TO : Ms. Baleka Mbete-Kgositsile – Speaker of Parliament
Mr. Patrick Chauke – Chairperson of
the Portfolio Committee on Home Affairs, National Assembly
Mrs.
Nosiviwe Mapisa-Nqakula – Minister of Home Affairs
PER FAX
Dear Madams and Sir
COMPLAINT ABOUT PUBLIC HEARINGS ON THE CIVIL UNIONS BILL
This is to register our formal
complaint to your offices regarding the public hearings on the Civil Unions
Bill held during the months of September and October 2006 which were hosted by
the Portfolio Committee of Parliament on Home Affairs. We, as the Lesbian and
Gay Equality Project, also request your written response and corrective action
in response to this complaint.
These public hearings have lead one
commentator to warn that “we would do well to be suspicious of the farce of
consultation on the same-sex marriage Bill that suggests that a vulnerable
‘minority’ is safe to victimize, and that government consultation processes are
appropriate stages for hate speech” (Pumla Dineo Gqola, “Welcome to the
slippery slope”, Mail & Guardian,
September 29 to October 5 2006). Our concern should not be misunderstood. We understand the need for and indeed support
informed public participation in any legislative drafting process. Public participation must, however, be
understood in the context of a constitutional framework that is underpinned by
the founding values of “[h]uman dignity, the achievement of equality and the
advancement of human rights and freedoms”.
According to the Constitution, the exercise of public power is – at
minimum – subject to the principles of rationality and legality.
Applied to the public hearings in respect of the Bill,
these principles demand a consultation process aimed at finding an appropriate
legislative mechanism for implementing the orders in the Fourie and Equality Project
cases. In our view, however, the hearings
have largely failed to address the fundamental issue at stake – how to give
full and meaningful effect to the
We
are concerned that the Portfolio Committee on Home Affairs not only facilitated
but indeed permitted presenter after presenter to infringe the prohibition of
hate speech, as contemplated by section 10 of the Promotion of Equality and
Prevention of Unfair Discrimination Act, 4 of 2000 (“the Equality Act”). Section 10(1) provides as follows:
“Subject to the proviso in section 12, no person may
publish, propagate, advocate or communicate words based on one or more of the
prohibited grounds, against any person, that could reasonably be construed to
demonstrate a clear intention to—
(a) be hurtful;
(b) be harmful or to incite harm; or
(c) promote
or propagate hatred.”
The
prohibited grounds, as set out in section 1(1)(xxii), include sexual
orientation.
Instead
of promoting human rights, the Committee has ensured that the rights of lesbian
and gay people have been violated. We
believe that this conduct is at variance with the mandate and obligation of parliament
pertaining to public participation and the promotion of respect for the
constitution and
The Lesbian and Gay Equality
Project is a non-profit organisation that is committed to the defence and
advancement of the rights of lesbian, gay, bisexual, transgender and intersex
people. We
therefore respectfully submit this complaint and request corrective action. We
trust that you find the above in order.
Yours sincerely
Jonathan Berger
Board Chairperson
Lesbian and Gay Equality
Project