AS THE spotlight falls on the adoption of SA’s landmark Constitution, 20 years ago this year, one of its striking features — the inclusion of the historic constitutional guarantee of nondiscrimination based on sexual orientation — is also under global scrutiny.
The scene is set at the current session of the UN Human Rights Council, taking place in Geneva, Switzerland, until Friday July 1. The Human Rights Council is the UN’s primary human rights body, tasked with advancing and overseeing the protection and promotion of human rights in UN member states. SA is currently represented in the 47-member council.
Seven Latin American states (Argentina, Brazil, Colombia, Chile, Costa Rica, Mexico, Uruguay) have tabled a resolution calling for the establishment of an independent expert on protection against violence and discrimination based on sexual orientation and gender identity. One of the means through which the council aims to ensure the realisation of human rights is the appointment of independent experts dealing with specific human rights themes (such as torture and violence against women).
When the vote for this proposal comes up, which is expected on Thursday this week, SA should support such a new mechanism, for five reasons.
First, it aligns with our domestic constitutional obligation to address discrimination on any ground, given our own historical experience of racism and discrimination. It also acknowledges that legal provisions need to be given practical effect by putting in place effective institutional arrangements.
Second, it builds on the leading role SA has taken within the UN and on the African continent in advancing the protection and promotion of the rights of everyone, irrespective of their sexual orientation or gender identity. In 2011, we took the lead by introducing the first resolution on the issue of sexual orientation and gender identity for adoption by the Human Rights Council. The adoption of this resolution, bringing particular attention to the issue of violence on the basis of sexual orientation and gender identity, was followed up in 2014 by another resolution, which SA again strongly supported.
Third, it aligns with SA’s own strategy of a gradual and constructive approach that focuses on concrete solutions. In March this year, SA organised and hosted the first regional African seminar, entitled finding practical solutions for addressing violence and discrimination based on sexual orientation, gender identity and expression, which made a series of recommendations that are exactly the measures that an independent expert could support.
Fourth, it is in line with our commitments under the African Charter on Human and Peoples’ Rights. The African Commission on Human and Peoples’ Rights in 2014 adopted a resolution affirming that all state parties to the African Charter are expected to curb violence and other human rights violations based on a person’s real or perceived sexual orientation or gender identity; and must investigate such crimes and bring the perpetrators to justice.
The African Commission is the primary human rights body of the African Union (AU), tasked with advancing and overseeing the protection and promotion of human rights in AU Member States. In 2016, the AU celebrates 30 Years of Human Rights, marking the period since the entry into force of the African Charter (in 1986).
Finally, it builds on a series of positive recent developments elsewhere on the continent where African leaders, governments, parliaments, courts and national human rights institutions are standing up for the rights of sexual minorities. At the UN, 15 African States have made voluntary commitments to combat violence on the basis of sexual orientation and gender identity, showing that there is clear momentum not just in the region but also worldwide and a need for guidance and support from the UN to support the fulfillment of these commitments.
The position taken by the South African government recently in Geneva that it would not support the appointment of such an expert hovered between actual resistance and unexplained reticence. Positive indications are that the South African government has now changed its initial approach and will support the proposed resolution. While the government is to be commended for finally adopting an approach in line with its constitutional obligations, one would hope that this is a also sign of more consistent coherence between domestic law and external positions on this topic.
In the past, SA’s international stance on sexual orientation and gender identity within UN structures has unfortunately not always been in harmony with its domestic constitutional position. Up to 2011, our support for lesbian, gay, bisexual and transgender (LGBT) persons’ rights was ambiguous at best.
More recently, SA has been obstructing LGBT nongovernmental organisations (NGOs) from being granted UN Economic and Social Council (Ecosoc) consultative status, and failed to expressly condemn draconian legislation to jail and persecute lesbian and gay people in countries such as Nigeria, Gambia and Uganda.
SA’s contradictory stances at home and abroad have been ascribed to its concern for solidarity with Africa. Although one appreciates the quest for regional acceptance, this sentiment cannot be invoked to give credence to the notion that protecting LGBT persons against violence is "unAfrican".
The recent decriminalisation by Mozambique and the Seychelles of same–sex sexual relations between consenting adults, the fact that many countries in the region have never criminalised same-sex relations and that several support the proposed resolution at the Human Rights Council and have shown openness to dialogue on this issue, confirm that the view on this issue among African states is varied and changing.
The notion of a united African front on this issue has been further eroded when two African states (Angola and Benin) emerged as co-sponsors of the resolution currently under consideration.
There is no room for doubt. If SA does not support the establishment of the independent expert, it will send a terrible message that SA is turning its back on the widely documented killings and brutal violence that people continue to face — in SA and in the rest of the world — on the basis of their sexual orientation and gender identity. In effect, it would deny the LGBT community the right to live in dignity.
Our Constitution stands proud in its defence of the fundamental dignity and rights of all persons without exception. Ours is a proud history of combatting unjust violence and discrimination. By putting its weight behind this resolution and defending it from attacks, the South African government will not only affirm the values of our celebrated 20-year old Constitution, but also ensure that the promise of the AU’s Year of Human Rights is made real for some of those who are most vulnerable to violence on our continent.
• Sooka is executive director of the Foundation for Human Rights, Tabengwa acting director of Pan African ILGA, and Viljoen director of the Centre for Human Rights at the University of Pretoria.
