​SA backs Africa Group’s view that LGBTI rights have no place in international law

Activists have levelled heavy criticism at South Africa following its decision to support a call for the suspension of the United Nations LGBTI [lesbian, gay, bisexual, transgender and intersex] rights expert.

Globally, they have denounced the resolution, with Arvind Narrain, the Geneva director for ARC International, a nongovernmental organisation that advocates for LGBTI rights at an international level, saying it would turn “back the clock on the progress made globally in relation to LGBTI rights”.

The 54-nation African Group has said sexual orientation and gender identity “should not be linked to existing international human rights”. South Africa sanctioned the move, signing a statement advocating for the suspension of the UN’s first independent expert on sexual orientation and gender identity, Vitit Muntarbhorn.

The UN Human Rights Council appointed Muntarbhorn to the position in September, an appointment on which South Africa abstained from voting.

The African Group’s resolution reads: “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 … seriously jeopardise the entire international human rights framework as they create divisions.”

The letter went on to express the group’s “alarm” at the council “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 nonintervention”.

“More importantly, it arises owing to the ominous usage of the two notions: sexual orientation and gender identity. We wish to state that those two notions are not and should not be linked to existing international human rights instruments.”

The group concludes by calling for “the suspension of the activities of the appointed independent expert pending the determination of this issue”.

Narrain said South Africa’s abstention from the vote at the July sitting of the Human Rights Council was “worrying enough”.

“But to now say to our faces that sexual orientation and gender identity has no place in international law — when South Africa has contributed so much to the development of progressive jurisprudence around this — is shocking and very, very worrying.”

Graeme Reid, the director for the international LGBTI rights programme at Human Rights Watch, called South Africa’s support of the call “inexcusable”.

“To refer to sexual orientation and gender identity as ‘ominous’, when the protection of such rights is enshrined in the Constitution, is preposterous,” said Reid.

“The rationale behind the appointment of the independent expert was based on two previous resolutions that produced reports which showed the widespread violence against LGBTI people globally. The appointment was made in an attempt to combat this violence.”

A 2015 UN report, Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on Their Sexual Orientation and Gender Identity, supports the concerns of Narrain and Reid. It concludes that despite “numerous advances made in the fight against human rights abuses suffered by the world’s LGBTI population”, there are “continuing, serious and widespread human rights violations perpetrated, too often with impunity, against individuals based on their sexual orientation and gender identity”.

According to the report, hundreds of people have been killed and thousands more injured in brutal, violent attacks since 2011.

“Other documented violations include torture, arbitrary detention, denial of rights to assembly and expression, and discrimination in healthcare,” it says.

Reid said the fact that South Africa largely led the first resolution showed that the country was backtracking “after having played a leading role in this regard”.

Sanja Bornman, speaking in her capacity as a managing attorney for Lawyers for Human Rights’ Gender Equality Programme, said: “We utterly fail to understand South Africa’s decision to support this call.”

Bornman, who is the chairperson of the Hate Crimes Working, added that the organisation was “particularly disturbed by some of the statements made in the letter from the African Group, such as the statement that sexual orientation and gender identity ‘are not and should not be linked to existing international human rights instruments’ .

“This position is simply contrary to our Constitution, which guarantees the right to equality for all, and our international law obligations. The Universal Declaration of Human Rights, for one, clearly entrenches the universal principle of nondiscrimination on any status.”

Bornman said Lawyers for Human Rights would discuss the move with government departments and other civil society bodies.

Melanie Judge, queer activist and associate professor at the Centre for Law and Society at the University of Cape Town, blamed President Jacob Zuma’s leadership for the “total contempt for the constitutional obligations of the state to uphold human rights principles, and to be accountable to these”.

“Sexual orientation and gender identity issues are being used as political footballs for government leaders to expediently position themselves internationally, at the expenses of their own LGBTI citizens. We cannot allow hard-fought for human rights to be bartered, with impunity, in this way.”

Bornman said government’s approach to LGBTI rights was “worryingly” inconsistent.

“Nationally, the department of justice is demonstrating efforts to protect LGBTI people [in its work with the working group around the Hate Crimes Bill], and only recently the department of home affairs refused entry to Pastor Steven Anderson based on his homophobic hate speech.

“Now, for the second time this year, [the department of international relations and co-operation] appears to have undermined the efforts at home, by representing South Africa internationally as a state that does not believe in the universality of LGBTI rights. Which is it?”

The African Group’s measure is expected to come up for a vote on Tuesday, November 8.

Attempts to get hold of South Africa’s UN ambassador, Nozipho Mxakato-Diseko, for comment proved unsuccessful.

Spokespersons for the department of justice and constitutional development and the international relations department were unable to comment on the decision at the time of publication.

Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail & Guardian.

The Other Foundation

Carl Collison
Carl Collison

Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail & Guardian. He has contributed to a range of local and international publications, covering social justice issues as well as art and is committed to defending and advancing the human rights of the LGBTI community in Southern Africa.


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