South Africa’s post-apartheid constitution has been lauded as revolutionary in Africa, and indeed the world over, chiefly for the manner in which it explicitly enshrines the protection of minority sexualities. The rights of gays and lesbians are clearly articulated in the Bill of Rights (Chapter Two of the South African Constitution), and South Africa is the only African country that allows lesbian, gay, bisexual, and transgender (LGBT) individuals to marry. Although great strides have been taken in legally protecting LGBT individuals, they continue to face discriminatory treatment, particularly in the impoverished townships and rural settings of South Africa. As noted by Albie Sachs, human rights activist and former judge on the Constitutional Court of South Africa, there are still “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.”⁽²⁾

This CAI paper is in part a response to Joe Morgan, a journalist for the online publication Gay Star News, who wrote an alarmist article predicting that the death of former South African president Nelson Mandela signalled the beginning of the end for LGBT rights in that country.⁽³⁾ Acknowledging that there is a yawning gap between de jure and de facto ⁽⁴⁾ rights for LGBT individuals in South Africa, this paper explores the prodigious climate of discrimination and violence that continues in spite of the progressive constitution that offers unparalleled protection for such individuals. It thereafter discusses the intersection of race and LGBT rights, and ultimately examines what can be done to close the gap between what is enshrined in the spirit of the South African Constitution, and what actually happens in quotidian interactions between LGBT individuals and their communities.

LGBT rights: The law versus reality

After the end of apartheid, South Africa adopted in 1996 a constitution which is considered to be one of the most liberal and progressive in the world. Of specific interest is the Bill of Rights, which seeks to “respect, protect, promote and fulfil” the rights of all individuals regardless of their gender, race, social situation, or sexual orientation.⁽⁵⁾ The comprehensive protection offered to LGBT individuals by the law has been an important stepping-stone in creating an egalitarian rainbow nation. Dr. Jacklyn Cock, professor emerita in sociology and honorary research professor at the University of the Witswatersrand, points out in this respect that “the discourse of diversity, the celebration of difference and, especially, the right to freedom of sexual orientation were defended as part of the challenge of building a diverse, pluralistic society.”⁽⁶⁾

Notwithstanding the progressiveness of the South African Constitution, the top-to-bottom approach has not been entirely successful, as evidenced by the fact that homophobic attacks continue to occur.⁽⁷⁾ Political analyst, broadcaster, and writer Eusebius McKaiser explains that this failure “is not the fault of the law, it is the fault of an excessive faith in the law’s transformative powers.”⁽⁸⁾ Whilst acknowledging the importance of the liberal legal framework, it is important to consider that constitutionalism on its own cannot transform mentalities and behaviours. There is certainly need for far more than constitutional endorsement if attitudes that are rooted in long-standing cultural and religious practices are to be contested and even eradicated.

Although metropolitan cities such as Cape Town and Johannesburg give the semblance of modern and cosmopolitan spaces, it is undeniable that South Africa remains a predominantly conservative country. Dale T. McKinley, a researcher, lecturer, and political activist based in Johannesburg, argues that the conservatism of post-apartheid South Africa is visible through “nationalist chauvinism and xenophobia.”⁽⁹⁾ He concludes in this line of thought that “besides the consistent defence of narrow-minded patriarchal social relations and on-going displays of general indifference to the epidemic of violence against women, in more recent times the most publicly visible and propagated form of social intolerance has been homophobia.”⁽¹⁰⁾ To properly appreciate the extent to which South African society continues to be entrenched in traditional beliefs about human sexuality, one simply has to consider statements made by high-ranking officials such as current president Jacob Zuma and Prince Pathekile Holomisa, the Head of the Congress of Traditional Leaders. In a speech he made during the Heritage Day celebrations of 2006, Zuma declared that “same sex marriage is a disgrace to the nation and to God. When l was growing up, ‘ungqingili’ [‘homosexuals’ in isiZulu] could not stand in front of me, l would knock him out.”⁽¹¹⁾ In an interview with Redi Tlabi in the programme South2North, Holomisa conceded that minority sexuality has always existed in African societies. He nonetheless contended that “of course it is unconventional, it goes against the understood natural order of human behaviour, because it is expected it will be people of opposite sex who will have sexual relations with each other, because there is a purpose for sexual relations to build families, to have children.”⁽¹²⁾ The blatantly homophobic statements by these two men who can be deemed the highest custodians of the law (constitutional and traditional) reflect the kind of sentiments that fester in communities.

