that while it is important to fight legal battles “we must also tackle social attitudes that the law cannot reach”.
The issue of homophobia and prejudice within the LGBTI community itself was brought up by an audience member who spoke of his unease with his gay friends who expressed disgust at other more effeminate gay men.
McKaiser commented that gay men and women often do not stand up against homophobia in their midst. “Ask yourself how often you accept or challenge homophobia when you’re around others – in the office or with friends. If you do not challenge homophobic behaviour you are no better than those who are attacking lesbians in our society.”
The last panel member to speak was Justice Cameron who introduced himself by saying: “I am here as a proudly gay man and as a Constitutional Court Judge”.
Cameron, who played a part in ensuring that the sexual orientation equality clause was included in the Constitution’s Bill of Rights, acknowledged that LGBTI people continue to face discrimination despite their legal protections.
“Scepticism about the Constitution and what rights we have achieved is justified,” he said, “yet the Constitution has achieved a great deal. It has resulted in practical, material and institutional benefits”.
Cameron cited the fact that sodomy is no longer a crime as well as same-sex marriage rights, adoption rights and other gains. He also pointed out that “the Constitution has given us a form of dignity”.
He called for “an alliance between lawyers, activists and institutions – one that stretches across class boundaries”.
“I remember when the LGBTI community played a significant part in activism and change in the 1990’s. I believe that it can again take a leading role today,” he said.
The audience was surprised to learn that another Constitutional Court judge was at the event when Justice Zak