protect sa from sexual apartheid

By Fikile Vilakazi (OUT LGBT Well-being)

September 7, 2006: In his column on these pages, We need to talk straight about same-sex marriage (September 1), Patekile Holomisa stated that “the Constitutional Assembly, which drafted and adopted the constitution, never contemplated that the provision of unfair discrimination against homosexuals would ever be construed as endorsing same-sex marriages”. It seems that there is very little understanding of what the constitution of SA means to South African citizens.

SA is a constitutional democracy — the constitution is our supreme law, our collective values as a nation, our code of conduct. The Bill of Rights was written based on the knowledge of SA’s struggles against segregation and discrimination. Constitutional protections against discrimination are the right of all, including lesbian and gay people.

In adopting our constitution, we committed ourselves to a social contract that would never again allow discrimination against anybody by another person or by the state. The equality clause is designed to prohibit any form of discrimination on the basis of sexual orientation, which would include prohibiting marital discrimination. The legal definition of marriage was found to discriminate against lesbian and gay people, as the constitutional court ruled, and as such, our civil marriage laws need to be realigned with the values of the constitution.

This correction of past legal defects can only be deemed “undesirable” by those who seek to regress to the patterns of discrimination of the past. For such people, the perpetuation of these patterns is about the continuation of traditional monarchy, patriarchy, heterosexism and homophobia.

Holomisa has called for an amendment to the constitution. Such a step would have serious implications for the democracy we have struggled for in so many ways. The call also undermines the principal value of equality based on tolerance — the very fabric of the struggle that produced SA’s constitution and pluralist democracy.

The proposed Civil Union Bill, soon to be tabled in Parliament, intends to grant same-sex couples the right to form civil partnerships. Although the same legal benefits would be accorded same-sex couples, the state would not recognise these partnerships as marriages. Instead, civil partnerships, a term that exclusively refers to same-sex relationships, would be regulated through a separate legal institution and administered separately. This would relegate same-sex couples to a second-class citizenry and perpetuate the stigmatisation of our relationships. We fought racial apartheid, and we will fight efforts at reintroducing marital apartheid.

Same-sex relationships have long been part of our African history and heritage. There is ample research illustrating that African people have loved and had sexual relationships with people of the same sex for hundreds of years. For example, in Namibia, Kenya, Nigeria and SA, bond friendships, ancestral wives, female husbands and male wives have existed for centuries as forms of same-sex relationships.

All these relationships were accepted and respected in Africa, long before Africa was colonised. In addition, these forms of partnerships and marriages were protected by common law. Same-sex practices have always been a part of our sexual desires, intimacy and practice. In SA, the practice has been traced among the Zulu, Lovedu, Sotho, Tswana and Venda tribes. It is important to understand the traditional and cultural institutions that form families, marriages, and clans before we pronounce on these matters.

There is no record of traditional African societies legislating against homosexuality. Such laws are a western import, manifested through colonial penal codes and the criminalisation of sodomy across the continent. So, one could argue with authority that it is homophobia, not homosexuality, that is un-African.

History has a lot to teach us. Let us allow the pages of history to roll back and inform us accordingly. Let us all protect democracy by promoting tolerance of difference and embracing diversity. This is what same-sex marriage is really about.

Parliament’s task in the months ahead is to interrogate the Civil Union Bill put before it, and assess whether it stands the scrutiny of constitutionality. The right to marry for same-sex couples in no way infringes on the rights of anyone else, Holomisa included. We cannot allow the reactionaries among us to retard the long road towards equality and dignity for all.

• Fikile is the advocacy officer at OUT LGBT Well-being. OUT provides mental and sexual health services to lesbian, gay,  bisexual and transgender people, and engages in advocacy, research and mainstreaming programmes to reduce  homophobia.
• This article was published in the Business Day paper of Johnic Comminications.