The Next Level: LGBT Equality in South Africa

Tauriq Moosa

Since its emergence from the clutches of apartheid, South Africa has attempted to insert itself back into global politics without raising eyebrows. The “legacy” of apartheid is not so much a memory as it is the nation’s current condition. All too often, political promises are defined by their failure to bear fruit; disappointment remains constant.

The promises made by the current South African government, however, have some foundation. This is especially true regarding the removal of arbitrary, discriminatory barriers, which seems to be among the post-apartheid government’s most important goals—which is not surprising, in view of the previous government’s legalized racism. Lesbian, gay, bisexual, and transgender (LGBT) persons’ rights in South Africa are, therefore, of marked importance; these rights are the obvious extension of the removal of barriers between black and white, considering that discrimination based on sexual orientation is no less irrational than that based on skin color. Highlighting this view, Justice Albie Sachs of South Africa’s Constitutional Court said: “Our Constitution represents a radical rupture with a past based on intolerance and exclusion, and [our Constitution represents] the movement forward to the acceptance of the need to develop based on equality of all by all.”

Bev Ditsie, a founding member of an early gay-rights group during the changeover of the South African government, said in an interview: “I think we have, right from the beginning [of the struggle to end apartheid], been fighting for the ability to live the way we want to live. That is what this fight has always been about. Therefore same-sex marriage [and, thus, LGBT rights] has been the natural part of the next level.”

This “natural part of the next level” of South African society, which includes LGBT rights, is praised as a forward movement, part of a broad assault against irrational policies. South Africa is viewed worldwide as an exemplar of reconciliation and progress in government and politics. The nation won praise for its essentially bloodless handover of power to the first black president of South Africa; its Truth and Reconciliation Commission (TRC) is considered to have been highly effective in bringing relief to a bitter and conflicted people. Yet these concepts are layered in fiction and fairy-tales, crafted sometimes to benefit South Africans yearning to separate themselves from a dark past—whether because they supported the apartheid policies or because it is unhelpful to their futures—and sometimes to benefit foreigners who crave a vivid example of good triumphing over despair in some Manichean dichotomy between repressive tyranny and liberated secular democracy. For the rest of the world, South Africa apparently serves as an emblematic, progressive third-world nation that has emerged triumphant from the shadows of a totalitarian past, with scars that only highlight its strength.

Myths abound and should be recognized as such, even if they serve a purpose for progress in increasing the number of people recognized as complete individuals with equal rights, priviliges, and opportunities. Nelson Mandela has become a world-renowned figure: our first democratically elected president, recipient of the Nobel Peace Prize, a moral exemplar of personal and political clemency. Yet when one speaks to tourists visiting South Africa—and I have spoken to hundreds—one finds that they have little idea why Mandela is venerated. They know he spent decades in jail and emerged without demanding bloodshed. That is truly admirable in a person, but it is not enough to define a nation. It is vital that all recognize the situation in South Africa as it is. We cannot build improvements amid the clouds of dreams and ideals.

South African journalist and historian R. W. Johnson highlights the almost tangible euphoria that accompanied Mandela’s election to the presidency in 1994. For Johnson, this euphoria coagulated into a veil through which many still—falsely—view South Africa, as a utopian place of unprecedented reconciliation, hope, and progress:

South Africa’s media loved this “Madiba Magic” (Madiba being Mandela’s familiar name). This mood—hugely amplified when South Africa won the rugby World Cup in 1995 [the following year]—led to all manner of unreasonable expectations. [For example] South Africa would win the right to stage the Olympics in 2004, South Africa would win a permanent seat on the U.N. Security Council. South Africa would be asked to use its powers as miracle-arbiter to settle the Irish problem and the Arab-Israeli dispute. South Africa would instruct the rest of the world in how to set up a Truth and Reconciliation Commission. And so on. . . . The euphoria and ambition was completely overblown and, inevitably, when reality turned out differently the sense of anti-climax was correspondingly deep.

