Speeches

Opening Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Commonwealth Africa High-Level Regional Dialogue on Strengthening Equality and Equal Protection of the Law - Reforming Laws that Discriminate, held at the Southern Sun Hotel, O.R. Tambo International Airport, Johannesburg, 22 November 2018

Programme Director
Ladies and gentlemen, friends

Good morning and thank you for the invitation to be part of today’s event. And a warm welcome to those of you who are visiting South Africa for the first time.

Perhaps it would be good to star by providing some background on the programme and on the Alliance itself.

During the Commonwealth Heads of Government Meeting in April this year, the UK Prime Minister announced that the UK would support Commonwealth governments that want to reform their laws - laws which discriminate against women, girls and lesbian, gay, bisexual and transgender (LGBT) people, many of which are a colonial legacy.

The Equality & Justice Alliance was formed to provide part of this support, with funding from the UK Foreign and Commonwealth Office.

It is a consortium of international organisations with expertise in advancing equality, addressing the structural causes of discrimination and violence, and increasing protection to enable strong and fair societies for all Commonwealth citizens, regardless of sex, gender, sexual orientation or gender identity.

The Alliance works with a range of stakeholders – governments, policy-makers, political leaders and civil society – to help chart the path to reform towards effective laws that protect all citizens from discrimination, violence and abuse.

The members of the Alliance are The Human Dignity Trust, Kaleidoscope Trust, The Royal Commonwealth Society and Sisters for Change.

The programme itself runs for two years, from April 2018 to March 2020 and seeks to support Commonwealth civil society organisations to work intersectionally and conduct advocacy to engage with the legislative and policy process.
It also aims to develop and deliver a range of legal and policy research, tools and technical legal assistance and expertise to Commonwealth governments seeking to reform discriminatory laws, combat violence against women and girls, eliminate hate crimes and increase access to justice.
Finally, it seeks to convene a series of regional dialogues to build a better understanding of international standards and best practice, strengthen policy exchanges between civil society, government officials and experts and to highlight the benefits of legal reform.

This is why we are here today.

For us in South Africa, our law reform project since the dawn of democracy has been two-fold: firstly, to pass new laws that reflect our country’s constitutional values, and secondly, to clean up our statute book and repeal laws that are remnants of apartheid and colonialism.

We have also, since becoming a constitutional democracy, ratified and acceded to a number of international conventions and treaties which seek to uphold and strengthen universal human rights.

This is, of course, not the case in all countries which were former British colonies.

In some countries, even though they have gained their independence, certain discriminatory laws have remained on their statute books, despite the subsequent enactment of modern Constitutions and ratification of international human rights treaties with which some of these laws do not comply.

I am advised that, for example, in many Commonwealth countries rape provisions are often gender specific, and do not cover rape with objects.

Marital rape remains lawful in half of Commonwealth countries.

Laws protecting against domestic violence, sexual harassment, forced marriage and other forms of gender-based violence are uneven across the Commonwealth.

In two thirds of Commonwealth member states, consensual same-sex sexual activity in private between adults is criminalised. Many countries have laws that are used to discriminate against transgender people and few Commonwealth countries have legislation to recognise, prevent and punish hate crimes including those committed on the basis of sexual orientation or gender identity.

South Africa has made remarkable progress in terms of repealing or amending our laws, so as to prevent and combat all forms of discrimination.

For us, the yardstick is section 9 of our Bill of Rights, which prohibits discrimination on a number of listed grounds.

Discrimination is a particular form of differentiation - it is differentiation on illegitimate grounds.

Section 9 of the Constitution is an equality clause, which prohibits unfair discrimination on certain listed grounds. This means that discrimination on the basis of one of the grounds listed in s 9(3) is presumed to be unfair discrimination, until the contrary is proved.

There is accordingly a presumption that differentiation on the listed grounds will impose burdens on those who have been victims of past patterns of discrimination or will impair the fundamental dignity of those affected.

The listed grounds are race, colour, ethnic origin, gender, sex, pregnancy, sexual orientation, marital status, age, disability, religion, conscience and belief, culture and language, birth and social origin.

The right to equality and to be protected from discrimination features prominently in our Constitution. South Africa has therefore enacted various pieces of legislation to rule out discrimination and ensure equality across a variety of areas.

The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) provides for the framework for the implementation of section 9 of the Constitution.

In this regard, the Act provides for the designation of Equality Courts. The purpose of Equality Courts is to adjudicate matters specifically relating to infringements of the right to equality, unfair discrimination and hate speech, with a view toward eradicating the ever present post-apartheid spectre which essentially divided the country along racial, gender and monetary related lines.

We have passed laws to combat domestic violence, gender-based violence and harassment.

