And no respect for the South African Constitution.
By Melanie Nathan, May 13, 2012.
Much publicity and outrage followed the recent comments made by Chief Patike Holomisa, pursuant to a submission by the House of Traditional Leaders to Parliament’s Constitutional Review Committee, proposing the removal of the constitutional provision protecting individuals from being discriminated against on the basis of their sexual orientation.
Chief Patekile Holomisa is is an advocate (lawyer) of the Supreme Court, an MP for the ANC, a traditional leader, chairman of the joint Constitutional Review Committee and Chairman of the Congress of Traditional Leaders of South Africa (CONTRALESA); Founding member of PISA – parliamentary Institute.
This is what he had said in the context of a review of LGBTI entrenched Constitutional rights:- “the ANC knows that the ‘great majority’ of South Africans do not want to promote or protect the rights of gays and lesbians.”
The ANC has distanced itself from Holomisa’s remarks. However perhaps in light of the rampant homophobia and lack of constitutional respect indicated in the interview below, its time to relieve Holomisa of some of his duties and perhaps even his ANC membership.
He has a clear conflict of interest in his positioning and understanding of the entrenchment of rights in the Constitution.
The Constitution is there to protect people and there should never be a perception that any one group has the right to denigrate or take away the rights of another.
The outrage has sparked nationwide protests scheduled for later in this week as well as thousands of petition signatures organized by LGBTQ activists in South Africa.
However the Chief seems unfazed by the commotion he has caused and in the following interview, he seems to have shoved his foot deeper down his own throat.
Not only should these remarks cause further outrage, but should provide cause to remove the Chief from his functions as a member of the ANC, a member of Parliament and also from any and all committees and duties where he has sworn to uphold the South African Constitution.
What is most unfortunate about the interview is that although the interviewer takes Holomisa to task on the question of culture, tradition and homosexuality, he has completely forsaken the argument of the Constitution and the fact that sexual orientation rights are firmly entrenched in the Constitution to protect LGBTI South Africans from traditionalists such as Holomisa. The discussion in the interview is centered around the harm that could occur to gays if the rights were removed. That has no relevance whatsoever to the discussion of whether rights should be entrenched or not. The Chief clearly believes gays should not have equality. He is saying that LGBTI people should not be protected by the Constitution because some people believe LGBTI people are not entitled to those rights. He is forgetting that thinking is the very reason why their rights are so protected.
What remains is the question of what next – while traditionalists ought to have a voice in South Africa’s Parliament, they should be banned from sitting on committees where they have an inherent conflict of interest. Which means they should be excused from serving in positions where they risk impacting the entrenched rights of minorities such as gays, lesbians etc.
Here you have a man who has in his various capacities sworn to uphold the SA Constitution, and now in those very positions he is empowered with participating in the taking away of those rights, which he has sworn to uphold.
Here are the comments by Congress of Traditional Leaders president Patekile Holomisa to Chris Barron for Times Live asked him
“Do you think you’ve put your foot in it here?
No, I haven’t.
You’ve just said stuff you’d rather you didn’t say?
Then why don’t you want to talk about it? It’s an uncomfortable discussion.
Because where I come from these things are not supported, not condoned.
What do you mean, not condoned?
It is something that is not encouraged. It is not part of our culture.
What culture is that?
The African culture.
So how come the African National Congress disagrees with you?
You can’t say that. Who do you mean when you say the ANC disagrees with me?
The chief whip?
The chief whip has not spoken to me, so I do not know what he disagrees with.
He says your statements are not ANC policy.
Well, of course the ANC was the main sponsor of the clause prohibiting discrimination on the basis of sexual orientation. That’s the official position of the ANC.
And you’re an ANC MP but you don’t agree?
I assume you want me to give the context to why the National House of Traditional Leaders made the submission that has caused this outrage?
Yes, why did they?
Because they say their communities are calling on them to do something to stop what is happening, because they’re custodians of their culture.
We live in a constitutional democracy, don’t we? Everybody supports constitutional democracy, but the same constitution talks about people having to enjoy their cultures.
Should this trump all other rights?
No, none of the rights in the constitution or bill of rights is absolute.
How can you say being gay or lesbian is not part of the African culture when so many Africans are gays and lesbians?
They’re not doing it in terms of their culture, they’re doing it despite their culture.
Who decides what is the culture and what is not?
The traditional communities and traditional leaders.
According to that culture should it be a criminal offence?
No, it has never been a criminal offence.
It is in other African countries?
In terms of the law, not in terms of the culture.
But in terms of the culture they should not be protected?
No, no. They are protected, they can’t be assaulted, or raped or killed. According to the culture.
But they are being assaulted, raped and killed.
It’s not because of the culture that they’re being assaulted and raped and killed. The culture doesn’t say they must be assaulted and killed and raped.
Have you as a cultural leader condemned this?
Of course. Whenever we hear of these things we condemn it, because it is not supposed to be like that. Nobody is supposed to be assaulted.
Doesn’t it encourage this sort of thing when traditional leaders call for the protection of gay rights to be removed?
No. I’ve made it clear that people should not be assaulted.
But you also make it clear that being gay is not part of the culture?
It doesn’t necessarily mean that whoever deviates from our culture must be assaulted or killed.
But when you make it clear that certain forms of behaviour are not part of your culture …?
The communities know that this is not condoned by our culture.
But it’s okay for them to be discriminated against?
No. Our position is that practitioners of homosexuality should not be denied the right to work and do other things. But it takes issue with them being allowed to marry each other.
If the protection of gay rights is removed and they’re discriminated against, will that be okay with you?
This submission is going to be debated. It’s not as if just because traditional leaders have given the word then that is going to be law.
Thank goodness for that.
I was saying it light-heartedly. It has never been the case that the word of a traditional leader is law.”
Even if this is debated only it is still an outrage by virtue of the positions that Holomisa holds. If this is said in the context of a tribal discussion, then what he says remains the business of him and his tribal leadership and people.
However that is not the case and so the conflict of interests is clear – he is telling Barron that it is the people’s will that the question of gay rights comes up for discussion – that may be fine if he were not in Parliament on the ANC platform, which includes protection of sexual orientation, hence indicative of his conflict with his own party. His majority party position is based on this platform – to protect minority rights, regardless of differing beliefs. It may also be fine if he was not entrusted to uphold the Constitution which includes the protection of these minority rights.
However it is being discussed in the context of the South African Constitution and where the rights of his fellow South Africans are at stake; South Africans who do not share his perspective and hence have earned their constitutional protections. Because of Holomisa’s political and strategic position in relation to it, this is a travesty.
Discussing the taking away of rights from any one group in South Africa is UN-SOUTH AFRICAN!
It is my hope that the South African marches organized for this week will include signage that says:
- Traditionalists leave our Rights alone
- We respect your tradition you respect our rights
- ANC Fire Holomisa NOW
- Holomisa does not share my ANC values
- Holomisa Go Home
- We are All South Africans – The Constitution is for everyone
- If you steal my rights, You pave the way for someone to steal yours
I dedicate this Article this Mother’s Day, to my beloved late mother, Professor Carmen Nathan, who stood up for civil rights in South Africa during the Apartheid era. (1934-1990)
By Melanie Nathan, B.A. LL.B
REWARD OFFERED FOR RETURN ON STOLEN HARD DRIVES AND SD CARDS BELONGING TO ZANELE MUHOLI CONTACT firstname.lastname@example.org More than 20 external hard drives have been stolen from the home of famed South African filmmaker and photographer, Zanele Muholi, robbing her of a life’s work.