There was some justification for this euphoria, especially concerning equal rights between persons regardless of race, sex, and—for the purposes of this essay—sexual orientation. South Africa’s 1993 post-apartheid constitution was the first in the world to outlaw discrimination based on sexual orientation. Not content with that, in 2006 South Africa became the fifth country in the world to legalize same-sex marriage and the first African nation to do so. Like freedom of expression, the way a society treats its women and homosexuals often marks its distance from despotism: “Respect for homosexuals,” says Vasu Reddy, “is regarded as a ‘litmus test’ for human rights in previously colonial or democratic societies, where colonial masters and missionaries criminalized the longstanding practice of homosexuality.” In Africa, one need not look far for counterexamples; African countries have seen many instances of homophobia, resulting in criminalization, suffering, and death for the homosexual, accompanied by a corresponding veneration, verging on blind worship, of the “true” (that is, straight) man. Many people still overemphasize the link between homosexuality and AIDS, thinking unrealistically that a decrease in homosexuals (or homosexuality) will lead to a reduction in AIDS cases.

In those African countries that legalize homophobia—much as South Africa’s apartheid government legalized racism—the plight of the homosexual (still the current term in African discourse) is a vicious cycle. First, homosexuals are by definition illegal—that is, any declaration of their status, or an act that manifests their homosexual status, results in immediate arrest followed by long-term imprisonment or, more likely, death (this was the case in Malawi, Zambia, and many African countries). Second, any suspicion that someone is homosexual will likely result in homophobic attacks, including physical assaults. Often there are lynch mobs or beatings; the attackers may be strangers or all too often former friends. In these cases, homophobia trumps humanity. Third, one who has been targeted and attacked as a homosexual cannot report these crimes. If he did, it might lead to the police suspecting him of homosexuality, regardless of the truth. In homophobic countries, police are eager to be seen as active in ridding their nation of homosexuals. With that, the cycle is complete. Unable to find protection from his country’s police force, our homosexual (or heterosexual, since suspicion is all the evidence needed) is unaided. He is a constant target, which can easily result in his death. So the cycle of his torment begins anew, fueled by bigotry.

That fuel can come from high places. Consider the words of Zambia’s president,
Frederick Chiluba, in 1998:

Homosexuality is the deepest level of depravity. . . . That homosexuals are free to do as they please in the West does not mean they must be freed to do the same here. There will be no end to the demand for rights as soon as they are permitted. There will also be no end to diseases. . . . The things they do would multiply the rate of the spread of AIDS—which was first spotted among American sodomites in the first place. . . . For a country like ours, beset by increasing problems of development, homosexuality as a constitutional right would simply bring the whole republic crashing on its back, belly up. . . .

Chiluba’s statement summarizes the views of many in Africa—including many South Africans, too. For many homophobes, their hatred hangs from a single thread: they may view homosexuality as unnatural, as the dispenser of diseases, or as against God’s will. Chiluba has given us a whole tangled ball of yarn so that we may analyze all the strands of bigotry together. Whatever the specific grounds of an individual’s homophobia may be, it amounts to an ungrounded refusal to acknowledge homosexuals as equal citizens and, more important, as persons.

Nor does post-apartheid South Africa have a perfect record on LGBT rights. In 2008, South Africa declined to support a U. N. General Assembly joint statement on human rights, sexual orientation, and gender identity and voted “to remove the term ‘sexual orientation’ from the definition of unlawful killings in UN General Assembly resolution on extrajudicial executions,” according to Euseubius McKaiser, a political analyst at the Centre for the Study of Democracy. Recently, when Uganda legally sanctioned the murder of gays, South Africa sent a known homophobe, Jon Qwelane, to Uganda as a diplomat. McKaiser also reports that the government took too long in responding to a Malawian same-sex couple’s attempt at marriage and the resulting homophobic attacks.

The legal march toward equality of lesbians and gays must also be viewed in terms of mortality. Consider: Schedule 1 of the Criminal Procedures Act of 1997 was challenged for its inclusion of “sodomy.” Before the challenge, sodomy was among the offenses that allowed law enforcement to use any means necessary—including lethal force—to apprehend a fleeing suspect. “Simply put,” says Jonathan Berger, a member of the AIDS Law Project, “as a gay man you could be shot dead if you ran away after being apprehended under suspicion of having had consensual sex.”

