“LGBT rights were integrated into the vision of a new South Africa”

Albie Sachs

South Africa has one of the most liberal constitutional and legal frameworks in the world, protecting the equality and rights of lesbian, gay, bisexual and transgender (LGBT) people. When it came into force in 1996, the post-apartheid constitution prohibited all unfair discrimination based on sexual orientation. Legislation has subsequently been introduced to decriminalise same-sex sexual ac­tivity and equalise the age of consent. Gay and lesbian couples are entitled to marry, adopt children and receive equal access to IVF treatment and surrogacy services. And since 1998, homosexuals have been allowed to serve openly in the South African military – the only African country to guarantee this particular freedom.

Despite this, the LGBT community still faces discrimination and violence, especially in poorer and non-urban areas. The brutal kill­ing in June of Thapelo Makutle, a young gay man from the remote Northern Cape province, and media reports of ‘corrective rape’ – a practice in which lesbians are raped in an effort to convert them to heterosexuality – illustrate the findings of recent social surveys and human rights groups: that public attitudes in South Africa lag behind the ideals of the constitution.

Albie Sachs, a lawyer and human rights activist who was impris­oned and later exiled by the apartheid regime, was appointed to the Constitutional Court of South Africa by President Nelson Mandela in 1994. He is the author of the court’s 2005 ruling granting same-sex couples the legal right to marry and talks to Global about the implications of this landmark judgement, and the lessons that other countries can learn from South Africa’s experience. He admits that the country has deeply entrenched “pockets of intense homopho­bia” but nonetheless feels that public acceptance of homosexuality has progressed far quicker than could have been expected.

Global: South Africa’s post-apartheid constitution was the first in the world to outlaw discrimination on the grounds of sexual orientation. Why did the framers of the constitution take such a bold and groundbreaking step? And given the cultural prejudice against homosexuality within both the white and black communi­ties of South Africa, how was this possible?

Albie Sachs: It was part of a very comprehensive equality provi­sion. Equality in post-apartheid South Africa was fundamental: we are a nation of people of different origins, different appearances, different languages, different cultures, and the idea that we all have to live together without being marginalised because we are who we are was central to the very notion of the new democratic, non-racial, non-sexist South Africa.

The initial spur for an express reference to non-discrimination on the grounds of sexual orientation came from a conference of the Women’s League of the ANC [African National Congress], while we were still in exile, in 1990, in Lusaka, Zambia. The conference adopted a decision which became ANC policy, so when it came to the drafting of the new constitution, the ANC recommended that the grounds of unfair discrimination – which included race, colour, creed, sex and disability – also included sexual orientation.

Was the provision immediately accepted from when it was first adopted?

There was a lot of discussion. It wasn’t the central issue – the struc­ture of government, the powers to be given to the provinces and the outlawing of race discrimination were central to the debates – but it was certainly debated inside and outside parliament. It was a lively, spirited debate but it was just part and parcel of a whole range of questions; capital punishment was another one that people had strongly held views on.

My own sense is that in South Africa the right to be different became important for people, because the great majority of the na­tion had known what it was like to be penalised and excluded and pushed to the margins of society because of who they happened to be. There was a fairly active movement for gay and lesbian rights that certainly contributed a particular voice to the debates. But I think the reason why the democratic breakthrough came was that it was seen as integrated into the vision of a new South Africa in which people were respected for being who they were.

In 1998, the Constitutional Court ruled that the law prohibiting ho­mosexual relations between consenting adults in private violated the constitution. What were the circumstances that led to this ruling? And given the clause in the new constitution, why hadn’t the laws crimi­nalising homosexuality already been removed from the statute book?

The gay and lesbian movement decided to affirm their constitu­tional rights and to have the penalisation of sodomy declared un­constitutional. The matter came to the Constitutional Court and the court declared that that aspect of the common law violated funda­mental rights. Although it was directly concerned only with the crime of sodomy, I think it’s fair to say that the judgement made it clear that it wasn’t simply the act of anal penetration by a man with a man that was at stake; it was the status and the dignity of people, rather than the particular act that was at issue. The court unanimously ruled that it was unfair discrimination. And it wasn’t simply what people did in private that was protected, but the right to equality and dignity. It was saying, in effect, that everybody who is a member of the nation has a right to express their individuality in an affirmative way.

Despite one of the most progressive legal frameworks, protecting the rights of gay men and women, homophobia is still prevalent in South Africa. Why has the social acceptance of homosexuality lagged so far behind the legal acceptance? And what do you think can be done to combat homophobia in South Africa?

