On The One Hand
Shadow Minister of Transport Manny de Freitas promised to host the Mr Gay World delegates at Parliament last week. He did. He also promised to invite some other openly gay MPs to say hi. He did. He promised to draft a congratulatory motion without notice concerning the Mr Gay World competition. Zakhele Mbele did, going so far as to mention its only two African delegates by name. I was one of those delegates. That is three out of three political promises kept by members of the DA.
When we went to Knysna, the Mayor Georlene Wolmarans promised to see us once. She saw us three times. That is three out of one more political promises kept by the DA, not to mention overwhelming support for LGBTI visibility over the course of the week. This is in line with the DA’s liberal stance.
On The Other Hand, And In The Same Week
How does one criticize something said by the popular individual who will likely lead the DA without criticizing him personally, or the DA as a whole, or the people who stood by us in the last few weeks and continue to fight for our rights to be observed in Parliaments and city halls across this country? The answer is in the nature of the DA itself. This party champions open debate, freedom of expression and constructive criticism. Unless the party changed while I was not looking.
There was the question of whether Maimane would support a referendum on gay rights. Maimane replied, “Well if South Africans felt that they needed to vote on the issue, they should. I still stand on the view that gay rights must be protected, South Africans who are gay, who want to marry each other are entitled to do so – the law gives that right so I don’t know what the referendum would be about. In fact, I still maintain that those rights are in the constitution and must be protected.”
Pelser pushed the topic of referendums on anyway. He brought up the death penalty and asked why Maimane had once said it, too, could be put to a referendum.
“Because without fail I’m a democrat. I would not support that view, I would not support the death penalty as an example. I still sit here today and understand that our judicial system still has flaws. I don’t think the death penalty is a deterrent to crime, but ultimately as a democrat I still uphold that the rights democracy upholds it’s not the best system, but it is a system that we have. It upholds the fact that if people – it’s by the people for the people and if people want to vote on it the people must vote on it.”
“What happens if the views of the people clash with that which is enshrined in the constitution?” Pelser asked.
Maimane replied, “No, I don’t think, I think in this instance it’s quite clear, I think we can accept the fact that many South Africans will believe in the protection of the constitution. For example even on the expropriation bill – so long as we uphold the constitutional bill principal and the right to life. I think South Africans can stand up and vote in against the death penalty and I still uphold that view.”
What is the basis of Maimane’s confidence? Across the continent and in South Africa, a considerable number of people does not support many of the rights enshrined in our constitution. And two weeks ago, a few South Africans, prompted by some leaders’ utterances, took it upon themselves to hold a referendum as to whether foreign nationals (sometimes also known as human beings) should remain alive or not. So with regards to what is negotiable and what isn’t, Maimane’s view would leave everyone legally vulnerable. A referendum on a Bill Of Rights matter could amputate the constitution.
After the debate, Maimane tried to backtrack: “Some people are distorting my position on gay rights as expressed in the televised debate last night. As I said last night: ‘I still stand on the view that gay rights must be protected. South Africans who are gay and want to marry each other are entitled to do so. The law gives that right, so I don’t know what the referendum would be about. In fact, I still maintain that those rights are in the constitution and must be protected.’ I have been a vocal supporter of gay rights in every sphere of my life and I will continue to stand up for the constitutional rights of all South Africans.”
I don’t know of anyone who’s distorting Maimane’s position on gay rights. However, there are a lot of people saying that Maimane’s understanding of constitutional democracy and the fundamental rights of individuals is what’s distorted. Maimane failed to question the bureaucratic validity of the hypothetical referendum; he only questioned its purpose. In his worldview, South Africans are nearly unanimous in their understanding of the indivisibility of the Bill Of Rights (the world must be pretty through those rose-tinted spectacles); they are so constitutional and liberal and democratic, he says, that their power to infringe on the rights of others shouldn’t be infringed upon; the referendum should happen so as to show that South Africans support the democratic principles of the constitution by which they democratically received a voice, he’s telling us.
This is not an abstract issue for me. I am a gay black man living in a township, as do many gay black men. I get stopped in the streets to be questioned by people who recognize me and have read my words in newspapers and on television.
I openly question and critique dangerous, heterosexist ideals of masculinity that lead to domestic violence and rape. Does Mmusi Maimane understand the risk I put myself at to sell his party’s policies, let alone how those policies were formulated? And mine are a drop in a bucket of other human rights’ activists’ struggles and sacrifices. People have died, and continue to die, for human rights. How on earth could they be the subject of a referendum? If people’s lives can be subjected to a referendum, why shouldn’t masturbation? It is illegal in some places precisely because someone said it had to be illegal.
And who gets referendumed about whose rights? Would men vote in a referendum about women’s rights? Vice-versa? On Maimane’s logic, South Africans should get a vote on issues they feel strongly about. But which South Africans? Are some South Africans more equal than others? If gay rights can be voted on by South Africans, then gay people are not, by implication, South Africans; they are squatters at the mercy of South Africans just as foreign nationals (again, human beings) were. A referendum on human rights is a denial of human being.
Such a referendum could justify what many politicians have said about their countries and cities being “100% moffie-free” and other statements to that effect.
Does Maimane know how many lesbians get raped in townships across the country, by people who seek to “cure” them? How would he feel if someone told him the answer is probably in the region of 500 a year in some townships? He probably knows, and he probably cares. But to support a referendum on gay rights legitimizes the mindset that says that women ultimately do not have a say over their own bodies because society does. When South Africans “feel strongly” enough about what women should be doing with their bodies to rape them, then capitulating to those strong feelings by supporting a referendum is just a step away from handing the lesbians over to be “cured.” This was probably not the intention, but it could easily be the effect.
