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LGBTI Equality, back to the closet?

14 May 2014, 12:16

In recent years, there has been a marked proliferation in the legalisation of same sex marriages and civil unions, in countries across the world. If the world had a coming out party, 2013 would have been it. Same sex marriages and civil unions are now legal in 17 countries across the world, the most recent of which is Wales (Provisions of the Marriage (Same Sex Couples) Act[1] allowing same sex couples to marry, came into force on 13 March 2014), in addition to an increasing number of American nations.

However the emergence of LGBTI rights to the fore, and corresponding trend of the legalization of same sex marriages and civil unions, has been accompanied by substantial backlash from countries where homophobia is an engrained cultural phenomenon. This has been achieved by the promulgation of inherently homophobic legislation, generally characterized by harsh punitive sanctioning of homosexual activity.

Two countries sprouting recent homophobic legislation arise from the African continent, namely Nigeria and Uganda. The Ugandan Anti- Homosexuality Act[2] was signed into law on 24 February 2014, whilst similar legislation[3] was promulgated in Nigeria on 13 January 2014.

The aforementioned legislation has not only served as a legal instrument to condone, and further to codify homophobic practices within their respective countries, but is indicative of an alarming trend in African countries to criminalize homosexuality. (Homosexuality is criminalized in 38 African countries.)

South Africa is the only country on the African continent, and in the world, where LGBTI citizens are afforded constitutional protection against discrimination on the basis of sexual orientation. This is attributable to a historical struggle for LGBTI rights, culminating in the identification and inclusion of sexual orientation as a ground of discrimination, in Section 9 of the South African Constitution[4].  In addition, LGBTI citizens enjoy several of the rights and privileges afforded to their heterosexual counterparts, through periodic legislative intervention in respect of inter alia, the right to spousal benefits[5], adoption[6] and marriage[7] by the South African judiciary.

In theory, the South African legislative framework provides a secure environment for the promotion of equality for LGBTI citizens. The reality however, is quite different, and involves the tenuous struggle between constitutional ideals and African traditionalism.

In 2012, the National House of Traditional Leaders submitted a suggestion to the Constitutional Review Committee, proffering the removal of sexual orientation as a listed category from Section 9 of the Constitution[8], stating “The ANC was aware that the great majority does not want to give promotion and protection to these things.”

Therefore, it came as no surprise when South African government offered an effective non response to the promulgation of the Anti- Homosexuality Act[9] adopted by Uganda, in Parliament earlier this month. Despite calls from the South African Human Rights Commission for the condemnation of the Bill, President Jacob Zuma ambiguously stated, "South Africa respects the sovereign rights of other countries to adopt their own legislation. In this regard, through diplomatic channels South Africa engages with Uganda on areas of mutual concern bearing in mind Uganda's sovereignty."

What was required from the South African government was a clear and unequivocal stance against the Anti- Homosexuality Act[10] adopted by Uganda. This would have been symbolic of South Africa’s recognition of past injustice, and a commitment to an identifiable human right’s struggle, which is the cornerstone of our constitutional democracy.

In this respect the Democratic Alliance is commended, in their attempt to pass a motion in Parliament condemning the Anti- Homosexuality Act adopted by Uganda[11]. Whilst the motion was rejected “in its entirety”, the efforts of the Democratic Alliance in furthering the “gay agenda” are not only reflective of the values upon which our constitutional democracy is founded, but is indicative of an unwavering commitment to policy, irrespective of the consequences arising from conservative quarters during the throes of election season.

The non response on behalf of South African government relegated the plight of LGBTI citizens, in South Africa and abroad, to a non issue instead of a human rights struggle. It left a disparate and often unrepresented sector of society voiceless, and indirectly pushed the struggle for LGBTI equality back into the closet.

[1] Marriage (Same Sex Couples) Act, 2014.

[2] Anti-Homosexuality Act, 2014.

[3] Same Sex Marriage (Prohibition) Bill, 2011.

[4] Constitution of the Republic of South Africa, 1996.

[5] Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC).

[6] Du Toit and Another v Minister of Welfare and Population Development and Others 2003 (5) SA 621 (CC).

[7] Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs 2006 (1) SA 524 (CC).

[8] Constitution of the Republic of South Africa, 1996.

[9] Anti- Homosexuality Act, 2014.

[10] Ibid.

[11] Anti- Homosexuality Act, 2014.

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