South Africa (2nd cycle)

Click here for a summary of the South Africa’s review at the first cycle and/or the third cycle.

13th UPR session
Date of review: 21 May 2012
Date of report adoption: 21 September 2012
Working Group report: A/HRC/21/16

SUMMARY

SOGIESC issues during South Africa’s 2nd UPR review
Civil society submissions: ✓ (4 submissions)
National report: ✓
UN information: ✓
Working group discussions: ✓
Recommendations: ✓ (14 accepted, 1 noted)

I. Key issues/recommendations identified by NGOs

  • fully implement the CEDAW recommendation to ensure effective protection from violence and discrimination against women based on their sexual orientation, and to continue a sensitisation campaign and training for law enforcement officials and other relevant actors.

II. Excerpts from input reports

National report

III. Promotion and protection mechanisms of human rights

20. The negative societal impact emanating from the deep-seated divisions occasioned by 350 years of discrimination, in particular racial discrimination and hatred are not easy to erase in 18 years.  Cognisant of this reality, South Africans adopted a constitution whose fundamental values and principles represent a bridge between a divided past and a united future sensitive to the need for social cohesion, national reconciliation and identity, healing and nation building.  The scourges of poverty and underdevelopment, the abuse of substances especially among the youth, the residual and subtle forms of racism, xenophobia and homophobia are some of the factors impeding the attainment of social cohesion.

Compilation of UN information

III. Implementation of international human rights obligations, taking into account applicable international humanitarian law
A.     Equality and non-discrimination

20. CEDAW noted the prohibition, in the Constitution, of discrimination based on the sexual orientation of individuals. However, it expressed concern about reported murder and sexual offences committed against women on account of their sexual orientation. It urged effective protection from violence and discrimination against women based on their sexual orientation, continued sensitization campaign and training for law enforcement officials and other relevant actors.

27. In 2011, the United Nations High Commissioner for Human Rights stated that in the absence of a more systematic approach to monitoring, recording and investigating homophobic hate crimes such as ‘corrective’ or ‘punitive’ rape it would be impossible to know the true extent of the problem. She noted that the Government had recently acknowledged the seriousness of the situation. Following a recent attack, the Department of Justice and Constitutional Development had promised a thorough investigation and established a task team on hate crimes against LGBT persons.

Summary of stakeholders’ information

I. Information provided by the accredited national human rights institution of the State under review in full compliance with the Paris principles
C. Implementation of international human rights obligations

4. SAHRC noted that despite previous UPR recommendations, xenophobia remained a significant challenge and that measures taken to address xenophobia had failed. SAHRC noted an increase in hate crimes perpetrated not only on grounds of race but also on the basis of nationality and sexual orientation. There was an urgent need to address hate crimes through legislation and adopt measures to raise public awareness about these crimes.

II.     Information provided by other stakeholders
C.     Implementation of international human rights obligations
2.     Right to life, liberty and security of the person

40. HRW noted that rapes and other violence against lesbians had reached alarming levels. JS6 stated that harassment, intimidation and violence related to sexual orientation or gender identity continued.  Lesbians from urban townships were affected by the heinous practice of “corrective” rapes, in which victims were targeted with the specific goal of “curing” them of homosexuality. JS5 indicated that during 2011 there had been a number of brutal attacks on black lesbians. ICJ recommended that the Government adopt a more effective approach to break the cycle of sexual violence.

41. JS5 recommended that the Government address hate crime violence by introducing legislation that expressly criminalizes violence against individuals or property on the basis of a person’s race, nationality, religion, ethnicity, sexual orientation or gender identity. Training should be given to law enforcement agencies so that such crimes are properly investigated.

III. References to SOGI during the Working Group review
I. Summary of the proceedings of the review process
A. Presentation by the State under review

21. With regards to health, amongst many improvements, in addition to the existing 385 public hospitals, a total of 29 hospitals in rural and urban areas are under construction, while 17 others are in the planning and design stage. These facilities will also provide services for people with HIV and AIDS. Over 3,000 primary health care clinics are now able to provide counselling and testing and treatment for people with HIV and AIDS. This has resulted in an increase in the number of patients accessing Antiretroviral Therapy, from 500 000 in 2008 to 1.9 million in 2012. Access to HIV Testing and Treatment, for mothers and children,  has improved, resulting in a more than 50% reduction in HIV transmission from mothers to children, from 8% in 2008 to 3.5% in 2010.

22. South Africa has prioritised the issues of gender equality and the advancement of the rights of women, the promotion and protection of the rights of the child and people with disabilities. Government has established, in 2009, a fully-fledged Department for Women, Children and People with Disabilities (DWCPD) with the core mandate of advocacy for mainstreaming and monitoring of government’s policies and programmes with respect to these targeted groups.

