The Constitution of the Republic of South Africa was drawn in 1996. Chapter 2 of the constitution containing sections 7 to 39 brings in the Bill of Rights entrenched in the constitution. The Bill of Rights serves as the foundation upon which the democratic character of the Republic of South Africa is built. It protects the constitutional rights of all citizens in the country and establishes the democratic morals of human self-respect, equality and autonomy. The courts of the nation are obliged to value, uphold, endorse and fulfill the rights laid down by the Bill of Rights. However, the privileges introduced by the Bill of Rights are put through the precincts entrenched or referred to the clauses as mentioned under the section 36, or somewhere else in the Bill. Various Bills of Rights in the constitution of different countries incorporate a broad-spectrum section making note of Equality, something in the likes of ‘All individuals shall be equal before the law’ (Ellis & Celia Kitzinger, 167). Chapter 2, specifically Section 9 under the chapter, refers to the Equality clause in the Republic of South Africa constitution. In accordance to the constitutional charter, Equality is stated as:
“1. Everyone is equal before the law and has the right to equal protection and benefit of the law. 2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken. 3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. 5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.” (Steiner, Alston & Goodman, 971, 4)
It must be noted here that there is no general equality clause purposefully mentioned in the European Convention on Human Rights. However, Article 14 of the European Convention of Human Rights (ECHR) introduces a Prohibition on Discrimination clause. Article 14, of the ECHR states that
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. (ECHR, 1, 17)
In addition Article 1 of the Protocol 12 of the convention states that
“You cannot be discriminated against by public authorities for reasons of, for example, your skin color, sex, language, political or religious beliefs, or origins”. (NIHRC, 1, 37)
There is an imperative dissimilarity amidst a “right to equality” and a “right not to be discriminated against” (Ellis & Celia Kitzinger, 180, 2-3). The right to equality is in all likelihood a more positive approach, given that it could possibly require some action to be implemented, whereas a right not to be discriminated against (Ellis & Celia Kitzinger, 180) may be perceived to be a more negative approach, in view of the fact that it simply proscribes activities or actions which could perhaps lead to an adverse circumstance. To boot, discrimination is more often than not, barred with regards to particular justifications and may perhaps consequently invoke reduced wide-ranging application.
However, in spite of the fact that the Equality clause is not explicitly mentioned in the literature of both Article 14 of the European Convention of Human Rights and Article 1 of Protocol 12 of the convention, attention should be drawn to the fact that in this case the ideology relating to non-discrimination and equality are rather narrowly distanced.
A noted difference between the provisions provided by Section 9 of the constitution of the Republic of South Africa and those provided by Article 14 and Article 1 of Protocol 12 of the convention is the treatment of non-discrimination or equality on the basis of sexual orientation. Not until long ago sex between two individuals belonging to the same sex was regarded as a criminal offense and public displays of affection were deemed to be offensive. Gay citizens were beleaguered and blackmailed by various people and public institutions, time and again left without employment and even rebuffed guardianship of their own children subsequent to a divorce. The Constitution of the Republic of South Africa is one of the first in the entire world to disallow unjust discrimination on the basis of sexual orientation. In response to the aforementioned atrocities which haunted South Africa’s history, the term ‘sexual orientation’ is mentioned under the sub-section 3 in section 9 – Equality clause of Chapter 2 – Bill of Rights due to the inequality the gay and lesbian section of the society have been subject to. (Ellis & Celia Kitzinger, 169) Specifically mentioning the term in the equality clause thus pledges rights of equality for the gay and lesbian section. Contrasting the fact that children have a devoted section in the Bill of Rights in order to ensure their welfare, there is no such provision for gays and lesbians to uphold their rights. However, the significant part of section 9 of the South African Constitution, endorsing the “Equality” principle, states that:
“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” (constitutionalcourt, 1, 6)
Gay and lesbian rights are upheld by the incorporation of the words ‘sexual orientation’ as one of the specifically mentioned grounds on which inequitable intolerance may be prohibited and barred. In the National Coalition for Gay and Lesbian Equality and another vs. minister of justice and others case The High Court judged that subsection 5 of section 25 of the Aliens Control Act of 1991 was unlawful for the reason that it refrained from extending the privileges offered to “spouses” to the individuals who were engaged in a stable homosexual life partnership relations. The Court deemed that section 25(5) implied that homosexuals were not fit for of getting their private family affairs respected or rights to privacy upheld which was considered to be an assault on their self-esteem. The court concluded that the Section 25 differentiated wrongly on the basis of sexual orientation and marital status, and critically restricted rights to equality and dignity in some sense could not be perceived to be rational and acceptable. The Court judged Section 25(5) as unconstitutional and pronounced a decisive verdict to read words into the decree would be a better option than to strike off the problematical section. The lexis “or partner in a permanent same-sex life partnership” (constitutionalcourt, 1, 22) was required to be added.
