BRIEFING ON PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST
PERSONS ON THE BASIS OF THEIR REAL OR
IMPUTED SEXUAL ORIENTATION OR GENDER
IDENTITY (LGBTI) AS WELL AS THE AU ROADMAP
TO THE JOINT MULTI-PARTY WOMEN’S CAUCUS
PARLIAMENT, CAPE TOWN ON 25 MARCH 2015
BACKGROUND
 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.
 South Africa was the very first country in the world to prohibit
discrimination based on sexual orientation. We have a
Constitution that is often hailed as one of the most progressive in
the world. We have the Section 9 equality clause in our
Constitution.
 We have a progressive legislative framework. We have legislated
against discrimination on the grounds of sexual orientation in the
workplace.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 In 1999, the South African government 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 our Constitution, in
particular the promotion of equal enjoyment of all rights and
freedoms by every person.
 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.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 Amnesty International in its 2013 report named “Making love a
crime: Criminalization of same-sex conduct in Sub-Saharan Africa”
calls South Africa “a country which is exemplary in, and should be
applauded for, its active commitment to including protections
against discrimination on grounds of sexual orientation and
gender identity in its constitution and for seeking to persuade
neighbouring countries to do the same.”
 SA is way ahead of other countries, or states of countries, when it
comes to LGBTI rights. For example, the United States Senate only
passed their Employment Non-discrimination Act (or ENDA, as it’s
called) at the end of 2013. It is the first time that the U.S. Senate
approved legislation to protect LGBT employees from
discrimination in the workplace.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 We know where we stand on LGBTI issues in South Africa. As
Judge Albie Sachs said in the case of Minister of Home Affairs v
Fourie:
“A democratic, universalistic, caring and aspirationally egalitarian society
embraces everyone and accepts people for who they are. To penalise people
for being who and what they are is profoundly disrespectful of the human
personality and violatory of equality. Equality means equal concern and
respect across difference. It does not presuppose the elimination or
suppression of difference. Respect for human rights requires the affirmation of
self, not the denial of self.”
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 Often we, in government, are asked the question, but what about
people’s traditional views or their culture or their religious beliefs
and as UN High Commissioner for Human Rights Navi Pillay says:
“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.”
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 Our Minister of Justice and Constitutional Development has
recently confirmed that government intends to introduce the
concept of hate crimes into our criminal law. 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 lesbian women and transgender
men, especially in townships.
 Other motivators included a number of recent racist attacks,
violence against non-nationals as well as vandalism targeting
religious institutions.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 Our Department has made significant progress with the 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.
 The Policy Framework is a result of intense research into the
development of legislation that will introduce the concept of hate
crime to South African criminal law. It will make hate speech a crime
and will provide for the development of measures to combat hate
crimes, hate speech and unfair discrimination.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 The Policy Framework seeks to introduce a further category of
newly-defined hate crimes in instances where the conduct would
otherwise constitute an offence and where there is evidence of a
discriminatory motive on the basis of characteristics such as race,
nationality, religion, sexual orientation etc. The Policy Framework
has largely been finalised and the next step is to open it for public
debate.
 The debate will be contentious because of the element of hate
speech and the balance that needs to be achieved between freedom
of speech and prohibiting hate speech.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 Importance of our Equality Courts and PEPUDA, our equality
legislation. Our Equality Courts are under-utilized and we need to
make people aware that they can approach our Equality Courts.
Also bear in mind that in the Equality Court, if the alleged
discrimination is on a prohibited ground, in this case sexual
orientation, then the onus is not on the applicant, but on the
respondent to prove that the discrimination was fair.
 Our Equality Courts have handed down many judgments affirming
LGBTI rights, such as the Alberton court which affirmed a lesbian
couples rights when they wanted to book a specific venue to
celebrate their civil union, but the venue refused.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 Also in the case in the Equality Court in Pretoria where a music
teacher who worked for a church had his contract terminated
because of his sexual orientation.