The utterances by Zuma and Holomisa show that even though there are solid constitutional and legal frameworks set out to protect the rights of LGBT individuals, the reality on the ground is that there is continued victimisation of these individuals in their everyday lives. Lesbians and transgender individuals seem to face the harshest forms of violence because of their visible differences and their non-conformity to what is socially and traditionally expected of their genders. Jessica Geen, editor of the online news service Pink News, notes that there has been an alarming increase in the number of cases of “corrective rape” in South Africa.⁽¹³⁾ Corrective rape is the sexual violation of a LGBT individual with the alleged motive that such actions will ‘correct’ their ‘deviant’ sexual orientation. Given that survivors of corrective rape are not required to divulge their sexual orientation, the exact statistics of these hate crimes are not known. However, according to Luleki Sizwe, a non-governmental organisation (NGO) based in the Cape Town township of Khayelitsha, an estimated 10 lesbians are attacked in the townships every week due to their sexual orientation.⁽¹⁴⁾ Furthermore, the impact of hate crimes such as corrective rape is not solely on the victim, but on the larger LGBT community as well. For instance, if a lesbian woman is attacked in a township, this sends a message to other lesbians that they risk comparable attacks if they openly reveal their sexual orientation.

The Human Rights Watch report We’ll Show You You’re a Woman: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa reveals that there is still widespread ignorance on the issue of minority sexualities, and rampant bigotry and discrimination against LGBT individuals. The majority of those interviewed by Human Rights Watch attested that a heavy sense of terror characterised their daily lives, as they have to perpetually confront the possibility of being assaulted, raped, or even murdered. Furthermore, almost all of the LGBT individuals interviewed confessed that they were hesitant to seek protection from police because they had often faced disdain and institutionalised homophobia from the law enforcement agents.

What this reveals is an ever-widening gap between the provisions of the law and what happens in reality insofar as LBGT rights are concerned. Although the law is important, it has to be recognised that there is still a lot of work to be done to curtail homophobia and discrimination against LGBT individuals and groups. The top-to-bottom approach has, to a large extent, failed to allow LGBT individuals to fully enjoy their constitutional and legal rights, or to express their sexuality without discrimination or stigmatisation. It is thus imperative that a bottom-to-top approach is devised to close the gap between de jure and de facto LGBT rights in South Africa. This would place emphasis on the target groups, instead of the law or policy-makers. It therefore looks at effecting and implementing change starting from the grassroots.

Race, social class and, sexuality

Although not explicitly stated, the impression given by the 2011 Human Rights Watch study is that homophobic discrimination and violence are chiefly prevalent against the black and poor communities of South Africa. The report finds that “for historical reasons, black lesbians and transgender men living in townships, peri-urban and rural areas, and informal settlements are among the most marginalised and vulnerable members of South Africa’s LGBT population.”⁽¹⁵⁾ The report further indicates that

The economic and social position of lesbian, gay, bisexual, or transgender people in South Africa has a significant impact on their experience. Those who are able to afford a middle-class lifestyle may not experience the same degree of prejudice and discrimination on the basis of sexual orientation. But for those who are socially and economically vulnerable, the picture is often grim. Lack of access to such things as secure housing and transport options greatly increases people’s vulnerability to violence.⁽¹⁶⁾

