The Centre for Human Rights in the Faculty of Law at the University of Pretoria, through its Sexual Orientation, Gender Identity and Expression (SOGIE) Unit, applauds the judgment earlier this month by the High Court of South Africa Gauteng Local Division in Johannesburg, sitting as an equality court, in the matter of the South African Human Rights Commission vs Jon Qwelane. The Court found that Qwelane's derogatory comments about gays, published in 2008, constituted hate speech, and ordered him to apologise unconditionally to the lesbian, gay and bisexual community within 14 days.

After receiving a wave of complaints about comments made by Qwelane in a column article against homosexuality, published in the Sunday Sun, the South African Human Rights Commission in 2009 submitted a case alleging a breach of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (PEPUDA 2000). This has been a protracted affair, due mainly to Mr Qwelane's failure to attend the Court's initial sitting and his subsequent attempts to have the relevant provisions of PEPUDA declared unconstitutional.

In the column, titled 'Call me names, but gay is NOT okay', Mr Qwelane wrote that homosexuals were to blame for the split in the ranks of the Anglican Church because leftists in the church wanted more homosexuals and women clergy to be ordained as bishops. In the same breath, he lauded Zimbabwean President Robert Mugabe for his 'unflinching and unapologetic stance' on homosexuality. Mr Qwelane further insulted the LGBTI community by referring to them as 'these people', and asserted that they had something 'against the natural order of things'. He challenged South African politicians with 'balls' to rewrite the Constitution of South Africa to, in his words, 'excise those sections which give license to men marrying other men, and ditto women'. He further equated homosexuality with bestiality when he wrote: 'Otherwise at this rate, how soon before some idiot demands to 'marry' an animal, and argues that this Constitution 'allows' it?'

The case was brought under sections 10, 11 and 12 of PEPUDA. Based on the prohibited grounds of unfair discrimination enshrined in section 9(3) of the Constitution of the Republic of South Africa, Section 10 of PEPUDA prohibits the publication, propagation, advocating and communication of hateful, hurtful, harmful and inciting comments about any group. Two of said prohibited grounds are sexual orientation and marital status. Section 11 prohibits the harassment of one person by another and section 12 prohibits the dissemination, broadcasting, publishing or display of any advertisement, notice or information that is intended to discriminate against any person.

The Centre for Human Rights is delighted that the law has taken its course and justice has been served – even if it took almost ten years. Mr Qwelane's negative and hateful disposition towards homosexuality, and by proxy the homosexual, transgender and intersex community, was echoed in many other hate-filled copycat utterances during the years following the publication of his column. Hate begets hate.

It should be recalled that, following the publication of his distasteful column, President Zuma 'rewarded' Mr Qwelane by appointing him as South Africa's Ambassador to Uganda in 2010. The reason for his appointment was never clear, as his credentials did not extend much beyond being a newspaper columnist and a bigot. In a perverse turn of events, he thus became a constitutionally democratic and liberal South African representative in a country that was just beginning to discuss the promulgation of an anti-gay law that initially prescribed the death penalty for homosexuals. The Anti-Homosexuality Bill of Uganda did in fact become law, but a petition by a group of human rights organisations in that country led to the Constitutional Court of Uganda subsequently declaring it to be unconstitutional – on a technicality.

Mr Qwelane's utterances in writing can therefore be said to have directly contributed to the determination to make a law criminalising minority sexual and gender identities in that country. His support of President Robert Mugabe's disdain for homosexual Zimbabweans was added to other voices on the continent, contributing to the creation of a hostile social, political and legal environment for LGBTI Africans.

South Africa, Mr Qwelane's home country, has seen its fair share of discrimination and violence against lesbians, gays, bisexuals and transgender individuals. In a South African study conducted in 2016 by OUT LGBT, a Pretoria-based organisation, under its 'Love Not Hate Campaign', found that:

• 55% of the LGBT respondents surveyed feared being discriminated against in their everyday lives;
• 56% had experienced discrimination while in school because of their different sexual orientation or gender identity/expression; and
• 56% had been verbally insulted at school because of their different sexual orientation or gender identity/expression.

The Centre for Human Rights calls upon Mr Qwelane to obey the order of the Court by extending an unconditional apology to the LGBTI community for his hateful words. The likes of Mr Qwelane have contributed to the hateful rhetoric against homosexuals, transgender and intersex Africans that has led not only to discrimination against and the ostracising of people based on their sexual orientation and gender identity, but even to rape and murder.

The Centre for Human Rights demands that the South African, and other African governments, strengthen laws to effectively stop hate speech and hate crimes against all minority groups, including lesbians, gays, bisexuals, and transgender and intersex persons.

Download the original statement in PDF

For more information, please contact:

Prof Frans Viljoen
Director
Centre for Human Rights
Faculty of Law, University of Pretoria
Tel: +27 (0) 12 420 3228
[email protected]
www.chr.up.ac.za

or

Mr Geoffrey Ogwaro
Manager: Sexual Minority, Gender Identity and Expression Unit
Centre for Human Rights
Faculty of Law, University of Pretoria
Tel +27 (0) 61 461 1988
[email protected] | [email protected]
www.chr.up.ac.za