Is it not enough that the basic human rights enshrined in the Bill Of Rights are more honoured in the breach than in the observance; would Maimane want to take the risk that there should be nothing to breach or observe in the first place? Because that is what that referendum means. How he feels about gay rights gives me warm fuzzy feelings too, but it does not matter if he has no mechanism by which to keep gay rights protected. I vote DA because I vote with my head, not with my heart. I am very concerned when the blue party sits by while the reasons I vote with my head are eroded in broad daylight. Why isn’t the party that marched with us in Knysna saying something?
Maimane’s understanding of the Bill Of Rights leaves all of us stark-naked without a non-negotiable right to stand on – except the non-negotiable right to negotiate on other people’s non-negotiable rights. Because we got these rights in the first place not through the process of discovering what it means to have human rights, but of deciding what human rights were, he is saying. We negotiated them into existence, so our ability to negotiate rights in and out of existence should remain intact, never mind that our right to negotiate rights in and out of existence could also be negotiated out of existence. When the source of these rights is not the state of being human, but other people’s say-so, and other people’s say-so must always have the voice whereby people created and continue to regulate those rights, then being human guarantees no one the right to say anything in the first place. Democracy becomes an absurdity.
If we can have a referendum on gay rights, then why not one on straight rights, insofar as straight people also participate in non-reproductive sexual activities? Are we all Catholic, all of a sudden? Who died and made who God? Is heterosexuality the default by which the legitimacy of gay rights may be measured, and do straight people have a right to hold a referendum on gay rights because they are superior or because there are more of them (or so we are told)? We must answer these questions very carefully. Stripped of my bright blue flag, I am feeling naked right now.
A few months ago, a white Facebook friend suggested (out of frustration) that black people should hold a referendum about whether white people should leave South Africa or not. I respectfully balked. That would be like saying that the 1992 referendum was valid and that white people had a right to decide on black people’s right to vote for their political fates. For years, many of them have congratulated themselves for the benevolence they showed when they voted Yes to having the vote extended to black people. But given the circumstances, they were not performing an act of kindness; they were performing their moral duty, and not one black person owes one white person a thank you for that, just as not one white person ought to ask permission from anyone to remain in South Africa as a fully-fledged citizen. The system was wrong, even if it had gone unquestioned for some time and no matter which way you counted the votes. The system was not changed because it was not nice: it was changed because it was not right. The Bill Of Rights says that no citizen may be denied citizenship. If we ever hold a referendum about that or about anything else in the Bill Of Rights, it is the end of South Africa. Mark my words.
No matter who you are reading this, you have a race, you have a biological sex, you have a sexual orientation, you have beliefs surrounding ultimate concerns and you have people you associate with and people you do not, by choice. You are not superior to persons of other races, genders or sexual orientations, and you may not decide on their rights in a referendum because some politician has convinced you that you are the normal by which the others may be measured. But that is how politicians divide and conquer communities: they convince the section that could empower them that they are the normal, and the others may be decided about. Some referendums are wrong upfront, and the politicians who use them to gain popularity are wrong too.
This is not to say that James did not make a similar slip-up on the television debate concerning the right to bail; he readjusted his position rather fast. Maimane held on to his, and nobody, as far as I know, has corrected it.
When each person’s right to have a voice is contingent on other people’s decision to let him have a voice, then human rights are mirages, surds that have no basis in anything fundamental; they can be given and they can be taken away but nobody knows who does the giving and the taking away because where individual rights are in doubt, nobody has an ultimate right to give rights or take them away; we would have to become a dictatorship though a benevolent one.
If we take Maimane’s premise to its ultimate logical conclusion, the whole Bill of Rights is an endless hall of mirrors, fingers pointing at fingers pointing at fingers pointing at fingers. It doesn’t settle anywhere except at the biggest finger in the middle of them all saying F**k you to everything the struggle heroes fought for. Surely Maimane does not want to be the next Jacob Zuma?
It is my belief that we did not negotiate human rights into existence; we realized them in our awareness and have been sharpening that awareness for 21 years, (often badly) wrestling with the implications where redress and land ownership is concerned. Is it possible to defend both the absolute rights of each individual, yet right the wrongs of the past? Absolutely, if the right people are doing the job; that is the promise the DA has held out to us for years. Some of its members are on the verge of breaking it whether they realize that or not.
Human Rights: Given, Or Discovered?
This is a very simple but very important idea, one that many politicians don’t grasp. I don’t have human rights because other human beings decided I have them; I have human rights because I am as much a human being as any other. My human rights may only be infringed upon when I am infringing on those of another. All we can do is improve our understanding of what human rights mean and what those rights are. Yes, this is a metaphysical claim, and yes, Pastor Maimane is free to respond, and yes, ACDP (African Christian Democratic Party Of South Africa), I know what you did.
Is Mmusi Maimane the best leader that the DA can produce? The DA will decide that, and in so doing, will make a fundamental claim about its identity. If it uses this as a teachable moment and is willing to lose face in order to clarify what it stands for and why, it would have chosen principle over perception. In fact, this may be a golden opportunity for the DA to continue with its internal elections while clarifying to voters just what it stands for. The only thing needed for that to happen is for Mmusi Maimane to admit the same thing we need King Zwelithini to admit: that he was wrong. Not that the two errors are the same size. We need for our politicians to admit that they are human and fallible; in so doing, they, too, would have called upon and validated the very human principles that are currently at stake.
But if the DA allows this kind of thinking to go unchecked into its leadership, it will be a betrayal of its principles and its people. That is the simple truth.
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