Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the CSO Alliance Building Workshop on LGBTI Rights, held at the Strand Tower Hotel, Cape Town, 29 January 2014 at 10h00
Representatives of NGOs and civil society
Representatives from the Foundation for Human Rights
The Regional Heads of the DOJCD of the Western Cape, the Northern Cape and the Free State
Officials from various government Departments
Representatives from Chapter 9 Institutions
Colleagues and friends,
South Africa has made great strides in ensuring the equality of LGBTI persons. South Africa was the first country in the world to prohibit discrimination based on sexual orientation. We have a Constitution that is often hailed as one of the most progressive in the world. Constitutional Court judge, Edwin Cameron, was recently quoted as saying “It’s not only a Constitution on paper. We have appropriated it; we have appropriated that sense of citizenship and appropriated that sense of equality. That sense of constitutional equality infuses the sense of self of LGBT people in South Africa.”
We have the equality clause in the Constitution. 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 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.
But, despite increasing legislative recognition and protection afforded to the LGBTI persons, we sadly live in a society that is still strongly homophobic. There are still, sadly, people in our society who continuously question or condemn the cultural, religious or social legitimacy of homosexuality. Discrimination and violent attacks are often part of the daily life of LGBTI persons.
Many of you will know the name Millicent Gaika. Millicent Gaika is a lesbian from Gugulethu in the Western Cape. In April 2010 a man pulled Gaika into a shack and raped her, saying “he would show her she was a woman” by impregnating her. In November last year, he was sentenced to 22 years in jail.
Millicent’s ordeal is a tragic reality that many LGBTI people face. On June 30, the half-naked body of 26-year-old lesbian, Duduzile Zozo, was discovered in Thokoza. She had been raped and killed. Her mother believes that her daughter was killed because she was a lesbian. She said: “When they find the murderers, I would like to ask them what is it that my daughter did to them, because I don’t understand why an outsider can be affected by her being a lesbian. Was she not good enough to walk in the streets?”
I can confirm that in Duduzile’s case SAPS has made an arrest.
Why are these crimes happening? When did we become such an intolerant society? The message we need to get out is that LGBTI persons are not infringing anybody’s rights by being themselves.
We have to change societal attitudes. A study by OUT showed that only half of their respondents questioned had felt that the Constitution had indeed led to a positive change in the attitudes to homosexuality held by many citizens. About 80% continued to see themselves faced with the same societal prejudice of being ‘abnormal’. A national analysis by the Human Sciences Research Council found that 78% of respondents considered homosexuality as “absolutely unacceptable”. These figures therefore stand to confirm that our communities are still largely influenced by so-called “hetero-normative” views and attitudes, and this is where the need for public education and awareness cannot be overemphasized.
Actionaid released a report in 2009 on ‘Hate crimes: The rise of “corrective” rape in South Africa’, which indicated that 66% of the lesbian women polled in the study reported that they did not report the rapes because they feared that they would not be taken seriously.
In order to address the raising number of hate crimes against LGBTI persons, we need to understand why these crimes are taking place and how they differ from other types of crime. In a study called “Homophobic Injustice and Corrective Rape in Post-Apartheid South Africa” by Kylie Thomas, a joint report by the University of Western Cape and the Center for the Study of Violence and Reconciliation, the author states that –
“It seems to me that these murders have their own particular meaning in relation to other crimes in that they are communal crimes – in most cases the murderers and rapists are known to the victims and survivors and possibly others in the neighbourhood. This is an important point when thinking about how to speak of these things. In order to kill so intimately surely one must find a way to disconnect. One possible way to do this is to disassociate yourself with the victim, to render them as other – we know enough about killing to know it‘s always easier to kill ‘them’ rather than kill ‘ourselves’. If this is the case, then there are neighbourhoods of people who are disconnected from each other. Places where people look at others but do not see themselves.”
A study by Human Rights Watch called “We’ll Show You You’re a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa” states that there are many factors which make LGBTI people vulnerable to violence: geographical location, economic marginalization, non-normative gender expression, rejection by family, religious influences, lack of access to information, and normalized use of sexual violence as a form of control. Questions of women’s agency, sexual rights, and economic self-sufficiency are as central to addressing violence on the grounds of sexual orientation and gender identity and expression.
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. 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.
Crimes that will become Hate Crimes when the legislation is passed are currently crimes but creating a category of Hate crimes will make these crimes easier to document and to understand and prevent. The present practice is to charge a perpetrator of what will be a hate crime with mainly common law offences such as assault, murder and crimen injuria or without any reference to the bias motivation is inadequate.
