It is nearly eight years since Eudy Simelane’s death. We gather to mark cruelty, hatred and injustice. We mark the cruelty of a world that denied this beautiful, talented person her life, a world whose hatred suppressed her voice and extinguished her capacity for love and vigour and energy: a world that hated and despised her because she was herself – an openly, proud lesbian.
But we also gather with a positive purpose: to pay tribute to extraordinary courage and a beautiful life. We gather to celebrate Simelane’s life as someone who embraced her own sexual orientation; who lived openly in her own township, KwaThema, as a lesbian; who played a beautiful, brave game of soccer – and whose courage made it easier for those who followed her to live their lives as themselves.
My theme is not the destruction of Simelane’s life – but the hope her life engendered.
We hang our heads in grief at an unspeakable act of cruelty and violent destruction, and the terrible loss it inflicted – not only on Simelane’s friends and family, but on all of us.
But we also raise our heads in pride at Simelane’s courage and her truthfulness, to herself and to humankind. And we honour her life of achievement and integrity.
In the eight years since Simelane’s tragic death, much has changed. The debate about lesbians, gays, bisexuals, transgender, intersex (LGBTI) and queer people has come electrically alive in Africa.
This is in large part because attacks on such people have drawn attention to an inescapable truth: that sexual and gender diversity exists in Africa – and that it is an ineradicable part of the beauty of this continent. And, increasingly, African LGBTI people are standing up. They are speaking out. They are becoming visible.
The revolution started shortly after Simelane’s death, with an act of astonishing courage on the part of two Malawian men. In late December 2009, Steven Monjeza and Tiwonge Chimbalanga declared their intention to get married. The response was heartless and extreme. They were arrested, imprisoned, paraded in front of a jeering public, and held without bail. Eventually, to rousing cheers, they were given the maximum sentence of 14 years in prison.
All this for love – on a continent that has suffered famine, flood, malgovernance, dictatorships, military coups, corruption, genocide and civil wars. As Archbishop Desmond Tutu has said, amid these pressing problems, the least of Africa’s concerns should be same-sex love.
It is often said that constitutionalism has not secured equality – or safety – for LGBTI persons. This is true. Yet constitutionalism has given us some marked and incontestable achievements. They show what the Constitution has achieved.
First, our rights as LGBTI people have received concrete embodiment in not only court decisions, but a wide swathe of legislation passed by the national and provincial legislatures.
Second, and perhaps even more significantly, constitutionalism has created a widely disseminated internalisation of constitutional rights. This means that LGBTI young people regard themselves as bearers of rights. They feel entitled to equality, and to claim it. This is so throughout our country, urban and rural, townships and suburbs.
This, in itself, is a hugely beneficial change from just a decade or two ago. It is one of the greatest achievement of constitutionalism. I defy those who say that the Constitution has achieved nothing for gays and lesbians. Has it achieved enough? No. Certainly not. But we do wrong if we underestimate the beneficial effect of constitutional equality on LGBTI self-esteem, self-regard, inner dignity, social assertiveness and constitutional agency.
Third, South Africa has served as a beacon to the rest of the world, including Africa, on LGBTI rights. Again, we would do wrong to underestimate the effect on the rest of Africa of our attainment of constitutional equality. Our rights have been a significant catalyst for other African LBGTI communities.
Still, there remains a huge continuing disjunction between what is promised and what has been attained. This is true of all our constitutional rights. It is not different from gender equality, racial subordination and lack of socioeconomic rights. After 22 years, our Constitution’s promises have not been adequately fulfilled.
For LGBTI people, there remains widespread homophobia and prejudice. This finds expression in trivial condonations of horror – as when, in one of the Spud movies, the John Cleese character jokes smugly that he would like to give all lesbians “a thorough rogering”. This has its counterpart in enacted hatred, violence and murder against lesbians. The two are connected. Spoken hatred too often leads to its enactment in terrible deeds of destruction.
For us in the LGBTI community, three large challenges remain.
First, silence and invisibility remain the great suppressants of progress. Unlike race and gender, our defining condition is generally invisible.
Second, we continue to be inhibited by shame, because the very nature of our differentiation lies in sexual desire and sexual functioning – and so much shame still attends the subject of sex.
Third, the strength and depth of the history of our repression, often impelled by biblical teaching, remain enormous. It is particularly important to emphasise, on an occasion hosted by the Ujamaa Centre, the disgraceful and destructive role that those who call themselves men and women of the spirit, and of God, have played in persecuting LGBTI people.
Despite these continuing obstacles, the manifestation of particularly black LGBTI self-identification throughout Africa heralds irreversible change across our continent.
For South Africans, there remains a huge shortfall in practice. Between our high constitutional ideals and the harsh reality, for many, of continuing discrimination, fear and disguised lives there is a glaring gap. For transgender persons, phobia and violence remain high. And for lesbians, such as Simelane, phobic rapes and murders remain a heartstoppingly fearsome reality
Africa still has 38 countries that hound, persecute, assault, imprison and charge LGBTI people. All our neighbours (Lesotho, Botswana, Namibia, Zimbabwe, Swaziland), except Mozambique, continue to criminalise adult same-sex love. For some, the horror of continuing persecution, imprisonment, violence and murder has actually increased with recent moves towards same-sex equality.
Why is this? The first is fear of change in circumstances of unstable transition.
The second is that LGBTI identity and practices challenge traditional gender roles and authority. Our lives and our loves defy received concepts of sexuality. This means we also challenge gender-based hierarchies. We defy the patriarchy that lies like a heavy hand across much of our world and our continent. The result is rage, insecurity and violence
These are the battles we continue to face as LGBTIs in Africa. But we have cause to end on a properly affirming note. Even in Africa’s most hate-filled spots, there have been irreversible gains.
On May 22 2014, the African Commission on Human and Peoples’ Rights did something wholly unprecedented. It committed an emphatically gay- and lesbian-friendly act. It adopted Resolution 275. This condemned violence and other human rights violations against persons on the basis of real or imputed sexual orientation or gender identity. The historic importance of this resolution cannot be overstated. It is the first time that an Africa-wide body has taken a stand for LGBTI rights and protection.
Then there have been heartening court decisions across the continent. Both a Kenyan court (in April 2015) and the Botswana Court of Appeal (just last month) have given recognition to LGBTI rights. They delivered judgments requiring that their governments register nongovernmental organisations supporting lesbian and gay rights.
The genie of African LGBTI pride can never be put back in the bottle. Eudy Simelane’s life was not in vain. Though we mourn the senselessness of the violence that took her young life, we know that what she believed in, what her life entailed and represented, will triumph in our continent and in our time.
Edwin Cameron is a Constitutional Court judge. This is an edited extract from the inaugural Eudy Simelane Memorial Lecture, organised by The Other Foundation and the Ujamaa Centre of the University of KwaZulu-Natal, Pietermaritzburg