Good morning to you all, it is a pleasure for me to be here in Kimberley and to share in today’s proceedings with you.
At one of our previous Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Task Team workshops a LGBTI activist came up to me and said: “Jy weet, ’n kas is vir klere.” Meaning - closets are for clothes, not for people.
Sadly, despite South Africa being a democracy for two decades, many LGBTI persons fear coming out. They fear the stigmatisation and the discrimination, they fear rejection by those closest to them, they sometimes even fear for their lives. And that fear is very real, particularly when one sees the hate crimes committed in our communities.
We still live a deeply homophobic society. The number of so-called “corrective rapes” speaks for itself. Corrective rape is not unique to South Africa. A recent US state department human rights report says that gay men and lesbians in Zimbabwe have been raped and forced into heterosexual marriages by people seeking to "convert" them. Instances of corrective rape in countries such as Jamaica and Thailand have since begun to surface in the media – all in an effort to put an end to this brutal practice.
Hate crimes have many faces. It has surfaced in South Africa in the form of the attacks, murders and the ‘corrective rape’ of lesbians, as well as xenophobia, and racist attacks. On Monday, the South African Human Rights Commission stated that violence against foreigners in the country should perhaps now be referred to as “afrophobia” and not xenophobia, with the latest research showing Africans are attacked and not Europeans.
Because these are crimes of prejudice, they cannot be prevented and addressed in the same way as other violent crimes. They also have particularly serious consequences for the victims, because they are directed at the victim’s identity.
Hate crimes are defined as crimes motivated by prejudice, or based on discrimination, and perpetrated against a person or a group on the basis of their race, religion, national origin, sexual orientation or any other feature that renders them to be considered “different or other” to the perpetrator.
From the Department of Justice’s side, as you may know, we have established a National Task Team (NTT) to develop a National Intervention Strategy on LGBTI issues. This was done by the former Minister of Justice and Constitutional Development, Minister Jeff Radebe, after he received a number of petitions from civil society organisations.
The aim of the National Intervention Strategy is to address so-called “corrective rape” and other forms of violence against LGBTI persons.
Our department initiated engagements with key government departments and institutions to develop the National Task Team. The NTT was constituted by government departments, chapter 9 institutions and civil society organisations that specialise in issues related to LGBTI persons.
We significantly strengthened the participation of NGOs and civil society in the NTT through a process of consultative workshops with all provinces. A rapid response team was also established to track the pending cases in the criminal justice system, as well as to respond as soon as possible, to cases of violence being reported.
An intersectoral communication plan outlining a number of public education and communication initiatives has also been developed. This seeks to popularise inter-sectorial interventions aimed at addressing the violence committed against LGBTI persons, to promote partnerships amongst government, civil society, business and the media in the fight against gender based violence and to encourage communities to report these crimes.
A television advert flighted earlier this year conveyed a national message to South Africans to promote equality, dignity and freedom protected under the Constitution. The television advert was first flighted during the launch of the LGBTI Programme in April 2014. With SABC, 13 million people were reached through the LGBTI TV advert, a further 10 million people through eTV and Community Radio reached a further 6.1 million people.
The National Intervention Strategy followed a multi-sectoral approach. It included government and civil society and related organisations and addresses sexual orientation-based violence and gender-based violence against LGBTI persons through two programme areas, namely Prevention and Response, on a national level.
The ultimate aim is for national, regional and municipal policies, strategies, plans, budgets and legislation to have an integrated, mainstreamed approach to eradicating sexual orientation-based violence.
As those of you who have participated in our LGBTI Task Team will know, we are in the process of preparing hate crime legislation. One of the key motivations for the proposed changes to the law, included in a draft policy framework, is the violent targeting of LGBTI persons based on their sexual orientation and gender identity, the so-called 'corrective rapes' and murder of lesbians and transgender men, especially in townships.
At the moment, for the crimes of murder, assault and rape against LGBTI persons, the applicable law still provides for murder as murder and rape as rape. The challenge, as you’ll know was the case in the matter involving Thapelo Makutle, lies in proving that such acts are committed due to prejudice, hatred or any biased motive.
Despite this challenge, our courts are beginning to address hate crimes. In the recent case involving the conviction and sentence of the man who murdered Duduzile Zozo, Judge Tshifiwa Maumela acknowledged the problem of hate-crimes in South Africa. He sentenced the man responsible for killing Duduzile Zozo, a young lesbian from Thokoza, to an effective 30 years in prison.
In his ruling, Judge Maumela said he wanted to make a difference to all vulnerable groups of society “in (his) own small way.” Judge Maumela said a harsh sentence for the 23-year-old would serve as a warning to those who threatened the vulnerable. He said he hoped it would make these difficult lives easier. Judge Maumela also told the perpetrator to reconsider his attitude towards gay people while he served his sentence. “Lead your life and let gays and lesbians be,” he said.
