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Draft speaking notes for the Minister of Justice and Constitutional Development, Mr JT Radebe, MP, on the occasion of the launch of the Lesbian, Gay, Bisexual Transgender and Intersex (LGBTI) persons, 29 April 2014 at Women’s Gaol, Constitutional Hill  

Programme Director, Ms Thoko Mpumlwana, Deputy Chairperson of the Commission for Gender Equality
Deputy Minister of Justice and Constitutional Development, Mr J Jeffery, MP
Director-General of the Department of Justice and Constitutional Development, Ms N Sindane
Adv Lawrence Mushwana, Chairperson of the South African Human Rights Commission
Ms Jacqueline Nzoyihera, Representative of the Office of the UN High Commission for Human Rights Southern Africa
Ambassadors and High Commissioners representing Foreign Missions in South Africa
Members of the LGBTI National Task Team
Representatives of Civil Society Organisations representing the 9 Provinces
Distinguished Guests

It gives me great pleasure to be here today as we launch our national LGBTI programme; amidst a distinguished audience of Excellences’ and Representatives of Foreign Missions stationed here in South Africa, Heads of Chapter 9 institutions, representatives of international organisations and indeed human rights activists from all walks of life.  We salute you in particular, for your tireless efforts in ensuring the protection of human dignity, equality and freedom for one and all!

This launch takes place during the Freedom month, shortly after we celebrated National Freedom Day and in so doing we also commemorated the 20th anniversary of our vibrant democracy.  Twenty years ago South Africa was a very different place.  As we proudly celebrate our country’s twentieth year of freedom, we are reminded of the toil and sufferings of our people and the constant pursuit of the freedom struggle for a better life for all the people of South Africa. 

The Constitution of the Republic of South Africa, 1996 (the Constitution), recognises the injustices of the past and Honours those who suffered for justice and freedom in our land.  The Constitution, informed by the key principles outlined in the Freedom Charter, the African Claims document and all other historic documents of the African National Congress, remains the single most important document guiding our development policies, legislation and programmes aimed at addressing the triple challenges of poverty, inequality and unemployment. We are proud as the South African Nation for the sweeping constitutional and human rights developments that came as a result of the advent of democracy. 

Our Constitution lays the basis for the construction of a democratic, non-racial, non-sexist, united and prosperous society based on justice, equality, the rule of law and the inalienable human rights of all.

Programme Director
The equality clause in our Constitution remains one of the most progressive constitutional provisions in the world.  We say this with pride because South Africa was the first country in the world to legally prohibit discrimination based on sexual orientation. We have a progressive legislative framework. We have legislated against discrimination on the grounds of sexual orientation in the workplace.  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 text and spirit of the Constitution, in particular the promotion of equal enjoyment of all rights and freedoms by every person. We have legalised same-sex marriages and 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.   

Notwithstanding the comprehensive constitutional and legal framework and protection for LGBTI persons, we have sadly witnessed acts of discrimination and violent attacks being perpetrated against LGBTI persons.  Discrimination, based on anyone of the prohibited grounds outlined in Section 9 of the Constitution, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms will simply not be tolerated.  The justice system of South Africa will respond harshly to perpetrators of such discriminatory behaviour.

Programme Director,
We received a number of petitions from organisations worldwide calling upon the South African Government to deal with the cases of violence being perpetrated against LGBTI persons.  In submitting its National Report to the Universal Periodic Mechanism of the United Nations Human Rights Council in 2012, South Africa was commended by UN Member States for its commitment to human rights and improving the lives of its citizens, the delivery of basic services such as housing, health and education as well as South Africa's leading role in the United National Human Rights Council, especially regarding the rights of Gay, Lesbian, Bi-sexual, Transgender, Intersex (LGBTI) persons.  Equally so, South Africa was also urged to develop urgent measures to deal with violence against LGBTI persons.

We are pleased to note that the National Task Team has heeded this call by working extremely hard in the past year to develop a National Intervention Strategy on Gender and Sexual Orientation based Violence. Over the past year officials from relevant government departments Justice and Constitutional Development, South African Police Service, National Prosecuting Authority, Social Development, Correctional Services, Cooperative Governance and Traditional Affairs, Women, Children and People with Disabilities and GCIS, Chapter 9 institutions and civil society organisations, have developed the following documents:

  • The Terms of Reference of the National Task Team;
  • The Terms of Reference of the Rapid Response Team;
  • The National Intervention Strategy; and
  • An information pamphlet on Frequently Asked Questions regarding LGBTI persons;

Programme Director
I will briefly touch on each of these documents:

On the Terms of Reference of the National Task Team, upon establishing the National Task Team to develop a National Intervention Strategy on LGBTI Rights in 2011, a Working Group was established and mandated to revise the Terms of Reference.  Of particular concern and importance to the participating institutions was the need to ensure proper representivity. Having addressed this particular issue through comprehensive civil society alliance building workshops held with all the 9 Provinces in this past year, we are pleased to note that the composition of the National Task Team, amongst others, will now also comprise of two provincial representatives representing the LGBTI sector in all the Provinces.  