Udoka Okafor, writer and journalist at the Huffington Post, offers a fascinating analysis of the relationship between homophobia and race in South Africa. Given that most cases of corrective rape in South Africa are against black lesbians, Okafor theorises that “in South Africa, homosexuality is associated with white culture, and because of the years of apartheid rule, there exist tensions between black and white cultures in South Africa. Homophobia and violence in the form of corrective rape is a means to marginalise the white culture and regain a nationalistic identity that they believe was stolen from them due to years of colonisation and apartheid.”⁽¹⁷⁾ Dr. Brenna M. Munro, associate professor at Miami College of Arts and Sciences, similarly argues that minority sexuality is viewed in South Africa as a “perversity of apartheid,” and that it represents the mores of the authoritarian apartheid regime which had sought to control—for the sake of social purity and separation of races—the sexuality of all the citizens.⁽¹⁸⁾ In addition to the separation of races, the apartheid regime enacted laws that prohibited homosexual acts. For instance, the Immorality Act (amended in 1969) forbade men from taking part in erotic and sexual conduct with each other. Dr. Sheila Croucher, professor of American Studies and political science at Miami University, explains that “this policing of sexual minorities was consistent with repressive apartheid ideology, but activists have also remarked that [it was] consistent with the widespread attempts to characterise homosexuality as foreign.”⁽¹⁹⁾

Homophobia and discrimination against LGBT individuals and groups cannot, however, be solely reduced to a question of race, as socioeconomic factors play a role in the proliferation of hate crimes against those with minority sexualities. The Human Rights Watch study suggests that blacks, as a result of historical factors, have been economically marginalised since apartheid. Two decades after the end of apartheid, there is little discernible progress in rectifying this situation. In his thought-provoking book A Bantu in My Bathroom: Debating Race, Sexuality and other Uncomfortable South African Topics, Eusebius McKaiser offers an enthralling and apposite illustration of how violence is prevalent in contemporary South African society:

There is little doubt in my mind that we are, as a society, still deeply scarred by the police state that we lived under for many decades before democracy’s dawn. Violence was the state’s modus operandi in pursuit of its racist ideology. But violence was not only directed by the state in our direction as black South Africans. We also used violence in response to violence. It does not matter here whether the use of violence by anti-apartheid movements was morally or politically justified. The psychological truth of the matter is that state violence, and civilian violence, turned us into a deeply violent society.⁽²⁰⁾

The history of violence described above is not exclusively directed at minority sexualities. Violence and discrimination against LGBT individuals have to be considered against the broader picture of a country ravaged by violence. All forms of violence, including those against LGBT individuals and groups, will certainly continue to escalate if issues such as intolerably high levels of unemployment, lack of economic opportunities for youths, and socioeconomic inequalities are not dealt with properly. McKaiser fittingly reveals that the “poverty-inequality-unemployment nexus…is the most potent catalyst for violence,” as it “motivates gratuitous acts of violence, and breeds violent masculinities.”⁽²¹⁾ As such, violence and discrimination against minority sexualities need to be understood against the broader framework of prevailing social realities. Homophobia and violence against LGBT individuals cannot be eliminated if South African society in general is ridden by an epidemic of violence.

Concluding remarks

It is essential that the South African Government realises that its mandate does not simply end at enacting progressive laws. The government needs to ensure that these laws and legislations directly translate into substantive rights which are enjoyed by all sectors of the society without any forms of discrimination. A significant shift is required to move from having an ornamentally progressive constitution to having one that is fully functional in protecting the rights of all citizens, particularly those that are marginalised.

Beyond the condemnation of homophobia, the government of South Africa should engage with various stakeholders such as leaders of communities, NGOs, and religious organisations in the effort to harmonise approaches to eliminate all forms of discrimination against LGBT individuals and groups. In the face of virulent prejudices as described above, it is the prerogative of the government, together with civil society organisations and other concerned parties, to advance a culture of respecting human rights at the grassroots level. Such a bottom-to-top approach will positively complement the top-to-bottom efforts that have been advanced by constitutional reforms since the end of apartheid. As noted by McKaiser, “High-minded constitutionalism will not simply seep into society. Civic lessons on the importance of respecting differences and the meaning of democracy need to become part of the school and university curricula.”⁽²²⁾ The Human Rights Watch report offers detailed recommendations to interested parties such as the South African Government, the Department of Justice and Constitutional Development, Civil Society Organisations, and NGOs. These recommendations centre on the importance of creating a society in which human rights are respected by all, and all forms of discrimination are eliminated from South Africa. The political will and seriousness of the various stakeholders will show whether the gap between what is enshrined in the legal structures and what happens in reality is to be closed.

