Anti-gay legislation gnaws the South African constitution

2014-04-24 16:30

We have recently seen the passing of anti-gay legislation in African countries. The majority of African states already have some form anti-gay legislation, which are remnants of colonialism. However in the years 2013 and 2014, long after the end of colonial rule; counties like Nigeria and Uganda are leading the charge in cementing homophobia. They are doing this by making it criminal to be homosexual, engage in homosexuality as well as to know of the homosexuality of others. At home this is giving rise to a major problem of our own. Our failure to take a stance on this matter and defend those whose human rights are being violated is gnawing at the value of our constitution.

The struggle for liberation in South Africa has resulted in the safeguarding against discrimination. As South Africans, we hold this in such high esteem that it is enshrined in our constitution. Great consideration has been taken to encapsulate the individual’s right to self-determine and live free of discrimination.

As such we are also obliged by our constitution, to stand up for and in solidarity with any person who is subject to discrimination.

It is quite simple to recognise that the latter statement is a call to action, in the prevention or eradication of discrimination. It is also simple to recognise that failure to do so is in direct conflict with the constitution. Failure to act in a way that prevents or eradicates discrimination is unconstitutional.

Our constitution is primary to how we conduct ourselves. It is a legal document as well as normative standard.  This primacy means that any other determination on how we, as South Africans, conduct ourselves must be in line with the constitution. If it is not, then it is invalid. If it is invalid then it is unconstitutional. If we fail to observe our constitution in the laws and policies that we institute we commit two faults. We are firstly, and most obviously, making unconstitutional laws and policies. Secondly, and more importantly, we are corroding the value of the constitution itself. If we apply it at our discretion, we undermine its universality. We are making its application optional. By heading down this slippery slope, we are eroding its primacy.

This is particularly heinous because the constitution is our fundamental moral guide. Therefore, undermining it and its primacy is undermining our own morality. Given our own liberation struggle we can see the importance of pressure from other nations. The old government endured economic sanctions as well as protests in the form of concerts and global movements, to end apartheid. Nations around the world, particularly in Europe used their sway to pressure the old government in a non-forceful way. This amounts to soft power; which contributed significantly in reaching the South Africa we live in today. A South Africa that has a constitution that outlaws discrimination based on race, sex or sexual orientation.

So when we consider gay rights, we must do so in accordance with our constitution. We must safeguard against any form of discrimination. Since anti-gay legislation discriminates against the Lesbian, Gay, Bisexual, Transgendered and Intersex or LGBTI community; we must safeguard against it. This is where we have been successful as a nation. We are world leaders in this arena. In South Africa, gay marriage is legal and there is no tolerance for institutional discrimination against the LGBTI community.

Yet where we fail is our failure to act in a manner that prevents or eradicates infringement upon gay rights. We fail to safeguard against discrimination when we fail to acknowledge that the passing of anti-gay laws is discrimination. We fail when we look the other way. We have failed to act in a manner that prevents or eradicates anti-gay legislation in both the Nigerian and Ugandan instances. We have done this by not speaking out against anti-gay legislation, for fear of offending other African nations. This failure is unconstitutional. It is unconstitutional because our policy on the discrimination in question challenges the constitution. Our quiet diplomacy on the issue of gay rights is corroding the value of our constitution.

It is not only that there is a disjuncture between what the constitution dictates and what our policy on the issue is, that is the problem. This is also a gateway to a host of other problems. Most notably, that that it serves to empower anti-gay sentiment will inevitably spill over into how we see homosexuality and gay rights in South Africa. If we accept the institutionalised intolerance of homosexuality by others, how long before we accept it of ourselves?

How long before we wear down our own tolerance? It is quite common knowledge that tolerance is a democratic essential. So we must really interrogate the virtue of this path we are treading down. We must be mindful of this slippery slope.

Corrective rape is a gross crime and violation of human rights that we see in South Africa. This is where members of the LGBTI, lesbians in particular, are raped in an effort to correct their sexual orientation.  This is both a sex crime and a hate crime. One that is not often reported correctly so we have no way of accurately knowing how many fall victim to it. In lieu of this, can afford to keep silent about anti-gay legislation?

Dear Reader:

Thank you.

Thank you for reading this and sharing in my thoughts. Thank you for your emails and your inputs. You motivate me. I appreciate you.

Kind Regards

Anna

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