N Mapisa-Nqakula: Upper House debate on Civil Union Bill, NCOP

28 November 2006

Chairperson of the NCOP,
Chair of the Select Committee on Social Services, honourable Joyce
Masilo,
Members of the Select Committee,
Honourable members,
Colleagues and friends:

Today is the culmination of an important process in the consolidation of our
democracy. Over the past few months our Parliament has led the public in a
public engagement on one of the most emotive and difficult issues since the
dawn of democracy in our country. This work culminates with a debate in this
House on the Civil Union Bill which was passed the National Assembly two weeks
ago.

I must emphasise that the adoption of the Civil Union Bill is in itself not
the end of the public engagement process. The public debate has however brought
forth the issue of the extent to which society is prepared to adhere to the
Constitution as an embodiment of our democratic values.

The question that has been asked repeatedly over the past few months since
the introduction of the Bill has been "Why?" Why is it that this government
feels compelled and determined to pass a piece of legislation that has caused
so much controversy?

The answer to that question stems from our belief in and our struggle for
equality of all people in the true sense of the word.

Perhaps the most important foundation that laid the basis for our principle
of equality was the remarks of the late African National Congress (ANC)
President Pixley Isaya ka Seme during his keynote address on 8 January 1912,
when the movement of our people was born. His premise for a united action
against all forms of oppression was that "we are one people".

He went on to say, "We have called you to this conference so that we can
together devise ways and means of forming our national union for the purpose of
creating national unity and defending our rights and privileges."

Chairperson, from the onset the ANC has always had as its historic mission,
the unity of our people and the defence of their rights. It is very important
that the seriousness to which the ANC attaches to the ability of every human
being to enjoy rights and privileges, should be understood within this historic
context.

The ANC has always associated this issue of rights with accomplishment and
the logical conclusion of our struggle for freedom. We have maintained that our
country can never truly be free if any segment of our society is still denied
their rights and liberties.

Accordingly in the drafting of the freedom Charter in 1955 we proclaimed
that:

"Only a democratic State based on the will of the people can assure to all
their birth right without distinction of colour, race, sex or belief. That our
country will never be prosperous or free until all people live in brotherhood
enjoying equal rights and opportunities. We indeed further proclaimed that all
shall have equal rights."

I am raising these issues here, Chairperson, because there are some who have
argued that we can afford to take lightly the rights of same sex couples in our
country because in anyway our commitment to these rights only came with the new
democratic Constitution.

Not only is this assertion wrong but it is a misrepresentation of what our
struggle for freedom was about. As you will note from the history of our
struggle, our people have always been impatient with state driven
discrimination as well as the treatment of any section of our society as
outcasts and second class citizens undeserving of rights accorded to the rest
of the population.

It was with this in mind that government, in the context of its political
and legal obligations started with the process of aligning all old apartheid
legislation with the Constitution, including the Marriage Act of 1961.

The Law Reform Commission started a consultative process on the changes to
the legal regime governing marriages as early as 1996, two years after the
attainment of democracy in our country.

However, during that process the definition of marriage in our current law
faced a challenge within our courts.

The Constitutional Court declared that the definition of marriage under the
common law and the marriage formula as set out in section 30(1) of the Marriage
Act, were inconsistent with the Constitution and invalid to the extent that
they failed to provide the means whereby same-sex couples could enjoy the
status and the benefits coupled with the responsibilities that marriage
accorded to heterosexual couples.

The court ordered Parliament to correct these defects in the law by 1
December 2006, failing which section 30(1) of the Marriage Act would be read as
including the words "or spouse" after the words "or husband". This current Bill
was drafted in response to the court's judgment in the Fourie case.

The court while noting that "equal" does not mean "identical" ruled that it
would be helpful to point to certain guiding constitutional principles. In
terms of the first guiding principle, the objectives of the new measure must
be:
a) to promote human dignity
b) the achievement of equality
c) the advancement of human rights and freedoms.

The second guiding principle states that "Parliament be sensitive to the
need to avoid a remedy that on the face of it would provide equal protection,
but would do so in a manner that is calculated to reproduce new forms of
marginalisation". Whatever legislative remedy is chosen must be as generous and
accepting towards same-sex couples as it is to heterosexual couples both in
terms of intangibles as well as tangibles involved.

It is our view that the Civil Union Bill presently before this House indeed
satisfies the order of the court. The objects of the Civil Union Bill are to
provide for the public solemnisation and registration of civil unions, by way
of either a marriage or civil partnership and to provide for the legal
consequences thereof.

This Bill makes provision for opposite and same-sex couples of 18 years or
older to solemnise and register a civil union by way of either a marriage or a
civil partnership. Care has been taken to ensure that a distinction is drawn
between the responsibilities of State and church, as section 15(3) of the
Constitution calls for sensitivity in favour of acknowledging diversity in
matters of marriage. The Bill provides for same-sex couples to be married by
civil marriage officers and such religious marriage officers who consider such
marriages not to fall outside the tenets of their religion.

In order to give effect to the Constitutional Court ruling, same sex couples
must be allowed to marry so that they can enjoy the status, obligations and
entitlements enjoyed at the moment by opposite sex couples.

This Bill allows for both same sex and opposite sex couples to choose the
option of having their union solemnised and registered as a civil partnership
by a state employed marriage officer.

Chairperson, I must emphasise government's commitment to ensuring that this
country has one legal framework governing marriage and that such legal
framework should be based on the principle of respect for the human rights and
dignity of all.

The harmonisation of legislation and the building of a framework that
governs family law is paramount in our priorities for public policy review.

I am aware that this has been one of the most difficult pieces of
legislation to engage with, but I hope that all of us will understand the
responsibility of each one of us seated here to provide leadership to our
nation even if it seems hard.

As I said during the debate in the National Assembly, we elected to fulfil
the directive of the Constitutional Court by introducing this Bill instead of
allowing a situation where the court amends the Marriage Act. In that way we
have ensured the responsibility to pass and amend legislation.

In this regard, I must thank members of Parliament for their commitment to
deal with this Bill within the timeframe provided for by the Constitutional
Court. I must particularly thank members of this House and in particular the
Select Committee for your preparedness to stay behind to deal with this Bill
despite the constituency period.

Ke a leboga!

Issued by: Department of Home Affairs
28 November 2006