Sexual Minorities / EQUALITY

The first country in the world constitutionally
to outlaw discrimination against gay people was
South Africa. Six years on, Shuaib Rahim assesses
the difference it has made in the region.

When I was growing up I knew that being a moffie¹ meant that I would go to hell. Well, some things have changed since then and some have not.

In South Africa, the country of my birth, sex between men was a crime. Then, in my first year as a university student, my whole world changed. On 27 April 1994, South Africa made a relatively peaceful transition from authoritarian rule to democracy. Suddenly, we had our oppressors and our liberators sitting in the same parliament. Suddenly, we all had rights - moffies too. The 1994 constitution introduced an Equality Clause in the Bill of Rights which guaranteed freedom from discrimination on the grounds of sexual orientation.

Yet, at the same time, all the bad laws were still in place. We were not allowed to love whom we wanted to. We were not allowed to be who we were. We were still being called bad names. Perhaps worst of all, we were called un-African. The first of my ancestors came to Africa in the seventeenth century. They came from all over - including Java, Malaysia, Denmark and India. Our family has lived in this country since then. And I am a moffie. Does that make me UN-African? I must admit that I thought that it did.

I started reading about our history and discovered many interesting facts. Simon Nkoli was a great hero of the liberation struggle. Convicted in the Delmas Treason Trial, along with Nelson Mandela, Nkoli spent more than two decades on Robben Island. While in prison, he 'came out' as a moffie to his fellow inmates and was accepted. After his release, he became the face of the struggle for lesbian and gay rights in Africa. I dare anyone to tell me that Simon Nkoli was not an African in every sense of the word.

As for our lesbian sisters, they are of an all-African variety too. The famous Rain Queen of the Northern Provinces of South Africa keeps a harem of more than 20 wives and they do more than bring her tea! In Kenya, it is accepted practice for widowed women to marry each other and recently two such women were legally divorced.

Another argument by the proponents of the 'UN-African' issue is that homosexuality in Africa is a European imperialist import. This is a lie. The actual European imperialist import is the homophobic tradition of British law. In every part of the African continent, there are homosexual practices far predating the colonialist period such as young men having relationships with each other until married. With colonization, European morality, concepts and laws were unilaterally imposed on the African people. Most indigenous cultural practices were classified as depraved, uncivilized or from the devil. The classification of African practices - which in the European context would be considered 'homosexual' - as illegal and immoral was a natural consequence of colonialism.

I think many South African leaders realized that this 'UN-African' story was just a red herring, so shortly after 1994, we saw drastic changes to legislation. Most of this work was pioneered through the National Coalition for Gay and Lesbian Equality. This organization was formed in 1994, with founding members like Professor Edwin Cameron, now a Justice of the Constitutional Court, the aforementioned Simon Nkoli and Phumzile Mtwetwa, now Co-Secretary General of the International Lesbian and Gay Association. The Coalition has twice litigated before the Constitutional Court, succeeding in decriminalizing same-sex conduct in 1997 and gaining the equal right to permanent residency for the same-sex partners of South Africans. Other notable achievements of the Coalition include achieving the entitlement of same-sex partners to spousal and other pensions and medical insurance, the right to serve in the military in any role, freedom from discrimination in the workplace and protection from domestic violence.²

This legislative reform had a broader impact: it allowed us to claim our identity and take pride in ourselves. Furthermore, South Africa has become a beacon of hope for lesbian and gay people in Africa. On our very borders, we have homophobic regimes. These include the Zimbabwean tyrant Robert Mugabe and others like Sam Nujoma in Namibia and Yoweri Museveni in Uganda. But South African reforms have done more than give hope to gay activists in African countries. Legislative developments in South Africa have a way of permeating through the region, particularly through the Southern African Development Community (SADC) - a regional organization along similar lines to that of the European Union.³ A very good example of this was the manner in which Namibia reformed its labour legislation. Trade unions in South Africa, together with the Government, achieved significant progressive change in the Labour Relations Act of 1995. This includes the integration of human-rights principles in determining fair and unfair dismissals. Among other things, discrimination against lesbian and gay people is unlawful. At the instigation of trade unions and non-governmental organizations in Namibia, their labour legislation mirrors the South African legislation. In this way, protection for lesbian and gay employees surprisingly found its way into Namibian legislation despite the fact that male homosexuality remains technically illegal in the country.

Back to South Africa. As we said before, many things have changed, but many things are the same. Most South Africans are poor. Many are without formal housing or employment. This creates a harsh dividing line between the 'haves' and the 'have nots'. Sadly, this line also runs between rural and urban; between those who can access their rights and those who cannot. Many lesbian and gay South Africans live in informal settlements. In these areas, crime levels are high and the rights of lesbian and gay people, and human rights in general, are a distant hope. Every day in these townships lesbians are getting raped. Gay men are attacked by gangsters as 'soft targets'. The only recourse these people have is to public-interest organizations like the National Coalition.

The Gay and Lesbian Legal Advice Centre (GLLAC) deals with some 600 individual cases every year. These range from employment rights to domestic violence. The importance of services like the GLLAC cannot be overstated. When rights live on paper and not in the hearts and lives of people, they amount to nothing. But organizations like the GLLAC are under tremendous strain. As the only service of its kind in Africa, it is comparatively understaffed and suffers from extreme financial pressure. In post-apartheid South Africa, many public-interest funders have diverted their resources to supporting the Government. At the same time, the Government is not making any funds available to services such as the GLLAC. It is in fact quite remarkable that this centre is able to deal with the hundreds of cases it does, in addition to strategic public-interest litigation.

The achievement of constitutional equality for lesbian and gay people marks a remarkable point in the history of every country where it occurs. But it is always a beginning and not an end. In South Africa, we have achieved constitutional equality, but the daily lives of many ordinary lesbians and gay men have not changed. The fight for lesbian and gay equality is always also the struggle for human rights, for social equality and a better life for all. Constitutional equality provides some of the answers, but not all. Many people still have to find answers to questions like 'Where will I sleep tonight?' 'What will I eat tomorrow?' 'Will I be raped on my way home?'

I still have to figure out if I am going to hell.

Activist and writer
is Amnesty International's Africa Lesbian,
Gay, Bisexual, Transgender Network Co-ordinator.
He is based in Port Elizabeth.

1 An Afrikaans South African derogatory term for a male homosexual.
2 For more information, contact the Coalition at e-mail: [email protected]
3 SADC includes Mozambique, Namibia, Botswana, Zimbabwe, Zambia, Lesotho, Swaziland, Mauritius and Madagascar.