February 11, 2009

On April 28, 2008, Eudy Simelane, 31 years old, was gang-raped and brutally murdered in her home township, Kwa-Thema, in the East Rand near Johannesburg. The apparent motivation for her killing was that she was a lesbian who fought back "like a man."

South Africa has one of the highest rates of violence against women in the world. Amid the general crisis of sexual assault, women who are identified as lesbians or who don't conform to cultural or social norms for what women "should look like" or how women "should act" have also been targeted. Eudy Simelane's murder shocked the Kwa-Thema community.  It was long known as a tolerant and open township, a place where lesbian and gay life had been visible and free. Her death seemed to symbolize the collapse of that open space into violence and patriarchal prejudice.

The trial of a group of men accused of killing her opened on February 11 in Delmas, in Mpumalanga province. Delmas is a famous name among anti-apartheid activists. In the celebrated "Delmas treason trial" from 1985 to 1988, 22 activists were tried under security laws. Eleven were sentenced to prison, among them Simon Nkoli, a celebrated anti-apartheid fighter who also became a gay rights and AIDS activist, and who died in 1998.

Led by the Lesbian and Gay Equality Project, LGBT people from Kwa-Thema and across South Africa, along with Eudy's friends and family, have gathered in Delmas for the trial. They hope the court will bring justice for Eudy-and will shed much-needed light on violence against lesbian and bisexual women in South Africa.

LGBT rights researcher Dipika Nath is blogging from the trial.

Friday, February 13, 2009

Judge: Sexual Orientation Has ‘No Significance' to the Case

Today was the final day of the trial-of this part of the trial, the trial of the man who pleaded guilty. We went to the courthouse for the sentencing. I thought that perhaps there wouldn't be too many people out today. I imagined that everyone must be exhausted and, after all, the most emotionally wrenching part of the trial was over. Everyone was exhausted, but there was, if anything, a larger turnout today. By 9:30, the street outside the courthouse was crowded with activists again, with new posters-more ANC members in green, members of the Kwa-Thema Central Methodist Church in red dresses with white collars, young lesbians, along with a host of other activists, and Eudy's friends.

By 9:30, when the sentencing was scheduled to begin, the courtroom was again full, with no standing room. Mally, Eudy's mother, was in the front row as usual between her sister and a friend, composed as usual, mingling a little as everyone waited, making jokes about all the girls in her life. By the "girls" she meant all the young lesbians to whom she has opened her home, where they go when their birth families reject them. They call her "mum."

She had told me yesterday that she has "many daughters" now-and she has, in fact, become a mother to the large lesbian community in Kwa-Thema. She's a remarkable figure of hope and of love, after-and because of-the horror she's been through.

Thato Mphiti, the 24-year-old who had pleaded guilty yesterday to some of the charges, was brought in at about 10:30. Shortly after, the judge came in too, and the day began. The singing of the activists outside was louder inside the courtroom today and it didn't flag through the hour and a half that Judge Mavundla spoke.

He began recounting the several testimonies presented yesterday, moving between Mphiti's testimony, his character, the account of the robbery, attempted rape, and murder. He spent a considerable amount of time on the defense's arguments about the "substantially compelling circumstances" that could justify awarding Mphiti a reduced sentence. He also cited precedents, sometimes referring to his laptop.

About an hour into his remarks, Judge Mavundla spoke of "the youthfulness of the accused person." He cited precedents in which an accused person's age had served as a mitigating factor. He hoped that in time Mphiti would "realize the folly of his adventurous recklessness." He reminded the court that while some people mature early, "there are those who take longer to mature." The judge also suggested that Mphiti's incomplete education-he left school after ninth grade-as well as the fact that he had had a few drinks, may have influenced his capacity to act rationally. He spoke also of "the fright/fear syndrome," which, in his view, also impaired Mphiti's ability to behave as he might have under normal circumstances.

Speaking of the prosecutor's reference to sexual orientation yesterday-the prosecutor had asked Mphiti if he had known that Eudy was a lesbian and Mphiti had said that he had not-Judge Mavundla declared: "In my view, that [Eudy's sexual orientation] is of no significance." He effectively dismissed the possibility of understanding Eudy's murder as a crime motivated by prejudice, a hate crime.

