Johannesburg, 16 November 2016
Dear Minister of International Relations and Co-operation Maite Nkoana-Mashabane and Justice Minister Michael Masutha, ambassador Nozipho Mxakato-Diseko and members of the parliamentary portfolio-committee on international relations and co-operation,
This letter is a call to uphold constitutional commitments and to vote against the resolution to suspend the work of United Nations expert on sexual orientation and gender identity.
We are deeply disappointed and confused by the department of international relations and co-operation’s apparent support for a resolution and accompanying African Group statement, calling for the suspension of the UN Human Rights Council’s appointment of the independent expert on sexual orientation and gender identity.
This statement was lodged by Botswana at the third committee of the UN general assembly, on behalf of the African Group, of which South Africa is a member, on November 4 2016. This statement called for “the suspension of the activities of the appointed independent expert pending the determination of this issue”.
In addition, the statement stated that sexual orientation and gender identity “are not and should not be linked to existing international human rights instruments”.
We strongly disagree with this position, given South Africa’s constitutional and international law obligations, and commitment to equality and nondiscrimination on the basis of any status.
In 2011 South Africa introduced a sexual orientation and gender identity resolution, which received wide support with 23 votes in favour. In March 2016 the international relations and co-operation department signed the Ekurhuleni Declaration, on practical measures to combat violence against LGBTIQ+ (lesbian, gay, bisexual, transgender, intersex, and questioning) people on the African continent. Then, in July 2016, the South African delegation abstained from a vote to appoint the special rapporteur on sexual orientation and gender identity, at the 32nd session of the UN Human Rights Council.
Civil society made its strong disapproval known and demanded an explanation.
The African Group statement clearly states that sexual orientation and gender identity are “non-internationally agreed notions” that are entirely unlinked to international human rights instruments. This statement is presented as the consensus position of the Africa Group, and South Africa has failed to disassociate itself from it. These events appear to indicate that South Africa is steadily moving away from progressive human rights norms.
The notion that the mandate of the independent expert would compromise the right to development and anti-racism is incorrect, given that the UN Human Rights Council’s sexual orientation and gender identity mandate is inherently intersectional and undertakes to strengthen the mechanisms addressing issues of importance, including fighting racism, racial discrimination, xenophobia and related intolerance in all their forms.
As is the case with all special rapporteurs, the independent expert is not mandated to interfere with national jurisdiction, but instead to engage states in dialogue and support the implementation of existing international human rights instruments.
The international community has voiced strong condemnation of South Africa’s position, as stated in the African Group statement.
We, the South African organisations championing the rights of the LGBTIQ+ community, and members of that community, hereby add our voices to this condemnation.
We urge the South African delegation to vote against the upcoming resolution tabled by the African Group. Failure to do so will severely damage the LGBTIQ+ sector’s confidence in our government’s stated commitment to protecting and championing sexual orientation and gender identity rights, and will compromise South Africa’s reputation as an African leader in this regard.
It will also fundamentally undermine South Africa’s commitment to the institutional integrity of the UN Human Rights Council, a body to which South Africa just sought re-election.
Access Chapter 2, Centre for Applied Legal Studies, Gay & Lesbian Network in Pietermaritzburg, Gay and Lesbian Memory in Action, Gender Dynamix, Gender, Health and Justice Research Unit at the University of Cape Town, Iranti-org, Lawyers for Human Rights, Sex Worker Education and Advocacy Taskforce, Sonke Gender Justice, Southern Africa Litigation Centre, Treatment Action Campaign in the Western Cape, Triangle Project and Women’s Legal Centre.