As a South African, I am immensely proud that our constitution includes protection on the grounds of sexual orientation – leading the way on the continent and in the world.
It is apt too that my country took the initiative at the UN Human Rights Council in 2011 by tabling a precedent-setting resolution on human rights, sexual orientation and gender identity. This resulted in a report on violence and discrimination against lesbian, gay, bisexual and transgender (LGBT) people worldwide. A heated council debate on that report in 2012 made the simple point that LGBT rights are human rights, and should be part of the routine work of the council.
A long-awaited second resolution, calling for bi-annual reporting on human rights abuses against LGBT people, will finally come to a vote at the council this week. This time around South Africa is not in the lead. In fact South Africa has not even indicated whether it will support the resolution brought by Chile, Uruguay, Colombia and Brazil. Supporting a resolution that builds on the foundation that South Africa itself laid in 2011 should be a no-brainer, yet its position remains inscrutable. So far 40 states have agreed to co-sponsor and South Africa is not among them.
Making sense of South Africa’s foreign policy in relation to the human rights of LGBT people presents an enigma. It is hard to find consistency and coherence, or any sense of overarching policy. For three years South Africa has inexplicably stalled on tabling a follow-up resolution in Geneva. And at the 2013 United Nations General Assembly in New York, South Africa abruptly stopped attending meetings of the core group of LGBT-friendly states, and declined to attend a high-level ministerial side event affirming the rights of LGBT people.
I remember well the words of the late Simon Nkoli, gay rights and anti-apartheid activist, spoken at Africa’s first gay and lesbian march in Johannesburg in 1991: “In South Africa I am oppressed because I am a black man and I am oppressed because I am gay… so when I fight for my freedom I must fight against both oppressions.” I also remember the euphoria when “sexual orientation” was included in the constitution and in the gathering with activists near the site of the 1960 Sharpeville massacre to witness Nelson Mandela sign the constitution into law on International Human Rights Day in 1996. This was a milestone for South Africa and a precedent internationally. South Africa became the first country in the world to expressly forbid discrimination on the grounds of sexual orientation in its constitution.
The protection of LGBT rights has been rightly framed as something of a litmus test for the success of constitutional democracy in South Africa. Chief Justice, Arthur Chaskalson said in 1995: “It is only if there is a willingness to protect… the weakest amongst us that all of us can be secure that our own rights will be protected.” The protection of vulnerable minorities is a measure of South Africa’s commitment to human rights. Yet the constitution was and remains an aspirational document, with a significant gap between these ideals and lived reality.
South Africa’s Bill of Rights is particularly significant in Africa, where some 38 countries criminalise same-sex intimacy between consenting adults. South Africa has the potential to play a deeply significant role both regionally and internationally.
Yet South Africa faces real challenges as an outlier in the African region. Few would blame South Africa for not taking the lead on this next resolution, but until now South Africa has held the baton, and declined to pass it on to other willing states. It is this prevarication that has led to frustration among activists and member states wanting to see progress. For three years South Africa said it was waiting to host a regional seminar in Africa to discuss the issue. But the workshop never materialised, even though it was supposed to take place in the first half of 2012.
And there is legitimate concern about where South Africa stands. At this year’s June Human Rights Council session South Africa inexplicably supported a regressive resolution on “Protection of the Family” that brought into question its commitment to gender equality and the rights of lesbian, gay, bisexual and transgender people. Not only did South Africa vote in favor, but astoundingly also supported an aggressive move by Russia to shut down discussion of more inclusive “family” language. This was censorship Human Rights Council style by conservative countries and South Africa supported it.
On the positive side, South Africa has a strong civil society, and the LGBT community plays something of a watchdog role in relation to the country’s international relations department – to a certain extent what happens in Geneva needs to be accounted for in Pretoria.
Also significant is the effort led by the Department of Justice and Constitutional Development to address the scourge of violence directed against black lesbians, in particular. In 2011 Human Rights Watch published a report based on interviews with some 125 victims of violence, including horrific incidents of rape. In the three years since the publication of that report there has been significant progress including the establishment of a national task force that has in the last year shown the political will and garnered resources to begin to address the problem.
There is more coordination between various sections of the criminal justice system to ensure hate crimes are fast tracked through a sluggish process. And there has been a public awareness campaign, including a televised public service announcement by the justice minister.
In the early 1990s there was no LGBT movement in Africa to speak of. Fast track twenty-five years and we have a robust and vocal movement, with organizations throughout the continent. Earlier this year the African Commission on Human and Peoples’ Rights passed a resolution condemning violence against LGBT people and calling for perpetrators to be brought to justice. What is sorely needed is documentation that shows the nature and extent of violence and discrimination against LGBT people – precisely the kind of routine reporting proposed by the resolution that will come before the HRC this week.
South Africa’s role in the past three years has been at best inconsistent and at worst obstructionist. This is in sharp contrast to the strong leadership role that it took at the beginning. LGBT rights issues are becoming a new lightening rod internationally for a rhetorical debate that falsely pits “traditional values” against “human rights.” Russia is at the forefront of this charge. It is disturbing to hear echoes of this debate – a sort of knee jerk anti-Western stance – in South African rhetoric.
This runs the risk of positioning South Africa as an apologist for oppressors rather than siding with the oppressed. Political homophobia works by mobilising resentment against a vulnerable and unpopular minority to distract attention from social and economic problems and for political effect. South Africa should not indulge in this sort of rhetoric especially in light of the claim – as pernicious, as it is pervasive — that the rights of LGBT people are somehow an optional exception and a peculiar preoccupation of the West.
South Africa’s constitution is unambiguous. Our foreign policy should be too. Anything less betrays our core values.
Graeme Reid is lesbian, gay, bisexual and transgender rights director at Human Rights Watch.
