The resolution condemns violence and other human rights violations against the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, as well as attacks by states against people on the basis of their sexual orientation or gender identity.
The African Charter
Delegates were welcomed by Mr Mushwana who acknowledged that it had been a ‘lengthy and protracted process to see this seminar reach fruition’. He said that, ‘addressing the rights of sexual minorities is particularly challenging, and possibly even more so here on the African continent’. Mr Mushwana further noted that, despite unacceptably high levels of violence that are perpetrated solely due to another person’s sexual orientation or gender identity, he is aware that discussions on these matters are either difficult or not tolerated by many leaders, be they politicians or religious, traditional, or community leaders.
In his keynote address, Minister Masutha began by reminding those present of article 2 of the African Charter on Human and Peoples’ Rights which came into effect on 21 October 1986 and states: ‘Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status’. It further states that every individual shall be entitled to equal protection of the law.
Minister Masutha said the African Commission on Human and Peoples’ Rights, at its 55th Ordinary Session held in 2014 adopted Resolution 275 on the protection against violence and other human rights violations on the basis of their real or perceived sexual orientation or gender identity. In explaining what Resolution 275 was, he said: ‘Resolution 275 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 further 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.’
The Minister said that although the world still has a long way to go in achieving substantive equality, the fact that SOGIE issues are the topic of this global conversation is a progressive step. He added that keeping SOGIE issues on the global agenda, means that efforts to raise awareness must be enhanced, networks must be built and collaborations and partnerships must be strengthened. He added that South Africa will endeavor to act as catalysts for positive policy and legislation.
Minister Masutha said that government is often asked the question, ‘but what about people’s traditional views or their culture or their religious beliefs?’ He added that former United Nations (UN) High Commissioner for Human Rights, Navi Pillay, put it nicely when she said: ‘People are entitled to their opinion. They are free to disapprove of same-sex relationships, for example … they have an absolute right to believe and follow in their own lives whatever religious teachings they choose. But that is as far as it goes. The balance between tradition and culture on the one hand and universal human rights on the other must be struck in favour of human rights.’
In conclusion Minister Masutha said: ‘At the heart of the work to be done in the region on SOGIE issues, lies one central message, that we must change societal attitudes. That as national human rights institutions we must ensure the protection of the rights of every human being regardless of our differences. That as civil society we must strive to effect positive change in our societies. That as government we must respect, promote, protect and fulfill the human rights all our people. The most important message we need to send is one of our common humanity. Regardless of the colour of our skin, our gender or sexual orientation, gender identity and expression, we all want the same things – respect, care, compassion and acceptance. We are all human beings.’
Progress on human rights relating to SOGIE issues
At the gala dinner Deputy Minister Jeffery said that the promotion of human rights relating to SOGIE issues is a matter of significant importance to South Africa. The Deputy Minister said that South Africa had the equality clause in the Constitution, a progressive legislative framework, has legislated against discrimination on the grounds of sexual orientation in the workplace and has legalised same-sex marriages and joint and step adoption of children by same-sex couples.
‘Much has been achieved in the area of legislation and policy initiatives and we are very proud of the work being done by our National Task Team, albeit that we still have a long way to go,’ he said.
Deputy Minister Jeffery said that the challenge lies in changing societal attitudes, in order to ensure that persons are not victims of violence or discrimination in their daily lives on the grounds of their sexual orientation, gender identity and gender expression. ‘The challenge for us lies in changing the perception that being gay is somehow “un-African.” The challenge lies in getting the message out that being gay does not infringe on any other person’s rights,’ he said.
According to Deputy Minister Jeffery, in June 2015, the United Nations Human Rights Office released its report on the state of LGBTI rights around the world. He pointed out that the report noted substantial progress on LGBTI equality, while highlighting the violence, criminalisation and discrimination that people continue to face, in every region of the world, because of their sexual orientation, gender identity and gender expression.
Deputy Minister Jeffery said that the report shows that in recent years, governments in all regions have pursued a variety of initiatives to reduce the levels of violence and discrimination and gave the following examples. He said since 2011:
- 14 states had adopted or strengthened anti-discrimination and hate crime laws, extending protection on grounds of sexual orientation and/or gender identity and, in two cases, also introducing legal protection for intersex persons.
- Three states had abolished criminal sanctions for homosexuality.
- 12 had introduced marriage or civil unions for same-sex couples nationally.
- 10 had introduced reforms that, to varying degrees, made it easier for transgender persons to obtain legal recognition of their gender identity.
- In dozens of countries, police, judges, staff in correctional centres, educators and medical staff were receiving gender and sexuality sensitivity training, anti-bullying programmes had been launched in schools and shelters had been built to house homeless LGBTI youth.
- In all regions, LGBTI human rights defenders and activists were more vocal and visible.
- Deputy Minister Jeffery then looked at the year 2015, in particular, and said that it has been a year of progress in the area of LGBTI rights. He said this was because:
- Both Cyprus and Chile passed civil union legislation in 2015.
- In May, 62% of Irish voters had voted ‘yes’ in the first-ever referendum for marriage equality in the world.
- Also in May, the Constitutional Council of Kazakhstan found a proposed bill, which would have criminalised LGBT human rights’ advocacy, invalid.
- In the United States, a landmark Supreme Court ruling in June gave effect to nationwide marriage equality.
- Also in June, Mexico’s Supreme Court ruled that state bans on same-sex marriage were unconstitutional, which paved the way for same-sex marriages.
- In June, Mozambique decriminalised homosexuality by introducing a new penal code that scrapped colonial-era prohibitions on homosexuality, dating back to 1886 that could condemn gay persons to three years’ hard labour.
- In September, there had been the adoption of a new constitution in Nepal that provided for the protection for LGBT people from discrimination, violence, and abuse – this is a first for an Asian nation.
The Deputy Minister noted that the world had come a long way but added that despite the progress that has been made, there would still be homophobia, violence and discrimination against persons on the grounds of their sexual orientation, gender identity and gender expression.
‘We know, from our history in South Africa that we can overcome. Gay rights are human rights. As Madiba taught us – “it always seems impossible until it’s done.” Just as we have struggled to overcome colonialism and Apartheid, so we can overcome homophobia and discrimination,’ he said, adding that: ‘My wish is that we can build societies in which people are free to live their lives, where we celebrate difference and diversity, where we realise that we are all part of the same humanity. My wish is that here in Africa, and across the world, we can change violence and discrimination into acceptance and respect.’
The declaration
Over the three days, delegates spoke about their experiences in their countries. There were also personal narratives from a survivor of gender-based violence. A draft declaration was adopted at the end of the seminar. The declaration focuses on finding practical solutions to the following issues:
- changing perceptions and creating awareness;
- violence and discrimination in accessing education;
- economic justice;
- health and psycho-social support;
- legal support for victims of violence and discrimination and their families;
- secondary victimisation in the criminal justice system and in border control systems; and
- accurate data on incidences of violence and discrimination based on SOGIE.
Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.