Africa, South Africa

Gender Discrimination: SA’s about-turn appeases African countries that do not protect gay rights

In June 2016, South Africa abstained from a United Nations vote that would appoint an independent expert to work on sexual orientation and gender identity (SOGI) discrimination. The resolution passed without us. Then, this month, we banded together with the rest of the African voting bloc and called for the expert to be suspended and the SOGI initiative halted. Why? By VASHTHI NEPAUL.

The first time any United Nations body approved a resolution affirming the rights of LGBT (Lesbian Gay Bisexual and Transgender) people was on June 17, 2011. The resolution sought that the United Nations launch a study into “discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity”. It meant that there would be an official United Nations reference point for what constituted rights violations on the basis of sexual orientation and gender identity. Who proposed the study? – South Africa. And though only one other African nation – Mauritius – voted with us, the resolution squeaked through.

Dubbed SOGI because “discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity” is a mouthful at the best of times, and because SOGI is a better catch-all term than LGBT is proving to be, the report came from the office of the United Nations High Commissioner for Human Rights, who at the time was also a South African. It was considered quite a triumph for us.

But this year South Africa first abstained from voting on the next step of SOGI protections, and worse, has just submitted a letter to the UN as part of the African bloc of countries that questions the legality of the UN’s SOGI initiatives and proposes that they be halted.

On June 17, 2011, the South African Permanent Representative to the UN Human Rights Council, Ambassador Jerry M Matjila, said:

South Africa believes that no one should be subjected to discrimination or violence based on their sexual orientation or gender identity. No one should have to fear for their lives because of their sexual orientation or gender identity. No one should be denied services because of sexual orientation and gender identity. The resolution before us today does not seek to impose values on Member States but it seeks to initiate a dialogue which will contribute towards ending discrimination and violence based on sexual orientation or gender identity.”

But the Statement of the African Group from November 4 this year puts very different words in our mouths:

The African Group is strongly concerned by the attempts to introduce and impose new notions and concepts that are not internationally agreed upon, particularly in areas where there is no legal foundation in any international human rights instrument. We are even more disturbed at the attempt to focus on certain persons on the grounds of their sexual interests and behaviours, while ignoring that intolerance and discrimination regrettably exist in various parts of the world, be it on the basis of colour, race, sex or religion, to mention only a few. These attempts undermine not only the intent of the drafters and signatories to various human rights instruments, but also seriously jeopardise the entire international human rights framework as they create divisions.”

It continues:

The adoption of the resolution 32/2 entitled: Protection against violence and discrimination based on sexual orientation and gender identity in June 2016 is a clear illustration of these attempts. The group is therefore concerned that non-internationally agreed notions such as sexual orientation and gender identity are given attention, to the detriment of issues of paramount importance such as the right to development and the racism agenda. We are alarmed that the Council is delving into matters which fall essentially within the domestic jurisdiction of states counter to the commitment in the United Nations Charter to respect the sovereignty of states and the principle of non-intervention.”

The wording of the statement contains some strong innuendo. The first suggestion is less innuendo than bald-faced statement: that focusing on SOGI discrimination means not focusing on racial, sex and religious discrimination. It’s the equivalent of saying “we will not focus on addressing any gender violence because it will divert the focus away from religious violence”. It ignores that commitment to human rights initiatives is based on principle, not practicability. And anyway, the reality is that issues of sex, gender identity, race, religion and sexual identity often heavily intersect.

The second suggestion is that forcing African countries to include SOGI discrimination within their human rights mandate means that the UN does not care about African development or racism. Them’s fighting words, especially when you consider the other moves some African countries are making at the moment; such as withdrawal from the International Criminal Court.

The African Group’s statement is interesting enough even if you put South Africa’s abrupt about-face aside. It maintains that notions of sexual orientation and gender identity SOGI are not internationally agreed on. However, this is not the case. UN precedent regarding some basic SOGI rights dates to 1994, and there has been a steady movement at the UN to bring SOGI issues into focus. In fact, an earlier deferred motion into SOGI was sponsored by Brazil and the resolution that we abstained from signing earlier this year was overwhelmingly supported by southern hemisphere countries, including the entire Latin group. These are also often religious countries equally concerned about issues of development and racism. Their UN track record just reflects a growing concern over time about SOGI discrimination too. So why is the African Group only speaking up now and why has South Africa abandoned its earlier trajectory to join it?

In 2011 the resolution for the UN to field a study into SOGI discrimination passed with 23 votes to 19 with another three abstentions. Why so close? Why would anyone oppose an exploratory study into discrimination? Many countries, whether unwilling or unable to change the sexual orientation and gender identity discrimination inside their borders, would have been recalcitrant. After all, how likely was it that the UN SOGI report would have come back saying “actually, things are great”? And once the severity of discrimination was documented, how likely was it that the UN would remain inactive on these issues?

