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VI. CONCLUSION
State-sponsored homophobia-the campaign of hate engaged in by political leaders in southern Africa-devastates lives. It strikes at core values of democratic societies. And it violates international human rights standards.
A. International Law
State rhetoric identifying lesbian, gay, bisexual or transgender people as "dogs and pigs," as "perverts," as alien influences to be "uprooted" or "eradicated" from the national life, singles people out on the basis of their sexual orientation or gender identity and marks them in the public view as permanently unequal. It constitutes discrimination and incites to further discrimination.
The International Covenant on Civil and Political Rights (ICCPR) affirms the equality of all people, in two significant provisions.55 Article 2.1 states:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 26 affirms:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
In the 1994 case of Nicholas Toonen v Australia, the U.N. Human Rights Committee, which monitors compliance with and adjudicates violations under the ICCPR, heard a complaint concerning a "sodomy law" punishing consensual, adult homosexual conduct in the Australian state of Tasmania. The Committee held that such laws violate protections against discrimination in the ICCPR, as well as article 17, which protects the right to privacy.56 Specifically, the Committee held that "sexual orientation" was a status protected under the ICCPR from discrimination, finding that "the reference to `sex' in articles 2, para. 1, and 26 is to be taken as including sexual orientation."57
The Human Rights Committee's ruling on "sodomy laws" drew on a standing body of jurisprudence against them. The European Court of Human Rights found in three cases in the 1990s that such laws violated the right to privacy in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.58 Although the European Court customarily gives a wide "margin of appreciation" to states in respect of difference in practices and values, the Court specifically found that "the protection of public morals" did not present an adequate justification for restricting the right to privacy on the basis of sexual orientation.59 In Toonen, the U.N. Human Rights Committee also declared that it "cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern."60
The U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions has observed the relationship between sodomy laws-and, by extension, other forms of state rhetoric-stigma, and violence:
The Special Rapporteur ... believes that criminalizing matters of sexual orientation increases the social stigmatization of members of sexual minorities, which in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life. Because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also more likely to be committed in a climate of impunity.61
However, the findings of the U.N. Human Rights Committee, and the protections of the ICCPR, go far beyond requiring the abolition of sodomy laws. The Committee has elsewhere found that the prohibitions of discrimination in the ICCPR place a broad mandate on states to remedy unequal treatment in all areas of life. Thus it has declared that article 26 "prohibits discrimination in law or in fact in any field regulated and protected by the public authorities." Any state that regulates private employment, for example, therefore is responsible for offering protections against discrimination in that sphere-including protections against discrimination based on sexual orientation. The Committee has also found that the article bars acts and policies that are discriminatory in effect, as well as those that intend to discriminate. 62
The Human Rights Committee has urged states to include in their constitutions the prohibition of discrimination based on sexual orientation.63 In its 1998 observations on the state report of Zimbabwe, the Committee noted "with concern that homosexuals are subjected to discrimination... The Committee recommends that such legislation [enabling discrimination] be brought into conformity with the Covenant."64
Article 19(2) of the ICCPR affirms that:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice. 65
States violate this right when they suppress information on gay and lesbian existence, eradicating it from either the state-controlled or private media. States violate this right when, as in Zimbabwe, they censor gay-themed films or seize gay and lesbian books and magazines. But states also violate this right when they use obscure laws on public conduct or behavior to harass and penalize people for the expression of their sexual orientation or gender identity. States violate this right when they encourage public officials-or incite or excuse other agents-in violence or harassment against men or women who dress, walk, or act in ways at odds with social norms for expressing gender.
Article 21 of the ICCPR states that "The right of peaceful assembly shall be recognized." Article 22.1 of the ICCPR affirms that "Everyone shall have the right to freedom of association with others."
States violate these rights when they incite violence against, or deny equal protection to, gays and lesbians participating in public manifestations or peaceful marches. They violate these rights when they offer no protection to gays and lesbians subject to violence when they gather, socialize, or meet in public places, including bars, pubs, and clubs. They violate these rights when, on discriminatory grounds, they deny groups and NGOs the right to register and enjoy a formal, legal existence. They violate these rights when they incite destructive harassment against NGOs and civil society actors for their defense of, or debates about, basic human rights and fundamental freedoms, including those of marginalized identities and communities.
The U.N. General Assembly's "Declaration on Human Rights Defenders" calls special attention to the important role of these rights in the defense of all human rights. In its article 5, the Declaration affirms that
For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:
a) To meet or assemble peacefully;
b) To form, join and participate in non-governmental organizations, associations or groups;
c) To communicate with non-governmental or intergovernmental organizations.
Article 6 of the Declaration holds that:
Everyone has the right, individually and in association with others:
(a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems;
(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms;
(c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.
