Sexual rights – constitution versus tradition

The institute’s biggest event this year is the Nordic Africa Days in September. It’s a two-day conference focusing on gender and change in Africa. Professor Kopane Ratele from the University of South Africa is one of the keynote speakers and his talk will touch on how masculinities interact with tradition and how both are always tied to place, in this case South Africa’s special history.

Post-apartheid South Africa constitutionally protects sexual orientation. How much of this is on paper only? Does it really work in practice?
Many of these rights are still on paper, no doubt. The rights also depend too much on who you are, how much money you have and where you live. The experiences of sexual freedom for queer people differ according to geography, culture, race and, most significantly, economic status. If you are a black woman living in a poor area such as an informal settlement, your vulnerability to violation is much higher than a black women living in the First World areas of South Africa, such as the Bo-Kaap in Cape Town. This differentiation in how much practical protection South Africans are able to have also signals the intersection of sexual rights and other rights like education, expression and a dignified life.

Has the special history of South Africa, such as laws against interracial marriage, actually contributed to the passage of rather progressive laws, like same-sex marriage, after the end of apartheid?
Ironically, the terrible history of South Africa has helped. But other countries with nasty histories have not had progressive legislation. Hence, more crucially, what has helped is the kind of people who were central to the negotiated settlement and the drafting of the Constitution. They contributed to ensuring that progressive provisions made it into the Constitution. You always need idealistic and ethical people like that.

However, we should not forget the agitation of various civil society groups who pushed for laws that recognised their rights. I am referring here to divergent groups like LGBTQi groups and traditional leaders.

There is a fantastic piece of history, whose origins are in the 1980s, when queer activists in London, after being rebuffed by one of the leaders in exile, got to impress on Thabo Mbeki, later the second president of free South Africa, the need to recognise the struggles of gays, lesbians and other queer subjects. From there to the heteropatriarchal African National Congress giving recognition to queer rights was a relatively short walk. And that was part of the history that made it possible for the right of sexual orientation to get into the Constitution of the democratic republic.

But now, because it was not only the right to sexual orientation that made it into the Constitution, but also rights to tradition and culture, South Africa finds itself today in ongoing contestation about how, for example, a traditionalist man or woman is enabled to live in peace with a queer woman or man. Better still, there are fights, more usually discursive fights but too often erupting in violence, in which South Africans are trying to find a way to understand that some lesbian women do want and can be part of tradition. Or vice versa ‒ the struggles are getting us to understand that a man who is deeply conservative culturally may also want to be recognised as sexually nonconforming.

Are there any concrete examples in South Africa of old traditions regarding sexuality being challenged and then changed?
An example of a sexuality and gender-related tradition that is being questioned is what is called ukuthwala. Ukuthwala, an Nguni word, literally means to carry off. It refers to when a woman is carried off to be married. What this has meant is that a woman can be abducted and married against her will. Many women and social activists have been vehemently opposed to this practice. The government is being forced to intervene and ban the custom.

But there are crucial nuances regarding custom that it would be remiss not to highlight. Some women and men have argued that the problems about the practice arise from the fact it has been bastardised. They say that ukuthwala was an option for a young man who was prevented from marrying or did not have enough cows to do so. They say this was basically eloping so as to force parents to consent to the union. They say that a woman had to consent to eloping.

Given the evidence that some older men are abducting girls and young women to marry them without their consent, this practice should be criminalised, and this is happening. The tide is running against the custom. Sometimes, of course, the consent is given by the girl's parents who are forced, due to poverty or for some other reason, to marry off their daughter. It may mean that parents will be criminalised too. And this points to a need for other interventions to discourage parents from supporting practices that harm their children.

So what does it take to make changes happen?
It takes social mobilisation. It takes a public that is active, and this is not a problem in South Africa. It takes a media that is aware of what it takes to make a new society, which is certainly not a problem, as South Africa has the noisiest and most open media. It takes a better government, one which is responsive, informed, transparent, efficient and anti-corruption. While parts of the government show these qualities, it seems that the current national government is on the take, morally bankrupt, directionless and without a clear vision. On the local level, in rural and urban areas, we need chiefs and mayors who are idealist, and to support talent that translates those ideals into a quality public life.

Read more about the Nordic Africa Days.

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