In Search of Privacy, or When is the State Democratic?

Part I: In Search of Privacy

What do we make of the extraordinary legal changes in South Africa regarding who can and who cannot have sex with whom? Since 1994 we have seen the repeal of prohibitions on sex between blacks and whites, and the withdrawal of the so-called 'sodomy' laws. The new constitution refuses discrimination not simply on the basis of race, but equally on the grounds of something called 'sexual orientation'. Moreover, it apparently protects a realm that is deemed private and ascribes to this sphere sexual conduct. Is this evidence of the democratic order that South Africa has entered, and the pre-democratic dispensation that it has left behind? Does this tell us something about the form of the state? Will we be entitled to conclude from the changes to be discussed that a democratic state is one that properly distinguishes between the public and the private? May we conclude equally that what characterises the non-democratic, indeed the so-called totalitarian state, is precisely that it conflates or abolishes this distinction? What do we make of the feminist charge that the 'private is political'? And therein lies the first disturbance to a happy liberal democratic politics. On closer examination the private domain (and with it the public) becomes very difficult to pin down. Its boundaries are constantly shifting or it simply vanishes. It is not so much that the public/private has been constituted since 1994. It is not so much that the new democratic state has withdrawn from a sphere now deemed 'private'. What has changed is the nature of its interventions precisely in this 'domain'. What does this say about the state since 1994?

In March 1950 the Minister of Justice introduced a bill to amend the Immorality Act. At stake was a certain ambiguity arising from the wording of the original statute. The law of 1927 prohibited 'illicit carnal intercourse between a European and a native' (Act 5 of 1927). The Act stated

Any European male who has illicit carnal intercourse with a native female, and any native male who has illicit carnal intercourse with a European female, in circumstances which do not amount to rape, an attempt to commit rape, indecent assault, or a contravention of section two or four of the Girls' and Mentally Defective Women's Protection Act, 1916 (Act 3 of 1916) shall be guilty of an offence liable on conviction to imprisonment for a period not exceeding five years (Act 5 of 1927, Section 1).

What was the problem?

The amendment to the Immorality Act came in the wake of a racial politics of identification and labeling. The Population Registration Act (PRA) of 1950 categorised South Africans according to a specific racial taxonomy:

[E]very person shall be classified by the Director as a white person, a coloured person or a native, as the case may be, and every coloured person and every native whose name is included shall be classified by the Director according to the ethnic or other group to which he belongs.(italics added)

(Act 30 of 1950, Section 5)

And therein lay the problem. A 'coloured' was defined as a person that was neither 'white' nor 'native' (Act 30 of 1950, Section 1). In other words, the PRA seemingly exempted coloureds from the strictures of the Immorality Act. Unwittingly, the new racial taxonomy had given licence to the harrowing prospects of miscegenation. It was precisely this loop-hole that the Amendment was intended to close. For this purpose the term 'native' was replaced with the more general 'non-European'.

We might not be surprised that those seeking to tighten up the Immorality Act had few qualms about permitting the state entry into the bedroom. Was this true for those opposing the Bill? Did they seek to defend a realm of privacy against the voyeuristic gaze of the state? The simple answer is 'no'. Indeed, the only person who indicated any queasiness about the subject was the very Minister of Justice introducing the Bill. 'This is an unpleasant matter to raise in this House,' he began. 'But it...