So we are making progress. Dikeledi Sibanda of the Forum for the Empowerment of Women said that in all the court cases she had attended over the years, this was one of the few that acknowledged the problem of society’s attitudes towards homosexuals.
However, the trial also highlighted other issues. Ms Sibanda said that the court interpreter had described lesbians as “women who wanted to be men” in Sesotho. This is completely inappropriate and is something that my department will address.
I have heard that some people have said that the Northern Cape has become a “homophobic province” because it is run by a “homophobic government.”
This is utter nonsense. There is one thing that people must remember: when the ANC struggled against apartheid, we struggled for freedom, we struggled for equality, we struggled for human rights for everybody. One of those human rights is to love whom we choose. In the days before democracy, under the apartheid system, a person of one race could not be in a romantic relationship or be married to a person of another race.
Luckily those days are far gone. After 1994, the state no longer tells consenting adults whom they may or may not love or what they should do in their bedrooms.
What have we achieved in the area of LGBTI rights? We have the equality clause in the Constitution. We have a progressive legislative framework – laws that were tabled and passed by the ANC Government. We have legislated against discrimination on the grounds of sexual orientation in the workplace. In 1999, we introduced the Domestic Violence Act that classifies a same-sex relationship as a ‘domestic relationship’, in other words, thus qualifying to receive legal protection in terms of this Act. The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 and the introduction of Equality Courts came about in an attempt to give effect to the spirit of the Constitution, in particular the promotion of equal enjoyment of all rights and freedoms by every person. We have legalised same-sex marriages and both joint and step adoption by same-sex couples. In South Africa, intersex persons are permitted through the Alteration of Sex Description and Sex Act of 2003 to undergo a sex change.
The problem we face is societal attitudes. The harsh reality that is facing us is that the existing legal protections have not filtered down to the level of everyday life. Many LGBTI people in South Africa are still side-lined from accessing their rights because of stigmatisation, deep economic inequality, social isolation and cultural exclusion, while some of our religious institutions still condemn or exclude gay people.
We have to become a more tolerant society. As Pope Francis recently said:
“A person once asked me, in a provocative manner, if I approved of homosexuality. I replied with another question: 'Tell me: when God looks at a gay person, does He endorse the existence of this person with love, or reject and condemn this person?' We must always consider the person.”
Ladies and gentlemen,
We are continuously rolling out interventions and initiatives to ensure that people are aware of their constitutional rights. Our Access to Justice and Promotion of Constitutional Rights Programme has to date supported 250 programs aimed at improving awareness and knowledge of constitutional rights, deliberately targeting vulnerable and marginalised groups.
It has focused on raising awareness in respect of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA); hate crimes affecting migrants and refugees, the rights of disabled communities, and awareness of sexual orientation. It has also promoted the rights of farmworkers with a popular education programme as well as the promotion of rights of the LGBTI community.
Community and advice offices are so important. Today community advice offices provide services that contribute to social justice and facilitate access to government services for the poor and marginalised. They provide the support and front-line assistance to many who do not have the means to access other forms of legal services. Over the years, these offices have provided much needed services to millions of poor and marginalised South Africans.
Therefore I want to congratulate you on the opening and launch of the Shaine Griqua Advice and Development Centre. It is extremely important that a CAO maintains strong links with the community which it serves and that it creates relationships with other service providers, such as government, other institutions and organisations. And I want to appeal that where there are problems with justice issues, for example, maintenance, or if there is small claims court or the court does not function, or any other justice related matter, that you assist in bringing this to our attention. Government can best serve our people if there is feedback from our communities on the levels of service being provided.
Former Chief Justice and defence attorney for Nelson Mandela in the Rivonia trial, Arthur Chaskalson, once talked about the challenge of establishing a human rights culture South Africa and around the world.
He said - “The major agents for change must be civil society, ordinary people living within society, and there are a whole host of people who fall into that category. It’s not simply one leader. Things don’t happen because of one great leader. One great leader, a person like Mr Mandela, had a profound impact on our society, but it requires many other actors, many other levels of society, to create a caring society”.
I wish you all the best. We look forward to working closely with you to ensure that we make the lives of our LGBTI persons safer. Let us send the message to our communities that LGBTI persons are not infringing anyone else’s rights by being themselves. I want to conclude with words of Judge Maumela in the Zozo judgment.
He said: “No one has been given the right to correct alcoholics. No one has been given the right to correct those who take too much salt or sugar. No one has been given the right to correct others when it comes to the right to love their own gender… You can’t interfere with how someone chooses to live.”
Let us continue the struggle, day after day, to build a more tolerant, a more caring, society.
I thank you.
