When prejudice is peddled as ‘tradition’
There is a long tradition of institutionalised prejudice and inequality in South Africa related to class, race, gender and sexuality. The power structures required to keep prejudice in place are still a prominent feature of the post-apartheid landscape. Certain institutions of ‘tradition’ and ‘culture’, like that of some religions, continue to perpetuate discriminatory social systems and practices. One such institution is the National House of Traditional Leaders (NHTL).
In its recent submission to the Constitutional Review Committee of parliament, the NHTL unashamedly proposed that Section 9 of the Constitution, the Equality Clause, be amended to remove sexual orientation as a ground for non-discrimination. Section 9 (3) and 9 (4) of the Bill of Rights prohibits both individuals and the state, respectively, from discriminating against persons on the basis of sexual orientation. The NHTL’s submission to parliament is that gays and lesbians no longer be afforded constitutional protections from unfair discrimination. This is a reactionary manoeuvre and reflects the continued intention of the NHTL to chip away at principles and institutions aimed at dismantling historical prejudice and discrimination.
In its recent submission to the Constitutional Review Committee of parliament, the NHTL unashamedly proposed that Section 9 of the Constitution, the Equality Clause, be amended to remove sexual orientation as a ground for non-discrimination. Section 9 (3) and 9 (4) of the Bill of Rights prohibits both individuals and the state, respectively, from discriminating against persons on the basis of sexual orientation. The NHTL’s submission to parliament is that gays and lesbians no longer be afforded constitutional protections from unfair discrimination. This is a reactionary manoeuvre and reflects the continued intention of the NHTL to chip away at principles and institutions aimed at dismantling historical prejudice and discrimination.
In 2005, ahead of the then imminent legislation to enable same-sex couples to marry, the NHTL stated the following at its annual conference: “The practice of same-sex marriage is against most of African beliefs, cultures, customs and traditions, and this in turn goes against the mandate of traditional leaders which is to promote and protect the customs of communities observing a system of customary law. Traditional leaders have vowed to make it their mission for the coming five years to campaign against this wicked, decadent and immoral Western practice”. As their recent parliamentary submission suggests, the NHTL has kept that promise.
In response to the NHTL, parliament’s legal advisers argued that the removal of sexual orientation from the Equality Clause would be in contravention of the values of human dignity, equality and the advancement of human freedoms that are protected and promoted by the Constitution. It’s a no-brainer really. Whilst the NHTL thumbs its nose at constitutional imperatives, the Constitution itself expressly requires that customary laws, practices and institutions are consistent with the purport and objectives of the Bill of Rights. This requirement is directly challenged by the NHTL’s call for a constitutional amendment that in effect seeks to expunge gays and lesbians from protection against homophobic discrimination.
The NHTL, and its bedfellow the Congress of Traditional Leaders of South Africa, claims a monopoly on defining ‘African traditions and values’. In assuming the right to define what constitutes ‘tradition’, and what not, these ‘traditionalists’ seek to be arbiters of ‘legitimate’ cultural expression. In doing so, they aim to hegemonise particular concepts of ‘African culture’. According to this cultural script, homosexuality is ‘unAfrican’. Both queers and other non-conforming genders and sexualities are disavowed within such an exclusionary manufacturing of culture.
The traditionalist lobby would wish for a social order that is re-rooted in immutable apartheid and colonialist categorisations of black/white, man/woman, gay/straight. It’s no coincidence that these are the very planes of difference upon which power and privilege have been historically enacted, and which continue to mark the frontiers of current day inclusions and exclusions.
Centralised traditional authorities, like the NHTL, are a powerful political force with significant economic interests. They often function in alliance with ruling elites seeking to centralise governance powers. The Eastern European journalist Ryszard Kapuscinski, in his 1970s study on Ethiopia under Haille Selassie, describes how traditions can be mobilised in support of autocratic rule. In reference to the Selassie regime at that time, he states that, “While affecting to preserve the past, they [the regime] were constantly devising new ‘traditional’ institutions to strengthen their control”. This echoes Ugandan scholar Mahmood Mamdani’s analysis of traditional chiefs as ‘decentralised despots’ in his 1996 book ‘Citizen and Subject’. Related to this is the work of Mazibuko Jara, from the Law, Race and Gender Unit at UCT, on the “retribalisation of the countryside” by centralised traditional authorities and how this undermines citizens’ access to constitutional justice and gender equality.
Unsurprisingly, the NHTL’s submission to parliament also proposes that its powers be extended through constitutional fiat. More specifically, that traditional authorities “be under Parliament and the Provincial Legislatures to enable them to function as proper parliament [sic] of traditional leaders”; that traditional leaders and councils be included “as intergovernmental structures, to facilitate intergovernmental relations”; that “traditional courts be included as one of the courts”[1] prescribed by the Constitution; and that “local municipalities be disestablished (sic) and be replaced by traditional councils as service providers within traditional communities.”
The Constitution, with its checks and balances for accountability, enables citizens to resist groups that seek to reinstate undemocratic measures – whether invoked in the name of ‘Africanness’ or ‘whiteness’. Ironically, the NHTL is reliant on precisely the inequitable power relations (sexual, gender and economic) that constitutional principles challenge. Drawing on such principles, a tide of gender and sexual rights claims have contested traditional authorities’ versions of culture. Women who legally challenged the discriminatory aspects of customary law[2] and African advocates for LGBT equality and an end to homophobic discrimination, are cases in point. Their advances in gender and sexual freedoms contradict essentialist notions of tradition and their associated gender power relations.
Cultural practices predicated on discrimination, directly undermine the pursuit of equality and freedom. This equally applies to the construction of ‘Western culture’ with its oppressive whitening impetus. In opposition to this, plurality and diversity act as powerful leverages to shift oppressive cultural formations and practices and to pry open spaces for inclusiveness and democratic possibility.
Cultural leaders and institutions do not passively bestow fixed cultures onto unsuspecting recipients. Rather, cultural subjects are made and remade, in and through practices that are named and marked as cultural. This dynamic process shapes contemporary iterations of what is deemed traditional, and what not. This is an ever-changing course.
What would it take for non-discrimination to emerge as a shared cultural value, an honoured tradition, owned by all who live in South Africa? Perhaps there is just too much at stake for those leaders and institutions that continue to peddle prejudice in the name of “the people”.
[1] The mooted Traditional Courts Bill effectively proposes a dual system of law, with those who fall under tribal authorities being subject (and perhaps ‘subjects’) to traditional courts.
“[2] See the Bhe case: When the father of two women died under customary law their house became the property of their grandfather. As a result of the womens’ legal challenge to this, the Constitutional Court (in 2004) declared that the rule of primogeniture rule as applied to the customary law of succession cannot be reconciled with the current notions of equality and human dignity as contained in the Bill of Rights. The judgment asserted the following “As the centrepiece of the customary law system of succession, the rule violates the equality rights of women and is an affront to their dignity. In denying extra-marital children the right to inherit from their deceased fathers, it also unfairly discriminates against them and infringes their right to dignity as well. The result is that the limitation it imposes on the rights of those subject to it is not reasonable and justifiable in an open and democratic society founded on the values of equality, human dignity and freedom…In conclusion, the official system of customary law of succession is incompatible with the Bill of Rights. It cannot, in its present form, survive constitutional scrutiny.”
An edited version of this blog was published in the Mail and Guardian (7 October – 13 October)
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