And article 7 affirms that:
Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.
Indeed, the Special Representative of the U.N. Secretary General on Human Rights Defenders has called attention to the "greater risks... faced by defenders of the rights of certain groups as their work challenges social structures, traditional practices and interpretations of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups. Of special importance will be... human rights groups and those who are active on issues of sexuality, especially sexual orientation... These groups are often very vulnerable to prejudice, to marginalization and to public repudiation, not only by state forces but by other social actors."66
All these rights have been violated or endangered through the rhetoric employed, the directives issued, and the repressive laws enforced by state officials in Botswana, Namibia, Zambia, and Zimbabwe.67
Article 9.1 of the ICCPR states:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The travaux preparatoires to article 9 of the Convention make clear, in the words of one commentator, that "arbitrary" means not simply "unlawful" arrest or detention, but includes police or judicial actions that display "elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality," though the reason for the arrest may lie within the letter of the law. In particular, "the specific manner in which an arrest is made must not be discriminatory and must be able to be deemed appropriate and proportional in view of the circumstances of the case."68
The U.N. Working Group on Arbitrary Detention has affirmed that the detention of people solely on the basis of their sexual orientation violates fundamental human rights-even though the laws under which they are detained may not expressly refer to homosexual conduct.69
The ICCPR's protections are violated when state agents--acting on the basis of sodomy laws, or of vaguely, sweepingly written laws punishing a broad range of public conduct--arrest or detain people on the basis of their sexual orientation, or their gender expression or identity.
Article 7 of the ICCPR states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
This basic, non-derogable protection is violated when state agents beat, maltreat, and abuse people on the basis of their sexual orientation and gender identity. It is violated when non-state actors (whether in the community, in public or private places, or in the family) inflict physical abuse, including sexual abuse, on people because of their sexual orientation or gender identity or expression, enjoying impunity granted by-or acting at the urging of-state authorities.70
A lengthy recent statement by the U.N. Special Rapporteur on Torture to the General Assembly is relevant in this regard. It examines, and condemns, many of the causes and consequences of abuses detailed in this report.
The Special Rapporteur notes that a considerable proportion of the incidents of torture carried out against members of sexual minorities suggests that they are often subjected to violence of a sexual nature, such as rape or sexual assault in order to "punish" them for transgressing gender barriers or for challenging predominant conceptions of gender roles.
The Special Rapporteur has received information according to which members of sexual minorities have been subjected, inter alia, to harassment, humiliation and verbal abuse relating to their real or perceived sexual orientation or gender identity and physical abuse, including rape and sexual assault. He notes with concern that, according to the information received, the rape of a man or of a male-to-female transsexual woman is often subject to the lesser charge of "sexual assault," which carries lighter penalties than the more serious crime of rape in a number of countries.... Ill-treatment against sexual minorities is believed to have also been used, inter alia, in order to make sex workers leave certain areas, in so-called "social cleansing" campaigns, or to discourage sexual minorities from meeting in certain places, including clubs and bars.
While no relevant statistics are available to the Special Rapporteur, it appears that members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment, because they fail to conform to socially constructed gender expectations. Indeed, discrimination on grounds of sexual orientation may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place. The Special Rapporteur further notes that members of sexual minorities are a particularly vulnerable group with respect to torture in various contexts and that their status may also affect the consequences of their ill-treatment in terms of their access to complaint procedures or medical treatment in state hospitals, where they may fear further victimization, as well as in terms of legal consequences regarding the legal sanctions flowing from certain abuses. The Special Rapporteur would like to stress that, because of their economic and educational situation, allegedly often exacerbated or caused by discriminatory laws and attitudes, members of sexual minorities are deprived of the means to claim and ensure the enforcement of their rights, including their rights to legal representation and to obtain legal remedies, such as compensation...
Discriminatory attitudes to members of sexual minorities can mean that they are perceived as less credible by law enforcement agencies or not fully entitled to an equal standard of protection, including protection against violence carried out by non-state agents. The Special Rapporteur has received information according to which members of sexual minorities, when arrested for other alleged offences or when lodging a complaint of harassment by third parties, have been subjected to further victimization by the police, including verbal, physical, and sexual assault, including rape.71
Children have particular rights to protection from violence and from torture or cruel or inhuman treatment. The Convention on the Rights of the Child (CRC)72 affirms in its article 19 that youth have the right to protection from "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child." The U.N. Committee on the Rights of the Child has cited this provision in calling for state action against abuse and abandonment of children within the family. 73
The Convention on the Rights of the Child also affirms, in article 28.1, that:
States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
These rights are violated when families expel or abuse children because of their sexual orientation, or gender identity or expression, and when state authorities undertake no effective interventions to address or prevent those actions. These rights are violated when children are harassed or abused at school, or expelled from school, because of their sexual orientation, or because of the way they do not correspond to gender norms for appearance or behavior.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) 74 also affirms the right to education, and adds in its article 13.1:
States parties agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
The CRC expands on these mandates, requiring in article 29.1 that education shall be directed at, inter alia,
The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;...