The Civil Unions Act was enacted to legalise same-sex marriage and prevent discrimination on the basis of sexual orientation. The objectives of this Act are to regulate the solemnisation and registration of civil unions, by way of either a marriage or a civil partnership and to provide for the legal consequences of the solemnisation and registration of civil unions.

In a bid to increase the state’s capacity to deal with sexual violence against women and children, South Africa promulgated the Criminal Law (Sexual Offences and Related Matters) Amendment Act. This Act criminalises a wide range of acts of sexual abuse and exploitation.

It repealed the common law offence of rape and replaces it with a new expanded statutory offence of rape, applicable to all forms of sexual penetration without consent, irrespective of gender. 

It also repealed the common law offence of indecent assault and replaces it with a new offence of sexual assault which contains a wider range of acts of sexual violation without consent.

In addition to criminalising a wide range of acts of sexual abuse and exploitation, the Act also establishes a mechanism for the adequate and effective protection of victims of sexual violence. In terms of the Act, victims of sexual offences are entitled to post-exposure prophylaxis.

It provides for the compulsory testing of alleged sex offenders and the keeping of a national register of sex offenders. The Act imposes an obligation on a person who has knowledge that a sexual offence has been committed against a child to report such knowledge to a police official forthwith.

We have also recently concluded a National Forum – in partnership with members from civil society and experts in the field - on ways to make the Act work better and to provide practical recommendations for implementation.

A strategy to address gender-based and sexual orientation-based violence against lesbian, gay, bisexual, transgender and intersex people has also been developed.
A National Task Team (NTT) was re-established in May 2013, with government together with representatives from Chapter 9 institutions and civil society organisations working in partnership to achieve a number of formidable tasks.  
These included, amongst others, to develop a National Intervention Strategy to respond to, and prevent, gender and sexual orientation-based violent crimes perpetrated against LGBTI persons and to develop an Inter-sectoral Implementation Plan which would link parallel and complementary initiatives.
Our National Task Team has been extremely successful and was hailed as an international best practice model.

Further to these laws, policies and programs, as you know, there is currently a Prevention and Combating of Hate Crimes and Hate Speech Bill, which has been tabled in Parliament.
The qualifying criteria for hate speech is a clear intention to be harmful or to incite harm or promote or propagate hatred on the basis of age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, race, religion, or sex, which includes intersex or sexual orientation.

In other words, the Bill goes wider than the number of listed grounds in section 9 of the Bill of Rights.

The Bill specifically excludes anything done in good faith in the course of engagement in any bona fide artistic creativity, performance or other form of expression, academic or scientific inquiry or fair and accurate reporting or commentary in the public interest, in so far as it does not advocate hatred that constitutes incitement to cause harm, from the ambit of hate speech.

It also excludes the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm, from the ambit of hate speech.

These exclusions also find resonance with section 16 of our Constitution.

The Bill was tabled in Parliament in April and I am pleased to inform you that the National Assembly will be advertising the Bill and calling for public comment and inputs before the end of the year.

These statutory reforms, initiatives and interventions aimed at eliminating all forms of discrimination have, over the past two decades, also taught us a number of valuable lessons:

Firstly, political will is crucial.

Secondly, an independent and activistic judiciary is equally vital. Although it is the legislature that makes the laws, an independent and strong judiciary is necessary to show where laws, bills or policies are falling short. Very often laws will be amended as a result of judgments being handed down by our courts.

Thirdly, one needs a critical approach – where something isn’t working, it is necessary to rethink and act innovatively.

Closely linked to that, is the issue that laws are, often contrary to popular belief, not always cast in stone, to exist in perpetuity.

Laws should be viewed as dynamic – we have a number of legislative provisions which require review after a certain period, or which put reporting structures in place aimed to, for example, report on implementation to Parliament after a certain period.

Furthermore, there is nothing wrong with drafting laws with phased implementation – and very often a staggered or incremental approach aids implementation.  

Finally, and possibly the most important factor, is that no government can do it alone. One cannot over-emphasise the importance of partnerships. We have been partnering with civil society and other stakeholders in a number of areas and it has been extremely successful. Very often civil society bodies have a much deeper and “on the ground” reach in communities than government could have and can assist with implementation at a grass-roots level.

I want to wish you all a very successful dialogue.

This high-level dialogue is bringing together senior officials, legislative experts and political champions in legislative reform from across Commonwealth Africa to share experiences.

Reforming discriminatory laws and policies to advance equality and challenge discrimination is imperative, not only in our region and on the continent, but globally. It is imperative if we want to succeed in meeting the Sustainable Development Goals and ensure that we leave no one behind.

I thank you.