 Our former Minister of Justice and Constitutional Development,
Minister Jeff Radebe established a National Task Team (NTT) to
develop a National Intervention Strategy on LGBTI issues, after he
received a number of petitions from civil society organisations.
 Our Department initiated engagements with key government
departments and institutions to develop the National Task Team.
The NTT is constituted by government departments, chapter 9
institutions and civil society organisations that specialise in issues
related to LGBTI persons.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 The aim of the National Intervention Strategy is to address so-called
“corrective rape” and other forms of violence against LGBTI
persons.
 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.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 We significantly strengthened the participation of NGOs and civil
society in the NTT through a process of consultative workshops
with all provinces. All provinces are now represented on the
National Task Team.
 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.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 Our former Deputy Minister established the Rapid Response Team
(RRT) to urgently track the pending cases committed against LGBTI
persons which are in the criminal justice system, as well as to
respond as soon as possible, to cases of violence being reported.
 The RRT comprise South African Police Service (SAPS), National
Prosecuting Authority (NPA), DoJ&CD and representatives from
CSOs.
 Much progress has been made by the RRT in ensuring the fast
tracking of the pending hate crimes cases within the criminal justice
system and as a result about 50% of the pending cases were
finalised with imprisonment convictions ranging as follows:
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 30 years; 22 years; 10 years; 6 years, 15 years; 19 years; 15 years and
20 years
 Provincial Task Teams (PTTs) have been established in the
provinces to coordinate the implementation of the National
Intervention Strategy activities.
 The PTTs will develop provincial work plans to kick start the
implementation process in this regard.
PROGRESS MADE BY THE SOUTH AFRICAN
GOVERNMENT: PROTECTION AGAINST VIOLENCE AND
OTHER HUMAN RIGHTS VIOLATIONS AGAINST PERSONS
ON THE BASIS OF THEIR REAL OR IMPUTED SEXUAL
ORIENTATION OR GENDER IDENTITY (LGBTI)
 The department recently took part in the High-Level Consultation on
Human Rights and Sexuality in Francophone West and Central
Africa, in Lome – Togo from 28 February – 1 March 2015 where best
practices and policy steps that have been taken in South Africa
towards the elimination of violence and other violations of human
rights based on sexual orientation and gender identity or
expression were shared with other African countries.
 The discussions at the meeting also informed the adoption of the
Outcome Declaration which encourages the human rights CSOs to
lobby their respective States in the West and Central Africa to
implement the recommendations of the ACHPR Resolution 275.
The message we, as the South African government need to get out is that
LGBTI persons are not infringing anybody’s rights by being themselves. We
have to change societal attitudes.
 A study by OUT showed that only half of their respondents
questioned had felt that the Constitution had indeed led to a
positive change in the attitudes to homosexuality held by many
citizens. About 80% continued to see themselves faced with the
same societal prejudice of being ‘abnormal’.
 A national analysis by the Human Sciences Research Council found
that 78% of respondents considered homosexuality as “absolutely
unacceptable”. These figures therefore stand to confirm that our
communities are still largely influenced by so-called “heteronormative” views and attitudes, and this is where the need for
public education and awareness cannot be overemphasized.
LESSONS LEARNT
The message that needs to be sent out to our communities is one of
tolerance and respect. We need to rid our society of homophobia and
promote a culture of equality.
LESSONS LEARNED FROM WORKING TOGETHER TO PROTECT THE
RIGHTS OF PERSONS ON THE GROUNDS OF SEXUAL ORIENTATION
AND GENDER IDENTITY / EXPRESSION
“If you want to go fast, go alone, but if you want to go far, go together”
(African Proverb)
LESSON LEARNT
The most important lessons we have learned from the South African
experience thus far as senior government policy makers are the
following:
1.Ensuring the Right People Are Involved Is Very Important to the
Process
Organisations and individuals involved in the partnerships need to
have both the authority and the flexibility to engage in mutual decisionmaking.
