Last edited: February 13, 2005

South Africa Strikes Down Harsh Laws on Gay Sex

New York Times, October 10, 1998
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By Donald G. McNeil, Jr.

JOHANNESBURG, South Africa—Citing a provision in the new constitution, South Africa’s highest court struck down the country’s sodomy laws on Friday.

In theory, gay rights have been protected here since the country passed its provisional constitution in 1994. But many of older laws remained on the books. The suit decided by the Constitutional Court Friday was brought by the National Coalition for Gay and Lesbian Equality and was not opposed by the African National Congress government.

"Obviously, we’re happy," said Mazibuko Jara, the coalition’s national manager. "We welcome the decision as confirming the values and principals of our constitution."

South Africa’s constitution—the world’s most liberal—bans "unfair" discrimination on the basis of race, gender, sex, pregnancy, marital status, ethnic origin, color, age, disability, religion, conscience, belief, culture, language and birth, as well as sexual orientation.

The harsh laws that the court overturned classified sodomy as a Schedule 1 offense, like murder or rape, punishable by life imprisonment.

A more esoteric law also struck down Friday, Section 20A of the Sexual Offenses Act, which was written after a vice raid on a gay men’s party in the 1960s, outlawed any behavior "at a party"—defined as a gathering of more than two men—that led to sexual gratification. Under that law, gay activists said, a man could be jailed for giving another man a come-hither glance, if seen by a third man, who could be the arresting officer.

Such laws were seldom enforced in recent years, and there have been Gay Pride marches for a decade now. But two Cape Town prisoners who engaged in consensual sex were charged with sodomy last year, and the threat of such prosecutions still existed, particularly in prisons and the army under conservative commanders, activists said.

South Africa has become increasingly liberal since the days when army officers tried to change homosexuals by giving gay recruits electric shocks while showing them pictures of naked men. Military and police codes of conduct now ban anti-gay discrimination, and a few government-owned corporations like the national electric company recognize same-sex marriages.

But most corporations and government departments do not, and other laws prevent, for example, adoption by gay couples. A spokesman for the gay rights coalition said Friday’s broad ruling might be used to challenge those laws and policies.

The ruling was written by Judge Lori Ackerman with a concurring ruling by Judge Albie Sachs, who wrote that it should be seen as "part of a growing acceptance of difference in an increasingly open and pluralistic South Africa."

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