23. Furthermore, discrimination on the ground of sexual orientation is prohibited by the Constitution.  Given the recent spate of violence that targeted LGBTI persons, government has established a National Task Team comprising representatives from government and civil society to advise on measures to ensure maximum protection, adequate remedies and combating impunity. The Courts have set an important precedent and sent a strong signal that crimes of this nature will not be tolerated. Recently, four perpetrators of the so-called “corrective rape” of lesbians were sentenced to 18 years imprisonment.

B. Interactive dialogue and responses by the State under review

42. Ireland […] encouraged South Africa to continue its gender-based violence prevention efforts and strengthen provision of services and accountability in that area. Ireland made recommendations.

48. Mexico highlighted progress in primary education and access to healthcare for persons with HIV. Referring to the obligations under the CEDAW, it enquired what steps were being taken to accelerate implementation of the strategy to change or eradicate negative stereotypes that discriminate against women. Mexico made recommendations.

52. Netherlands commended South Africa for its leading role in the Human Rights Council, notably in different areas of anti-discrimination. It welcomed its commitment to partnerships with civil society and a national dialogue in the preparation of the national report. Netherlands made recommendations.

53. New Zealand enquired about increasing maternal mortality and morbidity and plans to address them. It also asked what steps would be taken to deal with sexual violence, especially against LGBT persons. It requested an update on the Combating Torture Bill and on plans to ratify the OP-CAT. New Zealand made recommendations.

55. Norway supported South Africa’s leadership in combating violence and discrimination based on sexual orientation and gender identity. It expressed concern about the Protection of State Information Bill. It welcomed new national institutions, particularly to address violence against women. Norway made recommendations.

60. Italy encouraged South Africa to pursue the advancement of human rights in particular MDGs 4, 5 and 6 and praised the country’s role in adopting the United Nations resolution on sexual orientation and gender identity. It asked what about the measures adopted against FGM phenomena in migrant communities. Italy made a recommendation.

68. Slovenia encouraged South Africa to continue its action to achieve MDGs. It expressed concern about the persistence of attacks against LGBT individuals, the occurrence of hate crimes, reports of violence against children and lack of legislative measure to prevent, prosecute and punish acts of torture and other ill-treatment.  Slovenia made recommendations.

69. Spain commended South Africa for progress in addressing HIV/AIDS and the protection of the rights of LGBT. It asked about measures adopted to ensure that the future Law Protection of State Information does not curtail freedom of the press and right to information on possible inappropriate action by public officials. Spain made recommendations.

79. The United Kingdom of Great Britain and Northern Ireland was concerned by continuing violent crimes against women and LGBT people in South Africa.  It welcomed the fact that the Constitution upheld freedom of expression and asked how the Government will ensure that the proposed legislation will not restrict this right.  It made recommendations.

80. The United States of America commended South Africa for its position in the prevention of discrimination including based on sexual orientation, but was concerned about reports of violence and prejudice against LGBT communities.  It recognized efforts to combat human trafficking, but raised concern about the Protection of State Information Bill.  It made recommendations.

81. Uruguay recognized major normative advances in combating xenophobia, hate incitation and ethnic-based origin violence.  It noted the persistence of patriarchal attitudes regarding women. It made recommendations.

92. Belgium commended South Africa’s positive role in the promotion of human rights notably in combating discrimination. It highlighted progressive legislation regarding LGBT but noted very serious incidents of violence, including sexual violence.  It expressed concern over the fate of migrant workers and asylum seekers.  It made recommendations.

106. Denmark was concerned at reports of violent attacks against women because of their sexual orientation. It inquired about measures taken to ensure that victims of gender based violence have effective access to justice and social support services.  It welcomed the Prevention and Combating of Torture Bill and requested information on the timeline for the enactment of the bill by Parliament. It made recommendations.

110. Finland welcomed South Africa’s progressive approach to sexual orientation and gender identity. It expressed its concerns over cases of violence, including reported hate crimes against LGBT individuals.  It inquired about measures taken to prevent such crimes.  Finland made a recommendation.

111. France noted that South Africa is not yet party to OP CAT or ICESC.  It regretted that LGBT persons continue to be targets of serious physical or psychological violence. It inquired about the conformity of provisions of the draft bill on transferring judicial powers to traditional chiefs with the principles enshrined in the Constitution.  It made recommendations.

115. South Africa then provided responses to questions presented in advance and during the inter-active dialogue.

118. Government is committed to combat any discrimination or violence against persons on the basis of sexual orientation and has pronounced itself accordingly. The Minister of Justice and Constitutional Development has established a Task Team to develop a national intervention strategy on these crimes through, among others, research, and policy development. Government has adopted measures that focus among others, on the prevention, combating and punishment of sexual violence against women and children. These include support to the victims through the establishment of victim friendly facilities. Additionally Government is considering re-establishing sexual offences courts.