The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin...
States neglect these obligations, and violate the rights of children, when they fail to introduce curricula that will promote and advance the human rights of all peoples, including those suffering discrimination based on their sexual orientation. States overtly violate these obligations, and show contempt for the rights of children, when they allow educational systems to become centers for disseminating prejudice and practicing hatred.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)75 commits states in its article 1 to the eradication of "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."
The Convention also protects the rights of women to economic and social equality, including participating in both the planning and the benefits of development, as well as their right to "participate in all community activities" (article 11, article 14). It protects their right to equality in education, including the "elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education" (article 10.c). And it mandates that states "modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women" (article 5.a).
These protections are violated when states reinforce stereotyped gender roles by heaping further stigma upon those who contravene them. They are violated when states encourage communities to discriminate against, or drive out, non-conforming women. They are violated when states vilify women's activists striving to ensure and protect equality rights. They are violated when states condone an atmosphere of violence, in which women who do not conform to gender roles or other social expectations may be abused or raped, in public spaces or in the home.
The Convention requires states to act against abuse and discrimination in families and communities. The U.N. Special Rapporteur on Violence Against Women has observed that communities
"police" the behaviour of their female members. A woman who is perceived to be acting in a manner deemed to be sexually inappropriate by communal standards is liable to be punished... In most communities, the option available to women for sexual activity is confined to marriage with a man from the same community. Women who choose options which are disapproved of by the community, whether to have a sexual relationship with a man in a non-marital relationship, to have such a relationship outside of ethnic, religious or class communities, or to live out their sexuality in ways other than heterosexuality, are often subjected to violence and degrading treatment... Women, "unprotected" by a marriage union with a man, are vulnerable members of the community, often marginalized in community social practices and the victims of social ostracism and abuse.76
The Convention also requires states to refrain from discrimination themselves, or from legal or other language that confirms or incites it. In its comments on the state report of Kyrgyzstan, for instance, the Committee on the Elimination of Discrimination Against Women stated:
The Committee is concerned that lesbianism is classified as a sexual offence in the Penal Code.
The Committee recommends that lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished.77
The International Covenant on Economic, Social, and Cultural Rights (ICESCR), in its article 12.1, affirms "the right of everyone to the highest attainable standard of physical and mental health."
In its General Comment 14, the U.N. Committee on Economic, Social, and Cultural Rights (which evaluates the realization of rights under the Covenant) specifically noted that this article means states may not discriminate based on sexual orientation in the enjoyment of this right.
By virtue of article 2.2 and article 3 [equality provisions in the treaty], the Covenant proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation [emphasis added] and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health...
With respect to the right to health, equality of access to health care and health services has to be emphasized. States have a special obligation to provide those who do not have sufficient means with the necessary health insurance and health-care facilities, and to prevent any discrimination on internationally prohibited grounds in the provision of health care and health services, especially with respect to the core obligations of the right to health.78
The Committee also emphasized that the right to health includes "access to health-related education and information, including on sexual health"; it observed that information accessibility "includes the right to seek, receive, and impart information and ideas concerning health issues." The Committee called on states to refrain from "censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information, as well as from preventing people's participation in health-related matters." And it required states to meet "obligations in the dissemination of appropriate information relating to healthy lifestyles and nutrition, harmful traditional practices and the availability of services." 79
Governments violate these protections when they deny, or condone denying, medical services to people based on their sexual orientation or gender expression or identity. Governments violate these protections when they fail to provide-or when they censor-health information targeted at vulnerable individuals and groups, in the context of HIV/AIDS or other diseases. Governments also violate these protections when they interfere with or penalize the efforts of NGOs and civil-society actors to address health issues, or to engage in outreach on such issues to affected populations.
Article 23.2 of the ICCPR states, "The right of men and women of marriageable age to marry and to found a family shall be recognized."
This article does not define marriage as between a man and a woman. In fact, there is no such definition of marriage in the international instruments. In its absence, the strength of international protections against discrimination-including protections based on both sex and sexual orientation-applies to the question of who enjoys this right, and how. Excluding gays and lesbians from the status of civil marriage constitutes discrimination based on sexual orientation. However, it can also be construed as discrimination based on sex, since marriage would be open to those persons but for the sex of their chosen partner. The ICCPR bans both.