This is, on the one hand, hugely disappointing to the activists. They had hoped that this trial, as well as the trial of the alleged killers of Zoliswa Nkonyana (to continue on March 20, 2009) would begin exploring why and how violence against lesbians happens in South Africa. What does it mean that Eudy was widely known in the township as a lesbian? What does it mean that she fought back? The activists hoped the trial would open a discussion about the meaning and nature of hate crimes based on sexual orientation and gender identity or expression, in the South African context.

Instead Judge Mavundla's referred to sexual orientation only to dismiss its relevance completely. Perhaps, though, that in itself inadvertently opens up the discussion. His claim that sexual orientation has "no significance" is now on record-and it can, according to activists, potentially be challenged.

In this context, Judge Mavundla also spoke of the South African Constitution, which guaranteed to all (residents as well as citizens, he clarified) certain freedoms. He said that constitutional freedoms and rights were guaranteed regardless of the specificities of race or any other factor. Thus, some of the critical questions at the heart of the issue of hate crimes have now also been placed on record.

 It's a paradox: sexual orientation is not "significant," but the constitutional promises have also been invoked. It seems emblematic of the problems and the politics around the Constitution here. Everyone cites it as proof and symbol of South Africa's progressive potential and reputation. Yet when it comes to the details and the hard questions-that "sexual orientation" is listed and protected, not just implied, that something has to be done to make this protection real-a silence seems to fall.

Local activists, including Phumi Mtetwa of LGEP, hope to refer to this judgment in other cases, and in the trial of the other three accused in this case, in order to push these questions. What do those constitutional protections require, when lesbians are vulnerable to violence?

By noon the audience in the courtroom seemed to be flagging. The judge had recounted the case and the opposing arguments in such detail that we were unsure whether he was even considering a life sentence. Thus when at about 10 past the hour the judge started to speak of the sentence that he had decided was appropriate in this case, the room straightened up en masse; you heard the breaths the people took in as they sat up to listen, and their faces lifted up.

Mphiti was sentenced to 31 years in prison. The time he has already spent in custody is to be deducted from the total. A couple of people started to clap as the judge finished reading the sentence. Others wondered how many years had been awarded in total. We filed out and immediately everyone started to speak of the fact that a reduced sentence means that Mphiti could potentially be out on bail in 10 years. Others thought that 31 years was more than they had thought the judge would award.

Perhaps predictably, most people left the courthouse with mixed feelings. We had a conviction. It was quite a severe sentence. But the court's claim disregarding sexual orientation left most people enraged. What is clear is that the July trial of the other three, who pleaded not guilty, is going to require a lot of strategizing about how sexual orientation, and gender identity and expression, should be addressed in their case.

This trial is over, but questions have been raised over the last three days that will inform the July trial, and this is where the activists' energies are now focused.

Thursday, Feb. 12, 2009

The Eudy trial finally started today, at about 10:30 a.m. Again, the court was full-fuller, in fact, than yesterday. There must have been more than 150 people in the room, most of them Eudy's friends, advocates, and family. Outside, at least 100 activists sang, danced and marched with signs. Through the morning's proceedings, their songs about Amandla, or power, and justice for Eudy played a constant accompaniment to the rather less-animated speeches inside the room.

The four accused men were brought into court and were charged with three crimes-murder, assault and robbery, and attempt to commit rape. One by one, they responded. Accused number one, Khumbulane Magagula, pleaded not guilty, as did accused numbers two and three, Johannes Mahlangu, and Thabo Mrubu.

Accused number four, Thato Mphithi, pleaded guilty to the first two charges. He pleaded not guilty to attempt to commit rape, but guilty to being an accomplice to the attempt to commit rape. His defense lawyer clarified to the judge and the court that he was pleading guilty to assisting with the attempt to commit rape. Though most of us had been told that it was likely that one of the men would plead guilty, the moment at which Mphithi pleaded guilty nevertheless sent a murmur and a sigh through the courtroom. He stood there, head down; he had walked in holding his head down, shuffling, partly because of the chains that bound his feet, and partly, it seemed, because he was in pain. As the day progressed, his head fell lower and lower until, at the end of the day, he walked down into the holding cell doubled over.

