Going backwards

2012-06-04 00:00

SOUTH Africa’s Constitution, written in the aftermath of apartheid, protects the equality of all citizens, including gay people.” These are the words of United States Secretary of State Hillary Clinton speaking before the United Nations. The topic of her speech: Gay Rights are Human Rights.

On the highest international platform, our country and its Constitution were singled out as champions of gay rights. But it is not just our Constitution that is garnering praise. It seems that we have raised our hand regarding the discussion of gay rights internationally, becoming key players in the UN Human Rights Council and the UN Commission on the Status of Women.

Clinton commended South Africa, stating: “South Africa took the lead on a resolution about violence against LGBT people [lesbian, gay, bisexual, transgender]. The delegation from South Africa spoke eloquently about their own experience and struggle for human equality and its indivisibility. When the measure passed, it became the first ever UN resolution recognising the human rights of gay people worldwide.”

It’s not often we get to be the standard bearer for the international community. But the benefit of joining the human rights debate late in the game means we had 40 years of human rights development from which to draw on when it came to drafting our own Constitutional framework, which is now, arguably, the best in the world. However, the Constitutional review of gay rights proposed by traditional leaders indicates that we might not be as progressive as our international image would suggest.

In the U.S., gay rights are a divisive issue and a cornerstone of their upcoming election. But things are not as black and white as they seem. While the presumptive Republican nominee, Mitt Romney, is anti-gay rights, his top benefactors support gay marriage and polls show increasing support for same-sex marriage. President Barack Obama came out in personal support of same-sex marriage last month. Political commentator Rachel Maddow called it an act of “political bravery”, saying that if one looks at his legislative record, he is clearly in support of gay rights so he didn’t need to express his personal views on the matter, but he did — and he did it in an election year.

Why do I mention the current political and social landscape of the U.S.? Because here is a country that does not have equality in its laws and yet there is a progressive shift. There is a change in mind-set that comes with a growth in social consciousness and in time legislation will organically mirror that shift.

In South Africa, we have the inverse. Our Constitution, for all its beauty, does not mirror the ideology of the majority. When our laws, specifically our laws with respect to gay rights, have not been born out of a change in social consciousness from a grass-roots level but as fruit from our Constitutional tree, we are left with a gaping chasm between the mind-set of the people and our Constitutional aspirations. Herein lies the crossroads that our country faces. Do we dilute our rights, as our traditional leaders would like, or do we hold steady, demanding that it is not our laws that need to change, but the hearts and minds of the South African people?

If gay rights are removed from the Constitution, the question then becomes to what extent? After our Constitution is finished being redacted to bring it more in line with “traditional values”, are we talking loss of legal status regarding marriage or adoption, medical proxy or beneficiaries or should we take it even further? Perhaps we would turn to the policies of other African states as a blueprint for the way forward. There’s imprisonment (in some cases life imprisonment) in countries like Zambia, Kenya and Uganda, and there’s the death penalty for no other crime than that of being gay in Nigeria, Sudan and Somalia.

The majority may echo the sentiments of our traditional leaders, but as the black mayor of Newark, New Jersey, Cory Booker, eloquently surmised: “No minority should have their rights subject to the passions and sentiments of the majority”. It is populist law, and in our diverse nation, it is dangerous law. It is two wolves and one lamb voting on what to have for lunch. The purpose of the Constitution is to protect the minority, protect difference from power, to give a voice to those who have trouble being heard over the sheer volume of our intolerance and provide reinforcements to those who, while not armed with numbers, are armed with the justice of their quarrel.

There is conflict. Gay rights sit in conflict with traditional values. The constitutional review proposal sits in conflict with our international conduct on the issue and we’re talking derogation when first-world countries are talking progress.

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