Implicit in this situation is the great contradiction that muddied the legal status of South Africa’s homosexuals during the mid-1990s. Though the 1993 Constitution prohibited discrimination based on sexual orientation, sodomy remained a crime under South African common law. The world’s first nation to constitutionally protect homosexual orientation still saw prosecutions for homosexual acts. This contradiction was resolved—and a major milestone achieved in the history of LGBT rights in South Africa—with the Kampher case. Gordon Kampher was arrested for sodomy in 1997. When his case was appealed, Justices Ian Farlam and Sandile Ngcobo set it aside on review and eventually struck down the common-law crime of sodomy, in Berger’s words, “on the basis that it unreasonably and unjustifiably limited the right to be free from unfair discrimination on the basis of sexual orientation.”

Justice Edward Cameron was the first judge of post-apartheid South Africa’s highest court who was openly gay and lived with HIV/AIDS. In an influential article, he presented a “shopping list” of reforms that would need to occur for South Africa to prove itself as a progressive democracy. Among them was the decriminalization of sodomy, which he saw not only as obligatory but also as a necessary step toward the legal recognition of same-sex marriage. The Kampher case was the first step toward implementing Justice Cameron’s “shopping list” of steps toward equality for gays and lesbians.

Whatever the law may provide, certain aspects of contemporary life in South Africa merit special concern. Particularly disturbing is the ghastly and fast-rising phenomenon called “corrective rape.” Corrective rape targets lesbians; it involves a man or group of men raping lesbians in the belief that forced heterosexual contact will “cure” their homosexuality. One rapist reportedly told his victim he wanted to “turn her into a woman.” The most prominent case involved Eudy Simelane, the captain of the South African women’s football team. In April 2008, Simelane was attacked by a group of men, gang-raped, and stabbed twenty-five times. She was a public figure, widely known for being open about her homosexuality and for defending gay rights. Recently, suspects were charged and are being tried for her murder—a victory for the gay rights movement in Africa. But since the Simelane attack, the rate of corrective rapes and assaults has risen dramatically. One lesbian living in the townships, where corrective rapes often occur, told blogger Paula Brooks: “Every day I am told that they are going to kill me, that they are going to rape me and after they rape me I’ll become a girl.” She addressed the problem in terms of police protection, or the lack of it: “When you are raped you have a lot of evidence on your body. But when we try and report these crimes nothing happens, and then you see the boys who raped you walking free on the street.”

Phumi Mtetna, director of the Lesbian and Gay Equality Project, told blogger Jonathan Clayton: “Most survivors of these attacks do not report them. We believe there are hundreds of people who have been targeted.” She says of police officers: “If a lesbian tries to report a rape police will say something like, ‘Who would rape someone looking like you?’” This is a massive problem. In Cape Town alone, ten new cases of corrective rape are reported each week. Fortunately, due to international pressure, the government is taking a harder look at corrective rape.

While this is happening on the ground, religious groups also strive to do away with legal recognition of homosexuals altogether. Religious groups claim to have been excluded from the process that led to the passage of South Africa’s law permitting same-sex marriage. The most prominent religious lobby in South Africa, the awkwardly titled National Interfaith Leadership Council (NILC), was lauded by South Africa’s current president, Jacob Zuma. Months ago, NILC held a conference at which the president called on the religious body to promote and protect morals in South Africa. NILC includes members from the major religions and, like most such societies, is thought therefore to be a reliable authority on questions of morality; of course, the opposite is often true. Emboldened by praise from the upper echelons of government, NILC called for a “reconsidering” (that is, repeal) of South Africa’s laws permitting abortion and gay marriage, based on repeated claims that the religious group had no involvement in the adoption of the current laws. It is hinted that these laws were “pushed through the back door” without properly consulting all involved constituencies. (It is unclear what voice a group like NILC should have had in the lawmaking process in a nation whose constitution calls for the separation of church and state.) It is no great leap of logic to suspect—rightly, I think—that NILC’s real agenda is to see abortion and gay marriage criminalized.

We have reason to be concerned about NILC, not least because it enjoys the president’s favor. In its false assumptions that religion is necessary for morality and that religious leaders are the moral exemplars of society, NILC fails to deliver on anything approaching a moral stance. There are no good reasons to ban gay marriages or to force homosexuality back into the shadows; this is only a bigotry every bit as unjustified as racism. Of course, religious lobbyists have their religious reasons to seek the recriminalization of homosexuality, starting with the passages in scripture that define it as an “abomination.” That is well and good as a motive for religious activism; it might be enough to justify public policy in a nation that was an overt theocracy. But South Africa is a secular society.