Having confessed, Mphithi made a statement in which he described "the unfortunate incident," as his lawyer put it at one point. His version of the facts is that the four men, having spent a few hours drinking, left the tavern at around 1:00 in the morning of April 28 and came across Eudy walking with some friends. They decided they would rob her. They grabbed her, stole her "takkies" (sports shoes), and looked for money. Finding that she had no money, one of them suggested that they rape her, and the others agreed. Mphithi held her legs, Magagula and Mrubu held her arms down, while Mahlangu attempted to "insert his penis into the vagina of the deceased."

At various points in this testimony, Eudy's girlfriend, her mother, her brother, her father, and more than one friend left the room sobbing or sat sobbing into their hands. Counselors from OUT LGBT Well-Being moved about the room, trying to help the people who were breaking down.

Following a short break, Judge Mavundla told the court that the case would become two separate cases-one to determine Mphithi's fate and another to try the other three accused. Another judge would be appointed for the second case. That case has been set to take place from July 29 to 31. There were sounds of disapproval and frustration from the gallery at this news, but it was hard to get a sense of the overall feeling in the room. On the one hand, one of the four men had confessed. On the other, Mphithi's plea did not seem like a victory or even a relief .... Perhaps the weight of what he was confessing to, and the description of how he and his friends killed Eudy, forestalled response.

The medical examiner gave evidence next, and stated that Eudy had been stabbed eight times, including on her neck, abdomen, and thighs. He found the thigh wounds "unusual" in such cases. He told the court, however, that Eudy was not raped; he found no semen on Eudy's thighs or groin area.

The grotesque details of the physical examination are hard for many of Eudy's friends and family to hear. The definition of rape itself has been a political issue in South Africa. It was only in 2007 that the country's Constitutional Court ruled that forced oral or anal, as well as vaginal, penetration of a woman could constitute rape; it took further legislative action to define sexual assault on a man as rape, instead of "indecent assault." Amid a burgeoning crisis of sexual violence, the slowness of law reform reflected the general creeping pace of the criminal justice system's response. In this case, activists have questioned whether a complete and adequate medical examination on Eudy's body was actually performed.

Mphithi took the stand, and on cross-examination said he felt remorse and acknowledged the gravity of what he had done, and that he hoped the judge would be lenient with him. Mally, Eudy's mother, took the stand, spoke about Eudy and her activist work, sports achievements, her generosity and community spirit. Mally did not cry. She said later that she held herself tight and made herself strong because she knew she would fall down if she let herself cry. Mphithi sat with his head in his hands while Mally spoke, and his head stayed in his hands the rest of the afternoon.

The defense lawyer pleaded with the court, saying Mphithi should not be sentenced to life in prison. She listed a few mitigating circumstances-including that Mphithi had been drinking that night, that he was remorseful, that he wanted to "improve his mind" while in prison and "become a better person," that he had not "fallen into a life of crime," and that he had accepted responsibility for his actions and volunteered to assist the state with the case against the other three accused. She cited several precedents to argue that life sentences have in the other cases been replaced with shorter prison terms.

The prosecutor argued for a life sentence; he attempted to show that the points offered by the defense as mitigating factors did not, in fact, mitigate Mphithi's guilt. The judge appeared to take exception to the prosecutor's statement that the state did not believe that Mphithi was truly remorseful and entered into an argument with the prosecutor. The prosecutor responded at first, but eventually ended the back and forth by saying that he was stating the state's position and did not wish to argue it further.

Mphithi will be sentenced tomorrow.

There are mixed feelings among the activists who were in court and outside today. Justice does not just mean punishment, but some prospect of change in the future. Many hope the second case will provide an opportunity to establish that Eudy's murder was a hate crime.

So, Mphithi will receive his sentence tomorrow. And the activists are beginning to strategize about how to prepare for the July  trial. The case came to trial, guilt has been established to some measure, and Mphithi will presumably spend several years in prison.  

Back at the guest house in Delmas, people are going about their business in a deceptively normal manner. A few people went to the store to get tomatoes, some of the older women are watching "The Bold and the Beautiful" on TV, some people are cooking, others chatting. We will all meet in about an hour to talk about the day and the trial. It may be a long night or there may be nothing more to be said, just for today.

Wednesday, Feb. 11, 2009

Wednesday, 11 a.m.

About 65 people sat without elbow room on four long benches, and another 30 or so stood along the walls waiting for the trial to begin. Anyone wanting to watch the trial would have had to stand in the doorway and look over people's heads. Mally-Eudy's mother-told me last night, when I  asked her what she would consider justice, that all she wanted was to not look at the men accused of murdering her daughter. There she sat in the front row, along with other family members, with a slight frown on her face, smiling, being kind to people who asked her if she was doing all right.

