I had a thought provoking debate while I was in Zimbabwe a few weeks ago on the status of homosexuality and the law in most of Southern Africa. Fortunately for me, my adversary was a trained lawyer with a particularly strong interest in constitutional law. Needless to say, while my Massachusetts-inspired liberal tendencies stood no chance against the depth of his knowledge and some of his arguments, I had the unique opportunity of gaining a powerful insight into the rationale behind why some might still resist attempts to change the status quo of homosexuality as a criminal offence, or who would at least strongly oppose public gay unions in African countries.

To provide some context to these reflections; the topic came about when he was trying to express to me his objections to the South African constitution (1996). The constitution has been widely hailed as among the finest in Africa and possibly in the world, the crowning achievement of Nelson Mandela's leadership and ahead of its time. His main contention pivoted on the last accolade, leveraging the fact that a national constitution, as a legally binding text, must be bound by its ability to be "prosecutable" by the state. While conceding that an ideal constitution would also have to be sufficiently progressive or "forward-looking" to avoid being too dynamic, he maintained that it need not be progressive in a direction at odds with the aspirations of the people whose ideals it purports to represent. He argued that the South African constitution contained provisions that were more besotted with the idea of South Africa taking on the guise of a "rainbow" nation, which itself was more a symptom of the larger trauma of apartheid, than an honest attempt to codify the values and culture of the country. As a result of that obsession, the text of the constitution was too "idealistic". It sought to impose a revolutionary shift in values and the acceptable codes of morality, top down, instead of being a representative "social contract" whose legitimacy would hinge on it being acceptable to everyone bound by it now and not in some indeterminate future. Thus, as a result of the divergence between the codified law and people's values and morality, violation of some provision of the constitution could not be justifiably prosecuted except under a “progressive dictatorship�[1] .

In criminal law, the concept of mens rea, Latin for "guilty mind", is used to delineate the parameters of criminal liability under Common Law. It is derived from the phrase actus non facit reum nisi mens sit rea, meaning "the act will not make a person guilty unless the mind is also guilty" -- and this formed the basis of his challenge against the suitability of the entire constitution and illustrated by Article 9 of the 1996 South African Constitution (iii) which declares that: "the state may not unfairly discriminate against anyone on the basis (...) of sexual orientation." In particular, according to his line of argument, providing an explicit guarantee that the state would not discriminate against anyone on the basis of sexual orientation in a largely heteronormative society with homophobic values is duplicitous, unjustified and undemocratic. It would equate to holding people accountable under a moral standard they never bought into in the first place and that their own sense of morality is in direct conflict with. In legal-speak, the constitutional provision and any derivative laws could be considered null and void on the basis of being contra bonos mores (contrary to good morals) and also actually oppressive.

Of course at some point in the discussion I indicated, quite strongly, that what was at issue here was a basic human rights question. However even as I made the point, I realized how tenuous my argument was. Without intending to take the side of dictatorial and repressive regimes such as the Taliban whose defense is the sanctuary offered by claims of moral and cultural relativism, it is still undeniable that there is still an unresolved debate on the conflicting ideas of autonomy and self-determination and the increasingly hegemonic thrust of the "universality" of human rights. As carefully outlined by International Human Rights scholar Jack Donnelly[2] ; on the one extreme, radical cultural relativists would claim that "culture is the sole source of the validity of a moral right or rule", and on the other, universalism "would hold that culture is irrelevant to the validity of moral rights and rules, which are universally valid". It is also not wholly beyond reason to make note of the possibility that "human rights" (as commonly understood and defined by the various international charters and treaties) are a subjective formulation, not entirely innocent of neo-imperialist, western hegemonic influences. In their rather more radical, earlier work, Adamantia Pollis and Peter Schwab[3] expressed the point more forcefully, declaring that human rights are a "Western construct of limited applicability," (in their more recent work, both scholars have significantly moderated from their previous positions). An extension to a worrying trend is the degree to which human rights have risen to be the basis of the international legitimacy of nation states (Donnelly 1999)[4] . While this is not, in principle, a negative development, the modern reality where the main supranational enforcer of human rights protocols, the UN, is toothless in the face of western interests gives greater salience to the accusation of hidden agendas and cultural imperialism behind human rights arguments.

The greater point to be made here is that there might be some wisdom to the adage that there is rarely any smoke without a fire. In this case, a human rights based argument remains inadequate, at least in the short term, in the face of my lawyer friend's challenge. The point is illustrated plainly when one considers acclaimed Canadian academic, Michael Ignatieff's defense[5] of the universality of human rights where he wrote:

Rights doctrines arouse powerful opposition because they challenge powerful religions, (…) authoritarian states …. Rights are universal because they define the universal interests of the powerless--namely, that power be exercised over them in ways that respect their autonomy as agents. In this sense, human rights represent a revolutionary creed, since they make a radical demand of all human groups that they serve the interests of the individuals who compose them. (Ignatieff, 2001)

Clearly in the case of South Africa, and perhaps most of Africa, since the explicit edict in support of gay rights came from the top and not representative of the "powerless", or at least their majority, Ignatieff's argument is turned on its head.

However our debate did eventually come to a stalemate. The trump card was to turn the discussion towards the roots of sexuality itself to examine the degree to which it can be shown beyond any reasonably doubt that homosexuality is not a lifestyle choice but predetermined by the accident of birth. Of course this argument is also severely constrained by the legitimacy of any claims that hinge on arguments of hereditarianism. While the jury is out to resolve that particular can of worms including the "nature-nurture" controversy that it inevitably invokes, the "biological determinism" line of argument also remains tenuous and could well be misguided. Ironically, hereditarianism is a view that political conservatives would be much more sympathetic to. It could be used to challenge liberal, left-leaning views that economic inequality and power imbalances in society are to blame for group differences and not intrinsic worth, yet in this case it may deliver an ace for a liberal cause.

The bottom-line, therefore, and perhaps the main provocation for these reflections is that it should be little surprise that, regardless of having a constitution that is explicitly liberal, especially when it comes to issues of sexual orientation, there has been an enormous backlash against a bill to legalize gay marriages in South Africa.