Developing countries already deal with black marks against their names where they cannot or do not protect certain human rights. Even if they wanted to protect SOGI rights, why would they want yet another international measure for how they’re lacking? And of course, unlike South Africa, whose ambassador admitted upfront that we still saw massive violence and discrimination against LGBT people but affirmed that we were committed to reducing it, the leaders of some African countries still use LGBT people as political diversions and scapegoats.

So, the 2011 resolution was the beginning of the end; the first step for the formal recognition of SOGI discrimination and the springboard for rationalising sexual orientation and gender identity as protected rights within the massive existing international rights protection infrastructure. No wonder it was viewed as such a diplomatic coup for South Africa. However worrying a step, the African Group could hardly reject the 2011 report once released. It was data, not motive. This year’s resolution, though, is more politically vulnerable.

If the 2011 resolution just created a report, the 2016 one opens a dialogue off the back of that report. It appoints an independent expert to engage in consultation with governments and key stakeholders, find gaps and raise awareness, build capacity and identify best practices around SOGI issues. This is a soft approach, and in no way could it undermine sovereignty like the African Group is suggesting, but it will draw attention to all the ways in which African countries are either actively persecuting LGBT people or simply failing to protect them.

With UN backing, it is conceivable that the global stage will slowly change to reflect that LGBT rights are indistinguishable from basic human rights – in that they form part of the inalienable factors of humanness for which people must not be discriminated against. If certain countries have no intention of accepting this, then the 2016 resolution on the appointment of an independent expert is exactly where they would need to throw a spanner in the works. Better to discredit the initiative now rather than let things get to the point where the United Nations is rolling out SOGI goals and wealthier countries are making them conditions of aid.

Interestingly, statements from inside South Africa see LGBT advocacy groups and legal and rights watchdog groups confused. Initially the Triangle Project’s manager for Research, Policy and Advocacy, Matthew Clayton, said that while contradictory, he did not see our vote abstention as part of a trend. He cited the South African government’s close work with LGBT interest groups around things like the Hate Crimes legislation.

Lawyers for Human Rights’ Gender Equality Programme representative Sanja Bornman also noted the inconsistencies between South Africa’s actions at home and abroad. She cited both the Hate Crimes Bill and the issue of Pastor Steven Anderson’s entry to the country as examples of government SOGI protections, concluding that the Department of International Relations and Co-Operation (Dirco) was “representing South Africa internationally as a state that does not believe in the universality of LGBTI rights” despite that being untrue internally.

After the African Group’s statement, the Triangle Project also cautioned Dirco for misrepresenting South Africa’s position on these issues. That groups are singling out Dirco shows that they are hesitant to paint all government with the same brush. Advocacy groups have credited the government’s domestic efforts and while they all point out that South Africa’s stand with the Africa group is contradictory to our own internal laws – starting with the Constitution – none has been alarmist enough to suggest that the South African government is signalling a change in its approach to SOGI/LGBT protections here at home.

So what is South Africa doing? From the outside it seems like a strategy of appeasement, an apology to the rest of the African Group that it got them into this rights slippery slope that they were trying to avoid. South Africa owes a large debt to Africa for aid in the struggle against apartheid; time and again we have seen it play out as inaction in the face of human rights violations on the continent. When we abstained from the vote earlier this year, our representative said that the resolution created “unnecessary divisiveness”. The $20-billion that African countries contribute to South Africa’s coffers in the form of annual trade is also worth some consideration.

Make no mistake, the South African representative probably sees little harm in these actions because the government has no intention of rescinding existing LGBT protections – it was a global first when our Constitution made discrimination on the basis of sexuality illegal and we continue to inch towards equal treatment for LGBT peoples here at home. As any South African LGBT interest group will tell you, we are a work in progress; many LGBT people are faced with school and workplace discrimination, healthcare discrimination, bullying, homelessness and sexual and physical assault and so on. If the African Group succeeds in overturning the UN’s SOGI initiatives then South Africa will lose what would have been a new source of support and aid. So while things may not necessarily get worse for South African LGBT people after this vote, we may have squandered the opportunity for things to get better.

And what about the rest of the world? South Africa may not have sold its own LGBT people up the river but what happens if we help successfully block the progress of SOGI protections in Africa and around the world?

How bad is it out there anyway? According to the UN Report that South Africa so helpfully midwifed;

Seventy-six countries retain laws that are used to criminalise people on the basis of sexual orientation or gender identity.”

The report says that rights violations include everything from denial of the right to assembly and self-expression to healthcare discrimination, arbitrary detention, torture, and the death penalty. DM

Photo: A handout photograph released by the South African Government Information office showing President Yoweri Museveni (R) of Uganda being welcomed by South African President, Jacob Zuma (L) during his official welcome at the Union Buildings in Pretoria, South Africa, 21 January 2011. EPA/JACOLINE PRINSOLOO


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