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Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the 3rd Pan Africa International Gay and Lesbian Association (ILGA) Conference, Johannesburg, 16 May 2016

Good morning and allow me to bid you all a warm welcome - Bem vinda, Bienvenue – to our beautiful country.

This is a particularly special year for us, from a human rights perspective, as we are celebrating the 20th anniversary of our Constitution – a Constitution which, as you know, has been called ground-breaking as it was the first in the world to prohibit discrimination based on sexual orientation.

Since then, we’ve seen ground-breaking judgments by our courts and passed ground-breaking laws to prevent discrimination on the basis of sexual orientation and provide for the equality of LGBTI persons.

This conference is entitled “Breaking Ground and Building Bridges” – and it’s a very appropriate title, as we are indeed seeing ground-breaking developments in our region and our continent.

For example, an insightful article by Human Rights Watch discusses three recent African court decisions—in Botswana, Kenya and Zambia— which “represent significant progress on human rights for lesbian, gay, bisexual and transgender people and have broader implications with regard to countries' obligations” to uphold basic rights for marginalized groups. 

In a case in Botswana, activists applied to register their organization, Lesbians, Gays and Bisexuals of Botswana. The registrar rejected their application on the grounds that the application would contravene the Societies Act, by operating for an "unlawful purpose or other purpose prejudicial to, or incompatible with, peace, welfare or good order in Botswana."

However, the Botswanan High Court found that the refusal to register the group was a violation of the applicants' rights to equal protection of the law. The court held that gay, lesbian and bisexual people have the same rights as anyone else, regardless of laws that criminalize consensual same-sex conduct.

The High Court in Kenya handed down a similar judgment when the National Gay and Lesbian Human Rights Commission was also refused registration on moral grounds. The court asserted fundamental human rights and the rule of law and held that no matter how strongly held moral and religious beliefs may be, they cannot be a basis for limiting rights.

In the third case, the Zambian High Court upheld the acquittal of a human rights activist who expressed his opinion—on a privately owned television channel—that the rights of sexual minorities, including LGBT people and sex workers, should be recognized. He was arrested and charged for "soliciting for immoral purposes" in a public place.

He was acquitted in the Magistrates’ Court, where the magistrate held that the "accused was exercising his freedom of expression" as provided for in the Zambian Constitution. On appeal the High Court confirmed the acquittal.

Apart from decisions such as these, we are also witnessing the emergence of more dialogues on the issues of SOGI rights – dialogues that would not have taken place 5 or 10 years ago, dialogues that mean that SOGI rights are kept high on the public agenda.

For example, in November last year, a joint dialogue on sexual orientation and gender identity was held between the African Commission on Human and Peoples’ Rights, the Inter-American Commission on Human Rights, and the United Nations human rights mechanisms in Banjul, The Gambia, ahead of the 57th ordinary session of the African Commission.

The dialogue was hosted by the African Commission, and was supported and organised by the Office of the High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS.
The substantive issues discussed during the dialogue were:

  • The Right to life, integrity, freedom from torture, prohibition of violence and related rights;
  • The Right to liberty, freedom of association and assembly, freedom of expression, human rights defenders and related rights; and
  • The Right to health and other economic social and cultural rights.

Participants highlighted many positive developments – such as:

  • the work of the African Commission,
  • the absence of criminal sanctions in many States on the continent and the recent removal of criminal provisions in others,
  • the legal prohibition of discrimination on the basis of sexual orientation in employment,
  • positive judgments by several national courts in the region to uphold the right of LGBT persons and human rights defenders working on these issues,
  • the work of national human rights institutions to protect LGBT persons, and
  • the acceptance of UPR recommendations on this issue by several African states.

At the same time, participants also raised common challenges in addressing human rights violations based on sexual orientation and gender identity, including:

  • a lack of understanding, and opposition, from some Member States to references to human rights violations based on sexual orientation and gender identity,
  • as well as legislative and other efforts to increase or broaden the scope of discriminatory laws that criminalise LGBT persons, and
  • high levels of criminalisation, stigmatisation and prejudice were highlighted as common challenges in the Caribbean and Africa.

The dialogue also stressed the importance of building bridges, of networking and building partnerships in the area of LGBTI rights.

The importance of ensuring an enabling environment and democratic space for human rights defenders and civil society organisations working for the protection of the human rights of LGBTI persons is seen as critical, to ensure that they carry out their work safely and effectively without facing violence, threats and persecution.

Furthermore, the importance of finding and strengthening avenues for partnership, alliances and dialogue between all stakeholders on this issue must continue. Such dialogues should include Member States, expert human rights bodies, courts, civil society organisations, national human rights institutions and regional and international organisations.

As you may also be aware the South African Human Rights Commission, supported by the South African Governmennt and members of civil society hosted a three-day African Regional Seminar on Finding Solutions for Addressing Violence and Discrimination against Persons Based on Sexual Orientation, Gender Identity and Expression in March this year.

The basis of the seminar was Resolution 275, which was adopted by the African Commission on Human and Peoples’ Rights at its 55th Ordinary Session in 2014, entitled “Protection against Violence and other Human Rights Violations on the basis of their real or imputed Sexual Orientation or Gender Identity”.

It was a historic meeting – the first of its kind in the region. It was well attended and over the three days, delegates spoke about their own experiences in their countries. 

A declaration was adopted at the end of the seminar, which sought to address issues such as -

  • changing perceptions and creating awareness;
  • violence and discrimination in accessing education;
  • economic justice;
  • health and psycho-social support;
  • legal support for victims of violence and discrimination and their families;
  • secondary victimisation in the criminal justice system and border control systems, and
  • the importance of accurate data on incidences of violence and discrimination.

Developments such as these mean that we are indeed breaking ground and building bridges.
This does not mean that we live in an ideal world – here in our own country, despite our progressive laws, we still see violence, prejudice and discrimination on the basis of sexual orientation or gender identity.

This is something experienced by LGBTI persons the world over – in both developed and developing countries.
I watched with interest earlier this month, when the US Justice Department warned the State of North Carolina that its new law limiting bathroom access violated the civil rights of transgender people.
In response, the Obama administration stepped in and issued a directive, this past Friday, directing public schools to allow transgender students to use bathrooms matching their gender identity, so as to ensure that transgender students enjoy a supportive and non-discriminatory school environment.  
This guarantees transgender students the right to identify in school as they choose.

This is a step in the right direction for LGBTI rights.
Every step in preventing SOGI discrimination and prejudice is ground-breaking.
The world is slowly changing and we are moving forward.

As writer Armistead Maupin writes - "The world changes in direct proportion to the number of people willing to be honest about their lives.
It’s because of activists like the organisations represented here today - who continue to speak out honestly and openly about their experiences, who continue to advocate that LGBTI rights are human rights - that the world is moving forward.

I want to wish you all a very successful and fruitful conference.

I thank you.