8 February 2004
Johannesburg — Illegal immigrants stand in line as they await deportation. But they have rights too 'Every individual who comes before the courts in this country, whether high or low, rich or poor, alien or local, is entitled to enjoy the benefits flowing from the supremacy of the Constitution'
A PART of apartheid's madness lay in its increasing exclusivity. More and more people were defined as politically and socially unimportant - even threatening - and unworthy of protection by the law.
Their potential contribution to the life of South Africa, to our culture and thought, was discounted. And under the old constitution Parliament could simply pass laws sidelining them.
Now our Constitution says that what counts is the inherent dignity of each person, and so we have to rethink many prejudices hidden in the law and - if we are honest - in our minds.
That's why I've found it significant to be present at a series of cases dealing with two groups, long regarded as worthless trash, and to witness them being "brought in" under the protective banner of the Constitution, as their full dignity is recognised.
You may think these two groups unrelated - "aliens" or would-be immigrants on one hand, and gay and lesbian people on the other. But their suffering under the previous dispensation was in some ways similar: their worth was denied and it was often assumed that their mere presence indicated they were up to no good, if not actually committing a crime.
When, after 1994, would-be immigrants first started asking the High Court to help with problems they had with officials making unfair decisions, a number of judges just didn't get it. They couldn't see how the advent of the Bill of Rights made any difference.
The courts still held that the state had absolute power to decide who could come into a country and the circumstances under which a person could be thrown out; the judges held that the individual had no right even to question such decisions. In the early days of the Constitution, there was even serious consideration by some judges of the argument that foreigners did not have the "legal standing" to ask for help from the courts.
When they were reminded of the Constitution during argument in court, some judges took the view that the foreigners whose cases they were considering had no relevant rights - and so the Constitution made no difference. Teething problems, perhaps, but the pain and disillusionment caused to the individuals denied the protection of the Constitution was real enough.
Eventually, High Court judges began to reconsider the impact of the Constitution on even such issues as immigration cases; and around the same time, disputes involving would-be immigrants reached the Constitutional Court, allowing the highest court to pronounce on whether "aliens" had rights.
One of the most satisfying decisions came from the Durban High Court, where Judge Ken Mthiyane (now on the Appeal Court in Bloemfontein) had to consider the case of Jonathan Tettey from Ghana, who had been ordered to leave South Africa without being given any chance to explain why he believed the decision unfair.
The judge decided that despite the views of his colleagues in earlier cases, the Constitution no longer permitted an official (in this case someone from the Department of Home Affairs) to make such a decision without considering the argument of the person affected.
And what about whether foreigners were included in the promises of the Constitution?
"Every individual who comes before the courts in this country, whether high or low, rich or poor, alien or local, is entitled to enjoy the benefits flowing from the supremacy of the Constitution," said Judge Mthiyane, "especially where state functionaries perform administrative functions which affect his or her rights, interests or legitimate expectations." So far immigration cases heard by Constitutional Court judges have dealt with slightly different issues from the one considered by Judge Mthiyane, but the court has approached them from the same perspective - that the benefits of the Constitution belong to all.
Foreigners, as much as any South African, share the fundamental right to dignity.
Just a couple of months ago, Appeal Court Judge Robert Nugent dealt with a case concerning foreigners seeking asylum in which he spelt out how the Constitution has affected their rights.
"Human dignity has no nationality," he wrote. "It is inherent in all people - citizens and non-citizens alike - simply because they are human. And while that person happens to be in this country - for whatever reason - it must be respected, and is protected, by Section 10 of the Bill of Rights [the right to dignity]." But foreigners are not the only ones brought in under the Bill of Rights. Gays and lesbians make up another group, often given more prominence, whose legal ostracism has come to an end with the Constitution.
Now that the Bill of Rights has become the touchstone for judging official behaviour, it's unacceptable to discriminate against anyone unfairly on the grounds of a list of attributes.
Among them is "sexual orientation".
That means laws that unfairly discriminate against homosexuals, either directly or indirectly, are unconstitutional.
In the case of gay men , the law had regarded each as someone whose private sexual expression, even in the context of a long-standing and committed relationship, was an illegal act, making its "perpetrator" liable to arrest, persecution and even the legitimate target of shoot-to-kill action by police.
That was one of the first "gay rights" issues challenged under the Constitution, and it was dealt with by the Constitutional Court as an issue of human dignity.
The court said that the law as it stood had no other purpose than to criminalise conduct that did not conform to the moral or religious views of a section of society. This discrimination "gravely affected the rights and interests of gay men and deeply impaired their fundamental dignity".
The court went on: "Its symbolic effect is to state that in the eyes of our legal system all gay men are criminals." The harm imposed by the criminal law was far more than symbolic, said the court. Gay men were at risk of arrest, prosecution and conviction simply because they sought to engage in sexual conduct that was part of their experience of being human.
"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 the Constitution." This victory has been followed by a number of others, thanks to the strategic litigation of groups such as the Treatment Action Campaign and the Lesbian and Gay Equality Project. All kinds of issues have been successfully challenged, from treatment for those with HIV/Aids to social benefits for life partners and the right of two same-sex partners to adopt children jointly.
But while discrimination through the law can now be dealt with relatively efficiently, sometimes without even needing to go to court, discrimination in the broader society can still be a problem causing gay people to feel marginalised.
Everyone likes to think that they are protected by the equality clause of the Constitution.
Perhaps it makes us feel safe. But within that clause lies a challenge to all who rely on it.
Here's how the Canadian Supreme Court put that challenge: "It is easy to say that everyone who is just like 'us' is entitled to equality. Everyone finds it more difficult to say that those who are 'different' from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any group is less deserving and unworthy of equal protection and benefit of the law, all minorities and all of society are demeaned."
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