Members of the Congress of Traditional Leaders of South Africa (Contralesa) lashed out at the government and gay and lesbian activists last week, saying they were on the verge of legalising a social and moral “oddity”.

The chiefs said the draft law proposing the legalising of same sex marriage went against African culture and should be completely rejected in the same manner as apartheid had been discarded.

However the traditional leaders’ comments have courted the ire of gay and lesbian activists, who are bitterly arguing for the Marriage Act to allow them to “marry”.

Local gays and lesbians have argued that homosexuality existed in Africa from “time immemorial” and that society should respect their right to choose their sexual orientation in line with the country’s democratic stance.

Last year, the South African Constitutional Court ruled that a law recognising same sex unions should be on the statute books by December 1 this year. Failing this, the Marriage Act would automatically be read to include marriages of same sex couples.

In an effort to follow the court’s ruling, the government has proposed the Civil Unions Bill, which would recognise same sex “civil unions” but not marriages by gays or lesbians.

With slightly less than a month to go before the Constitutional Court’s “automatic” ruling recognising the unions as marriages comes into effect, tensions have flared over whether or not same sex unions – or marriages – should even be allowed.

Contralesa secretary general and ANC MP Mwelo Nkonyana told the national assembly’s home affairs committee recently that even though the constitutional court had ruled in favour of homosexual unions, “it is wrong to legalise them”.

He said the Civil Unions Bill, through which gay and lesbian marriages would be legalised, should either be scrapped completely or the government should hold a referendum to seek wider public opinion on the proposed bill.

Contralesa’s calls have been echoed by the National House of Traditional Leaders, which also decried the “Euro-centric” nature of the proposed legislation.

Leaders of various religious denominations and a number of politicians have also urged the government to “protect the sanctity of marriage” by scrapping the bill, arguing that the state’s moves to enact the Civil Unions Bill bordered on being “immoral” and “unnatural”.

However, local gays and lesbians have hit back, accusing the chiefs of denying the “proven” existence of homosexuality in African societies.

Nonhlahla Mkhize of Durban ‘s Gay

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and Lesbian Community and Health Centre said Contralesa was denying “the lived reality of African lesbian and gay people” by “pretending” that homosexuality did not exist in African culture.

“There is ample research illustrating (that) African people have engaged in same-sex relationships throughout our history.

“For example in Namibia, Kenya, Nigeria, South Africa, bond friendships, ancestral wives, female husbands and male wives have existed for centuries as forms of same-sex relationships.

“All these relationships were accepted and respected in Africa before colonialism and apartheid,” Mkhize said.

The debate over the ‘Africanness’ of same sex marriages has also been fiery in Nigeria, where traditional leaders condemned the practice for similar reasons earlier this year.

In February, Nigeria ‘s Federal Government approved a draft bill seeking to ban same sex marriages and relationships in the country. The bill would mean that offenders would face a five-year jail term without option of fine if convicted.

Nigerian Attorney-General and Justice Minister, Chief Bayo Ojo, said the move had become necessary following the reported cases of the “unnatural marriage” in South Africa.

He said President Olusegun Obasanjo had expressed concern at the developments in the Southern African Nation and requested his ministry to come up with the appropriate legal framework to prevent same sex marriages happening in Nigeria.

“You know it is unAfrican for people of the same sex to contract any form of sexual relationship or marriage. This is why government is putting in place a legal framework to checkmate it straightway and ensure we don’t have such incidents in the country,” Ojo said.

In spite of statements that the same sex bill is “Eurocentric” and a consequence of the country’s liberal constitution, several western countries have rejected similar laws proposed by gays and lesbians in their countries.

Earlier this year, the French Parliament ruled against same-sex marriages to protect children, while the Supreme Court in the US state of California also recently upheld a ban on same sex marriages and New Zealand outlawed all forms of same sex unions.

Despite widespread sentiment against the proposed Civil Unions Bill, critics appear to be fighting a losing battle to have the legislation rejected and observers increasingly see gays and lesbians getting their way.

Constitutional experts believe the constitution – and the ruling of the constitutional court – will have precedence over much of the debate that has surrounded the bill so far.

The South African Human Rights Commission (SAHRC) said South Africa was a constitutional state and should therefore allow the constitution to be the “supreme law of the land”.

“Once the Constitutional Court has spoken on a matter there is a need in our young and still fragile democracy to respect the court’s decision even if we do not necessarily agree with it,” SAHRC commissioner Karthy Govender said.

SAHRC has said the proposed Civil Unions Bill is unconstitutional, saying it would contribute towards the discrimination and stigmatization of gays and lesbians.

Instead, the organization has proposed that the Marriage Act should be amended to allow for all persons, whether heterosexual, homosexual or those of intersex status, to marry.

November 2006
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