An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
SA SHOULD BREAK SILENCE ON HOMOPHOBIC LAWS IN AFRICA
The South African Human Rights Commission is concerned at the alarming growth of state-sanctioned homophobia taking place across the globe and particularly on the African continent.
There are at least 38 African states that have criminalised homosexuality. Nigeria became the latest country to promulgate anti-gay legislation following President Goodluck Johnathan’s decision to authorize a law that prohibits gay, lesbian, bisexual, and transgender (LGBT) relationships, and bans public displays of affection between same-sex couples. Nigerians found to be practicing such face severe penalties including a 14 year jail term.
Since 18 January 2014, dozens of people have already been arrested in Nigeria in terms of the new law.
The SAHRC calls upon the South African government to join other progressive governments in urging the Nigerian government to review its homophobic legislation.
The SAHRC believes that the South African government must seek to exert influence over other African countries to follow good human rights practices in line with those countries’ commitments under international and regional laws and conventions including the African Charter on Human and People’s Rights which guarantees the right to freedom of expression (article 9), freedom of association (article 10), freedom of assembly (article 11), and the equality of all people (articles 2 and 3).
The leadership expected of South Africa on this issue has been heightened following South Africa’s recent ascension to the UN Human Rights Council.
The significance of South Africa’s appointment to serve on the Human Rights Council is that the country can exert influence to ensure international protection of fundamental rights, particularly within its African counterparts.
In fact, in 2011, it was South Africa that initiated a resolution at the UN Human Rights Council in support of gay rights
Given the broad protection of rights guaranteed by our progressive Constitution which includes freedom from discrimination on the basis of sexual orientation, South Africa has an obligation to ensure other Africa countries comply with international human rights obligations.
The SAHRC believes South Africa had missed an opportunity this past week to raise this issue at the 22nd African Union Summit in Addis Ababa, Ethiopia, where Presidents from most African countries gathered to present country reports on progress to the African Peer Review Mechanism Forum.
The Commission lends its support to government and civil society in efforts to address the challenges of violence against sexual minorities, and attempts to improve the responsiveness of our criminal justice system.
The SAHRC calls on the South African government to do more to engage diplomatically with African countries that seek to outlaw fundamental freedoms and human rights, including gay rights to desist from such intended practices. The South African Constitution is one of the most revered in the world and many nations could emulate some of the rights it guarantees, including the right to equality inclusive of Lesbian, Gay, Bi-sexual, Transgender and Intersex rights.
Statement issued by Isaac Mangena, SAHRC Spokesperson, February 5 2014BACK TO TOP