European, North American and Latin American states are moving increasingly towards guaranteeing full rights — including same-sex marriage — for sexual minorities in ways that would have been unimaginable even a decade ago. Meanwhile, many African, Muslim and former Soviet states are digging in their heels, branding the call for "gay rights" a Western preoccupation and an affront to their traditional culture and sovereignty.
This new division, and the consequently heightened debate, is etching a frontier in human rights discourse — much as the women’s rights movement did in the 1970s and the civil rights and Third World independence movements did before that. Sitting right on this frontier, both geographically and conceptually, is South Africa, which has one of the most progressive constitutions and legislative frameworks in the world, but where documented violence against gender non-conforming citizens remains severe.
Within this context, South Africa has made a dramatic decision: not just to place itself in the global "human rights" camp on this issue, from which most of its neighbours have excused themselves, but to lead it. At the UN Human Rights Council in Geneva last week, South Africa hosted the organisation’s first-ever debate on the rights of sexual minorities.
SA committed to protecting victims of violence
Marius Fransman, the deputy minister for international affairs and co-operation, said South Africa was "committed to the process of strengthening protection mechanisms for victims of violence based on sexual orientation and gender identity within international law".
Meanwhile, at the UN’s Commission on the Status of Women in New York in February, South Africa co-sponsored a session on "best practice" in sexual orientation and gender identity rights. The minister for women, children and people with disabilities, Lulu Xingwana, gave an impassioned speech detailing South Africa’s legislative achievements, as well as a frank assessment of homophobic violence.
South Africa’s laudable decision to lead on this issue is somewhat perplexing given the country’s general approach to global human rights, which is to keep its head beneath the parapet, particularly if there is a risk of offending China, Russia or the African fraternity. On this particular issue Russia is offended — it has sponsored a resolution at the human rights council on "traditional values" and has chastised South Africa in a bilateral discussion — but China seems to be oblivious; perhaps this helped the South Africans to pluck up their courage.
SA chooses its own path
Most interesting is how South Africa has broken with the African majority, something that would have been unthinkable in the Thabo Mbeki era when the country was obsessed with leading the continent (although Mbeki recently issued a strong condemnation of the proposed Ugandan anti-homosexuality legislation).
At the UN, South Africa first tried to balance its African leadership position with its own progressive legislation back home. The result was a resolution last year calling for the UN to define "new concepts", such as sexual orientation, as a first step towards possibly protecting the rights of sexual minorities.
But South Africa did not get the support it expected for this and found itself isolated from both the African mainstream and liberal states, which protested that sexual orientation was not a "new concept" and sexual minorities had been protected by international human rights law for two decades already.
This latter position was also taken by a group of South African civil society activists, including the Black Sash, Human Rights Institute of South Africa, Coalition of African Lesbians and Human Rights Watch. According to international relations officials, their consultations with these activists were decisive, particularly in the context of public outrage at the murder of lesbians in "corrective rape" killings.
South Africa needed to choose a side and it found new friends in the United States, Western European countries and, most importantly, Brazil.
The two countries co-sponsored a new resolution calling on Navi Pillay, the high commissioner for human rights, to investigate human rights violations against sexual minorities.
The initiative was driven by the South African ambassador to the UN in Geneva, Jerry Matjila. He took much personal flak in Geneva, particularly from Nigeria, whose delegate claimed that the South African no longer represented the majority of his own countrymen at the UN and the responsibility for doing so now fell to Abuja. The resolution was passed by a slender majority last June and Pillay submitted her report, which formed the basis for last week’s debate, in December.
South Africa’s approach in Geneva was in marked contrast to its response to the Libyan crisis at the same time, following the African Union and refusing to recognise Libya’s Transitional National Council. Since then Matjila has been promoted to the director general’s office in the international affairs department, which could be read as evidence that his political bosses recognise the value of steering a geopolitical path that is more global than Afrocentric in its vision.
Matjila’s replacement at the UN, veteran anti-arms and anti-nuclear campaigner Abdul Minty, has followed a more conservative approach, but this has played a significant role in tempering the African response.
"The South Africans are convinced that if anyone can broaden the circle of conversation on this issue, it’s them," said Charles Radcliffe, from the office of the UN high commissioner for human rights. "They have gone to extraordinary lengths to engage other African countries, and to get dialogue going."
This has yielded significant results. There were, of course, antagonists to the South African position within the Africa group at the human rights council: these included Egypt — which led the Islamic states’ walkout from the debate – and Namibia. But the public statement given by Senegal on behalf of the Africa group makes it clear that there was no consensus within the group on the issue and South African officials claim that the majority of African states accepted their call for increased dialogue. Among them was Nigeria, which stated emphatically that sexual minorities were not subject to discrimination in that country.
What about the effects of this debate on South Africa itself? In New York last month, Xingwana made much of a task team set up by the South African justice department to investigate violence against sexual minorities and expedite cases through the criminal justice system. But activists back home complain about how mired in bureaucracy it has become, to the point of dysfunctionality.
"There is a disconnect," said Dawn Cavanagh of the Coalition of African Lesbians, "between the leadership internationally and the leadership back home. We’d like to see the department of justice adhere to the high standards set by [the international relations department]."
There is strong disagreement, too, in the South African government on the subject. Some believe that South Africa’s stance has unnecessarily strained its relationships with some of its neighbours and might lose it support in the African Union and even among the ANC’s own members.
Africa remains a rough neighbourhood for sexual minorities. When UN Secretary General Ban Ki-moon addressed the AU summit in Addis Ababa in January, he said: "One form of discrimination ignored or even sanctioned by many states for too long has been discrimination based on sexual orientation or gender identity. It prompted governments to treat people as second-class citizens or even criminals."
Interestingly, despite some huffing and puffing in the African media, only one African leader publicly challenged Ban on his statement: Gambia’s Yahya Jammeh, who, in 2008, promised laws "stricter than Iran" and threatened to "cut off the head" of any gay person found in his country.
When Prime Minister David Cameron suggested that the United Kingdom would make development aid conditional on countries’ positions on human rights, including the rights of sexual minorities, there was an outcry from many African governments. But this could have been read as an assertion of sovereignty as much as an articulation of homophobia.
Homosexuality is punishable by death in three African states and is illegal in most of the rest of them. Despite Nigeria’s comments in Geneva, there is a Bill before its Parliament that purports to ban same-sex marriages, but it will actually make it illegal to express alternative sexuality in any way.
The Ugandan Bill punishing "repeat offenders" of homosexuality with death is back before the country’s Parliament and homosexuals are routinely imprisoned and harassed across the continent.
Still, Kenya has a new Constitution that could be read to protect sexual minorities and a supreme court led by two liberal jurists. In Liberia Ellen Johnson-Sirleaf has promised to veto an anti-gay Bill tabled by Charles Taylor’s widow. In Malawi the state is reviewing a whole slate of anti-democratic laws, including its sodomy law. Botswana has publicly called for more dialogue on the issue at the human rights council and Rwanda has said at the UN that sexual minorities should be protected against violence and discrimination.
This might be small comfort to the gay, lesbian and transgender people who face violence and discrimination every day in these places, or who are forced to live under deep cover.
But it does suggest that the continent is by no means ossified into a monolithic homophobic bloc and South Africa has the unique opportunity to shift things towards a continental culture that compels states to take up their responsibilities on behalf of all their citizens, regardless of their sexual orientation and gender identity.