Address by the Deputy Minister of Justice and Constitutional Development,
the Hon JH Jeffery, MP, at The Commonwealth Equality Network, held at the Villa Simonne Boutique Hotel, 16 West Street, Houghton, Johannesburg, 20 November 2017
Good afternoon and to those of you who are visiting South Africa for the first time, a warm welcome.
Thank you to Access Chapter 2, in partnership with the Kaleidoscope Trust from the United Kingdom, for hosting this meeting in South Africa.
I am told that representatives from up to 20-member organisations representing 20 countries are here today.
As you know, the world has recently seen some positive developments in the area of LGBTI rights.
The Australian public voted on same-sex marriage – and 61.6% said yes.
The voting turnout came close to 80% of those on the electoral roll. And as the UK’s Guardian newspaper said:
“…all age and gender groups came out to vote in large numbers, with every state voting yes and a wide variety of electorates reporting a majority yes vote. This result does not reveal a country split down the middle but a country where a majority (small or large) supports marriage equality in most places.”
In Germany, the Federal Constitutional Court recently ruled that a third gender must be included on official documents.
The court order the creation of a new term covering intersex people, giving the state until the end of 2018 to either allow the introduction of a third gender category or to dispense with gender altogether in public documents.
Belgium has recently adopted a new legal gender-recognition law and Denmark has removed so-called 'trans identities' from the list of mental disorders.
Sweden has recognised the forced sterilisation of transgender people as a human rights violation and has offered compensation. Such human rights violations are particularly poignant, especially on a day like day - 20 November - which is observed internationally as the Transgender Day of Remembrance.
Despite these advances made across the globe, it’s not all good news.
A recent study has shown that rising populism, nationalism and xenophobia across Europe pose a considerable threat to LGBTI communities. According to Stonewall, attacks on LGBT people has risen by almost 80% in the UK over the last four years. Activists say that one of the reasons for it is, what they describe as, “a divisive, xenophobic narrative coming from politics.”
The European Union Agency for Fundamental Rights has shown that more than 50% of all LGBTI people in the EU avoid holding hands in public places for fear of being assaulted.
As you know, some 36 of the 52 Commonwealth member states still criminalize same-sex activity.
Even in our own country, whilst we have made significant strides in the promotion and protection of LGBTI rights, much more still needs to be done.
Recently, our Commission for Gender Equality criticised the University of Free State for discriminating against the LGBTI community.
This came after the commission heard evidence that a student who was transforming from male to female tried to commit suicide as he felt unaccepted in one of the institution's residences and was forced to live in a corridor.
One of the CGE Commissioners said that there was –
“…no urgency to assist LGBTI students. A lot of them then commit suicide. There is no inclusive residence on campus and there is corridor placement for LGBTI persons in residences who do not conform to gender norms. LGBTI students are always excluded.”
So the struggle continues.
Having said that, we must also acknowledge that progress has been made – largely by government working hand-in-hand with civil society.
And herein lies the biggest lesson – that no single role-player can do it alone. Role-players – whether it be government, or civil society, or national human rights institutions – need to work together in a focused and coordinated way in order to make the biggest impact.
I can highlight the work of our National Task Team on Gender and Sexual Orientation Based Violence Perpetrated against LGBTI Persons - or the “NTT” as we call it.
The NTT, undertook to strengthen government’s ability to respond to LGBTI needs and to strengthen the capacity of civil society to deliver related services. It sought to improve the management of cases by relevant role-players in the criminal justice system.
The NTT consists of various government departments, the National Prosecuting Authority, the SAPS, The Departments of Cooperative Governance and Traditional Affairs, Basic Education, Home Affairs, Department of Health, Women, Social Development and various civil society bodies.
We are also pleased to note, that it is not only within our own department - the Department of Justice and Constitutional Development – that we are seeing good initiatives and interventions taking shape around LGBTI rights, but across government.
For example, the Department of Social Development’s first National LGBTIQ Dialogue took place in Gugulethu in May this year. The main aim of the National LGBTIQ Dialogue was to bring together key stakeholders from government, human rights and social justice activists, civil society and other development partners to discuss the struggles of people from the LGBTIQ community in an attempt to find ways to raise awareness, reduce discrimination, provide services, support interventions and law and policy reform, as well as highlight human rights issues.