Roles and Responsibilities of Partners and Stakeholders is key: Who,
how many, their roles and responsibilities, and the need for
consistency of participation and most importantly commitment.
Uniformity of vision and goals of stakeholders is extremely important.
LESSONS LEARNT
The most important lessons we have learned from the South African
experience thus far as senior government policy makers are the
following :
 Mobilisation of Political leadership and senior managers of the
relevant sectors become key drivers to the process.
2. Early investment in training to form part of the underpinning of the
programme. Training should also include both the technical and
strategic capacity to manage intersectoral relationships.
3. Effective facilitative leadership in advancing shared purposes and
sustaining the collaboration amongst roleplayers partners is essential.
4. Strengthened accountability mechanisms by all roleplayers are
critical to a successful process.
LESSONS LEARNT
5. Finance and Funding mechanisms to support multi-sectoral
collaborations must be established at the outset
6. Supportive and facilitating structures and processes to do the work
of collaboration are essential , including systems being put place for
adequate and continuous communication and consultation within and
across the sector.
6. Adequate administrative institutional support for the structures and
processes.
7. Assessments, Monitoring and Evaluation and Reporting are
essential throughout the process.
AFRICAN UNION ROADMAP
 the African Commission on Human and Peoples Rights at its 55th
Ordinary Session held from 28 April to 12 May 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. This 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;
• 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;
AFRICAN UNION ROADMAP
This Resolution :
• Calls on State Parties to ensure that human rights defenders work
in an enabling environment that is free of stigma, reprisals or
criminal prosecution as a result of their human rights protection
activities, including the rights of sexual minorities; and
• 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,
AFRICAN UNION ROADMAP
ensuring proper investigation and diligent prosecution of perpetrators,
and establishing judicial procedures responsive to the needs of
victims”.
 the considerations mentioned above adopted by the ACHPR
provides an appropriate platform for AU Member States to reflect on
its treaty obligations as per this particular AU resolution. Building
blocks in the form of the first regional seminar on this topic under
the auspices of the ACHPR can assist in bringing AU Member
States in a non-confrontational and peaceful manner to the table to
begin to dialogue on ensuring compliance with the May resolution
and the relevant treaty obligations highlighted therein by providing
practical solutions to address the scourge of violence and
discrimination and dealing with the protection gap against persons
discriminated on the basis of sexual orientation and gender identity
in Africa.
AFRICAN UNION ROADMAP
 in taking forward Resolution 275, the South African government, is
planning and preparing for the Africa Regional Seminar on finding
practical solutions for violence and discrimination against persons
based on sexual orientation and gender identity.
 Several meetings have been held with regional CSOs to plan for the
upcoming seminar which is targeted for June 2015.
 The focus of the seminar will be on finding practical solutions to the
challenges of violence and discrimination against persons based on
their sexual orientation and gender identity, and the options
available to States in order to address these violations.
AFRICAN UNION ROADMAP
 The objective of the seminar will be to facilitate an open,
constructive, informed and transparent dialogue on the issue of
discrimination and acts of violence against individuals based on
sexual orientation and gender identity and generate greater
understanding on the root causes and manifestation of these
challenges.
 Furthermore the objective of the seminar is not to create new or
special rights and does not replace an intergovernmental process
necessary to carry the work forward in the context of the HRC and
AU.
 The discussions at the seminar will gather ideas on practical ways
to strengthen protection of the human rights of individuals at risk of
violence and discrimination on the basis of their sexual orientation or
gender identity.
AFRICAN UNION ROADMAP
 It will identify challenges and concrete solutions to overcome them
through sharing of national experiences. It will also generate ideas on
possible avenues on how the Human Rights Council should address
this thematic issue in the future.
 It will also inform the adoption of the “Outcome Declaration Working
together in Africa where no-one faces violence or discrimination on
the grounds of sexual orientation and gender identity”.
THANK YOU