Of all the lecturers in the Rhodes law faculty, few have as colourful a background as Advocate Shuaib Rahim. A lecturer of property law and banking and payments, Rahim (or Shuaib as he prefers to be called) did not find law an obvious first choice, however coming from an Islamic background and a family of lawyers and accountants, it was a “natural fit”. Shuaib is more than just a law lecturer however, he is also a social activist. A happily married and openly gay man, Shuaib was involved in the struggle to get gay marriage legalised.
Shuaib started out at the University of Port Elizabeth (now Nelson Mandela University) where he established and was involved in various human rights organisations. These organisations focussed on freedom of speech as well as gender and sexuality issues at a time when it was illegal to be gay. Shuaib then moved on to Amnesty International, which he discovered “quite by accident” while looking for an organisation to volunteer for. As an organisation focussed not just on queer rights but human rights in general, Amnesty International was a perfect fit for Shuaib, who soon found himself on the board of the organisation. “Amnesty not only changed my life but also made me realise that I had a passion for this sort of thing,” explains Shuaib.
When the Interim Constitution came into effect in 1994, it was a massive victory for the human rights movement in South Africa, sparking massive celebrations. Shuaib however, refused to go to the party. “At that stage, I thought it was perversely ironic that you have a document that says you can’t discriminate but then has listed grounds. I thought it was obvious that if you believed in equality, you could not discriminate on the basis of sexual orientation. Everything that happened after proved me wrong, however,” explains Shuaib.
So what happened?
“In the fight to get gay marriage legalised, the State fought us every step of the way. The State was concerned with winning for the sake of winning, and was not concerned with other people’s lives”, says Shuaib. He explains how the State even tried to bizarrely argue that there was no discrimination against gay people as gay people could also marry people of the opposite sex, the same as straight people. “The fight for marriage changed my perception of how law is made and negotiated, and hard-won,” explains Shuaib. He remembers how there were very real costs as they lost many people along the way. Shuaib later got involved with the National Coalition for Gay and Lesbian Equality, which in 1998 achieved a massive victory when the Constitutional Court decriminalised same-sex conduct (such as sodomy) in National Coalition for Gay and Lesbian Equality v Minister of Justice. But this was not the end of the fight. The next step was achieving marriage equality.
“The debate was whether to press straight for marriage or to go with an incremental ‘shopping list’ approach as suggested by Edwin Cameron,” explains Shuaib. Eventually, Cameron’s incremental approach was decided upon (and Cameron himself would go on to be the first openly gay Justice of the Constitutional Court). The reason for the incremental approach was to get the media on board and to work with them as partners as back then, the attitude was very different. “There was one narrow stereotypical paradigm and a very particular slant for how LGBT people were being perceived,” explains Shuaib. “During the first pride march, people had to wear bags over their heads.”
Law lecturer and legal activist Adv. Shuaib Rahim did not think to find himself a lawyer growing up, but ended up making massive contributions towards legal transformation. Photo by: Leonette Bower.
The Coalition succeeded in garnering the media’s support, as well as the support of most of civil society, some partners in home affairs, and even the unofficial support of the South African Catholic Church. Archbishop Desmond Tutu also came out as “pro-gay”. The only opposition they faced was the State, which lead to lengthy and expensive litigation. “At one stage we were spending at least R70 000 a day on court fees. It was not an easy fight and was all-consuming,” explains Shuaib. What concerned Shuaib most however was the fact that almost all of this strategic litigation had to be internationally funded as it was not supported locally. “It is a little-known fact that Sir Ian McKellan made the first donation of £25 000 to support the Coalition,” remarks Shuaib. The Coalition soon became the Gay and Lesbian Equality Project, and it is under this name that they continued their fight.
Eventually, the Equality Project accomplished its goal in the case of Minister of Home Affairs v Fourie when the Constitutional Court ordered the Legislature to enact legislation allowing for gay marriage within a year, otherwise the Court would simply read into the existing Marriage Act to allow for same-sex marriage. The Legislature met this this order, but only just, passing the Civil Union Act one week before the deadline. The Civil Union Act has been heavily criticised however as it was never the court’s view to create a “separate but equal” system of marriage for gay people.
“It was the Department of Home Affairs that shockingly and shrewdly crafted a flawed piece of legislation which disenfranchises gay males specifically,” says Shuaib. The Civil Union Act is full of discrimination like the fact that gay minors cannot get married and achieve majority status through marriage, whereas straight minors can. But what is perhaps the most contentious provision of the Civil Union Act, is the conscientious objection clause. This clause allows a State marriage officer to refuse to marry same-sex couples on the basis of their private beliefs. “As a result, gay marriage is still not readily available in South Africa as there are not enough people who are willing to do it,” explains Shuaib. This is partially because you have to apply for a separate license to marry homosexual people as opposed to heterosexual people, creating yet another obstacle in the way of gay marriage.
Interestingly enough however, despite the passing of the Civil Union Act, most gay people involved in the legalisation of gay marriage did not get married until much later. “I can only speak for myself but I think this was because of ‘marriage fatigue’, as it was just so expected that we would all get married,” says Shuaib. “The goal was never actual marriage, it was the right to choose marriage if you wanted it,” he continues.
So where do we stand today?
“What we are seeing now is that gay people are living in densely populated urban areas as these are spaces where they feel more accepted as there is less perceived discrimination,” explains Shuaib. Internalised self-loathing is still a massive issue in the gay communities however and Shuaib speculates as to how much of this is a construct that is superimposed by virtue of the fact that gay people still need to face issues of “coming out”. Shuaib remarks that at least we are past the days of experimenting on gay people as they did under apartheid. “Many people think it was just Nazi Germany that experimented on gay people, but it happened right here at Fort England,” says Shuaib, “it just went unreported.”
Shuaib eventually moved to Grahamstown with his partner Evert after both being offered jobs at Rhodes University, and has continued his social activism from within the Rhodes law faculty, taking a particular interest in matters such as land reform. When it comes to causes Shuaib supports, one of Shuaib’s colleagues in the faculty, Helen Kruuse, constantly asks him: “if you don’t champion it, who will?” It therefore makes sense that as an advocate and champion of social justice, Shuaib has many demands on his time and has a finger in every pie. “When I arrived I made the decision to get involved, and the rest as they say is history,” he concludes.