Cut Gay Rights From Constitution say Traditional Leaders! #Constitutional Much??

“The National House of Traditional Leaders wants to remove a clause from the Constitution which protects people from being discriminated against because of their sexual orientation.”

Section nine of The Constitution of the Republic of South Africa states:

 "The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

In 1993 the African National Congress endorsed legal recognition of same-sex marriages, and the interim constitution opposed discrimination on the basis of sexual orientation and promised to defend a right to privacy. These provisions were kept in the new constitution, approved in 1996, due to the lobbying efforts of LGBT South Africans and the support of the African National Congress. Hence, South Africa became the first nation in the world to explicitly prohibit discrimination based on sexual orientation in its constitution. Two years later, the Constitutional Court of South Africa ruled in a landmark case that the law which prohibited homosexual conduct between consenting adults in private, violated the Constitution. 

In 1998, Parliament passed the Employment Equity Act. The law protects South Africans from unfair labour discrimination on the basis of sexual orientation, among many other categories [6] In 2000, similar protections were extended to public accommodations and services with the approval of the Promotion of Equality and Prevention of Unfair Discrimination Act 

In December 2005, the Constitutional Court of South Africa ruled that it was unconstitutional to prevent people of the same gender from marrying when it was permitted to people of opposite gender, and gave the South African Parliament one year to allow same-sex unions. In November 2006, Parliament voted 230:41 for a bill allowing same-sex civil marriage, as well as civil unions for unmarried opposite-sex and same-sex couples. However, civil servants and clergy maintain the right to refuse to solemnize same-sex unions.

South Africa, country that had its first democratic elections in 1994 after a long struggle against the oppression of people of colour. The legacy of Apartheid had tremendous impacts on the social, economic and psychological disparities in our communities. The impacts left devastating scars amongst the black population; however the idea of living within a democratic dispensation could only be viewed in a positive light. There were many to whom the struggle could be greatly attributed to however in this context it would be key to pay specific cognizance to those who were part of the constitutional developments of our country. described by many as the best in the world and modelled by many countries, the South African Constitution was designed to protect the rights of all citizens in whatever en-devours they may decide to pursue. These range from political engagement to socioeconomic to the most fundamental one, the ability to describe one’s self without fear of discrimination or harm.

 

It would be beneficial to first note that the Traditional Courts and the Traditional leaders were questioned as to whether they should have been included or formally recognised within the administration or decision making of the state. Many such as the likes of Dr Rampehele were vocally against this, stating that the involvement of traditional leaders was detrimental in most aspects as they are often reluctant to move with the times was a fundamental hindrance to note. However the presidency lead by former President Nelson Mandela noted that the Traditional leaders’ exclusion would have been a suppression of true democratic or constitutional ideals. I cannot however wonder though whether this was not an obligation by the ANC to repay the Traditional leaders for their involvement in the formation of the ANC.

 Fortunately I had the opportunity this year to attend a panel discussion which included the Chief Phathekile Holomisa who is the Chair of the of the Constitutional Review Committee as well as being the head of the Traditional Leaders Congress as well as the Honourable Dr Ramphele at the University of Cape Town Law faculty Constitutional Week programme. The manner in which Dr Ramphele chose in tackling or outlining how the traditional leaders are extremely detrimental to the development of the communities they govern and the lack of formal judicial processes in those communities was enlightening. Traditional leadership in South Africa has been proven in many instances to disregard the judicial processes of the country as stipulated by the Constitution. Issues of gender equity in these communities and the judicial processes that these chiefs have chosen to adopt as supreme law usually disadvantage women and children. Women and inheritance issues are almost an issue that is taboo. How often do we hear of sentences passed from these informal traditional courts which claim that people be stoned or punished severely on accusations of bizarre charges such as witchcraft. It is important to hold the stance that I find that Traditional leaders have an extensive role to play in the moral regeneration of our society as well as preserving and maintaining the African principles of respect and most importantly, Ubuntu. We are to respect Tradition however balance its application with the demands of uplifting our socio economic status in the global markets by ensuring democratic stability in this country in order to seek investors. I am not responding to these allegations in fear of LGBTI people being in any form of danger but rather to question what would actually cause the Traditional Leaders to take such a stance. One would think that the fact that their eligibility to participate (formally) within democratic and constitutional processes after being questioned for so long, they would have championed  the application and protection of minority interest rights. Im simply compelled to comment about how they are failing to own their democracy (one they were nearly deprived of for a long time). South Africa is currently heading up the promotion of LGBTI Rights in the UN and countless members of the Judiciary have raised that with the removal of any citizens rights within the Constitution, they would immediately resign. 

The official South African Tourism site offers in depth travel tips for the gay traveller. Gay friendly establishments are situated all over South Africa and could be found on one of the various gay travel websites. Since anti-discrimination laws exist, many gay professionals are employed at major corporate companies throughout the country. Queer folk are also targeted through various marketing campaigns, as the corporate world recognizes the value of the "Pink Rand". Even in religious circles some prominent leaders voiced their support for the LGBT community. Archbishop Desmond Tutu and Dr. Allan Boesak are vocal supporters of gay rights in South Africa. Even the conservative Dutch reformed church also recently ruled that gay members should not be discriminated against and could hold certain positions within the church. However a lot of criticism still exists against the church and a recent court ruling against a congregation of the church for firing a gay musician caused an uproar in the gay community and within liberal circles.