Long Read | Law and power: A long road for gay men

What became known as The Sodomy Case in South Africa in 1998 has at last aided LGBTQIA+ rights in another African country, with Botswana upholding a judgment that decriminalises sex between men.

Claas Blank, a Khoi man, and Rijkhaard Jacobsz, a Dutch sailor, met on Robben Island where they were prisoners. The men started a relationship that lasted more than 20 years. In 1735, they were charged with the offence of sodomy. Under torture at the Castle in Cape Town, one of the men confessed and both were sentenced to death. On a cold and misty morning, they were taken out on a ship between Table Bay and Robben Island. Massive mountain rocks were tied to their bodies and Claas and Rijkhaard were forced into the sea. A death sentence for men who loved each other.

The film Proteus made by Jack Lewis and John Greyson tells this true story of love and death from a court record in the South African National Archives.

Once upon a time in South Africa, love, affection and sex could be punished with torture, the death penalty and severe prison sentences. Today, it remains a crime, at times punished with death, in some countries in the Middle East and most countries in Africa and Asia. The love of men for each other or any sexual encounter between us has led to prison, a criminal record and exclusion from certain categories of employment, and banishment or worse from our families, communities and the broader society.

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Discrimination based on criminal law existed until 1998, when the Constitutional Court decriminalised sodomy imposed through Roman-Dutch Law, the common law crime of unnatural offences imposed through British colonialism and Section 20A of the Sexual Offences Act. Section 20A was an amendment to the law by the apartheid regime in 1969 that deliberately criminalised not only sex but all affection between men. This legal provision was known as the “two men at a party” law, because if two men held each other’s hands in the presence of one other person in their own home, they were committing a crime.

“A male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence … A ‘party’ means any occasion where more than two persons are present.”

Justice Laurie Ackermann wrote the unanimous judgment for the Constitutional Court and, to this day, it remains a touchstone for justice, equality and freedom.

This is the story of a struggle against unjust laws – the case of the National Coalition for Gay and Lesbian Equality (NCGLE) and the South African Human Rights Commission vs the Minister of Justice and Others. Decriminalising sodomy and other criminal laws remains the most symbolic and material contribution of the coalition in our struggle for freedom.

The offence of sodomy

In the documentary Law & Freedom, the late Ronald Louw summed up the context as follows: “Really at the heart of gay and lesbian discrimination lies the offence of sodomy. It’s symbolic of a disgust, of a revulsion, and of an othering of gays and lesbians.”

Through law, state power was exercised over the bodies of men and women who loved each other. Homosexual men were sent to prison and homosexual women were committed to mental asylums. Power was also enforced through religion, culture and tradition, leading to isolation and worse for countless numbers of lesbian, gay, bisexual, transgender and intersex people. Fear reigned in public and in private. Oppression, through the bureaucracy of the state, African customary law, Afrikaner-imposed Roman-Dutch law and English jurisprudence coexisted with the legal systems of Christianity, Islam, Judaism, Hinduism and other religions.

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From colonialism to apartheid, thousands of men have been imprisoned for sodomy in South Africa. According to the coalition magazine Equality, 258 men were convicted in 1993 alone under the sodomy laws. Cases against Black men made up 88% of the convictions and 71% of the convictions were made in the then Cape Province, where Claas Blank and Rijkhaard Jacobsz had been executed for love and sex.

Ultimately, it was a radical negotiated political settlement led by the ANC in the 1990s that led to a legal revolution and established full formal equality for women, Black people, the LGBTQIA+ community, immigrants, people with disabilities, people with HIV and many other groups. The Constitution limited the power of the common law, religious and traditional legal systems, while at the same time expanding rights and freedoms for those systems by challenging their oppressive aspects.

The National Coalition for Gay and Lesbian Equality

The coalition was formed to retain sexual orientation in the equality clause of the Constitution, remove a range of unjust laws and work for new laws that ensured, among others, equality at work, schools, access to health services, social and economic benefits.

Our Scrap Unjust Laws (decriminalise sodomy) campaign was led by a strong team and our support base was much broader than queer communities and organisations. Many of them are acknowledged below. The key to the campaign was to win allies among our families, friends, comrades and political organisations. 

Mercia Andrews and her husband Brian Ashley convinced social movements working on land, housing, the struggles of women in rural areas, health and non-governmental organisations from every part of the country and all political orientations to adopt resolutions to decriminalise sodomy. The government’s national Aids plan stipulated that all laws that criminalised gay men had to be repealed. The Aids Consortium, led by Morna Cornell with the support of Enea Motaung from the Township Aids Project, brought a whole range of different people and organisations around to support the coalition. As Louw said, “I think a lot of people rallied around that and saw that it was very important to express their voice.”