119. With regards to questions raised on fighting crime in rural areas, it was reiterated that crime had decreased in the fiscal year 2010–211. The decrease in contact crimes, which include serious offences such as murder, rape and assault, has been of 6.9 %. Furthermore, in 2010 the Rural Safety Strategy was launched which involves the various concerned actors in addressing contact crimes, such as farm killings and others. Regarding allegations that some police officials had accepted bribes from rape suspects, South Africa responded that the government takes such allegations very seriously and, when these are reported, criminal and administrative proceedings are immediately instituted. The community is also continuously encouraged to report such action.

IV. Conclusions and/or recommendations
The following recommendations enjoyed the support of South Africa:

125.49. Ensure effective implementation of the existing normative framework guaranteeing women’s right to equality, in particular to ensure access to justice, protection and other remedies (Austria);

125.50. Launch awareness campaigns against homophobia and discrimination on the basis of sexual orientation (Belgium);

125.51. Develop programs to prevent discrimination based on sexual orientation and gender identity, to punish violence of this kind and ensure that victims receive appropriate support (France);

125.62. Put in place stronger mechanisms to protect women and girls against gender-based violence and provide redress to victims (Austria);

125.64. Take concrete measures to improve the protection of women against gender-based violence and to ensure that perpetrators are held accountable (Norway)

125.65. Increase efforts for the protection of women victims of gender violence, ensuring that perpetrators face the required trials and training the authorities involved on the subject of the protection and prevention of violence against women  (Nicaragua);

125.67. Undertake continued and enhanced efforts to protect and provide redress to women suffering from violence and to continue raising awareness, through training and other means, in the judicial system, including police, of the necessity to act against this violence (Sweden);

125.68. Strengthen the training of the police, prosecutors and the judiciary in the area of gender based violence (Norway);

125.69. Take measures to guarantee thorough investigation and prosecution of crimes of sexual violence, including relevant training of law enforcement officials, and implement national human rights awareness-raising focused on women’s rights (Japan);

125.70. Promote awareness-raising campaigns and human rights education programmes particularly directed to law enforcement officials and educators that address the problematic of sexual violence against women (Portugal);

125.71. Adopt and implement appropriate, efficient measures ensuring that all allegations of sexual violence against women are properly registered, prosecuted and their perpetrators duly convicted, including a provision of victims’ access to redress and social support services (Slovakia);

125.72. Establish mechanisms that will offer the victims of rape appropriate and adequate support and provide them with redress (Slovenia);

125.73. Step up efforts against sexual violence and improve social support services to victims (Italy);

125.74. Rigorously apply the legislation against gender violence and sexual violence, especially against girls and boys (Spain);

125.76. Establish national policies aimed at putting an end to violence and crimes motivated by race nationality, religion ethnicity, sexual orientation or identity, through the approval of laws that explicitly criminalize violence against people or property (Uruguay);

125.77. Implement training programs for the security forces so that crimes motivated by race nationality, religion ethnicity, sexual orientation or identity, are adequately investigated (Uruguay);

125.78. Continue its efforts in the fight against violence and discrimination based on sexual orientation and gender identity (Argentina);

125.79. Ensure police and justice officials have appropriate training and direction to improve the investigation and prosecution of sexual violence including that based on sexual orientation or gender identity (New Zealand);

125.80. Ensure that law enforcement officials and other relevant actors are adequately trained to investigate and prosecute hate crimes on the basis of sexual orientation and gender identity, including through the promotion of awareness-raising and sensitization campaigns (Denmark);

125.81. Develop monitoring capacity and legislation to enhance the prevention, investigation and prosecution of crimes of violence against individuals on the grounds of their sexual orientation or gender identity (Netherlands);

125.82. Enhance the prevention, investigation and prosecution of crimes of violence against individuals based on their gender or sexual orientation (United Kingdom of Great Britain and Northern Ireland);

125.83. Take steps to ensure targeted attacks against individuals based on their sexual orientation are thoroughly investigated and prosecuted, and strengthen mechanisms to prevent crimes of violence (Canada);

125.84. Publically denounce crimes committed against LGBTs and to conduct thorough investigations into and prosecutions of these attacks (Austria);

125.85. Publicly denounce all violence based on sexual orientation or gender identity and adopt effective measures to raise public awareness concerning the constitutional protection of LGBT individuals (Finland);

125.86. Increase advocacy for freedom from discrimination based on sexual orientation and gender identity through public education and awareness building and address violence targeting LGBT persons through training for police, first responders and justice system officials (United States of America );

125.87. In order to avoid the occurrence of impunity  in cases of violence against LGBT persons,  that all such cases be subject of credible investigations and the perpetrators prosecuted (Belgium);

The following recommendations were not accepted by South Africa:

125.95. Ensure that the proposed new Traditional Courts Bill, if adopted, does not violate South Africa’s international obligations or its own Constitution in the area of women’s rights and gender equality (Norway).