It is important to observe also that United Nations and other international bodies have shown respect for evolving, rather than fixed, definitions of the family. The U.N. Human Rights Committee has noted that "the concept of the family may differ in some respects from state to state, and even from region to region within a state, and ... it is therefore not possible to give the concept a standard definition."80 The U.N. Committee on the Rights of the Child has also stated:
When considering the family environment, the Convention [CRC] reflects different family structures arising from various cultural patterns and emerging family relationships.81
The U.N. Special Rapporteur on Violence Against Women has observed,
Throughout the world, there exist divisions between the dominant, normative ideal of the family and the empirical realities of family forms. Whether the ideal is the nuclear family or a variation of the joint or extended family, such ideals in many cases are not wholly consistent with the realities of modern family forms. These family forms include, in increasingly large numbers, female-headed households in which women live alone or with their children because of choice (including sexual and employment choices), widowhood, abandonment, displacement or militarization....
Despite such differences, however, the culturally-specific, ideologically dominant family form in any given society shapes both the norm and that which is defined as existing outside of the norm and, hence, classified as deviant. Thus, the dominant family structure-whether it is dominant in fact or merely in theory-serves as a basis against which relationships are judged. Further, it serves as the standard against which individual women are judged and, in many cases, demonized for failing to ascribe to moral and legal dictates with respect to family and sexuality... Such ideology exposes women to violence both within and outside the home by enforcing women's dependent status, particularly among poor and working class women, and by exposing those women who do not fit within or ascribe to traditional sex roles to gender-based hate crimes... Such demonization fuels and legitimates violence against women in the form of sexual harassment, rape, domestic violence, female genital mutilation, forced marriages, honour killings and other forms of femicide.
The Special Rapporteur also maintains that state refusal to recognize non-traditional family forms can deny women (as well as men) within them the full protection of the law against domestic violence and abuse-and can further endanger the situation of human rights defenders.
Increasingly women's human rights defenders are coming under attack for, among other things, challenging traditional notions of the family. Public denouncements, accusations, harassment and physical violence are increasingly employed against women's human rights defenders. Commentators argue that in order to ensure that women's human rights are protected in both public and private life, the acceptance of non-traditional family forms is necessary. It is essential to recognize the potential for and work to prevent violence against women and the oppression of women within all family forms.82
By denying legal recognition to same-sex partnerships, states further stigma and foster violence. They deprive a class of people of important economic and social benefits that heterosexual couples can obtain and share. They also deny to that class crucial legal protections.
B. Detailed Recommendations
Human Rights Watch and the International Gay and Lesbian Human Rights Commission (IGLRHC) call on all political leaders in the region:
· To refrain from statements that incite division, hatred, violence, and discrimination based on sexual orientation or gender expression or identity.
Human Rights Watch and IGLHRC also call on the governments of Botswana, Namibia, Zambia, and Zimbabwe:
· To repeal so-called "sodomy laws," or laws that criminalize consensual, adult, homosexual acts. In particular,
o Namibia and Zimbabwe should repeal the common-law offense of sodomy;
o Namibia should remove sections of the "Combatting of Immoral Practices Act," 1980, which refer to sexual relations between people not united in a civil or customary marriage as "unlawful carnal intercourse";
o Botswana should repeal Sections 164, 165, and 167 of its Penal Code;
o Zambia should repeal Sections 155, 156, and 158 of its Penal Code.83
o Zimbabwe should also modify or repeal Sections 15-18 of its 2001 Sexual Offences Act that radically increase penalties for "sexual offences" committed by an HIV-positive person, whether or not aware of his serostatus; that list "sodomy" as a "sexual offence"; and that deny accused persons the right to consent before, and confidentiality after, HIV testing.84
· To modify or repeal all vague laws that restrict public conduct on moral or other grounds without specifiying the behaviors barred. These include relevant provisions in Sections 172 and 178 of Zambia's Penal Code; Zimbabwe's Miscellaneous Offences Act of 1964; and any similar provisions in other states.85
· To repeal laws giving governments power to restrict the internationally recognized right to freedom of expression, including Sections 54 and 55 of Zambia's Penal Code; Zimbabwe's Censorship and Entertainments Control Act of 1967; and any similar provisions in other states.
· To end police abuse and surveillance of people and groups based on their sexual orientation or gender identity or expression. Investigations should be launched into allegations of police brutality, extortion, and torture; those found responsible should be held accountable. Police and other officials in the criminal justice system should be trained in sensitivity to minorities and to human rights protections, including protections based on sexual orientation.
· To end discrimination in the provision of health care, and to ensure that gay, lesbian, bisexual, and transgender people as well as all other vulnerable groups have access to relevant and appropriate information on health, including information on sexual health and HIV/AIDS.