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, for example, damage to a church or a mosque due to hatred of particular community will simply be recorded as ‘malicious damage to property’. As a result, there is no way to assess the levels of hate crimes 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 appropriate related interventions.
Our Department has made significant progress with 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.
The Policy Framework is a result of intense research into the development of legislation that will introduce the concept of hate crime to South African criminal law. It will make hate speech a crime and will provide for the development of measures to combat hate crimes, hate speech and unfair discrimination. The Policy Framework seeks to introduce a further category of newly-defined hate crimes in instances where the conduct would otherwise constitute an offence, recognised at common law or by statute, and where there is evidence of a discriminatory motive on the basis of characteristics such as race, nationality, religion, sexual orientation and the like.
The Policy Framework has largely been finalised. The next step is to open it for public debate. What has not been resolved is who would best be placed to conduct that debate. Should it be the Department itself or bodies such as the Human Rights Commission or the SA Law Reform Commission? The debate will be contentious because of the element of hate speech and the balance that needs to be achieved between freedom of speech and prohibiting hate speech.
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.
Let us look at where we are at the moment. The Minister established a National Task Team (NTT) to develop a National Intervention Strategy on LGBTI Rights in 2011. The NTT established a Working Group in March 2012 and it was mandated to revise the Terms of Reference of the NTT. Following protracted debates amongst the institutions involved in this process, the Working Group finally commenced its work in May 2013. The NTT met on the 18-19 September 2013.
Since that meeting, the final revised Terms of References have been finalised and signed off by the NTT and Working Group. A work plan was also approved. The work plan consists of the following activities: CSO alliance building workshops on LGBTI rights, training and public education on LGBTI rights and the establishment of a rapid response team to deal with pending LGBTI cases in the criminal justice system. In collaboration with the GCIS and the NTT, the Department has developed an inter-sectoral communication strategy on the promotion and protection of the rights of LGBTI persons. The communication strategy seeks to popularise inter-sectorial interventions aimed at addressing the violence committed against LGBTI persons and to mobilise communities to join hands with government and civil society in the fight against gender based violence especially on LGBTI persons. It aims to promote partnerships amongst government, civil society, business and the media in the fight against gender based violence and to encourage communities to report such crimes. The communication strategy has been approved by the NTT and is ready to be launched.
With regards to the draft National Intervention Strategy (NIS), the NTT commissioned a situational analysis on, amongst others, the perceptions of the court officials on LGBTI persons, the identification and registration of cases involving LGBTI witnesses, issues relating to secondary victimization and the causes of delays in the finalization of these cases. The research study was finalized in September 2012. This study informs the development of the National Intervention Strategy which is already underway. One of the key deliverables of the NTT is the development of a national intervention strategy on gender-based and sexual orientation based violence against LGBTI persons. The Department has appointed a service provider as per the mandate given to it by the NTT. A first draft has been developed and is presently being consulted upon through this process.
The Working Group also established a Rapid Response Team on pending cases relating to gender and sexual orientation-based crimes in the criminal justice system. This team consists of Departments of Justice and Constitutional Development, South African Police Services, Correctional Services, Social Development, National Prosecuting Authority and civil society organisations. Urgent resolutions were adopted to track progress regarding the above-mentioned cases as well as to urgently develop rapid response mechanisms within civil society networks so that the South African Police Services can be immediately alerted when a gender and sexual orientation-based crime takes place against an LGBTI person. This team is fully functional and meets on a regular basis to map progress on the pending cases in the criminal justice system.
Things are moving. Just as we fought against racial discrimination, the struggle continues to ensure that we free all in society from all forms of discrimination. Discrimination is discrimination, regardless of whether the basis thereof is race or gender or sexual orientation. As Archbishop Tutu said at the launch of the Free and Equal campaign in Cape Town: “I would refuse to go to a homophobic heaven. I am as passionate about this campaign as I ever was about apartheid. For me, it is at the same level,” he said.
On this occasion I recall the late President Mandela’s heartfelt words and I quote – “For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.” I think these words would resonate well with the LGBTI community, who often remark that all they want is to be accepted, respected and to have the freedom to live their lives within a society and a culture of tolerance.
I wish you all the best for a very successful workshop. Also let me take the opportunity of thanking civil society and Chapter 9 Institutions notably CGE and SAHRC for their valued support, participation and commitment to this process.
To conclude, let us always be mindful of the words of the late President Nelson Mandela when he said: “Together, we must continue our efforts to turn our hopes into reality. The long walk continues.” You can be assured of this government’s commitment in walking the road with you.
I thank you.