Reflections From The South: Anti-Gay Slur Judgment Against The South African Ambassador To Uganda
On May 31, 2011, an Equality Court in Johannesburg, South Africa, passed a judgment to the effect that a newspaper article written by Jon Qwelane – then a journalist with a South African Newspaper, the Daily Sun, and currently South Africa’s Ambassador to Uganda – and its accompanying cartoon constituted hate, speech and caused emotional pain and suffering to homosexuals for equating homosexuality with bestiality.
The court in its judgment also ordered that the respondent, Ambassador Jon Qwelane, should make an unconditional apology to the gay and lesbian community in the South African Sunday Sun newspaper and another national newspaper and to pay an amount of R100 000 (about US$14 000) to the South African Human Rights Commission for the promotion and awareness of gay and lesbian rights.
The court case was initiated by the South African Human Rights Human Rights Commission – an independent constitutional body established to promote and protect human rights in South Africa – after receiving hundreds of complaints from members of the South African Lesbian, Gay, Bisexual and Transgendered Community following the publication of the article in July 20, 2008.
The finding of the South African Human Rights Commission that the article constituted hate speech and its decision to take the matter to court were based on sections 9 and 16 of the South African Constitution read with sections 10 and 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act, which in essence, and in this context, prohibits unfair discrimination on the basis of sexual orientation by the state or any person, advocacy of hatred and incitement to cause harm to members of the gay, lesbian, bisexual and transgendered community.
The ruling by the court in this matter is therefore an important one in as far as advancing the rights of homosexuals in South Africa. It is also an important contribution in the struggle for the these rights in the African continent; where homosexuals are often persecuted, insulted, assaulted, sexually abused and even killed and where most African countries still have laws that that do not recognize these and where homosexual conduct is still criminalized.
The South African Human Rights Commission should thus be commended for the courage it showed in taking up and pursuing this matter against a serving South African Ambassador and in an environment where there are still high levels of homophobia. The conduct of the Commission should hopefully inspire and encourage many other African national human rights institutions in countries such as Kenya, Malawi, Uganda, Cameroon, and Zambia to promote and protect the rights of gay and lesbian persons. This should also encourage the African Commission on Human and Peoples’ Rights which is still dealing with its own internal challenges and difficulties in relation to these rights and in according observer status to organizations and institutions promoting the rights of gay, lesbian, bisexual and transgendered persons.
There are however several concerns pertaining to this matter that should be looked into and hopefully addressed.
There were long and unreasonable delays by the South African Human Rights Commission in making a decision to refer this matter to court and in effecting its decision. The delay in making a decision on the complaints even led to a protest march by members of the gay and lesbian community to the Commission’s headquarters in Johannesburg.
A court decision almost three years later after the publication of the article in question is too long a period for an equality court that has been established to provide easier and quicker justice to victims of unfair discrimination – justice delayed is justice denied. The South African Constitution also requires all constitutional obligations to be performed ‘diligently and without delay.’
The protest march by members of the gay and lesbian community and their demand for action on their numerous complaints by the South African Human Rights Commission, nevertheless, highlight the importance of public accountability of state institutions to the citizens and the need for on-going pressure on them to ensure that they carry out their constitutional duties properly and do so without ‘fear, favor or prejudice’- the sole purpose for the existence of public institutions and governments is to serve the people and advance their interests.
The conduct of Jon Qwelane before and after his appointment as South African’s ambassador to Uganda has also not been satisfactory in this matter. He made it clear in his article that he will not apologize for his views and that he will not write to the South African Human Rights Commission to explain his position. This is troubling coming from a seasoned journalist who appreciated or should have appreciated the role and status of the South African Human Rights Commission – a body established to strengthen South Africa’s democracy and a constitutional obligation for every person in South Africa, himself included, not to undermine the Commission and its work.
The support and strengthening of constitutional institutions established to consolidate democracy and advance human rights is crucial for South Africa’s and Africa’s development. President Obama reiterated this in Accra, Ghana, in July 11, 2009 when he said that Africa ‘needs strong institutions, not strong men’ and that ‘capable, reliable and transparent institutions are key to success.’
The failure by Jon Qwelane to defend himself and file court papers in this matter is another worrying conduct by an ambassador required to uphold the laws of the country he represents, and to respect its institutions, the courts in particular. This also raises questions about the criteria and caliber of persons appointed to represent the country whose founding values included respect for human dignity, equality and non-sexism.
The court found that he was duly notified and properly served and thus passed a judgment by default against him without the benefit of his side of the story. It has subsequently been reported that Jon Qwelane will apply for the judgment against him to be rescinded as he was on sick leave and was not aware that he should have sent lawyers to represent him in court- this change of heart might have been triggered by calls for the removal of Jon Qwelane as South Africa’s ambassador to Uganda by some South African opposition political parties. While the application might not succeed, a favorable outcome for Jon Qwelane would allow him to state his case and help the court make a more informed ruling in relation to his article, and in determining the parameters for hate speech in relation to the rights of homosexuals.
History is full of incidents of intolerance by people deemed different, such as intolerance against black people simply because of their skin color, intolerance against women because of their gender and, intolerance against peoples of different ethnic, language and national backgrounds. This intolerance in its various manifestations is without any reasonable basis and is generally based on ignorance and other nefarious motives and agendas.
This case and the publicity it has generated should hopefully get more African people and their governments to reflect on how best to respond to homosexuality and the rights of homosexuals in the African continent, especially in view of global developments and challenges in this regard.
This reflection should focus on whether the intolerance against homosexuals and their persecution in many parts of the African continent helps in advancing democracy, development and peaceful and harmonious co-existence and is not counterproductive. As an example in this regard, Justice Edwin Cameron, a homosexual who has served and continues to serve South Africa with much distinction in its Constitutional Court would have been be locked up in many parts of the African continent where such conduct is criminalized and would certainly not have been allowed to be a judge and benefit society with his judicial abilities – this is what intolerance against those who are deemed different generally results in and continues to do so. It is this intolerance that deprived South Africa and the world of the ability and leadership of Nelson Mandela and continue to do so in many other aspects.
African governments have more important challenges of poverty, conflict, democracy, than spending time and resources persecuting homosexuals in Africa – unless this of course provides a diversion for their own failures in advancing good governance in the region and in uplifting the continent from poverty and underdevelopment.
By Tseliso Thipanyane
Tseliso Thipanyane, independent consultant on human rights, democracy and good governance and former chief executive officer of the South African Human Rights Commission. Tseliso is Director-Editorial and Marketing at AfrobeatRadio. He can be reached at firstname.lastname@example.org.