Written by Gibson Ncube ⁽¹⁾

NOTES:

(1) Gibson Ncube is a Research Associate with at CAI with research interests in gender and queer studies. Contact Gibson through Consultancy Africa Intelligence's Rights in Focus unit ( rights.focus@consultancyafrica.com). Edited by Kate Morgan.
(2) Jobson, E., ‘LGBT rights were integrated into the vision of a new South Africa: Interview with Albie Sachs’, Global: The International Briefing, July 2012, www.global-briefing.org.
(3) Morgan, J., ‘South Africa could lose gay rights now Nelson Mandela is gone’, Gay Star News, 1 January 2014, http://www.gaystarnews.com.
(4) The Oxford dictionary defines de jure as “according to rightful entitlement or claim” as contrasted with de facto, which means “existing or holding a specified position in fact but not necessarily by legal right.” (http://www.oxforddictionaries.com).
(5) Constitution of South Africa, Chapter 2 – Bill of Rights, http://www.info.gov.za.
(6) Cock, J., 2003. Engendering gay and lesbian rights: The equality clause in the South African Constitution. Women's Studies International Forum, 26(1), pp. 35-45.
(7) Patrick Strudwick, a freelance feature writer and commentator for several British newspapers, offers an account of Mvuleni Fana, who was gang-raped in a small town 50km east of Johannesburg. Fana recalls her attackers telling her, “After everything we’re going to do to you, you’re going to be a real woman, and you’re never going to act like this again.” (http://www.independent.co.uk). Sometimes, corrective rape escalates into murder. A case that is currently being tried in the Palm Ridge magistrates’ court in Gauteng province involves the murder of a lesbian, Duduzile Zozo, on 30 June 2013. Zozo, 26 years old, was found strangled to death, with a toilet brush shoved into her private parts (http://mg.co.za). Numerous stories such as these show the brutally violent nature of homophobic attacks.
(8) McKaiser, E., ‘Gay rights, homophobic wrongs’, New York Times, 9 November 2011, http://latitude.blogs.nytimes.com.
(9) McKinley, D. T. ‘South Africa: Progressive constitution, conservative country’, 18 March 2010, http://pambazuka.org.
(10) Ibid.
(11) Van Onselen, G., ‘Jacob Zuma’s top ten disturbing cultural quotes’, 5 March 2013, http://inside-politics.org.
(12) Tlabi, R., ‘Making love a crime’, South2North on Al Jazeera, 6 July 2013, http://www.youtube.com.
(13) Geen, J., ‘Rise of corrective rapes on lesbians in South Africa’, 13 March 2009, http://www.pinknews.co.uk.
(14) Luleki Sizwe website, http://www.lulekisizwe.com.
(15) ‘We’ll show you you’re a woman: Violence and discrimination against black lesbians and transgender men in South Africa’, Human Rights Watch report, December 2011, http://www.hrw.org.
(16) Ibid.
(17) Okafor, U., ‘Corrective rape in South Africa: Targeted violence against homosexual women’, 19 November 2013, www.huffpost.com.
(18) Munro, B.M., 2012. South Africa and the dream of love to come: Queer sexuality and the struggle for freedom. University of Minnesota Press: Minneapolis.
(19) Croucher, S., 2002. South Africa's democratisation and the politics of gay liberation. Journal of Southern African Studies, 28(2), p. 317.
(20) McKaiser, E., 2012. A bantu in my bathroom: Debating race, sexuality and other uncomfortable South African topics. Bookstorm & Pan MacMillan: Johannesburg.
(21) Ibid.
(22) McKaiser, E., ‘Gay rights, homophobic wrongs’, New York Times, 9 November 2011, www.nytimes.com.