As some of you may have heard by now, Media24 - the former employer of South Africa's new Ambassador (excuse, me - "High Commissioner") to Uganda - is challenging the constitutionality of section 10 of Act 4 of 2000.
Why am I still talking about this? Yes, still - because some of you who have been paying attention will already know this - but the sad thing is, many of you now reading this will not even know what it is all about. And it is for your benefit that this is the topic of discussion for today as well. I am hoping this will get through to you - and that the message with get out there, that we as a community are facing a serious threat to our civil rights.
Why? Because Act no 4 of 2000 is a vital piece of legislation. It fills the gap in sec 16.2 c of the SA Constitution. Yes, that nice gap that would allow people to incite hatred or express hate speech against others on the grounds of sexual orientation or gender (which is not mentioned in that specific section) - were it not for this Act, of course, which provides protection for everyone.
Because, along with their former employee - a "journalist" who has been anything but objective, has expressed hate speech and incited harm and promoted hatred against women, gay people, and white people - they face charges in the Equality Court. Obviously, the easiest way to fight such charges - which they know it is highly likely they will be found guilty on - is to fight dirty by trying to change the laws describing the charges to begin with. If the law is changed so it doesn't describe their crime, how can there be charges? Simple.
See section 10 here:
"Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (4 of 2000)
Chapter 2 Prevention, Prohibition and Elimination of Unfair Discrimination, Hate Speech and Harassment
10. Prohibition of hate speech
1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to-
a) be hurtful;
b) be harmful or to incite harm;
c) promote or propagate hatred.
2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation."
Do you remember how the religious-right performed back in 2000, when the ACDP and fundamentalist church groups started campaigning against this law? Just do a search online to see the kind of opposition this Act faced - simply on the grounds of the hate crime and hate speech protection it offered us. People were saying it "threatened their faith", "persecuted the church" to force them to stop venting hatred against people on the grounds of sexual orientation and gender, blah, blah, fish-paste. Funny, despite their very rational reasoning - it was passed, signed by Mbeki - and funnily enough, their fundamentalist churches are all still standing and still just as narrow-minded and reactionary as before. How about that? It makes me wonder what all the fuss was about.
What does Media24 want to change in the Act? Does Media24 want the freedom to rip whole communities to pieces in their publications? Surely their issue with Act No 4 of 2000 is not to seek the freedom to promote racism? I doubt it, because "of course" it is morally reprehensible to air racist hatred in public media, so racism shouldn't be the issue. So why then?
Who else would they want the freedom to target? As far as South Africa is concerned, while racism is taboo - the jury is still out on homophobia and transphobia - probably on extended lunches with lots of gravy. Perhaps they disagree with the idea set out in the Act that inciting hatred against people should be defined as hate speech? Or that encouraging violence against them here, by praising violent demagogues such as Mugabe for the way they oppressed the pink community in Zim - or asking people to rip gay rights out of the SA Constitution is perfectly acceptable? Or promoting defamatory and inaccurate stereotypes that allowing same gender marriage will open the way to legalized pedophilia and bestiality? Or that religion is of any standing to cast aspersions on the moral character of people based on how they are born? Who knows? They aren't exactly saying, and as they own most of the print-news media, none of their publications have yet either. I find it particularly disturbing that nobody else seems to be.
Aside from the communique from the Human Rights Commission, I have not seen any mention of it anywhere. I don't like the implications, but the words "media blackout" leap to mind.
You can't convince me that this issue of taking on the Act suddenly arose because Media24 wants to freely publish racist comments in the media. No, I am pretty sure it is because of homophobia - because this whole matter arose when their columnist, Jon Qwelane, expressed hate speech and incited hatred and harm against the pink community in his article "Call me names, but gay is NOT okay". The same week that Qwelane's article appeared, another Media24 paper published a reader's poem which described gay people as "children of the Devil". It seems pretty clear to me why they would want to this - because they target the pink community, because they have done so in the past, and because they want to continue to do so. That's what I think - and you're going to have a hard time convincing me otherwise.
It seems to me they feel that if a disgruntled journalist with a mouth almost as big as his ego, wants to compare gay people getting married to bestiality and pedophilia, and to advocate hatred or harm coming to them - then it "should" be up to them to publish it if they feel like it, regardless of the negative fallout - which of course, will just give them something else to write nasty stories about.
It seems reasonable to deduce that they may see facilitating public attacks on the dignity and civil rights of people based on in-born characteristics, such as their sexual orientation or gender identity - while happily adhering to the same rules preventing the very same sentiments being vented on the basis of race, as "freedom of the press". Does this attack on protection against hate speech and incitement to harm, not show a desire for the freedom to do exactly this, unhindered, unimpaired and with both hands free?
It seems to me they view their need to vent hurtful and hateful rhetoric and to incite harm - and the "right" to generate money from it in order to continue to do so - as more important than the Constitutional rights of the ordinary people of this country to dignity, equality - and protection against them.
Let's recap:
In Dec 2008, South Africa refused to sign the UN Declaration to Decriminalize Homosexuality, and cryptically cited "having principles" as their reason. Subsequent inquiries by lobby groups were ignored and we still are unsure of what that was supposed to mean - although we are starting to get a pretty good idea.
