Your Excellencies, various Ministers and Deputy Ministers,
The Deputy Prime Minister of Montenegro, Mr Duško Marković,
Commissioner of the European Commission, Ms Vera Jourova
The Director General of Democracy of the Council of Europe, Ms Snežana Samardžić-Marković
The Coordinator of the IDAHO Forum 2015, Dr Jovan Kojičić
Members of the European Parliament
Representatives of the Council of Europe,
Representatives from the Parliamentary Assembly of the Council of Europe,
Representatives from the European Commission,
Representatives from the European Governmental LGBT Focal Points Network
Members of international and national non-governmental organizations dealing with LGBTI issues.
Esteemed guests, ladies and gentlemen
I bring with me the warm wishes of the people of South Africa. Allow me to say hvala lepo, thank you, to the Government and the people of Montenegro for hosting this important event and for inviting me to attend this event.
South Africa was the first country in the world to outlaw discrimination based on sexual orientation, the first country in the world to outlaw discrimination against intersex persons and the fifth country in the world, and the first in Africa, to legalize same-sex marriages through our Civil Unions Act.
Our Parliament has, over the years, demonstrated its dedicated commitment to the constitutional protections guaranteed to same-sex persons. For example, we have legislated against discrimination on sexual orientation in a work environment.
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 the same legal protection in terms of this Act. Our Promotion of Equality and Prevention of Unfair Discrimination Act 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.
Through our progressive legislative framework, we are a country that has, since 2002, legalised both joint and step adoption by same-sex couples.
We also have Equality Courts which specifically deal with cases of hate speech and discrimination and we are also very actively involved, both in our region and internationally, in the area of LGBTI rights.
Despite having a strong and progressive legal framework, discrimination and prejudice still exist against LGBTI persons. We find ourselves living in a country and a continent where incidents of violence against gay people still happen.
Often the existing legal protection does filter down to the level of everyday life. The majority of LGBTI people in South Africa, and in Africa as a whole, are still side-lined from accessing their rights because of stigmatization, social isolation and discrimination. Indeed, the world over there are incidents of hate speech, intimidation, attacks and killings on the grounds of sexual orientation and gender identity.
Legislation alone cannot solve the problem. Legislation is but the first step in preventing and combating discrimination. It is often easier to put equality or anti-discrimination legislation on the statute book than to change attitudes of prejudice.
For this reason, our government has focussed on practical interventions and initiatives to complement the legislation.
We have established a National Task Team (NTT) to develop a National Intervention Strategy on LGBTI issues and to address so-called “corrective rape” and other forms of violence against LGBTI persons.
The LGBTI National Task Team established by the Ministry of Justice is an example of a highly successful integrated model, comprising of stakeholders from the various sectors, relevant government departments from our Justice, Crime Prevention and Security and Social Clusters, non-governmental organisations, South Africa’s national human rights institutions (the South African Human Rights Commission and the Commission for Gender Equality) as well as the South Africa Chapter of Human Rights Watch.
Other international organisations such as Amnesty International have been invited to some of its meetings to present its report and findings on their most recent investigations on the issue.
Through this structure, civil society actors and national human rights institutions continue to play their role as campaigners and advocates pressing for reform; as monitors, fostering accountability within the justice and human rights sector; as disseminators and communicators of information; as educators through a number of advocacy initiatives legal literacy initiatives and as direct agents helping people access various services.
We sought to improve the management of criminal cases by relevant role-players in the criminal justice system and we have established a Rapid Response Team, which meets to review progress on new and pending cases in the criminal justice system.
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.
For example, 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 in April 2014 and some 23 million people were reached through the LGBTI TV advert, while community radio reached a further 6. 1 million people.
Hate crimes are identity crimes, directed not only at the identity of the victim but also that of the group to which they belong. A victim is thus often a symbol of a broader group of people.
Currently, our South African law does not provide specifically for hate crimes in a separate piece of legislation. Therefore, the deliberate murder of a person because of their sexual orientation or the colour of their skin would simply be recorded as a murder. Similarly, damage to a mosque due to hatred of the Muslim community will simply be recorded as ‘malicious damage to property’. As a result, there is no way to assess the levels of hate crime in South Africa, except when a particular case receives excessive media attention.
