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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the LGBTI National Task Team Workshop, held at the Premier Hotel, Pretoria, 18 September 2013

Programme Director
The Director-General, Ms Sindane
Representatives of NGOs and civil society,

Thank you for the invitation and the opportunity to be here today.

The United Nations recently chose South Africa for the launch of "Free & Equal", a global campaign to promote respect for the rights of lesbian, gay, bisexual, transgender and intersex people.  A 2011 report by the UN Human Rights Office found an alarming pattern of brutal violence and widespread discrimination against lesbian, gay, bisexual, transgender and intersex people in all regions of the world. In 76 countries, adult same-sex relationships are criminalized, exposing lesbian, gay and bisexual people to the risk of arrest, imprisonment, torture and, in five countries, the death penalty. 

South Africa was the first country in the world to outlaw discrimination based on sexual orientation, and the fifth country in the world and the first in Africa to legalize same-sex marriages.   The Department of Justice and Constitutional Development fully endorses and advocates the rights of LGBTI people as human rights, which should be enforced and respected at all times. As Hilary Clinton very succinctly said “gay rights are human rights.”

Parliament has, over the years, demonstrated its dedicated commitment to the constitutional protection guaranteed to the same-sex persons. As a country, we have legislated against discrimination on sexual orientation in a work environment.  In 1999, we 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 the Constitution, in particular the promotion of equal enjoyment of all rights and freedoms by every person.

Through our progressive legislative framework, we are a country that has, since 2002, legalised 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. We have the Civil Union Act of 2006.

Programme Director, the list goes on. In short, in South Africa today we have a society where same-sex sexual activity is legal, where there is an equal age of consent, there are laws to prevent discrimination in employment, laws to prevent discrimination in the provision of goods and services, and general anti-discrimination laws, same-sex marriages are legal, recognition is given to same-sex couples, both joint and step adoptions by same-sex couples are  allowed,  a person has the right to change their legal gender and there is equal access to IVF and surrogacy to all individuals and couples.

Indeed we have come a long way. South Africa's constitution expressly prohibits discrimination on the basis of sexual orientation, sex or gender and numerous laws have been enacted to protect the rights of LGBTI people.  However, the tragic reality is that the existing legal protection has not filtered down to the level of everyday life. There appears to be a clear dissonance between the formative acknowledgement of human rights as set out in the Constitution and the substantive rights accorded to victims of LGBTI-related crimes, in practice.  The vast majority of LGBTI people in South Africa are still side-lined from accessing their rights because of stigmatization, deep economic inequality, social isolation and cultural exclusion.

The Organisation for Refuge Asylum and Migration released a report called “Discrimination and Persecution of LGBTI Individuals in South Africa” and found that despite the legal and constitutional protections available to LGBTI individuals in South Africa, discrimination and violence against LGBTI persons is  still rampant.  LGBTI men and women who are victims of sexual assaults and so-called “corrective” rapes often face harassment, ridicule, and intrusive lines of questioning from police officers when they report these crimes. Police investigations of these crimes against LGBTI individuals are also often inadequate. The report points out that, out of at least thirty one lesbians murdered in South Africa since 1998, there have been only two cases that have resulted in convictions.

The report continues to find that sometimes police officers themselves are the perpetrators of violence against LGBTI individuals.  Most concerning is the fact that the report found that societal attitudes against the LGBTI persons are extremely poor, with 80% of South Africans believing that sex between two men or two women is “always wrong” and that homosexuality is “un-African.”

In addition, it was found that young LGBTI South Africans often face discrimination and violent bullying at school, and many report being driven out of their homes by their families. LGBTI adults also often face discrimination in the workplace. These types of discrimination can result in difficulty obtaining adequate education, employment, and community support, which can lead to situations of poverty. The study also states that the risk of discrimination and violence is heightened when LGBTI persons do not conform to the strict gender norms of South African society or when they are activists for LGBTI equality or when they are members of a lower social class or marginalized racial group.