The DSD has since embarked on establishing sensitization presentations for DSD officials as well as setting up a dedicated LGBTIQ Rights Focal Point and Forum.
The South Africa Police Service is also in the process of developing a Standard Operating Procedure on the handling of LGBTI issues and the Department of Home Affairs is also engaged with training of immigration officials on LGBTI rights.
The interdependence, indivisibility and intersectionality of human rights is internationally accepted.
Herein also lies much of our success – by creating and enhancing constitutional and human rights awareness, we enhance the promotion and protection of LGBTI rights.
We have done this through a number of initiatives and interventions.
For example, our Access to Justice and the Promotion of Constitutional Rights (AJPCR) Programme, which was implemented by the Foundation for Human Rights (FHR) and the Department of Justice and Constitutional Development from 2009 to 2014 with financial support from the European Union, was very effective.
The AJPCR aimed to strengthen democracy by improving access to justice and promoting constitutional rights in South Africa, involving civil society organisations at national and sub-national level.
The AJPCR Programme focused on three pillars:
- Improved access to justice, including restorative justice mechanism for vulnerable and marginalised groups;
- Improved awareness and knowledge of constitutional rights in South Africa for vulnerable and marginalised groups, and
- Enhanced participatory democracy through public policy dialogue and strengthening of CSOs.
Significant national public education programmes were initiated to raise awareness of constitutional rights through both television and radio.
For example, a campaign using community radio stations was particularly effective in reaching more vulnerable and marginalised communities.
Funding was also provided to a number of CSOs to run their own rights awareness campaigns and activities. Particular vulnerable groups that were targeted included, amongst others, farm workers, refugees and asylum seekers.
The programme facilitated public dialogues between CSOs and the government on human rights issues, as well as supporting civil society to more effectively engage in lobbying and advocacy.
Access to justice is a problem in the South African context, especially for the poor and vulnerable sections of society.
In this regard, we are continuously looking for ways to support community-based organizations that facilitate access to justice in a highly unequal social environment in order to ensure that constitutional rights of all South Africans are realised.
Ongoing training and education on our Equality Act continues. The development of an accessible training booklet on the Equality Act Promoting Equality: A Guide to the Equality Act, which was also translated into Braille.
A big area of focus is the youth. Printing and distributing Constitutions, in all languages and in Braille, and supplying them to learners at schools are starting to pay off.
The collaboration between a wide range of stakeholders in the National Schools Moot Court competition project was remarkable. The stories of new awareness of the Constitution and the rights it enshrines, as well as the kinds of legal and cultural knowledge developed, and the self-confidence inspired among participants suggest an efficiently-conceived and implemented project with a substantial set of outcomes.
A recent Baseline Survey undertaken by the Foundation for Human Rights, has shown that younger respondents had higher levels of awareness about the Constitution or the Bill of Rights - almost half (47%) of those respondents aged 70 and above displayed low levels of knowledge as compared with only a third (33%) of those respondents aged 18 or 19.
Importantly, from the side of LGBTI rights, two thirds (68%) of all respondents agreed or strongly agreed that people in South Africa are free to choose and express their sexual orientation without fear or judgement. There were no significant differences across different sexes, races or age cohorts.
Almost three quarters (74%) of respondents disagreed or strongly disagreed that being gay or lesbian was against the values of their community.
This finding was consistent across Indian/Asian (72%), black African (73%), white (77%) and coloured (77%) respondents as well as both male (73%) and female (74%) respondents. It was also consistent across the different age cohorts, as well as the different dwelling and geographic types in which respondents lived.
So we are indeed making progress in changing attitudes and in creating a society where constitutional rights are respected.
It did not happen overnight. Some said it would be impossible.
But, as the saying goes, “impossible is not a fact, it’s an opinion. Impossible is not a declaration, it’s a dare.”
I think the biggest lesson to learn from the South African experience, is that a progressive legislative and Constitutional framework is vitally important, but it is not enough.
You need political will, you need to empower civil society and, most important, you need to change society’s attitudes.
I am told that the TCEN was accredited to the Commonwealth in June 2017, becoming the first and only LGBTI-focused organisation to receive this official status.
I want to wish the TCEN all the best for the next two days and for its preparations for the upcoming Commonwealth Summit in April 2018.