As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Last week the UN Human Rights Council adopted a resolution to appoint an Independent Expert on the protection against violence and discrimination based on sexual orientation and gender identity. South Africa – currently a member of the Human Rights Council – abstained from the vote. Why did South Africa fail to support (relatively weak) measures to protect gay men, lesbians, bisexuals, intersex and transgender (LGBTI) individuals from discrimination, assault, and murder?
The UN Human Rights Council resolution to appoint an Independent Expert on the protection against violence and discrimination based on sexual orientation and gender identity can hardly be described as a revolutionary document.
The mandate of the Independent Expert is non-invasive as the Expert is prohibited from interfering with the sovereignty of any country or to prescribe to any country how it should act in order to stop the assault and murder of LGBTI individuals in that country.
The Expert is mandated only to do such things as assess the implementation of existing international human rights instruments; raise awareness of violence and discrimination against persons on the basis of their sexual orientation or gender identity, identify and address the root causes of violence and discrimination; engage in dialogue and to consult with States and other relevant stakeholders; and address the multiple, intersecting and aggravated forms of violence and discrimination faced by persons on the basis of their sexual orientation and gender identity.
Moreover, during the deliberations the Council adopted several amendments to the resolution to water down the resolution.
One amendment stressed “the need to maintain joint ownership of the international human rights agenda and to consider human rights issues in an objective and non-confrontational manner”.
Another amendment also reiterated “the importance of respecting regional, cultural and religious value systems as well as particularities in considering human rights issues”, thus arguably endorsing the view that for cultural and religious reasons LGBTI people need not be considered as fully human in all parts of the world.
To counter perceptions of Western meddling another amendment furthermore deplored “the use of external pressures and coercive measures against States, particularly developing countries, including through the use and threat of use of economic sanctions and/or application of conditionality on official development assistance, with the aim of influencing the relevant domestic debates and decision-making processes at the national level”.
The resolution was co-sponsored by, amongst others, Albania, Angola, Argentina, Bolivia, Brazil, Chile, Colombia and Uruguay. Cuba, Venezuela and Vietnam voted in favour of the resolution at the Human Rights Council.
Yet, South Africa refused to support this resolution. In other words, South Africa declined to vote in favour of mild and watered down measure aimed at protecting the lives of LGBTI people and it was not because the resolution was only supported by countries from the global North or because it failed to acknowledge the political complexity of the issue. (The fact that it is “politically complex” to protect LGBTI people from discrimination, assault and murder, tells its own story.)
The UN report of the proceedings provides the following explanation for South Africa’s abstention:
South Africa, speaking in an explanation of the vote before the vote, noted that no person should be subjected to discrimination or violence on any ground, including on the grounds of sexual orientation and gender identity. South Africa’s approach to the protection of lesbian, gay, bisexual, transgender and intersex persons was focusing on maximum unity within the Council. The draft resolution added unnecessary divisiveness, building on the previous African initiative of 2012. It was an arrogant approach. Recklessness and point scoring would not take anyone anywhere. South Africa could not support the resolution as it stood and would thus abstain.
In other words, although South Africa supports gay rights, it opposes steps at the UN to protect LGBTI people from discrimination, assault and murder because this would upset some of the members of the Human Rights Council and would be “divisive”.
Thus, our lives as gay men, lesbians, bisexuals, intersex and transgender people are less important to the government than maintaining maximum unity within the UN Human Rights Council. From where I stand, it appears as if our government believes that our lives are pretty worthless. Who cares about LGBTI people being assaulted and murdered across the world if caring about it will upset the unity within the Human Rights Council?
I am well aware of the complexities attending to some of the human rights based activism relating to LGBTI people – especially on our continent.
Last year I published an academic article in which I explored the counter-productive ways in which some countries on the continent that discriminate against sexual minorities are depicted in parts of the Western media (relying on arguments that a specific country is violating the rights of sexual minorities) and by some human rights activists fighting against the oppression of sexual minorities.
