ANC and DA reject Constitutional Marriage Amendment

15 November 06

Steven Swart, ACDP MP and spokesperson on Constitutional matters made the following statement in the National Assembly yesterday:

At lunchtime today, the ANC and DA rejected the Sixteenth Constitutional Amendment proposed by the ACDP in the Standing Committee on Private Members’ Bills and Special Petitions. Whilst we are grateful to the chairperson that this matter was prioritised, we regret that our recommendation was not accepted.

The ACDP rejects the argument that we would be going back to pre-1996 days should we amend the constitution. This argument flies in the face of this government’s approach to the 12 other constitutional amendments and in particular that relating to floor-crossing. It is well –known that the Constitutional Court in the Certification judgement found floor-crossing undesirable. In the UDM case, which we participated in, the Court rejected the floor-crossing legislation for not having been passed in time. The ANC was quick to pass a constitutional amendment to allow floor-crossing. We are now considering a proposal to again amend the constitution to disallow floor-crossing.

The ACDP proposed that section 39 of the Constitution be amended to read that “the Constitution shall be interpreted to mean that a marriage is a voluntary union of a man and a woman.” We did not propose that section 9, the equality clause be amended in any way.

During deliberations, I argued that -in view of the Constitutional Court decision in the Fourie matter, the only way to protect traditional marriage was by means of a constitutional amendment.

Our view is supported by many millions of South Africans, represented by the Marriage Alliance, The National House of Traditional Leaders, Contralesa, and numerous others.

Internationally, many US states have passed similar amendments to their constitutions. The Californian High Court, upholding a constitutional amendment banning same sex marriage noted that the people and not the court through legal fiat should make the law. More pertinently African countries such as Uganda and Nigeria have adopted legislation to protect traditional marriages, with Uganda amending its constitution.

This very same ANC government argued in court that we would be “out of step” with the rest of the world should we allow same-sex marriage. In an about turn, we will have the dubious distinction of being the only African state to recognize same-sex marriage.

I argued that it is not about human rights – our Constitution does not protect freedom of sexual orientation as a basic human right. It is not a right – it is only a ground on which unfair discrimination is prohibited. What about democracy and the voice of the people. We offered a solution in line with international law, but it was rejected.

The ACDP believes that a constitutional amendment was all the more justifiable to protect the institution of marriage. Sadly, the opportunity was rejected. In conclusion, in the words of martin Luther, “My conscious is captive to the word of God – here I stand, I can do no other.”
Steven Swart, MP