· To enact laws protecting against discrimination on the basis of sexual orientation or gender identity or expression.
· In future processes of constitutional revision, to include provisions that:
· To open the status of marriage and all the rights and benefits it entails to same-sex couples; and to ensure that legal rights and protections are available to partners in same-sex relationships as in all relationships, whether married or not.
Human Rights Watch and IGLHRC call on the government of South Africa:
· To enact legislation opening the status of marriage and all the rights and benefits it entails to same-sex couples; and to ensure that basic legal rights and protections, including protections against domestic violence, are available to partners in same-sex relationships as in all relationships, whether married or not.
· To pass a revision of the Sexual Offences Act that equalizes the age of consent for homosexual and heterosexual sexual relations, and defines the crime of rape in such a way that the rape of men by men, or of women by women, is included in the definition and subject to equal punishment.
· To enact measures that would allow post-operative, as well as certain categories of pre-operative, transgender persons legally to change their identity papers to correspond to their preferred gender.
· To create or empower mechanisms to investigate violations of, and determine how state and private agents should enforce and uphold, the sexual-orientation protections of the Equality Clause of the constitution. These measures may include:
o Ensuring that existing Commissions responding to human rights violations (including the Human Rights Commission and the Commission on Gender Equality) assign to at least one commissioner specific responsibility for sexuality issues, with staff delegated to assist, engage in outreach and publicity, and engage in litigation or mediation where necessary;
o Ensuring that existing mechanisms for enforcing protections in the Equality Act-including its protections against private-sphere discrimination-are clearly mandated to focus on issues of sexuality and sexual orientation as well as race, gender, and disability;
o Ensuring that officers in the Office of the President, and officers in each department, are mandated to monitor the impact of existing and proposed laws and policies on the Equality Clause protection of sexual orientation;
o Ensuring that issues of sexual orientation and gender identity be standing agenda items for consideration in debates by all Parliamentary Portfolio Committees, including those addressing health, welfare, justice, police, and prisons;
o Creating new mechanisms for responding to issues of sexuality as necessary.
· To develop and implement a state public education campaign promoting understanding of the rights of lesbian, gay, bisexual, and transgender people, in the context of human rights and constitutional protections in general. Civil society, particularly lesbian, gay, bisexual, and transgender groups and NGOs, should be consulted at all stages in the process. This should include:
o Developing, again in cooperation with civil society actors, educational and training materials promoting understanding of the rights of lesbian, gay, bisexual, and transgender people. Such materials should be developed for use at all levels-in families, in schools, in communities, and in training state employees, including officials in the criminal justice and health care sectors.
o Developing, again in cooperation with civil society actors, educational and outreach materials specifically targeted at lesbian, gay, bisexual, and transgender populations--as well as men who have sex with men and women who have sex with women, but who may not identify themselves in the above terms. These materials should explain both their rights and their recourses under the constitution and existing law.
o Ensuring that libraries, the state media, and other state institutions for disseminating information have, and distribute, information on sexual orientation, gender identity, and their constitutionally protected status.
o Ensuring that key state personnel-including police, magistrates, prosecutors, judges, and health care professionals-are trained in lesbian, gay, bisexual, and transgender issues, at the initiative and expense of the state.
o Mandating key state institutions, including the criminal justice and health care sectors, to engage in outreach to lesbian, gay, bisexual, and transgender groups and NGOs, at local as well as national levels, in order to explore barriers to working together, and ways to overcome them.
· To offer funding and support to civil society actors on a non-discriminatory basis, supporting both their service provision and their advocacy work-including NGOs and groups that may advocate against government policy.
· To ensure that legal education in state institutions includes full treatment of the growing body of sexual orientation law.
· To take measures giving incentives to attorneys to engage in pro bono legal work, particularly representing indigent clients or assisting NGOs who do.
· To ensure that the right to asylum from persecution based on sexual orientation and gender identity is respected by South Africa's immigration authorities.
· To develop protocols for the protection of vulnerable prisoners-including lesbian, gay, bisexual, and transgender prisoners-in all places of detention. These protocols should ensure the prisoners' safety in the context of the specific needs of each group, and should do so without imposing punitive measures or social isolation.
· To speak out against all forms of persecution and abuse in other countries, and defend the international relevance of the values in South Africa's Constitution and its Equality Clause.
Human Rights Watch and IGLHRC call on all NGOs in the region as well as internationally, and particularly human rights organizations and movements:
· To speak out whenever state officials incite or practice discrimination or abuse.
· To seek out marginalized and stigmatized groups, and work to bring their concerns into the mainstream of human rights and other social movements.
