Members of the South African gay community are considered to be privileged by their African counterparts, on a continent were homosexuals are often persecuted and driven away from their loved ones due to their sexual orientation. 

All South Africans fall under the umbrella of the Constitution - it’s built on a legal foundation and is tasked with protecting the rights of all groups of people. 

Section 9 of the constitution guarantees equality before the law and freedom from discrimination - thus forbidding discrimination on the basis of sex, gender or sexual orientation.

What is the issue? 

Thursday May 17th marked the International Day against homophobia, yet South Africa’s gay, lesbian, transgender and intersex community continues to face prejudice.

Although South Africa has what is considered to be one of the most progressive constitutions in the world, it’s also home to an extremely conservative society that often struggles to adapt to change. 

There was outrage from different parts of society when the country made an unconventional move by becoming the first African state to allow same sex marriages in 2006. It was seen as a ‘blow to democracy’ by some. The African Christian Democratic Party (ACDP) said the country would face ‘divine wrath’.

In 2011 the Congress of Traditional Leaders of South Africa (Contralesa) submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the constitution. 

What do the parties involved say? 

Contralesa’s Secretary General Chief Setlamorago Thobejane says they are concerned about the consequences of the constitutional court judgment.

Constantly referring to members of the gay community as ‘them’ and ‘those people’, Thobejane acknowledges that gay people are part of South African society, but traditional leaders don’t believe that provision should exist in the charter. Contralesa also wants to stop same-sex parents from being able to adopt children. Thobejane says this violates the children’s rights, as they had no say in whether they wanted to be raised under those conditions.

The ANC has distanced itself from Controlesa’s position with the party’s Chief Whip Mathole Motshekga adding that the ANC will not consider removing gay protection from the constitution.

Lawyer and Human Rights Activist Coenie Kukkuk is a wealth of knowledge on issues affecting the gay community and the African community. He firmly believes the preferred argument that homosexuality is unheard of on this continent, is not true and makes references to numerous studies which show otherwise.
Having spent many years advocating for gay rights Kukkuk believes no-one living in the country can afford to relax. He says today it is gay rights, while tomorrow it might be the rights of people living with disabilities. He also says Contralesa’s attempts to remove sexual orientation from the country’s law books shows how easy it is to amend the constitution – a fact that should scare the entire nation. “Lots of South Africans are complacent because they believe they have a constitution to protect them. They need to open their eyes,” he says. “Controlesa’s just shown us all that it’s possible to try to change it.” Just over 16 amendments have been made since the bill was established, however most of those changes have either been minor or administrative. 

One of South Africa’s popular townships, Soweto, is also home to a massive gay and lesbian community. Activist Virginia Mgwaza- Setshedi spends her time trying to educate and mobilise young LGBTI members in her area. She, like Kukkuk, believes it’s important to remain conscious of what’s happening with the constitution. “We have to be aware. We need to not sit back and wait for change but to actively pursue it,” she says.

Mgwaza-Setshedi says freedom of expression is guaranteed in South Africa and it’s sad when people don’t want to share that freedom with others just because of their sexuality. She also feels that as long as the issue of sexual orientation keeps coming up, the country is taking a step backwards. 

Among the young men and women she speaks to is Thabile Vilakazi, who admits that she had not been aware of Controlesa’s request. As a woman who came out of a community that struggled to accept her orientation, she worries that moves such as theirs being in the spotlight might incite homophobia and violent attacks on the LGBTI society. 

Dikeledi Sibanda says she’s worried that some leaders are still struggling with something as minor as sexual orientation. She says this makes her feel hopeless, “Freedom day was recently celebrated, that makes no sense especially if our rights might one day be taken away”.

Since the ruling party’s utterances a lot of people who were voicing their concerns have moved on from the story, but for those who value true equality this could be the signal the start of a massive battle.