South Africa’s constitutional review of its sexual orientation rights is shocking

South Africa’s constitutional review of its sexual orientation rights is shocking

Since the end of Apartheid and the inception of South Africa’s new constitution some twenty years ago, the country has been lauded for its lead on the entrenchment of anti-discrimination rights that renders it one of the few in the world to protect sexual orientation and gender identity in its Constitution. Gays and lesbians (LGBTI) enjoy full equality in South Africa.

Notwithstanding this South Africa has never managed to escape the brutality of rampant homophobia which is underscored by the high incidence of so called “corrective” rape in its townships, the deployment of an anti-gay ambassador to homophobic Uganda, and its failure to lead the decriminalization of homosexuality in the rest of Africa.

Now the time has come for a Constitutional review and gay rights activists fear the worst. There is a move to consider a change to the Constitution’s provisions on sexual orientation and property rights have been referred to party caucuses for consideration.

Die Burger, a local Afrikaans newspaper, reported on Thursday that Parliament’s constitutional review committee has made the unusual move of referring these proposals to political parties.

Madibe Nelson Mandela sought to ensure protection against all forms of discrimination in South Africa at the time the new Constitution was formed. Now LGBTI activists fear that African traditionalists and religious fundamentalists are interfering by seeking a direction to bring South Africa back to draconian pre-apartheid era, where homophobia will be ingratiated rather than the protections the Constitution currently provides.

Once a year, the committee considers proposals from the public on possible changes to the Constitution. Normally it rejects most of the proposals, but at a recent committee meeting, these proposals were the only ones not to be thrown out.

There was a proposal that section 25 of the Constitution (enshrining the right to property and the rights of property owners and of society as a whole) be amended in order to create a new window period for the submission of land claims, while the PAC proposed that section 25 be scrapped and replaced.

Sexual orientation

The House of Traditional Leaders made a proposal regarding scrapping the sexual orientation section from the bill of rights contained in Chapter 2 of the Constitution.

The Constitution reads: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

ANC MP and review committee chairperson Chief Patekile Holomisa told Die Burger that none of the 17 constitutional amendments since 1996 have been handled by the committee, and that with the exception of two cases (allowing and then scrapping floor-crossing between political parties), the Constitution has never been drastically amended.

Holomisa said the proposed amendments could mean comprehensive changes in people’s lives, and the committee wanted to play a greater part in constitutional amendments than it had done in the past.

However, he said the mere fact that the amendments were being discussed in no way implicated that they would be accepted. They will be discussed by the committee once feedback had been received from party caucuses.

Yet activists such as Eugene Brockman the designer of the Gay Flag of South Africa notes:-

“I am truly concerned that decades of lobbying and progress for LGBTI rights in South Africa are under threat.The constitutional review committee of South Africa are actually allowing for discussion on scrapping protections for “sexual orientation” from the South African constitution. The house of traditional leaders have put forward that the inclusion of “Sexual orientation” should be discussed, in over 80 applications put to the constitutional review committee, they allowed for “sexual orientation” and land rights to be discussed.

Gay rights equal human rights, there should no discussion period!”

SA GLAAD’s Cobus Fourie told me that they are alarmed that the equality clause of the Bill of Rights is even considered for amendment to summarily wipe out the rights of a significant portion of the South African society:

“We have always been very proud of our very progressive Constitution. We hope that the Congress of Traditional Leaders and political parties keep this profound statement by our first democratically elected president, Nelson Mandela, in mind: ‘Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another.’”

The mere fact that they are being discussed causes a shiver and imposes an ominous dark cloud, as surely these are constitutional rights entrenchment ought to be ensured to such a degree that they the rights should be untouchable.In essence surely any amendment or change will be in itself unconstitutional.

The mere fact of the discussion is further indicative of the pervasive homophobia in those parts of South African society. If Nelson Mandela had his full faculties at this time, he would be seriously disturbed by this move. President Jacob Zuma should show leadership on this critical issue and come out immediately and speak against this in clear and bold terms.

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