On July 12, Mambaonline reported a major discriminatory provision in the South Africa’s same-sex marriage law. According to the site, Section 6 of the Civil Union Act allows Home Affairs marriage officers to refuse to marry same-sex couples. This can be counter productive as it means that many couples can be refused based on a marriage officer’s personal beliefs.
South Africa’s Home Affairs minister, Hlengiwe Mkhize has responded to the article. Read the full statement below.
The Mambaonline article of July 12, 2017 raises very serious human rights issues which, necessarily, need understanding properly in the interest of all.
It helps to know that the Department of Home Affairs is among those in our democracy who took the lead in advocating for respect and dignity of the LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersexed) community.
In 2016, the Department engaged in discussions with representatives of LGBTI communities. The outcome of which was agreement to work together to uphold both the rights of all persons and the democratic values underpinning the 1996 Constitution of the Republic.
On 7 June 2016 the Department announced, with LGBTI community representatives, a set of recommendations on comprehensive steps to be taken to address concerns raised regarding protection, promotion and projection of human rights of the LGBTI community in SA.
As reported jointly at the meeting of 5 September 2016, inroads were made in addressing legitimate concerns on the treatment, by some DHA officials, of issues relating to persons either lesbian, gay, bisexual, transgender or intersexed, especially when they visited our offices.
The Department went to the extent of setting-up a task-team with LGBTI representatives to address these issues. There was progress in this regard.
Internal communication was sent to all officials in a conscious drive to improve sensitivity and awareness and to cultivate uniform application of standards of practice at DHA offices in respect of services to LGBTI communities.
Attempts were made at these previous interactions to clarify requirements for registration of same sex marriages, among other things. A Practice Note was distributed to all staff and front offices for use as a guideline on matters relating to the alteration of sex description and other related civil matters.
The Department is improving on the enforcement of its Anti-Discrimination and Diversity Management policy. Officials participate in the National Certificate: Home Affairs Services skills programme, with one of its elements being improving sensitivity on LGBTI rights. In 2015/16, 407 DHA officials were thus trained, as an increase from 355 officials trained in 2014/15.
In discussions with the Department, what the LGBTI leaders had requested was clarity on the offices where marriages may be solemnised with dignity. This was to assist the LGBTI community to select appropriate offices. ‘Why is this important?’ In terms of the Civil Union Act, 2006 a marriage officer may not be compelled to solemnise civil union. Section 6 states that:
“A marriage officer…may in writing inform the Minister that he or she objects on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union.”
This doesn’t mean, as alleged, that “service is simply not offered in many Home Affairs branches,” and that a legislative amendment is required. What this does mean is that we get to know in advance which objections were approved, on their merit, in advance, to plan better.
In response to the request for clarity received from the LGBTI community, a list of offices with marriage officers willing to conduct same-sex marriages was prepared so people know which offices to visit and for which services.
As can be imagined, we have a duty to protect rights of all, including legal rights of workers, in this case marriage officers.
The marriage process was redesigned in line with three principles, namely:
- Proper allocation of duties and responsibilities, for a more streamlined and clear process, and to increase process transparency,
- Clear accountability assigned in each step of the process, to promote responsibility of each Marriage Officer/Official handling the marriage register, and
- Continuous promotion of responsible behaviour by involved officials.
We remain committed to strengthening and sustaining our partnership with LGBTI stakeholders, understanding LGBTI rights are human rights.
Indeed what we need to do is to strengthen the DHA/LGBTI Task-team better to improve on the promotion of fair treatment, equality, and justice for all, irrespective of sex/gender orientation.
It was through this unity and cooperation that we worked together to stop the visit of the homophobic US pastor Anderson to our country.
The assumption that government will on its own transform society is at best dubious. To change society for all members of society, demands that we work with various sectors of society, and therefore we invite all role-players to come forward, sans antagonism, to engage with us on these matters of importance. Questions of identity, nation-building and imperatives to promote unity in diversity are never resolved overnight.
The question unanswered remains will Section 6 be removed from the Civil Union Act. As the time of this report, 879 people have signed a petition online to have it removed.