Of course, this brings us to the crux of the problem: South Africa’s exemplary constitution and some of its most progressive laws, laudable as they are, reflect views much more progressive than those held by the majority of South Africans. It is one thing for a constitution to legalize gay marriages and abortions, but in a country that is, after all, a democracy—of some kind—majority will could force undesirable changes. Given the intricacies and legalities involved, it is unlikely that a roaring majority will simply persuade judges to turn back the clock. Written words do not quell the outraged mind.

And so we see the manifold contradictions of South African life today. Ceding moral power to religious groups and relying on Bronze-Age beliefs to decide on modern predicaments are not things that any modern, secular society should do. Yet, in South Africa these things and more are done because this is the way things have always been done.

The South Africa that excited the world’s hopes is a place where reactionary views do not endure, where long-standing bigotry is carved off the flesh of humanity so that men and women can stand anew, and where realizations and passion can hold fast to right action despite the outrage of powerful constituencies. Protecting LGBT rights is the natural extension of this South African tradition. We who value this tradition fight for what is right, regardless of whether law and public opinion concur. In South Africa today, the law is with us: a progressive and secular view is expressed in the constitution and in the best of the nation’s law. Public opinion, however, is not with us. A majority of South Africans embrace more traditional, less tolerant views of homosexuality. Of course, moral right and wrong do not depend on majorities, but majorities have a way of maneuvering the law to reflect their views even when their views are wrong.

As defenders of the natural extension of the struggle against apartheid, we must be conscious of attempts to take LGBT rights away. The fact that our government has done a poor job of realizing the promise of South Africa’s constitution and its most forward-looking laws means we need to do more.

Further Reading

  • Brooks, Paula. “South African Lesbian Brutally Attacked In Corrective Rape.” April 4, 2010. Accessed July 15, 2010, from LezGet Real: http://lezgetreal.com/2010/04/south-african-lesbian-brutally-attcked-during-corrective-rape/.
  • Cameron, Edwin. “Sexual Orientation and the Constitution: A Test Case for Human Rights.” South African Law Journal 110 (1993): 450.
  • Clayton, Jonathan. “Eudy Simelane: the Lesbian Who Was Marked for Death by Her Love of Football.” August 26, 2009. Accessed July 15, 2010, from Times Online: http://www.timesonline.co.uk/tol/news/world/africa/article6809931.ece.
  • Eskridge, William. N., and Darren R. Spedale. Gay Marriage: What We’ve Learned From the Evidence. New York: Oxford University Press, 2006.
  • Johnson, R.W. South Africa’s Brave New World: The Beloved Country Since the End of Apartheid. London: Penguin Books, 2010.
  • Judge, Melanie, Anthony Manion, and Shaun de Waal, eds. To Have and to Hold: the Making of Same-Sex Marriage in South Africa. Auckland Park: Jacana Media, 2008.
  • Kelley, Annie. “Raped and Killed for Being a Lesbian: South Africa Ignores ‘Corrective’ Attacks.” March 12, 2009. Retrieved July 15, 2010, from Guardian.co. uk: http://www.guardian.co.uk/world/2009/mar/12/eudy-simelane-corrective-rape-south-africa.
  • Kurtz, Paul. Forbidden Fruit: The Ethics of Secularism. Amherst, New York: Prometheus Books, 2008.
  • McKaiser, Eusebius. “Does Racism Trump Homophobia?” Mail and Guardian, July 9–15, 2010.
  • Reddy, Vasu. “Homophobia, Human Rights and Gay and Lesbian Equality in Africa.” Agenda 50, No. 1 (2001).
  • Rossouw, Mandy. “Zuma’s God Squad Wants Liberal Laws to Go.” September 11, 2009. Retrieved July 15, 2010, from Mail and Guardian: http://www.mg.co.za/article/2009-09-11-zumas-new-god-squad-wants-liberal-laws-to-go.

 

Tauriq Moosa

Tauriq Moosa is a Master's student in applied ethics at the Centre for Apllied Ethics at Stellenbosch University, Cape Town, South Africa.


Since its emergence from the clutches of apartheid, South Africa has attempted to insert itself back into global politics without raising eyebrows. The “legacy” of apartheid is not so much a memory as it is the nation’s current condition. All too often, political promises are defined by their failure to bear fruit; disappointment remains constant. …

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