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A Death Sentence for Men who Loved Each Other - The Struggle to Decriminalize

Zackie Achmat is researching the connection between law, power and the Constitution.

Abdurrazack "Zackie" Achmat is a South African activist and film director. He is a co-founder the Treatment Action Campaign and known worldwide for his activism on behalf of people living with HIV and AIDS in South Africa. He currently serves as board member and co-director of Ndifuna Ukwazi, an organization which aims to build and support social justice organizations and leaders, and is the chairperson of Equal Education.

This Article provides important history and reflection, as over 30 African countries continue to criminalize LGBTQI people, resulting in violence, discrimination and forced displacement:

Zackie Achmat | Law and power: The long road to equality for gay men

By Zackie Achmat, South Africa, Nov 29, 2021: Claas Blank, a Khoi man, and Rijkhaard Jacobsz, a Dutch sailor, met on Robben Island where they were prisoners. The men started a relationship that lasted more than 20 years. In 1735, they were charged with the offence of sodomy. Under torture at the Castle in Cape Town, one of the men confessed and both were sentenced to death. On a cold and misty morning, they were taken out on a ship between Table Bay and Robben Island. Massive mountain rocks were tied to their bodies and Claas and Rijkhaard were forced into the sea. A death sentence for men who loved each other.

The film "Proteus" made by Jack Lewis and John Greyson tells this true story of love and death from a court record in the South African National Archives.

Once upon a time in South Africa, love, affection and sex could be punished with torture, the death penalty and severe prison sentences. Today, it remains a crime, at times punished with death, in some countries of the Middle-East, and most countries in Africa and Asia. The love of men for each other or any sexual encounter between us has led to prison, a criminal record and exclusion from certain categories of employment, and banishment or worse from our families, communities and the broader society.

Discrimination based on criminal law existed until 1998 when the Constitutional Court decriminalised sodomy imposed through Roman-Dutch Law, the common law crime of unnatural offences imposed through British colonialism and section 20A of the Sexual Offences Act. Section 20A was an amendment to the law by the apartheid regime in 1969 which deliberately criminalised not only sex, but, all affection between men. This legal provision was known as the "two men at a party" law because if two men held each other’s hands in the presence of one other person in their own home, they were committing a crime.

"A male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence. … 'a party' means any occasion where more than two persons are present."

Justice Laurie Ackermann wrote the unanimous judgment for the Constitutional Court and, to this day, it remains a touchstone for justice, equality and freedom.

This is the story of a struggle against unjust laws - the case of the National Coalition for Gay and Lesbian Equality (NCGLE) and the South African Human Rights Commission versus the Minister of Justice and Others. Decriminalising sodomy and other criminal laws remains the most symbolic and material contribution of the coalition in our struggle for freedom.

The offense of sodomy

In the documentary Law & Freedom, the late Ronald Louw summed up the context as follows:

"Really at the heart of gay and lesbian discrimination lies the offence of sodomy. It’s symbolic of a disgust, of a revulsion, and of an othering of gays and lesbians."

Through law, state power was exercised over the bodies of men and women who loved each other. Homosexual men were sent to prison and homosexual women were committed to mental asylums. Power was also enforced through religion, culture and tradition, leading to isolation and worse for countless numbers of lesbian, gay, bisexual, transgender and intersex people. Fear reigned in public and in private. Oppression, through the bureaucracy of the state, African customary law, Afrikaner-imposed Roman-Dutch law and English jurisprudence coexisted with the legal systems of Christianity, Islam, Judaism, Hinduism and other religions.



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