Programme Director,

One could very well argue that it is in the area of changing societal attitudes and stereotyping where our biggest challenge lies. It is relatively easy to change legislation and policies, but not so easy to change discriminatory or prejudicial opinions in the hearts and minds of people.  This is illustrated by the findings of 2009 study done by Kevin Mwaba, called “Attitudes and beliefs about homosexuality and same-sex marriage among a sample of South African students” where it was found that rates of negative attitudes toward LGBTI individuals remained high, even among young and educated South Africans. A survey of South African university students found that up to 44% of the students were opposed to the idea that homosexuality should be socially acceptable in South Africa, as they considered it to be immoral. Only 41% believed that the government was right in granting equal rights to gay people. Up to 37% of the students did not believe that it was wrong to discriminate against gay people, with 46% indicating that homosexual couples should be denied the right to adopt children. As many as 69% indicated support for religious groups in South Africa that were opposed to same-sex marriages.

The increase in incidents of “corrective rape” and other LGBTI-related crimes is of particular concern. And it begs the obvious question as to what the underlying cause thereof could be. One study refers to the problem of South Africa having a “macho culture”. This assertion is supported by the cases which took place in Kwa-Thema, where at least three lesbians have been murdered since 2008. Noxolo Nogwaza and Eudy Simelane were gang-raped and killed, while Girly Nkosi was attacked and murdered in a nightclub. These cases were widely reported on and, according to one article, which appeared in the LA Times, writer Robyn Dixon argues that all the women who were attacked or raped played soccer “as well as, or better than, most men”. Furthermore, says the article, all of them “dressed in a masculine style.” The writer of the article argues that their athletic ability was clearly a threat to traditional gender roles and stereotypes.

The first step in addressing the issue of crimes against LGBTI persons is to change societal attitudes. We need to create a culture of acceptance and respect. We need to send the message, again and again and again, that LGBTI persons are not infringing anyone’s rights by simply being themselves.
There has always been, in legal discourse, a lot of debate and discussion around the law, or specific legislation, being the embodiment of the will of the people or the reflection of society’s views or attitudes.  Earlier this month United States Supreme Court Justice, Ruth Bader Ginsburg, became the first Supreme Court Justice to officiate a same-sex wedding in the US. In a recent interview, she stressed the importance of changing societal attitudes in the quest for equality. She credited timing for the advancement of equality, saying many of the principles she defends succeeded because society was ready to accept them.  "It was the change in society that opened the court's eyes and made my arguments palatable when they would not have been a generation before," she said.

It is often said that the law simply reflects the thinking or attitudes of society. In other words, the law must constantly change and adapt to meet the needs of such society.  But, I would go one step further and argue that in instances of discrimination or inequality or, in this case, LGBTI-related crimes, where we know that a large part of society holds stereotypical, prejudicial or discriminatory attitudes, the law is not the vehicle which simply reflects these views, but rather it should be an activist vehicle which proactively sets out to bring about change and to changesuch societal attitudes.

In this regard, many of you may be aware that the 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 lesbians and transgender men, especially in townships. Other motivators included a number of recent racist and xenophobic attacks as well as vandalism targeting religious institutions.

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 ‘other’ to the perpetrator. Such crimes violate the constitutional right to non-discrimination by being harmful, inciting harm, intimidation, undermining human dignity, respect and a person's right to bodily integrity. Most recently hate crimes have surfaced in South Africa in the form of the attacks, murders and the ‘corrective rape’ of lesbians, xenophobia, and racist attacks.  Because these are crimes of prejudice, they cannot be prevented and addressed in the same way as other violent crimes. They also have particularly serious consequences for the victims, because they are directed at the victim’s identity.

Currently, our South African law does not provide specifically for hate crime offences. There is limited and inconsistent documentation of hate crimes in the country, which makes these crimes harder to combat. Despite various advocacy efforts by civil society organisations, real knowledge, expertise and thorough documentation in addressing hate crimes is lacking across all sectors in all provinces. 

In addition, there is currently no mechanism for reporting or recording hate crimes in South Africa in a way that distinguishes them from other crimes.  Therefore, the deliberate murder of a person because of their sexual orientation or the colour of their skin would simply be recorded as a murder. Similarly, damage to a mosque due to hatred of the Muslim community will simply be recorded as ‘malicious damage to property’. Additionally, due to the victim’s fear of persecution by the perpetrator(s) and/ or of secondary victimisation by service providers, hate crimes are often under-reported.