In order to address this, we have implemented a Policy Framework on Combating Hate Crimes, Hate Speech and Unfair Discrimination. The Policy Framework provides that various aspects of the current legal regime governing hate crimes, hate speech and other forms of discrimination reflect certain inadequacies.
It is important to address the misconception that, in the absence of specific hate crimes legislation, those who commit hate crimes will get away with it. They do not get away with it - they still face the full might of the law. Our courts are handing down appropriate sentences and where prejudice, hatred or bias is established, this is often found to be an aggravating factor, used to impose a harsher sentence.
Our experience shows that one needs good enabling legislation, in other words legislation which promotes equality and positively “unpacks” various rights, but equally important there needs to be strong criminal sanctions when discrimination or hate crimes against LGBTI persons take place.
One must also stress the importance of civil society assistance and participation. In South Africa we have tried to include civil society every step of the way. Historically, civil society in South Africa has played and continues to play a key role in the realisation of human rights and the democratisation of our society.
At a regional level, we are presently in discussion with regional CSO’s on the possible convening of an Africa Regional Seminar themed “finding practical solutions for violence and discrimination against persons based on sexual orientation and gender identity and or expression”.
I can also advise that the Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, was adopted by the African Commission on Human and Peoples’ Rights at its 55th Ordinary Session held in Luanda, Angola, from 28 April to 12 May 2014.
The Resolution condemns the increasing incidence of violence and other human rights violations, including murder, rape, assault, arbitrary imprisonment and other forms of persecution of persons on the basis of their imputed or real sexual orientation or gender identity.
It specifically condemns the situation of systematic attacks by State and non-state actors against persons on the basis of their imputed or real sexual orientation or gender identity.
It strongly urges States to end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence, including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims.
The issue of SOGI rights in Africa often gives rise to a wider debate – namely that of the north-south divide on human rights. It is often argued that the polarisation stems from two competing approaches, namely a human rights-based approach versus a right to development approach.
The Sexual Rights Initiative, a coalition of organizations from Canada, Poland, India, Egypt, Argentina and Africa, that work together to advance human rights related to sexuality, probably sums it up best when they illustrate how this, I quote, “plays out politically”:
“The global north is telling the global south what to do and to do it now: this is a terrible human rights violation and since this is a civil and political rights obligation – and only economic, social and cultural rights are subject to progressive realisation – the resolution must be implemented immediately.
The global south responds by questioning the human rights-based approach and promoting the right to development approach, under which civil and political rights ARE subject to progressive realisation.”
So, how do we deal with the north-south divide when it comes to SOGI rights?
The UN’s Free and Equal Programme states unequivocally that many of the laws used today to criminalize LGBT persons are based on laws that were imposed by colonial powers in the 19th century. Anti-LGBT laws were spread through colonization, and while colonies no longer exist, the sentiment that underpinned these laws still exist.
Erin Amato, writing for the Wilson Quarterly about anti-LGBT laws in Africa, argues that “the beliefs animating those laws may be more complicated than simple, ugly homophobia.”
This is something which should inform discussions and debates between the north and south when it comes to issues of sexual orientation and gender identity.
We simply must engage each other. For countries in Europe, or elsewhere in the West for that matter, to take a prescriptive or enforced approach will not advance SOGI rights on the African continent. Only through open and frank dialogue and consultation can we ensure that SOGI rights and the rights of LGBTI persons are fostered.
Ladies and gentlemen,
In conclusion, it is heartening to note that the European Parliament has adopted a Resolution, in February 2014, on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity. I also want to commend the European Commission on its Legal Review prepared by the European Network of Legal Experts in the non-discrimination field (on the grounds of Racial or Ethnic Origin, Religion or Belief, Disability, Age and Sexual Orientation) of July 2014.
Many of you here today represent countries which helped South Africa in its struggle against apartheid. We are a free and democratic country today in a large part because of international assistance and support from countries, many represented here today, in the fight against racial prejudice.
Homophobia and racism are two sides of the same discriminatory coin – both deny individuals their human dignity and rob them of their humanity. If the world could overcome apartheid, it can overcome homophobia.
Probably the most well-known South African, former President Nelson Mandela, once said that - “We must use time wisely and forever realize that the time is always ripe to do right.”
The time is ripe to do right and to put an end to hate crimes and violence against LGBTI persons. Gay rights are human rights.
I thank you.