The Terms of Reference of the National Task Team further deal with its purpose which is to develop a National Intervention Strategy to address gender- and sexual orientation-based violence against LGBTI persons, especially in the criminal justice system.The objectives as outlined in the Terms of Reference, amongst others, are to:

  • Develop an Intersectoral Implementation Plan for the Strategy, and this will flow from the Strategy;
  • Strengthen governments’ ability to respond to LGBTI needs and specific vulnerability and strengthen the capacity of CSOs to deliver related services;
  • Improve linkages with other government departments;
  • Improve the management of cases by relevant role players in the justice system including the South African Police Service, the National Prosecuting Authority, the Department of Social Development, the Department of Health and the Department of Correctional Services; and
  • Implement, coordinate, monitor and evaluate the National Intervention Strategy and other related objectives.

Programme Director,
On the Terms of Reference of the Rapid Response Team, we wish to inform this august audience that a  Rapid Response Team was established comprising the Department of Justice and Constitutional Development, National Prosecuting Authority, South African Police Service and representatives from civil society organisations. 

The purpose of the Rapid Response Team is to urgently attend to the pending and reported cases in the criminal justice system where hate crimes have been committed against LGBTI persons.

The terms of Reference deal with the mandate of the Rapid Response Team and outline the roles and responsibilities of the various role players as well as provide a working definition of a hate crime given that we do not have specifically designated legislation on hate crimes as yet.

Programme Director,
The Rapid Response Team is fully operational and we are pleased to note that there is progress being made in speeding up cases in the criminal justice system.  Of the cases received from civil society organisations we can report on the following:

Fourteen (14) cases have been finalised, 5 of which were with imprisonment sentences of 22 years; 10 years; 15 years; 15 years and 20 years, respectively.  Nineteen (19) cases are pending within the criminal justice system.  Eight (8) cases cannot be traced due to incomplete or incorrect information submitted by the organisations involved.  We therefore urge CSO’s to heed the call to provide the team with correct and accurate information for speedy resolution of such matters.

Regarding the undetected cases and cases withdrawn, the South African Police Service will be recalling the dockets in these cases to evaluate the contents thereof with the assistance of team members in the Rapid Response Team.  The purpose thereof will be to ensure that all matters in the docket have been addressed correctly, if not, we will refer it back to the investigating officers concerned for further investigation.

On the National Intervention Strategy, following extensive consultations, we are pleased to present to you the Strategy.  The strategy includes work to be undertaken in three key areas: developing prevention programmes to address violence and discrimination perpetrated on the grounds of sexual orientation and gender identity; improving the response of the criminal justice system in addressing such violence and discrimination; and strengthening the capacity of state and civil society institutions and systems to address and prevent such violence and discrimination.

Programme Director,
We will not delve into the detail contained in the Matrix, except to emphasise that the Strategy constitutes a three year programme of the Department.  The implementation of the programme will be funded in part from the Department’s baseline budget for the respective financial years and from international donor agencies who have already expressed an interest in our programme.

On the information pamphlet on Frequently Asked Questions regarding LGBTI persons; in an effort to ensure that all our public outreach campaigns are well informed, officials and institutions will be capacitated with this pamphlet which provides key information on sexual orientation, gender identity, and lesbian, gay, bisexual, transgender and intersex (LGBTI) personsThe pamphlet also contains information on institutions that can be approached for support, advice, assistance and referral, such as civil society organisations, chapter 9 institutions and relevant government departments in the JCPS Cluster.

We would like to emphasise that all the documents disseminated here today are living documents.  As we move forward with the implementation thereof, undoubtedly there will be lessons to be learnt.  Let us continue on this trajectory of positive and constructive engagement, for it is through such a process we will collectively achieve the vision set out in the Constitution.

As a Department we have finalised a Policy Framework with regards the need for a specific legal framework for hate crimes.  The next step is to open it for public debate.  What remains to be decided upon is who would be best placed to conduct that policy debate.  For instance we will have to make a decision on whether it should be the Department itself, alternatively bodies such as the Human Rights Commission or the SA Law Reform Commission.  Undoubtedly the debate will be a contentious one given the element of hate speech and the balance that needs to be achieved between freedom of speech and prohibiting hate speech.  Notwithstanding the absence of specifically designated legislation on hate crimes, South Africa’s legal framework is comprehensive enough to ensure that current incidences of crimes involving a bias motive are dealt with severely by the law enforcement agencies.

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 for 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. 

Programme Director,
On this important occasion we would like to take this wonderful opportunity to inform you and the public at large that the Constitution of the Republic of South Africa, 1996, has been translated into all 11 official languages and updated to include the Seventeenth Amendment Act of 2012.  The Constitution is also in the process of being translated into braille and will be made available in this regard in the very near future.  Copies of the translated Constitutions will be made available by the Department and are already up on our website. We have indeed brought along a few copies of the Constitution. 

Programme Director,
As I conclude, please allow me to re-iterate the self-evident fact that indeed we do have a good story to tell.  As Minister of Justice and Constitutional Development it is my constitutional responsibility to promote the Constitution and its values. We urge every South African to learn, know and understand our Constitution. We encourage every South African to exercise their rights including the right to vote, bearing in mind our National Elections 2014 is just a few days away.  Given our tragic history of apartheid and racial exclusion, all South Africans are urged never to take their constitutional rights for granted. Every South African must fully participate in our hard earned democracy, to honour the Constitution and its values, to respect each other noting our interconnectedness with each other as members of one human race. On our part we will continue in our endeavour as government to ensure that all our social, economic and political developments are anchored on the Constitution as the bedrock of our democracy. In this way we are certain and confident that working together we will move South Africa forward!

I thank you!