PRESS STATEMENT: SUBMISSION BY THE LESBIAN AND GAY EQUALITY PROJECT ON THE TRADITIONAL COURTS BILL THAT HAS MADE MANY RURAL LESBIANS EXTREMELY WORRIED

The Lesbian and Gay Equality Project (LGEP), formerly the National Coalition for Gay and Lesbian Equality (NCGLE) established in 1994, is a non-profit, non-governmental organization that works towards achieving full legal and social equality for lesbian, transgender, gay, bisexual and intersex (LGBTI) people in South Africa. This is a preliminary submission to your committee on the Traditional Courts Bill. We ask you to provide space for our organization and other LGBTI organizations to make a further detailed submission and space for an oral presentation at provincial and national hearings on the Bill.

Through this submission, the LGEP registers its extreme unhappiness with the fact that the call for submissions on the Traditional Courts Bill (TCB) was published on 13 December 2011 with a 2-month deadline for submissions. As government and parliament should know, at that time of the year when the entire country shuts down for the summer holiday very few people would have seen the call for submissions. We also wish to register our unhappiness that the call for submissions was only advertised in newspapers given that government and parliament know that very few rural people read newspapers. Yet, the voices of rural people must be given an opportunity in the process to finalize the Bill. Even worse is the fact that when the New Year started government and parliament did not then undertake additional mobilization to ensure that rural people are aware of the 15 February 2012 deadline for submissions.

The government seems not to see the importance consulting the public that will be the most affected by this piece of legislation. In this regard, the LGEP calls on the NCOP and the National Assembly to ensure that the next phases of the TCB legislative process will be based on proper and adequate consultation of rural people, in particular rural women. For this consultation to be proper it must be carried out to ensure that all voices are heard and an opportunity to influence the content of the Bill is broadened and relevant changes are effected for the benefit of those who will be affected by it in line with the provisions of the country’s Constitution. Specifically, we call for provincial hearings and a deeper process of consultation that must create safe spaces for lesbians and other vulnerable members of rural communities to speak about their concerns and proposals on the Bill. The consultation process must be sensitive to this.

Therefore, the homesteads of chiefs or offices of tribal authorities are simply not the neutral or suitable safe spaces for allowing all voices to be heard. In our work, we have come across cases where rural lesbians have been punished unfairly at such homesteads or tribal offices which are normally the seats of customary courts. Our information shows that it is not just lesbians only who have suffered injustice when their cases are heard in current customary courts run from the homesteads of chiefs or tribal offices. These realities therefore disqualify these spaces as neutral, sensitive and safe enough. Also important in the consultation process is not just the form, but also the content of what the final Bill will provide for. In this regard, we call on the NCOP and the National Assembly to go back to the Report and Draft Bill on Customary Courts that was developed by the South African Law Reform Commission.

This report and Draft Bill were based on a proper 5-year consultative process that took substantive voices from rural women on board and also put forward a Bill that was consistent with the Constitution. The voices of those rural women who were consulted by the Law Commission must not now be drowned out simply because government has consulted only traditional leaders in drafting the current version of the TCB. We therefore specifically request the NCOP to revise the TCB substantially to be in line with the Law Commission’s Draft Bill. Even this revision must allow for proper and adequate consultation.

Secondly, this Bill is highly anti-democratic, unconstitutional and discriminatory in its content as well. The process and its content undermine the South African Constitutional frameworks that commits to human rights, non-discrimination, equality and consultation. The LGEP is extremely concerned about the fact that this Bill is actually putting women in rural areas at the worst position of being discriminated and treated as second class citizens.

The Bill basically opens the door for women not to approach the customary court but be represented by a man.  Women’s rights to equality before the law is compromised in this situation which make it worse for lesbian women since it is the general knowledge that customary law is not favorable to people who have intimate relations with people of the same sex.

The Bill is silent on how the envisaged traditional courts will be structured so as to remove this unfair discrimination against lesbians that is entrenched in dominant practices and understandings of customary law. The Bill must state how this will happen. If the Bill does not include such a change then clearly the Bill is a mission to do away with the freedoms guaranteed by our constitution to people regardless of their sexual orientation. The situation of women and lesbians living in rural areas is clearly going to be worsened by this Bill as it will create a separate legal regime operated by unaccountable traditional leaders who have the sole power to determine the content of customary law. 

The Bill locates all the judicial and administrative power to one person who will either be the chief or someone nominated by the chief and does not give an option to people who would rather use the Magistrate’s Court or other forums. This must be changed in the Bill so as to allow those who chose so to opt out. By doing all these things, the Bill freezes the development of customary law in ways that maintain perpetual discrimination against lesbians. Yet, there is a need for a dialogue between the country’s Constitution and customary law in ways that evolve and develop customary law to be consistent with the Constitution.

