EUSEBIUS MCKAISER | Ramaphosa trades constitutional values for silence on Ugandan anti-homosexuality bill

The South African government does not take the constitution's foundational values of dignity, freedom and equality seriously. If it did, domestically, we wouldn't have millions of people living in material conditions that render their lives undignified, that make them decidedly unfree and that lead to immoral levels of inequality within our society. Similarly, looking beyond the domestic landscape, if our government related to the rest of the world through the prism of our constitutional democracy, it wouldn't be so cowardly in the face of human rights abuses in many parts of the world.

The latest example of this is the deadly silence from the ANC-led government in response to a bill criminalising identifying as gay in Uganda. It was left to the second biggest opposition party, the EFF, to march on the Ugandan embassy in support of the rights to dignity, equality and freedom to which queer people in Uganda are entitled.

This entitlement flows from the elementary fact that they are human. It requires no further premise than that. All humans have inherent dignity. Or, at least, that is what our constitutional text asserts. Presumably we consciously chose and included that wording?

Dignity is also a value that infuses countless crucial international agreements and covenants, including the Universal Declaration of Human Rights. There may not be nearly as much international agreement that homophobia is wrong as there is growing agreement that racism and misogyny are, but it would take very little intellectual and political work to demonstrate that racism, misogyny and homophobia are morally equivalent.

Our constitution recognises this ethical position, which is why it explicitly outlaws discrimination on the basis of sexual orientation.

Our current government, however, has abandoned any deep and serious commitment to the constitution it helped to bring into existence in the 1990s. That is why it is culpably silent about human rights atrocities in the region, while imagining itself to be an important role-model of moral decency.

Let's be clear on just how absurd this Ugandan bill is. First, it criminalises identifying as gay. That means my sense of self, even as a private act, is deemed immoral by the Ugandan state, before I have even done anything, like engaging in consensual same-sex sex. That too, unsurprisingly, is criminalised, despite adults engaging in private consensual sex not harming anyone else nor impinging on the rights of others.

The human rights violations don't end there. The bill conflates paedophilia with homosexuality, by criminalising activities that should be and already are outlawed, such as the sexual grooming and rape of children. By putting these clauses in the bill, the Ugandan parliament perpetuates the false and dangerous view that gay people are inherently sexual predators and not to be trusted with children. That sends a message to society that gay people are perverted, antisocial and not fit to relate to as trusted friends, parents, siblings, mentors, teachers and all the other social roles that heterosexual people take for granted as part of social life.

The bill also forces members of society to conspire against the queer community. You could get yourself into legal trouble just renting property to gay people and not reporting them to law-enforcement officers. That too is a deep and cruel violation of gay people's right to be part of communities, including family life, church life, sporting bodies, and so on Instead of these social structures being safe spaces for gay people, the bill makes them unsafe by implicating their friends and relatives in their persecution. In other words, the bill criminalises allyship.

Given the global reporting on what is happening in Uganda, it is deeply disturbing that our government is silent.

The contrast between our constitutional values and the silent support of Uganda's persecution of gay Africans is proof we do not have any regard for our foundational constitutional values in how we think about our international relations. Our foreign policy positions depend on what diplomats and staff at various bureaus had for breakfast. There is no consistency, no predictability and certainly no basic commitment to export our human rights jurisprudence. But then again, that shouldn't surprise us, given the South African state hardly cares about South African citizens, here at home, either.

I asked a senior member of the executive, one who has a demonstrably deep commitment to the elimination of oppression, whether I had missed a statement from government about the Ugandan bill. He is someone who always responds to me timeously, even engages telephonically, despite a busy schedule. It has been almost three days. I know his silence is from shame. 

I asked a spokesperson who is in an important portfolio, relative to the constitutional critique I have offered here, the same question. His response was immediate and contained an oblique confession, “No you have not (missed a statement from the government)”.

I did manage to have a lengthy conversation with a diplomat who drew me into a complex description of what sounded like a game-theoretic analysis of Uganda. I love his brain, but felt sorry for him because the underlying reality was clear — political bosses have the final say and there is a limit to what even brilliant strategists can do if their nuanced and principled thinking gets ignored.

The outcome is the same for us as queer people in all these responses. It means we cannot be sure that this ANC-led government will always stand up for us. If it is not moved by the human rights abuses in Uganda and elsewhere, would it energetically enforce domestic laws protecting us if hate crimes spiked further in South Africa? I am sad to say, as a gay person, that I cannot be sure my government has my back.

South Africa's progressive gay rights jurisprudence is now looking less impressive than it does when discussed in law or politics seminar rooms. Shame on you, ANC, for abandoning your historic mission. Shame on you, President Cyril Ramaphosa, for abandoning our foundational constitutional values with your culpable silence.

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