Heated discussions with allies in broader civil society ultimately brought about an affirmation of dignity and equality for LGBTQIA+ people by a majority of Black (African, coloured and Indian) working and middle-class people. Religious bodies led by archbishop Desmond Tutu, bishop Stanley Mogoba (then also the president of the Pan Africanist Congress) and the South African Council of Churches stood firm against bigots who used religion to justify hate. Reverend Tsietsi Thandekiso, who started the first African LGBTQIA+ church, played a pivotal role in providing succour to young people excommunicated from their churches. A moral consensus emerged as lesbian and gay activists who had been an integral part of the revolutionary struggle criss-crossed the country to educate political leaders, particularly in the women’s movement and the broader LGBTQIA+ community.

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Activist Vusi Msiza put it like this: “We started looking at which townships to target so that people could come out and campaign. We wanted people in the community to write to newspapers and to get involved.”

As the campaign unfolded, we contacted international allies. We wanted to learn about experiences elsewhere. Thirty years before the coalition went to court, the British government decriminalised sodomy. Our comrades in the United States were not so lucky: the Supreme Court upheld the offence of sodomy as late as 1987 in the case of Michael Bowers.

The American Civil Liberties Union, the International Gay and Lesbian Human Rights Commission and the 8 May Group in London provided great political and legal support. Our attorney was redoubtable anti-apartheid lawyer Crystal Cambanis, a lesbian from the firm Nicholls Cambanis and Associates. The coalition approached the South African Human Rights Commission (SAHRC) to join the case as the second applicant. The commission did so, with reverend Barney Pityana signing its supporting affidavit – the first time the SAHRC had joined a constitutional matter, and a test of the commission’s commitment to full equality for all.

A court victory

Finally, we were in the Johannesburg high court before Justice Jonathan Heher. Our counsel was a meticulous constitutional lawyer, advocate Matthew Chaskalson. The court was filled with queer people.

At one point, Chaskalson’s jaw dropped and his face turned red when Heher asked him: “Surely, Mr Chaskalson, you must agree with the court that when we see an unnatural sexual offence we recognise it as such. For instance, if a man placed his penis in another man’s ear, that would be an unnatural sexual offence.”

Chaskalson was stumped and the queer audience gasped in disbelief, none of us had ever imagined such an occasion.

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Despite many expressions of what Louw referred to as “disgust” and “revulsion” against “unnatural” sexual practices in the judgment, Heher found: “If one accepts, as I believe I’m constitutionally bound to do, that the expression of homosexuality is as normal as that of its heterosexual equivalent and is therefore entitled to equal tolerance and respect, it is impossible to find any governmental purpose which the law recognises which can draw prosecution, (for the enforcement of the difference is no less) within its ambit.”

Heher held that the criminal law that punished sex between men was unconstitutional because it discriminated on the grounds of sexual orientation. The case was then referred to the Constitutional Court for confirmation.

And another

When the Constitutional Court heard its first case in 1994 on the abolition of the death penalty, every seat was occupied by a lawyer, a politician or a journalist. In contrast, on 27 August 1998, the Constitutional Court was packed with LGBTQIA+ activists, while journalists and interested lawyers scrambled for seats. We filled up the benches at least half an hour before the first lawyer arrived. The coalition was represented by advocate Gilbert Marcus SC and Chaskalson, both well-known lawyers of the liberation movement. As the judges filed into the court, people stood and silence enveloped them without the usual command to rise and be silent.

The coalition argued that the common law offence of sodomy, unnatural sexual offences and other laws that criminalised sex between men violated the equality clause and our dignity as human beings and invaded our privacy.

When analysing unfair discrimination, courts must take into account whether there is a historical pattern of discrimination against the people affected and their relationship to power in society. The Constitutional Court reasoned that “the experience” of domination and overcoming “personal subordination” lay “behind the vision of equality”. Ackermann found that the “discriminatory prohibitions on sex between men reinforce already existing societal prejudices and severely increases the negative effects of such prejudices on their lives”. The discriminatory laws including the sodomy provision turned gay men into criminals who had not yet been caught. This further entrenched stigma and encouraged discrimination.

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Criminal sanctions for sex between men caused serious psychological harm and reinforced the “prejudice of the public and increase[d] the anxiety and guilt feelings of homosexuals, leading, on occasions, to depression and the serious consequences” that flow from depression, guilt and anxiety. Addressing the impact of the sexual offences laws, Ackermann cited the Supreme Court of Canada’s decision on employment discrimination in the case of Vriend vs Alberta:

“Perhaps most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection … The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.”

Psychological harm

According to Ackermann, the court could not escape the conclusion that hiding one’s identity as an LGBTQIA+ person must harm “personal confidence and self-esteem”. He also defined “sexual orientation” in an expansive and inclusive manner, to include “persons who are bisexual, or transsexual” and “persons who might on a single occasion only be erotically attracted to a member of their own sex”.

Ackermann argued further that the psychological harm which flows from this invisible suffering applied with “even greater force to the criminalisation of consensual sodomy in private between adult males”. The court found that lesbians and gay men are a permanent political minority in society and can ultimately only rely on fundamental rights for legal protection.

“The impact of discrimination on gays and lesbians is rendered more serious and their vulnerability increased by the fact that they are a political minority not able on their own to use political power to secure favourable legislation for themselves. They are accordingly almost exclusively reliant on the Bill of Rights for their protection.