C. Postscript: Heather's Story
We spoke to Heather, thirty-one years old, born and raised in Harare, in the garden outside GALZ's offices on a bright day in August 2000-the morning after she told her husband she was a lesbian.
She was more confident of her future than many women and men interviewed for this report. Her story grew from an urban, middle-class world not typical of Zimbabwe: one where spaces-from streets to shops to schools-were at least tenuously available for women to be independent, in the at least temporary absence of men. Possibilities open to her were closed to others. Yet it also reflected something both more intimate and more generally human: the exhilaration of first freedom, a sudden, fragile but invigorating sense of personal power.
Heather told us:
So here I am, today. I feel as if I have no problems in the world. Actually, though, I do. The world is my problem, you might say.
My problem is that from my teenagehood, from age twelve or thirteen, I always felt attracted to other girls. If I would go in a changing room, whenever I saw another female naked, I would feel turned on. And then I would start fantasizing about holding that person. But you see, according to our African tradition, when you finish school you must get married and so on. So I got married. I had three sons.
But my relations with my husband were so difficult that, from the beginning of last year, I have not been sleeping with him. Each time he released his semen, I felt like vomiting. I had to shut my eyes and pretend that I was with another woman.
So I finally told him I had no feelings for him. It was hurting me to have sex with him. I told him I had to use petroleum jelly and facilitate it, because I had no feelings.
He started believing I had spirits in me, and maybe the spirit I had in me was male. And that spirit did not want me to have sex with another man. He never thought it had anything to do with my having sexual desires for women, with my lesbianship. He wanted me to go to the rural areas, he would give me over to my father, and do what must be done: kill a beast, appease the spirit, drink African beer.
Well, I didn't want that. I opened the phone directory, found GALZ, and called. Poliyana [Mangwiro] gave me directions, and I came over.
I went to a party GALZ had. There were a few women there and they were attracted to me, but I was not attracted to them. Then came a certain girl, and we were attracted to each other from her arrival. We have been communicating, but there is a problem. She is committed to a certain man. I don't want to hush up anything. I want to have someone with whom I can be me.
It is a bit difficult putting the message across to my husband. The first day, he followed me here [to the GALZ Center]. He saw some gay guys about. I had told him this was a branch of Amnesty International. Well, he knows I am very interested in human rights, he always says, you should have been a lawyer by profession. I told him I had to come to see how they do things: human rights, you know, for women who are abused by their husbands.
Well, he was very slow about it. He just didn't get what was going on. The girl I was interested in, she even took me and my husband to her place. He watched me punch her number in my cellphone. And he still didn't know. He drove me here many times. But he kept asking, "What do you do there?" I told him I assisted with computers. Then, at the [2000] Book Fair, I insisted I wanted to go to the GALZ stand. He didn't want me to go to the Fair: he said, "You want to become a writer or what?" I went, and I got pamphlets on lesbians and gays, books on people's feelings, and such. I got home and threw them on his bed. I knew he would go through each one that evening. And I went in the kitchen and started cooking.
He came to me and said: "What is this stuff?"
I said: "This is the life certain people live."
He said: "Why are you so interested?"
I said: "Why are gay and lesbian people treated as outsiders?"
He said: "Because what they do is inhuman. Their practices are a disgrace to God and all men."
I said: "I see nothing wrong with it. It is difficult to change people's desires." And I said, "How do you think people get to the stage of deciding they will have a same-sex partner? When they realize they can't have feelings for the opposite sex."
He said, "Don't you find it embarrassing?"
I said: "No."
He kept quiet.
Just yesterday I came here and got more GALZ publications, and left them at home. He said then: "Why are you really, really interested in this stuff?"
For the first time I confessed. I told him: "I am part of them."
And finally we talked.
He asked, "Do you have a girlfriend? Do you sleep around?"
I said, "No, I have one girl I have a crush on. And we have no sex. She has a man."
He said: "I know you are seeing somebody. Are you going to continue with this lesbianship?" And he asked me how long I had had it in me.
I told him about everything, about my teenage fantasies. Well, I was afraid he might grow violent. But he did not. But he said I must not tell the kids.
This morning I put on a GALZ T-shirt. I had got it yesterday. He got angry: he said, "It is bad for the public as a whole." He said, "People will assault you, shout at you."
And I said, "If it is an offence, I'll appear before a court of law. I want to know if human rights exist in this country."
He wouldn't take me to the Center, so I had to use public transport. I wore the T-shirt and carried my jacket in my hands. People stared at me, some in interest, some with that kind of eye which says, "At least you've got the guts."
And I felt proud.
My husband doesn't want a divorce. He doesn't want his relatives and friends to know. He has a girlfriend. So he lets me go without sex.