Since the Sunday Sun published his infamous article in July 2008, Jon Qwelane has been evading the Equality Court for two years. He has been smuggled out of the country and appointed by the President as Ambassador to Uganda. It took the HRC almost 2 years to get to a point where a seemingly open-and-shut case was ready to go to court, only to be stymied by government interference with Qwelane's appointment as SA Ambassador to Uganda.
Oddly enough, in comparison, racist issues such as the Reitz Four case, which occurred some time after this one, were VERY speedily resolved along with constant high-profile press coverage and a decisive outcome.
This decisiveness on one part and reluctance on the other part creates the impression, rightly or wrongly, that homophobia is perfectly acceptable and not as offensive or as serious a crime as racism. In fact, it is perfectly clear in South Africa today that if you commit an offense involving racism, your goose is well and truly cooked, but in the case of homophobia, you will more than likely get away with it, and maybe even rewarded for it.
Furthermore, the Reitz Four are now struggling to find employment - and are social outcasts, while Jon Qwelane has been seemingly rewarded by the State for his hatred and is now a bona fide Ambassador to Uganda.
Since the 2009 General Elections, the President's collusion with conservative and fundamentalist religious groups (such as the NILC and Rhema) with clear intentions to attack gay rights in the Constitution, has been of grave concern. The close involvement of ANC MP's in these groups, as exposed by the Mail & Guardian, and with groups such as Errol Naidoo's FPI - indicates and emphasizes the slow creep of fundamentalism into our government.
In October 2009, a protest campaign which focused on calling the new Presidential Hotline on the Ugandan matter went completely ignored. Various email campaigns to government offices also went unacknowledged. The SA government's continued refusal to engage with gay rights lobby groups on matters concerning human and civil rights creates an atmosphere of uncertainty, worry and speculation.
The Arts & Culture Minister's shocking behavior at an art exhibition this year, in which she stormed out, describing it as "pornographic" and "detrimental to nation building" shows both an alarming ignorance of her portfolio, as well as a notable fundamentalist bent and disgraceful un-professionalism.
President Zuma's state visit to Uganda last month presented a golden opportunity to speak out on the Ugandan Genocide Bill which threatens state-sponsored killing of the GLBTI community in Uganda - instead Zuma ignored this matter entirely and spoke about strengthening political and economic ties with Uganda and increasing the already massive investment by South African businesses in the country. President Zuma and the government's continued silence on the abuses of human rights in Uganda, despite international pressure to speak out, is a major point of concern.
The Human Rights Commission announced that its case against Qwelane and Media24 would be put on hold pending the outcome of the Media24 interlocutory application to challenge Act no 4 of 2000 in the Constitutional Court. If their case is successful, it could result in the removal of one of the most important hate crime/hate speech protections of the pink community and possibly even open the way for a direct challenge to the SA Constitution. I have to point out that the separate hate crime/hate speech law which was supposed to have been tabled a year or so ago, has completely disappeared, without so much as a trace. And we thought that it was only crime dockets that disappeared so efficiently in South Africa?
In April 2010, the Broadcasting Complaints Commission declared a complaint about the use of the word "gay" to mean "bad" or "stupid" invalid, in effect creating a precedent which could allow the further abuse of human rights and erode the dignity of gay South Africans.
Currently, South Africa seems to be considering introducing media censorship laws, ostensibly to combat child pornography, but which will open the field to blanket censorship of anything the government deems undesirable - and it doesn't seem far-fetched to think that this is part of the broader influence of religious fundamentalist groups with which the government has been increasingly engaging.
It seems very clear to me that the bodies intended to protect the dignity, civil and human rights of South Africans are failing - or at the very least, that they are failing us - the pink community.
Coupled with these events, it seems clear that the state is taking a very conservative and hostile stance against the human and civil rights of GLBTI people. I think we have much cause for concern.
Putting all this aside, the biggest issue for me is apathy. You see, back in 2008 when I first started waving my arms and squawking like a crazy hen about Uganda, I noted the following: If the pink community in Uganda had been paying attention to current affairs and politics, they would have been prepared. If the pink community in Uganda had got off their asses and got involved in politics and local and national government, they would have had voices in government when these repulsive laws were tabled in Parliament. They didn't - and so they were passed - thus, it became a crime to be born GLBTI in Uganda, punishable by jail-terms and what-not - and the new, harsher law which will condemn gay, bi and trans people to death, is still pending passage. And - repeat after me: "If there were pink representatives in Uganda's political bodies, these laws wouldn't stand a chance!" But now there aren't any pink voices in Uganda's government - and now it is unlikely they will find their way inside at all. As they say in Afrikaans, dear - "Spyt kom altyd te laat" (Regret always comes too late). I recall warning back then, that if we did not get involved, we would face the same dangers in the not too distant future. The result? At best, I was laughed at and labelled an "alarmist" - at worst, completely ignored.
See where I'm going with this? Today we are are well on the way to being in almost the same position, but we aren't quite there yet. I have long been saying that "silence =death", my friends - and apathy is a killer.
The pink community needs to get involved in politics. It HAS TO - or our futures will be decided by people who do not know us, or want to know us, or care about our well-being - and by those who hate and despise us, with a fairly predictable result.
The clock is ticking.
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All material copyright © Christina Engela, 2019.
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