Almost all of the 100-odd people in the public gallery wore red or lime-green T-shirts that demanded that Eudy and other victims of hate crimes never be forgotten. Many also wore shirts and scarves that signaled their association with other LGBT, women's rights, and HIV and AIDS organizations, including OUT LGBT Well-Being, CAL (Coalition of African Lesbians), TAC (Treatment Action Campaign), and FEW (Forum for the Empowerment of Women). Apart from the activists camping in Delmas, another busload of supporters, friends, and family arrived at the courthouse from Kwa-Thema this morning.

The vibrant green and yellow of the ANC was also prominently present in the room. The provincial offices of the ANC in Kwa-Thema have maintained strong connections within the communities, and their participation played a significant role in keeping of the need to bring justice for Eudy's murder in the public eye. Some organizers in the LGBTI movement in South Africa have strongly criticized the ANC over some issues. For example, its presidential candidate, Jacob Zuma, said in 2006 that "When I was growing up, an ungqingili (a gay man) would not have stood in front of me. I would knock him out." Zuma later apologized.  However, there is no denying the support of the ANC activists through the pre-trial hearings and the trial.

What was happening inside the courtroom, however, was only one part of the trial. On the street outside the courthouse, another 40 or so activists were holding signs, singing, dancing, marching up and down the street with banners demanding an end to violence against women and justice for Eudy. Among them were about a dozen soccer players who play with The Chosen Few, a Kwa-Thema soccer club that the Forum for the Empowerment of Women has organized, in their blue-and-yellow uniforms. They sang Zulu activist songs, clapped, chanted, and stomped their feet. Their singing could be heard from inside the courtroom. Eudy was a soccer player; she loved sports and was a well-known athlete in Kwa-Thema. The singing and chanting gives some hint, for those who didn't know her, of her vibrancy and vigor and the memories she left with those who loved her.

Wednesday, 2 p.m.

Upon the request of the lawyer for accused number four, the trial has been postponed until 9:30 a.m. tomorrow-the lawyer said that she needed to collect a few documents and hold some consultations and contended that the delay would eventually "benefit the state." Some suggested that the decision to postpone may well indicate a stronger case against the accused. Whether this will result in two separate trials and exactly how this will strengthen the prosecution's case will only become clearer over the next two days. There was obvious disappointment at the decision to postpone the trial by a day. The judge acknowledged the strong presence of "external interests" in the case-Eudy's family and friends, and the activists gathered in and outside the courthouse.

Tomorrow, everyone will be back at the courthouse; again, a busload will travel into Delmas from Kwa-Thema; again, there will be singing and dancing and chanting and marching outside the court. Again, the four accused will be brought up stairs leading into the courtroom from the basement; again, we will all rise as the judge comes in; and tomorrow, the men should plead.

Background

On February 4, 2006, Zoliswa Nkonyana, a 19-year-old lesbian from the Khayelitsha township near Cape Town, was walking near her home with a lesbian friend. The friend said they were confronted by a schoolgirl who taunted them for being "tomboys" who "wanted to be raped." A mob of young men gathered around them. Nkonyana's friend ran away, but the mob caught Nkonyana. They beat her with golf clubs, threw bricks at her, and stabbed her. She died in the hospital shortly afterward. 

On July 8, 2007, the bodies of Sizakele Sigasa, 34, and Salome Masooa, 24, were found in a field in Meadowlands, Soweto. Sigasa had been shot six times; Masooa had been shot once. Sigasa was openly lesbian and an activist for the rights of people living with HIV/AIDS as well as the rights of lesbian, gay, bisexual, and transgender (LGBT) people.

Two weeks later, in another case, believed to be unrelated, the body of another lesbian, Thokozane Qwabe, 23, was found in a field in Ladysmith, KwaZulu-Natal.  She had multiple head wounds and was naked.

On paper, South Africa has some of the world's most progressive affirmations of  human rights for LGBT people. Its post-apartheid constitution was the world's first expressly to list sexual orientation as a status protected from discrimination. Yet, almost 20 years after the unraveling of authoritarian white rule, many of those protections for human rights remain unimplemented and unenforced.