I think I could support myself without my husband. I have been working for [a Harare NGO] part-time for years. But I need to get a job which is not just working for money, but one which will satisfy my inner soul at the end of the day.
A lot of people are gay or lesbian and are shy to come out of their shells. If Magistrate's Court could reveal how many marriages end after one or two years because of "sexual differences"! People marry to please their parents, but they are gay and have to pretend all their lives. If I had five of those T-shirts I would put them on from Monday to Friday. I just feel that I should be free.
I have the wish that all African women can stop pretending and being afraid. They should be adults, not afraid of their extended families, their mothers and fathers, or their husbands.
I wish I could go to the rural areas trying to make people realize who they are. I wish I could let them know they are not the only ones, and it is not just an "unnatural offence." In law, maybe, but not in reality.
We don't encourage women to break their marriages. But we should encourage them to discover who they are and make their choices. Before she dies she should find out, and live a few years as herself.
So let's go to rural areas! Let's talk to the women!86
55 Botswana became a party to the ICCPR on September 8, 2000. Namibia acceded to the treaty on November 28, 1994. Zambia acceded to it on April 10, 1984, and Zimbabwe on May 13, 1991. South African became a party to the treaty on December 10, 1998.
56 Article 17 reads:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
57 Nicholas Toonen v Australia, Human Rights Committee, 50th Sess., Case no. 488/1992, UN Doc. CCPR/c/50/D/488/1992, at 8.7.
58 Dudgeon v United Kingdom, 4 Eur. HR Rep. 149 (1981); Norris v Ireland, 13 Eur. HR Rep. 186 (1989); and Modinos v Cyprus, 16 Eur. HR Rep. 485 (1993).
59 Thus in Dudgeon, the Court held that laws penalizing homosexual conduct could not be held "necessary in a democratic society":
Although members of the public who regard homosexuality as immoral may be shocked, offended, or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.
In Norris, the court held that "such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions can have on the life of a person of homosexual orientation."
60 Toonen v Australia, at 8.6.
61 "Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions," UN Doc. E/CN.4/1999/39, 6 January 1999, at 77.
62 "General Comment 18: Nondiscrimination," Human Rights Committee, 37th Session, 1989, UN Doc. HRI/GEN/1/Rev.1, p. 26.
63 "Concluding Observations of the Human Rights Committee: Poland," Human Rights Committee, 66th Session, UN Doc. CCPR/C/79/Add.110, at 23.
64 "Concluding Observations of the Human Rights Committee : Zimbabwe," Human Rights Committee, 62nd Sess., UN Doc. CCPR/C/79/Add.89, at 24.
65 This article provides (similarly to articles 17, 21, and 22 of the ICCPR) that the exercise of the rights in paragraph 2 may be "subject to certain restrictions," which must be clearly provided for in law and necessary for "respect of the rights or reputations of others," or to protect "national security," "public order," or "public health and morals." In decisions overturning sodomy laws in the United Kingdom, Ireland, and Cyprus, the European Court of Human Rights has repeatedly held that similar provisions on public order, morals, or health do not justify restricting the basic rights of persons because of their sexual orientation (see above). In one early case, Hertzberg v Finland, in 1980, the U.N. Human Rights Committee indeed rejected a challenge to the decision of the Finnish Broadcasting Corporation to censor programming with gay and lesbian content. This case would almost certainly be decided differently today, in the light of Toonen. At the time, three Committee members published a dissenting opinion stating that "It is of special importance to protect freedom of expression as regards minority views, including those that offend, shock or disturb the majority." (Individual opinions by members Opsahl, Lallah, and Tarnopolsky in case no. 61/1979, UNGAOR A/37/40, Supp. No. 40). Manfred Nowak, an authoritative commentator on the ICCPR, notes that such a "liberal interpretation of public morals is correct... as a general principle [if] freedom of expression and information is to fulfil its function as one of the most important civil and political rights." He also observes that "there can be no doubt that every communicable type of subjective idea and opinion, of value-neutral news and information, of commercial advertising, art works, political commentary regardless of how critical, pornography, etc., is protected by Art. 19(2), subject to the permissible limitations in para. 3. It is thus impossible to close out undesirable contents, such as pornography or blasphemy, by restrictively defining the scope of protection." Manfred Nowak, CCPR Commentary (Kehl: N.P. Engel, 1993), pp. 358 and 341.
66 "Report of the Special Representative to the Secretary General on human rights defenders," UN Doc. E/CN.4/2001/94, at 89(g).
67 "Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms," U.N. General Assembly Resolution, A/RES/53/144, 8 March 1999.