As a result, there is no way to assess the levels of hate crime in South Africa, except when a particular case receives excessive media attention. Without related crime categories and statistics that provide evidence of the extent and impact of hate crimes, it is difficult to fully understand the impact of hate crime on the community, to lobby for reforms to the policing and justice sectors, or to develop related interventions.

In November last year, our Department finalised 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. As regards hate crimes, the present practice of charging perpetrators of hate crimes with common law offences such as assault, murder and crimen injuria without any reference to the bias motivation is inadequate.

Developing specific legislation on hate crimes will have a number of advantages.  It will help create a shared definition of hate crimes amongst all those involved in the criminal justice system and it will send a clear message that hate crimes will not be tolerated in South Africa. It will provide additional tools to investigators and prosecutors to hold the perpetrators of hate crimes accountable and will provide a means to monitor efforts and trends in addressing hate crimes.  Furthermore it will allow for effective coordination between government service providers in order to reduce the impact of secondary victimisation on hate crimes victims.  I hope that this policy can be put out in the public terrain for debate and discussion so that legislation criminalising hate crimes can be put to Parliament soon after next years elections.

Programme Director,

Let me say something about the work of the National Task Team and its  importancef.  Let me start by saying that the lack of  progress has been disappointing.  However, responsibility for the  National Task Team was recently transferred to the Branch Constitutional Development in May this year and efforts have already been made to revitalize it  with civil society organizations from the LGBTI sector, representatives from the South African Human Rights Commission and the Foundation for Human Rights, as well as representatives from the Department of Justice and Constitutional Development. Workshops have already been held to address mechanisms to revive the urgent interventions to address violence against LGBTI persons.  Issues which are receiving immediate and on-going attention are the issue of unresolved and pending cases involving against LGBTI persons, the NTT's Terms of Reference; the concerns of civil society organisations, interventions by the Department of Justice regarding the promotion and protection of the rights of LGBTI persons to date; the transfer of the Project Office to the NTT to the Branch: Constitutional Development; and the development of an integrated action plan for 2013/14 to take forward the work of the NTT.

Furthermore, the work of the Rapid Response Team also needs to be emphasized. The Rapid Response Team, which comprises the Department of Justice and Constitutional Development, National Prosecuting Authority, South African Police Service, Department of Social Development, South African Human Rights Commission, Commission for Gender Equality and representatives from civil society organisations, will urgently attend to any pending cases in the criminal justice system where crimes have been committed against LGBTI persons.  In addition, draft terms of reference have been drawn up and I believe Adv Sewpaul and Dr Lynch will say more on the terms of reference.

It is important to note that significant progress has been made in so far as the finalisation of the Situational Analysis and Draft National Intervention Strategy. The Department has conducted a situational analysis on the perceptions of the court officials on LGBTI persons; the identification and registration of cases involving LGBTI witnesses; the statistical account of these cases; issues relating to secondary victimization and the causes of delays in the finalization of these cases. This study will inform the development of the National Intervention Strategy which is already underway so as to ensure that there is a strategy that is responsive to the existing challenges regarding the gender and sexual orientation-based violence being committed against LGBTI persons.  Ms Sedica Davids will elaborate more on the Situational Analysis and the Draft National Intervention Strategy tomorrow.

In addition, the Chief Directorate: Public Education and Communication in collaboration with the Government Communications Information Systems (GCIS) is in the process of developing an integrated communication strategy. We are also aware of pending or unsolved cases involving LGBTI persons in the different regions and these are receiving priority attention.

We come from a past which was characterized by systemic and institutionalized discrimination and prejudice. We fought and struggled for freedom, a freedom for all our people.  We cannot allow a society to exist where a certain section of that society is deprived of those fundamental and hard-won freedoms. To do so, would amount to an injustice to the history of the struggle and to our democratic dispensation.

Ladies and gentlemen, I wish you all the best for rest of the workshop and as you finalize the draft workplan for the NTT. It is encouraging to see that we have regained the momentum to do what needs to be done to enable all LGBTI persons to effectively access and realize their constitutionally protected rights.  I can assure you that the political will is there to do so.

I thank you for your attention.