The Article 14 of the European Convention of Human Rights upholds provision for rights against discrimination on grounds such as “sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (constitutionalcourt, 1, 6). Here, the term ‘sexual orientation’ is not explicitly mentioned. Here lies a major dissimilarity between the two approaches under consideration. As, there is no specific mention of the ‘sexual orientation’ term, the article is subject to some ambiguity and leaves openings for anti-Gay and Lesbian advocators. In the Grant vs. South-West Trains case the European court of justice, connoted that, as a common notion, prejudice demonstrated against an employee on the basis of sexual orientation did not infringe any provision of non-discrimination. This case decision emerges as an unaligned outcome with the protection of Gay and Lesbian rights expressed by the courts of South Africa which bars discrimination on the grounds of sexual orientation. (Ellis & Celia Kitzinger, 176)
Law suits filed under the allegation of sexual orientation discrimination generally make use of Article 8 of the convention, which states that, “Everyone has the right to respect for his private and family life, his home and his correspondence”. (Boyle et al14, 2)The phrase of “family life” has been referred to in numerous discrimination cases. “Salgueiro vs. Portugal (2001) 31 E.H.R.R. 47” (Ellis & Celia Kitzinger, 177) is a relevant case. This is a case in which a separated father was snubbed off the guardianship of his daughter given that he was homosexual. The Court judged referring extensively to Articles 8 and 14, and the judgment passed was in support of the father. Some questions with reference to the notion of ‘home’ have also been raised in cases relating to discrimination. For example, in the “Karner vs. Austria, (App. no. 40016/98; (2003) 2 F.L.R. 623)” (Ellis & Celia Kitzinger, 175) case, the Court comprehended that statute law restricting succession rights to heterosexual pairs came under Article 8 in consort with Article 14 of the convention. (Ellis & Celia Kitzinger, 178) The question of the convention recognizing the discrimination on the basis of sexual orientation is often raised. The article 14 articulates that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground …” (Fenwick & Phillipson, 243, 3) and mentions a list of conditions which does not unambiguously mention the phrase ‘sexual orientation’. However, courts have suggested that the list of conditions is a non-exhaustive one as endorsed by the ‘such as’ phrase.
Another notable disparity between the Section 9 Equality clause of the Constitution of Republic of South Africa and the Article 14 along with Article 8 and Article 1 of Protocol 12 is the ‘Horizontal Effect’ Problem. The European Convention of Human Rights and the Human Rights Act do not inflict responsibility to oblige on private stakeholders (‘horizontal effect’), and their restrictions are imposed only on the State or public authorities (‘vertical effect’). Nevertheless, there is an open corridor through which private disputes may engage Convention rights. In accordance to article 1 it is necessary for the state to “secure for everyone within their jurisdiction the rights and freedoms defined in… the Convention”. (O’Brien, 380, 1) In the incident of “Young, James & Webster vs. UK (1981) 4 E.H.R.R. 38 case”, (Ellis & Celia Kitzinger, 179) the State was apprehended to be legally responsible for the discharge of staff for repudiating to work in a closed-shop trade union, in infringement of their right to freedom of association as ensured by Article 11. Article 1 of the protocol 12 of the convention borrows the phrase ‘public authorities’ from Article 8 of the convention. This, in some cases might prove to be a hindrance.