“The discrimination is on a specified ground. Gay men are a permanent minority in society and have suffered in the past from patterns of disadvantage. The impact is severe, affecting the dignity, personhood and identity of gay men at a deep level. It occurs at many levels and in many ways and is often difficult to eradicate.”

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For me, the most moving part of Ackermann’s judgment is perhaps his application of the right to human dignity and privacy. The quotes below explain why the LGBTQIA+ people present in the Constitutional Court cried, laughed and embraced each other and sang Nkosi Sikelel’ iAfrika on hearing the court’s decision.

“Dignity is a difficult concept to capture in precise terms. At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. The common law prohibition on sodomy criminalises all sexual intercourse per anum between men: regardless of the relationship of the couple who engage therein, of the age of such couple, of the place where it occurs, or indeed of any other circumstances whatsoever. In so doing, it punishes a form of sexual conduct which is identified by our broader society with homosexuals. Its symbolic effect is to state that in the eyes of our legal system all gay men are criminals. 

“The stigma thus attached to a significant proportion of our population is manifest. But the harm imposed by the criminal law is far more than symbolic. As a result of the criminal offence, gay men are at risk of arrest, prosecution and conviction of the offence of sodomy simply because they seek to engage in sexual conduct which is part of their experience of being human. 

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“Just as apartheid legislation rendered the lives of couples of different racial groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the daily lives of gay men. There can be no doubt that the existence of a law which punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society. As such it is a palpable invasion of their dignity and a breach of Section 10 of the Constitution.”

The court then found that the common law offence of sodomy violated the rights to equality, dignity and privacy: “We should not deny the importance of a right to privacy in our new constitutional order, even while we acknowledge the importance of equality. In fact, emphasising the breach of both these rights in the present case highlights just how egregious the invasion of the constitutional rights of gay persons has been. The offence which lies at the heart of the discrimination in this case constitutes at the same time and independently a breach of the rights of privacy and dignity which, without doubt, strengthens the conclusion that the discrimination is unfair.”

“The criminalisation of sodomy in private between consenting males is a severe limitation of a gay man’s right to equality in relation to sexual orientation, because it hits at one of the ways in which gays give expression to their sexual orientation. It is at the same time a severe limitation of the gay man’s right to privacy, dignity and freedom.”

A court ruling used across the world

“It did make a difference,” says Msiza. “I was no longer a criminal in terms of the Sexual Offences Act. It gave me hope because I felt like a citizen of South Africa.”

Today, what the Constitutional Court dubbed The Sodomy Case is used in South African courts to promote full equality for all, and perhaps the greatest tribute is the fact that LGBTQIA+ people across the world, from Nepal to the US, from India to Botswana and elsewhere, have used this case to assert their rights to equality, dignity, privacy and freedom.

Letsweletse Motshiediemang was 24 years old on 14 March 2019, when he asked a full bench of the Botswana high court to declare that laws criminalising gay men were unconstitutional because they violated the fundamental rights to equality, dignity, privacy and liberty. Motshiediemang explained that at the age of 10 he knew he was gay. He was taunted and bullied at school. The prejudice and degradation he endured steeled Motshiediemang to tell the court and the world of his love for his partner. Justice Michael Leburu described his statement as follows:

“By virtue of one or more of the impugned provisions of the Penal Code, he avers that he is prohibited from expressing the greatest emotion of love, through the act of enjoying sexual intercourse with another consenting adult male, that he is sexually attracted to and who is sexually attracted to him, as consenting adults. If he engages in such method of sexual intercourse, he will be committing a crime that attracts a sentence of imprisonment for a term not exceeding seven years. Attempting to engage in such an act is also a crime that attracts a sentence of imprisonment for a term not exceeding seven years.”

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On 11 June 2019, Justices Leburu, Tafu and Dube of the Botswana high court found the laws which criminalised sex between men unconstitutional. Among other precedents, Leburu cited The Sodomy Case, finding:

“As a nation, there is an ardent need to respect our diversity and plurality by being tolerant to minority views and opinions. We need not be too prescriptive and try to cajole people into becoming who and what they are not. Personal autonomy on matters of sexual preference and choice must therefore be respected. Any criminalisation of love or finding fulfilment in love dilutes compassion and tolerance.”

Motshiediemang and the organisation Lesbian Gays and Bisexuals of Botswana, which had worked alongside the Ditshwanelo Centre for Human Rights for more than two decades, finally ensured for a moment that they were no longer regarded as criminals. The state appealed the judgment and on Monday 29 November, the Botswana Court of Appeal upheld the high court’s 2019 ruling, a huge victory for LGBTQIA+ rights on the continent.

Activists know that in the end it is not the Constitution that protects people. Instead, people use the Constitution to protect their rights. Ultimately, it is the rebels, dissenters and revolutionaries who will protect our fundamental rights to justice, equality and freedom in the Constitution.

Zackie Achmat is researching the connection between law, power and the Constitution. This article is a tribute to Ronald Louw, and the second article in an occasional series on law and power.

This article was first published in GroundUp.

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