The LGEP fully supports the concept of promoting access to justice through democratic customary and other community-based systems driven from below. However, these must be structured in ways that are democratic, accountable, gender-inclusive and actively promoting women’s participation and gender equality, inclusive of all vulnerable groups, and based on the constitutional values of social justice, reconciliation, equality, democracy, non-sexism, and the removal of unfair discrimination on various grounds including on the basis of sexual orientation. Therefore, the TCB cannot and must not identify only traditional leader based traditional courts. We call on the NCOP to integrate these principles in the final version of the TCB.

For Information you can contact:

 Virginia Magwaza Setshedi: Executive Director of the Lesbian and Gay Equality Project

At : 082 082 3059/ 011 487-3810/1, e-mail- This e-mail address is being protected from spambots. You need JavaScript enabled to view it

PRESS STATEMENT: LGBTI ORGANISATIONS WELCOME THE ACTION BY THE SAHRC

The Lesbian and Gay Equality Project, the Durban Gay and Lesbian Community Centre and the Sonke Gender Justice Network welcome the steps taken by the South African Human Rights Commission (SAHRC) to investigate statements allegedly made by King Goodwill Zwelithini at the 133rd annual celebrations of the historic Battle of Isandlwana, where the heroic Zulu army defeated British colonial forces. We warmly applaud the SAHRC for pro-actively executing its constitutional mandate without fear, favour or prejudice.

According to media reports, King Zwelithini told the august gathering that “traditionally" people did not engage in same-sex relationships. He is further quoted as saying: “There was nothing like that and, if you do it, you must know that you are rotten. I don't care how you feel about it. If you do it, you must know that it is wrong and you are rotten. Same-sex is not acceptable," (The Times newspaper)

The statements amount to a denigration of the dignity and rights of lesbian, gay, bisexual, transgendered and intersexed people (LGBTI). Such must be regarded as hate speech that tramples on the Constitution of our country which, in its Bill Rights, states that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds including … sexual orientation…. No matter what King Zwelithini’s personal views are, as a public leader he is required to protect, promote and advance the Constitution. This is clearly implied by Section 212(1) of the Constitution which states that “The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution”. We expect no less!

We also note that the Premier of KwaZulu Natal, Zweli Mkhize, wants to meet the SAHRC to discuss the SAHRC action concerning King Zwelithini’s statements. Media reports suggest that the Premier believes that the public has been misled with false reports about King Zwelithini’s statements. Like Premier Mkhize, spokespersons of the Zulu Royal House have also suggested that the media have misinterpreted the King’s words. We hope that these are genuine concerns and not face-saving measures to protect the dignity of the King whilst failing to take responsibility for, and correction action against hate speech.

It is important that the King, the Zulu Royal House and Premier Mkhize take responsibility for all actions and statements by the King or any person acting on their behalf. In doing this, they must not be allowed to distort the version of events at the Isandlwana commemoration. Once confirmed, this corrective action must include a full apology and a public statement confirming the King’s respect for the Constitution and all the rights it enshrines. Our Constitution promises freedom, equality and dignity to all South Africans, including LGBTI citizens. We therefore, all have a responsibility to promote and advance the principles of the Constitution; in particular we need to encourage cohesion and respect for diversity. We dream of a South Africa where Kings, traditional leaders, religious leaders and political leaders encourage acceptance and tolerance of difference.

We humbly request our leaders to be cautious of what they say, particularly in the public domain as that will avoid potential misinterpretation. It is unfortunate that the media always has to be blamed for “irresponsible interpretation” of irresponsible statements made by those in positions of power.

The three organizations will monitor the progress in relation to the SAHRC efforts to get to the bottom of the King’s statement to the Isandlwana commemoration.

For more information you can contact the following people:

1.       Desmond Lesejane – Deputy Director  for Sonke Gender Justice Network @ 339 3589

2.       Nonhlanhla Mkhize- Director of Durban Lesbian and Gay Community and Health center @ 083-748-9565

3.       Virginia Magwaza Setshedi- Executive Director of the Lesbian and Gay Equality Project @ 082 082 3059

INTERGRATING LGEP CADRES INTO THE BROADER SOCIAL JUSTICE STRUGGLE

The LGEP’s vision is to see the LGBTI issues moved from being isolated from the existing social justice struggle. Through its Cadreship Development Programme the LGBTI activists mainly from the East Rand have become part of this programme and beginning to understand the significance of understanding issues beyond that of LGBTI sector.

16 cadres took part in the Global Day of Action against Climate Change. This was an experience as they travelled with other activists from other social movements on the train to Durban. During this event the cadres got exposed to a number of activities such as seminars on climate change and the environment, climate change and human rights, climate change and women, etc. The cadres further learnt slogans and songs associated with the climate change struggle. The global day of action against climate change also provided cadres with an opportunity of networking with other activists from different parts of the world. One of the favorite songs that the cadres came back from Durban was:

“Nom’ungahlal’e ICC yithies’phethe which simply means that politicians at the ICC do not have power but people do.

Some of the experiences that the cadres went through indicated to LGEP that there is still a lot of work to be done not only in integration LGBTI sector in the broader struggle, but also to educate activists from the social movements and community organizations that human rights cannot be divisible.

Forward with the struggle forward….Amandla…. Awethu!!!!!