In a legal saga that began in 2008 with a column by Jon Qwelane and continued past his death, the Constitutional Court on Friday held that ensuring equality and protection of lesbian, gay, bisexual and transgender (LGBT+) people was part of South Africa’s constitutional project
I recall the chilling effect of Jon Qwelane's homage to homophobia – "Call me names, gay's not okay" – published in the Sunday Sun in July 2008.
It came soon after a spate of brutal murders of black lesbians, around which there had been heightened media attention and political action for justice and state intervention.
Against this backdrop, the article spurred hundreds of complaints to the South African Human Rights Commission and a public demonstration at Media24, the company that owns the Sunday Sun.
The commission launched a court application against Qwelane for hate speech. In response, he recently launched a constitutional challenge to the Equality Act, arguing that section 10(1), the hate speech provision of the Act, places unconstitutional limitations on freedom of speech.
The heart of the dispute is about who is free to say what. The intention implicit in Qwelane's article and his fervent defence of it must be publicly scrutinised. His intentions must also be read against the content and meaning of the very speech he seeks to defend.
In his article, Qwelane says gays and lesbians go against "the natural order of things". He compares their relationships to bestiality. He also charges lesbians and gays with the "rapid degradation of values and traditions" and calls for the removal of their constitutional rights.
Cocking a pre-emptive snook at the damage he knew his piece would cause, Qwelane refused to apologise: "And by the way," he wrote, "please tell the Human Rights Commission that I totally refuse to withdraw or apologise for my views. I will write no letters to the commission either, explaining my thoughts." Such is his contempt for human rights.
Fundamental to the principle of freedom of speech as lived reality is "freedom" itself. For many lesbian and gay people, speaking out about their continued marginalisation and exclusion is not a right that they are able to safely exercise. They are unfree.
The speech Qwelane defends has the effect of refusing gays and lesbians equal citizenship in our democracy.
Friend of the court
The Psychological Society of South Africa, which has been admitted as a friend of the court, will argue that the Equality Act's prohibition of hate speech should be understood in context: one in which those who don't conform to dominant sexual and gender roles are verbally and physically attacked and, in extreme cases, raped and murdered. Language that ridicules, assaults and denigrates certain identities creates the conditions for prejudice-motivated violence against those people.
Qwelane's words undermine human dignity and contribute to an environment that makes it okay to otherise, marginalise, silence and eliminate certain people. Homophobic speech contracts democratic space and provides the language that legitimates prejudice.
Some libertarians argue that, as a society, we should "let speech loose". But who bears the brunt? Jews, Boers and others are being discursively "shot". Such utterances do little to bring any of us closer to the prospect of freedom.
The freedom of a young, black lesbian to speak back without fear of reprisal to those who might taunt her on the streets or at school is what makes freedom of speech real.
Qwelane's challenge has nothing to do with expanding the possibilities of free speech for those who are least able to exercise the right.
His beef with the queers signifies wider cultural contestations about who has the power to limit the constitutional principles of dignity, equality and freedom. Lesbian, gay, bisexual, transgender and intersexed (LGBTI) people across the globe are increasingly claiming their rights, so the Qwelanes of the world are in backlash mode.
On this score, Qwelane will be happy in Uganda, where he is now South Africa's ambassador. Uganda is caught in the grip of a new form of colonisation: the concerted efforts of American evangelical Christians to export homophobia to Africa has directly fuelled that country's "anti-homosexuality bill", which would legally sanction the hounding and killing of LGBTI people.
Qwelane's challenge to the Equality Act is not about equality at all. It is a reassertion of his power to propagate speech of a profoundly unequal kind, speech that is harmful and dangerous, that fuels and legitimises existing homo-prejudice, and that labels gay and lesbian people as unworthy of the protection of the law.
South Africans will not achieve freedom through shooting down – metaphorically or not – those whose identities we find offensive. Neither will we do so by advancing the bellowing of bigotry and its violent consequences. – Melanie Judge is a feminist activist