20 July 2012 will mark the fourth anniversary of the now infamous article “Call me names, but gay is NOT okay” which featured on page 14 of the Sunday Sun.
Quite the outrage erupted and a record number of complaints were sent to the Press Ombudsman and the South African Human Rights Commission (SAHRC). I believe that those records still stand.
The South African LGBTI community was up in arms and protests were held in Cape Town and Johannesburg while various campaigns brewed. Media24 was targeted because one of its publications published the hateful drivel. They responded by removing Jon Qwelane’s column from the News24 website.
Louise Reardon’s Facebook group Appalling Homophobia In Our Midst quickly grew in size and served as a platform of discussion and dissemination of protest tactics and campaigns. It was also on this group that the South African Gay and Lesbian Alliance Against Defamation (SA GLAAD) was born.
After months of nothing happening SA GLAAD held its maiden protest at the SAHRC headquarters on 4 December 2008, at this protest the CEO of the SAHRC made it public that Qwelane would be sued.
In the meantime the political landscape changed and Jacob Gedleyihlekisa Zuma was elected president after the 2009 national and provincial elections.
After a strange sequence of events involving the clerk of the equality court trying to serve court papers on Qwelane we learnt that Jon Qwelane had been deployed as High Commissioner to Uganda. Yes, Uganda of all places; a place where the Anti-homosexuality Bill of 2009 was just freshly introduced after some meddling by American lobby groups.
By 31 May 2011 we learnt that the Johannesburg Equality Court found Qwelane guilty of hate speech and fined him in absentia. Qwelane however launched a rescission application and on 1 September 2011 the guilty charge was effectively quashed on a technicality.
The latest according to the Sunday World is that Qwelane has submitted an application in the South Gauteng High Court for a stay on proceedings in the Equality Court pending the ruling on the constitutional validity of sections 1, 10(1) and 11 of the Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000). Qwelane’s lawyers also said that if the stay on the proceedings is granted the constitutionality of the Equality Act will be tested in court.
This in my mind amounts to an attack on the fundamentals of equality and human dignity as contained in the Constitution and moreover an attack on the founding values of our most revered progressive Constitution.
This is an assault on the most basic principles that underlies our new dispensation. Chapter 1 of the Constitution requires a 75% majority vote in the National Assembly to be amended and by that strictest requirement I consider it above other provisions.
Chapter 1 starts with section 1 of the Constitution that states that:
“1) The Republic of South Africa is one, sovereign, democratic state founded on the following values:
a) Human dignity, the achievement of equality and the advancement of human rights and freedoms…”
Furthermore section 9 in the Bill of Rights (Chapter 2) enunciates on the right to equality:
“3) 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.
4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination…”
The Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000, was promulgated based on the prerogative given by section 9(4) of the Bill of Rights. Note that Qwelane is basically attacking this piece of legislation which was meant to extend equality.
Now there is an unexplained gap in section 16(2)(c) of the Bill of Rights. It states:
“16. Freedom of expression
1) Everyone has the right to freedom of expression, which includes
a) freedom of the press and other media;
b) freedom to receive or impart information or ideas;
c) freedom of artistic creativity; and
d) academic freedom and freedom of scientific research.
2) The right in subsection (1) does not extend to
a) propaganda for war;
b) incitement of imminent violence; or
c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
You might note that “sexual orientation” is conspicuous in its absence in section 16 (2)(c). Was this an error of omission? This same error of omission is also quite prevalent in section 37 of the Bill of Rights’ Table of Non-Derogable Rights.
Qwelane, I guess, is basing his defence on section 16 of the Constitution.
Despite our progressive and inclusive Constitution hate crimes directed at the LGBTI community remains rife. Jon Qwelane called for the Constitution to be rewritten in that fateful article of his and amazingly we had Patekile Holomisa from the Constitutional Review Committee who via the House of Traditional Leaders suggested that the “sexual orientation equality” clause be removed. It seems Jon has an ally in CONTRALESA.
Where does this leave us? In 2008 a call was made was for gay rights to be scrapped and now a mere four years later we have the ANC MP and chairperson of the Constitutional Review Committee heeding that call. Uncanny isn’t it?