However, in the constitution of the Republic of South Africa the ‘horizontal discrimination’ problem has been explicitly addressed. In relation to private parties- individuals such as employers, doctors, private organization owners or retail shop owners- may perhaps also come out to be a cause of discrimination. This issue of “horizontal discrimination”, involving the common populace or perhaps even private institution and companies, is engaged in by sub-section 4 of section 9 of the Constitution. It articulates that, “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection.” (Steiner, Alston & Goodman, 971, 1)
Subsection 2 of Section 8 in the Constitution, which pronounces a provision of the Bill of Rights, connects a natural or a juristic person if relevant is also significant in this case. The fact that the lexis ‘sexual orientation’ is mentioned explicitly as a discrimination ground in the subsection 3 of section 9 equality clause in the Bill of Rights is a considerable advantage to the gay and lesbian rights advocators. This clause provides considerable protection for gays and lesbians under the equality principle. However, it is not the only article that is competent enough to be engaged in all cases involving homosexual discrimination. The National Coalition for Gay and Lesbian Equality and another vs. minister of justice and others case related to the offensive in terms of sodomy in the common-law. The gist of this case was that the legislation barred sodomy among two agreeable adult men.
The Constitutional Court was required to substantiate an order that the state of this common-law offence was unlawful and illogical in the likes of the reference to sodomy in three decrees. The Court instituted that the subsistence of these offences infringed the right to equality. Laws relating to sodomy outlawed the personal relationships of a susceptible minority section of gay men. This humiliating handling made up a contravention of the rights to dignity and privacy. The constitutional court concluded that these offensives – which did not comprise of rational or justified limitations on the rights of gay men to equality, dignity and privacy – were unauthorized and unconstitutional. In addition, the South African Parliament has, in conformity with the equality clause as stated by the Section 9 of the Bill of Rights, passed statute laws to put a stop to discrimination under an assortment of circumstances. For instance, the “Promotion of Equality and Prevention of Unfair Discrimination Act of 2000”, (Ellis & Celia Kitzinger, 178) obliges the regime to “uphold equality” (Ellis & Celia Kitzinger, 178) on all the conditions as listed by the equality clause.
There are several other different decrees that uphold the rights of homosexuals and acknowledge and appear in the form of laws such as the “Medical Schemes Act of 1998”, (Ellis & Celia Kitzinger, 179) the “Rental Housing Act of 1999,” (Ellis & Celia Kitzinger, 177) “Domestic Violence Act of 1999,” (Ellis & Celia Kitzinger, 179) the “Employment Equity Act of 1998,” (Ellis & Celia Kitzinger, 178) and the “Labour Relations Act of 1995.” (Ellis & Celia Kitzinger, 179) Thus we observe that even though the equality clause provides an essential support to ensure that the rights of the homosexual community, in many circumstances other rights are engaged in order to bring justice to them.
Works Cited
Boyle, Alan E., Andrea Loux, Wilson Finnie, Chris Himsworth, Hector Macqueen. Human rights and Scots law. Cape Town: Hart Publishing, 2002.
Constitutionalcourt. “Gay and lesbian rights”. Constitutional Court of South Africa. 2005. Web.
ECHR. “European Convention for the Protection of Human Rights and Fundamental Freedoms and the First Protocol.” Council of Europe. 1950. ECHR. Web.
Ellis, Sonja J., & Celia Kitzinger. “Denying equality: an analysis of arguments against lowering the age of consent for sex between men.” Journal of Community & Applied Social Psychology 12.3 (2002): 167-180.
Fenwick, Helen & Gavin Phillipson. Text, cases & materials on public law & human rights. Ed: 2. New York: Routledge Cavendish, 2003.
O’Brien, John. International law. New York: Routledge Cavendish, 2001.
NIHRC. “Inspiring practice”. The Northern Ireland Human Rights Commission. 2008. Web.
Steiner, Henry J., Philip Alston & Ryan Goodman. International human rights in context: law, politics, morals: text and materials. Ed: 3. London: Oxford University Press US, 2008.