68 Manfred Nowak, CCPR Commentary (Kehl: N.P. Engel, 1993), pp. 172-73.
69 U.N. Working Group on Arbitrary Detention, "Opinion no. 7/2002 (Egypt)", at 7 and 14-15.
70 The decision of the Inter-American Court of Human Rights in the case of Velásquez Rodríguez establishes, in terms clearly applicable in other international systems, the responsibility of states for patterns of violations committed by private individuals. The Court mandated states to "Take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within [its] jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation": Velásquez Rodríguez v Honduras, 4 Inter. Am. Ct. HR, Ser. C, No. 4, 1988.
71 "Report of the Special Rapporteur on the question of torture and other cruel, inhuman and degrading treatment or punishment," U.N. General Assembly, UN Doc. A/56/156, 3 July 2001.
72 Botswana acceded to the treaty on March 14, 1995. Namibia has been a party to the treaty since September 30, 1990, South Africa since June 16, 1995, Zambia since December 5, 1991, and Zimbabwe since September 11, 1990.
73 The Committee on the Rights of the Child has, in a number of instances, called for states to address and prevent discrimination and abuse within the family. It has encouraged states "to launch comprehensive public education campaigns to prevent and combat gender discrimination, particularly within the family" (emphasis added): "Concluding Observations of the Committee on the Rights of the Child: Uzbekistan," CRC/C/15/Add. 167, at 31. It has repeatedly called for states to promote "respect for the views of children" in accordance with article 12 of the Convention, noting that these views (which can clearly include the expression of sexual orientation or gender identity) have been unjustly restricted "owing to traditional societal attitudes . . . especially within the family" (emphasis added; "Concluding Observations of the Committee on the Rights of the Child: Lebanon," CRC/C/15/Add.169 at 30; see also "Concluding Observations of the Committee on the Rights of the Child: Bahrain," CRC/C/15/Add.175 at 34, and "Concluding Observations of the Committee on the Rights of the Child: Gabon," CRC/C/15/Add.171 at 27-28). The Committee has identified the abandonment of children as a form of abuse (see "Concluding Observations of the Committee on the Rights of the Child: Kenya," CRC/C/15/Add.160 at 41-42, and "Concluding Observations of the Committee on the Rights of the Child: Tanzania," CRC/C/15/Add.156, at 44-45). In one report the Committee "notes the establishment by the state party of a programme to encourage the reinforcement of the family environment and to strengthen parenting skills among both parents. The Committee remains concerned, however, at the high rate of abandonment of children.... In this regard, the Committee also expresses concern at the lack of adequate alternative care facilities and qualified personnel in this field. The Committee recommends that the state party increase its efforts to provide support, including training, for parents, to discourage the abandonment of children." ("Concluding Observations of the Committee on the Rights of the Child: Thailand," CRC/C/15/Add.97 at 22. In "Concluding Observations of the Committee on the Rights of the Child: Belarus," CRC/C/15/Add.180, at 38, the Committee urged the state to "develop strategies and awareness-raising activities to prevent and reduce the abandonment of children.")
74 Botswana has not signed the ICESCR. Namibia acceded to the Covenant on November 28, 1994; South Africa signed it on October 3, 1994; Zambia and Zimbabwe acceded to it on April 10, 1984, and May 13, 1991, respectively.
75 Botswana acceded to the treaty on August 3, 1996, Namibia on November 23, 1992, and Zimbabwe on May 13, 1991. South Africa has been a party since December 15, 1995, and Zambia since June 21, 1985.
76 "Report of the Special Rapporteur on violence against women, its causes and consequences," UN Doc. E/CN.4/1997/47, 12 February 1997.
77 "Concluding Observations of the Committee on the Elimination of Discrimination Against Women : Kyrgyzstan," Committee on the Elimination of Discrimination against Women, 20th Session, UN Doc. A/54/38, January 27, 1999, at 127-28.
78 "General Comment 14: The right to the highest attainable standard of health." Committee on Economic, Social, and Cultural Rights, 22nd Session, UN Doc E/C.12/2000/4, 11/08/2000, at 18-19.
79 "General Comment 14," CESCR, at 11, 12.b, 35, and 37.
80 "General Comment 19: Protection of the family, the right to marriage and equality of the spouses," Human Rights Committee, UN Doc. HRI/GEN/1/Rev.2, at 2.
81 "Report on the Fifth Session," Committee on the Rights of the Child, UN Doc. CREC/C/24, Annex V.
82 "Report of the Special Rapporteur on Violence Against Women," UN Doc. E/CN/1999/68, March 10, 1999, at 8, 9, 10.
83 For detailed information about these provisions, see the Appendix.
84 For detailed information about these provisions, see the Appendix.
85 For detailed information about these provisions, see the Appendix.
86 IGLHRC interview by Scott Long with Heather, Harare, Zimbabwe, August 12, 2000.
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