What’s been extraordinary is that since the case striking down sodomy as being unconstitutional, the law has evolved progressively. The rights of same-sex partners have been affirmed – society has accepted it, and parliament, in 2005, passed a law that allowed for same-sex couples to register their unions and say, “I marry you.” It’s been extraordinary, the extent to which same-sex couples can live in South African society as ordinary, free human beings. At the pre-primary school which my son attends, his best friend has two daddies and that’s okay – it’s just part and parcel of the diversity of the school. So in many respects, public acceptance has grown. That’s the positive side.

The negative side is that South Africa still has pockets of intense homophobia that are deeply entrenched and express themselves sometimes quite violently in the form of very ugly, vicious attacks – on lesbian women in particular. It’s quite deep in popular culture in certain areas and it’s very saddening. It violates the whole spirit of everything that people have been trying to achieve in South Af­rica in the post-apartheid era.

Do you think that there is a way to make homosexuality more ac­ceptable in these entrenched pockets of society?

Like so many things, there has to be a multi-pronged response. Where homophobia takes the form of violent attacks, then the criminal law has to be employed and very firmly. Where it takes non-violent forms, then the law should also have appropriate rem­edies. The best remedy really is debate, example and the public affirmation of people’s rights, but if necessary, regulation can certainly be used. Homophobic attacks are cruel, demeaning and hurtful, not only to the individual victims but to the whole of our society and to all the people that belong to targeted groups.

Do you think that the introduction of specific hate crime legisla­tion would be useful in combating homophobic attacks?

I would love to see an extensive debate about ‘hate’, because it wouldn’t stop simply at homophobia, it would have to deal with misogyny and with race in particular, which is still very sensitive in South Africa.

Free speech is absolutely fundamental to democracy. But if unlim­ited, it can lead to genocide and tear a society apart. So international law and the courts in many countries accept that legislation must be passed to combat racist and sexist propaganda. Sporting bodies are becoming increasingly active in prohibiting insulting language or demeanour. And international law is slowly but definitely moving to­wards a general protection of minority rights. Yes, the law undoubt­edly plays an important role in setting standards for society, and in providing specific protections for vulnerable groups. But one has to be very careful about using criminal law to deal with hate speech.

Some MPs who voted for the 2006 Civil Union Act, which legalised same-sex marriage, have stated that they oppose the law. For example, Jacob Zuma was reported as saying that same-sex mar­riages are “a disgrace to the nation and to God” – a comment for which he later apologised. How can the spirit of the law be upheld if the lawmakers themselves don’t really support it?

The lawmakers voted for the Civil Union Act – I understand that a very passionate speech was made by one of the ANC politi­cal leaders – and it got a huge majority in parliament. As far as I know, Jacob Zuma voted in favour; he had moved on like so many South Africans. There’s a theme of negativity in your questions that doesn’t correspond to the reality: people feel ambivalent, some people feel uncomfortable about many laws, but the laws are there and the laws are functioning.

I would say, by and large, the culture of acceptance and acknowl­edgement is progressively becoming stronger and stronger in respect of sexual orientation. And it’s really been extremely rewarding to see the extent to which once one removes the issue from the shadows of criminalisation and fear, how quickly a society can adapt.

The question of gay rights in Africa currently seems to be an issue of great concern for the international community. While some African leaders, like Joyce Banda in Malawi, are considering tak­ing steps to liberalise national laws against homosexuality, others are strengthening them. What lessons do you think can be learned from the South African experience?

Well it’s not just for Africa; it’s lessons, I think, for the world. I would say one of the main lessons is to have as much serious, dignified pub­lic debate as possible, and to move step by step to begin with. The extreme forms of discrimination and the invocation of the criminal law is the first thing that should be dealt with. We must understand that what’s involved here is the right to be different, the right to be who you are. In South Africa, the theme of difference has had to be central to the new nation. So the issue of non-discrimination on the grounds of sexual orientation became something of a touchstone for non-discrimination as a whole. It was really a challenge to the strength and tenacity of the equality principle and I think that’s what came through the most strongly in our experience.

And then the second aspect is that once the legal changes are made and the issue is brought into the light and out of the shadows, public acceptance can be much quicker than many people would anticipate. And one can see that as much in Boston as in Cape Town – it isn’t a country-specific or continent-specific theme.

Interview by Elissa Jobson

About the author:

Albie Sachs is a Human rights activist and former South African Constitutional Court Judge


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