The way this is sometimes done, I wrote, may well reinforce perceptions that demands to respect the rights of sexual minorities are part of a neo-colonial project and inherently racist.
To be clear, I do not believe that demands to respect the rights of sexual minorities are inherently racist. Homophobia is a Western invention, just as the idea of branding people as “homosexual” because they experience same sex sexual desire is of Western origin, having emerged in Europe in the latter part of the nineteenth century. Western colonisers popularised what we today would call homophobia in large parts of our continent – with the assistance of the Christian missionaries. To take steps to protect individuals against homophobia can therefore be depicted as anti-colonial and anti-racist in nature.
Nevertheless, because of the manner in which countries from the global North (some of them the major colonisers of our continent) and some sectors of the Western media sometimes invoke human rights discourse in relation to discrimination against sexual minorities, the deployment of human rights in defence of sexual minorities can be difficult and, in some contexts, this deployment can be effortlessly countered by those who hate or fear LGBTI individuals.
In his book, Human Rights, the Kenyan American scholar Makau Mutua problematizes the deployment of human rights by some actors of the global North, arguing that human rights are often deployed in a manner that seems to fall within the historical continuum of the Euro-centric colonial project, in which actors are cast into superior and subordinate positions.
Mutua uses an extended metaphor to make this point, arguing that a “grand narrative” underlying the entire human rights discourse invoked by international organisations and Western governments is one that pits “savages, on the one hand, against victims and saviours, on the other”.
In this grand narrative, international organisations and Western governments play the role of patronising “saviour” (much as Western governments supposedly did during the process of colonisation) of a minority of victims (members of the sexual minority).
Western governments and international organisations (and, one can add, some Western media outlets) thus depict African governments and the majority of their citizens as “savages” who do not respect the most basic rights of their fellow citizens and need to be reprimanded and corrected by Western governments and non-governmental organisations in order to help protect the innocent victims of this ‘barbarism’.
When invoked in this manner, human rights can be stigmatised as in essence representing a set of normative commitments that neatly dovetail with the arrogant and superior attitudes of many in the West towards African governments and the citizens of African countries.
This is a particularly acute problem when Western governments and NGOs invoke human rights to advance the interests of sexual minorities on the continent. Often relying on a discourse of modernity and progress (a discourse that is commonly invoked in human rights debates), “those countries that recognize the rights of sexual minorities are considered modern, which by implication casts those countries that do not recognize such rights as un-modern or pre-modern.
There is a real problem with this discourse in that it sets out to postulate the West as the archetype of inevitable progress, while the African continent is implicitly presented as a ‘backwards and un- developed’, lacking in civility and respect for individuals. This is the same kind of rhetoric previously deployed as part of the colonial project.
However, it would be difficult to typify the Human Rights Council resolution as falling within this problematic discourse. As noted, the resolution was co-sponsored by a wide range of countries from various continents and was supported by a coalition of countries that included many countries from the global South. Venezuela, Bolivia, Cuba and Vietnam can hardly be viewed as countries that would enthusiastically support resolutions at the UN that promote neo-colonialism.
Some of the amendments added to the resolution also specifically counter the kinds of concerns about the (mis)use of human rights discourse by Western countries highlighted above.
Moreover, the South African government did not object to the resolution on these grounds but on the grounds that the resolution was “divisive” and that the government would rather foster “maximum unity” in the Human Rights Council – at the expense of the lives of gay men, lesbians, bisexuals, intersex and transgender individuals.
It is surely unthinkable that the South African government would fail to support a resolution appointing an Independent Expert to protect women against discrimination and violence, despite the fact that several other countries in the Human Rights Council would do so and support for such a resolution would thus also be divisive.
If this is so, the question arises whether the decision to abstain is not at least partly based on a lack of enthusiasm on the part of some South African policy makers for the protection of the dignity and lives of LGBTI individuals.BACK TO TOP