South Africa did not provide a response to the following recommendations:

125.47. Implement a national strategy which includes the review and the drafting of laws, and campaigns to raise awareness about discrimination at all levels of society, including traditional leaders, aimed at modifying or eliminating, in accordance with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), harmful stereotypes and practices which discriminate women (Uruguay);

125.60. Step up efforts to eliminate violence and discrimination against women (Republic of Korea);

125.61. Adopt all necessary measures to prevent, fight and punish any violence against women and children (Switzerland);

125.63. Take increased measures to protect and provide redress to women subjected to gender-based violence (Czech Republic);

125.75. Conduct comprehensive public awareness campaigns and enhance the investigation and prosecution of violent crimes perpetrated on grounds of ethnicity, nationality, religion, sexual orientation or gender identity (Slovenia);

V. Adoption of the Report
The draft report of the Working Group was adopted at the 21st session of the Human Rights Council in September 2012.

Information provided by the State under review (A/HRC/21/16/Add.1, Annex 1)

Access to justice is entrenched in the Constitution of South Africa, national legislation, policies and programmes. Several measures have been put in place to particularly ensure women’s access to justice e.g. National Access to Justice Week held during women’s month (August) every year, 16 Days of Activism of No Violence against Women and Children, Multi-disciplinary care-centres for victims of sexual offences and crime (Thuthuzela care centres). The primary purposes of these programmes are to ensure maximum protection of victims, provision of adequate remedies to victims including combating impunity with the view to ensuring non-recurrence. Additionally victim-friendly rooms, shelters for abused women, counselling services for victims of abuse, family violence, child protection and sexual offences units have been established.

A Policy Framework on Combating Hate Crime, Hate Speech and Unfair Discrimination is at an advanced stage of finalisation. This is currently serving in the Top Structures of government where after it will be taken on an intensive national consultative process. Consequently these processes will inform national legislation which is expected to be promulgated within the 2013-2014 Parliamentary calendar. The development of this policy integrates international norms and standards. At the International level, South Africa has successfully piloted a resolution on Human Rights, Sexual Orientation and Gender Identity at the 17th Session of the HRC calling for non-discrimination in this regard. In a seminal case law a South African judge has recently sentenced four 18 year olds to an effective jail term of 18 years for the rape of a lesbian woman.

Crime prevention is one of the identified priorities for the current administration. Adequate resources have been placed at the disposal of organs of state security and law enforcement agencies to ensure visible policing as well as community policing with the view to combating violent crime, contact crime and manifestations of violence in our communities. Annual statistics reveal a declining trend although our vision is to ensure no violence at all.

A Policy Framework on Combating Hate Crime, Hate Speech and Unfair Discrimination is at an advanced stage of finalisation. This is currently serving in the Top Structures of government where after it will be taken on an intensive national consultative process. Consequently these processes will inform national legislation which is expected to be promulgated within the 2013-2014 Parliamentary calendar. The development of this policy integrates international norms and standards.

[Regarding the proposed Traditional Courts Bill – ] This matter is still under national consultation and dialogue. It is therefore not appropriate to prejudge at this early stage what the final outcome of this process will be.

Statements by States and other stakeholders

South African Human Rights Commission
delivered by Advocate Lawrence Mushwana (Chairperson)

I have the honour to speak on behalf of the South African Human Rights Commission, an institution with “A” status accreditation under the Paris Principles.

We welcome the opportunity to make a statement on this important occasion and commend the South African government on its improved participation on its second cycle of the UPR. We are pleased that the review highlighted many important matters on which the Commission is working on with increased attention. […]

We will continue to advocate for the development of a National Action Plan, hate crimes legislation; and programmes that support social coherence and tolerance; including discrimination on the basis of sexual orientation. […]

Finally, we welcome the many recommendations that seek to address the rights of vulnerable groups in our society, HIV/AIDS, violence against women and children, the compliance of legislation with international human rights obligations and the establishment of am article 33 independent monitoring mechanism under the CRPD.

Action Canada for Population and Development and the Sexual Rights Initiative
Delivered by Dawn Cavanagh

The Sexual Rights Initiative welcomes the Government of South Africa’s commitment to accept and implement a range of recommendations related to “combating incitement to hatred and punishing hate crimes”. Gender- and sexuality- related violence against women and against vulnerable people such as refugees, sex workers, people who are gender non-conforming and people in same sex relationships is at unacceptable levels and constitutes a national crises.

We highlight the reality that South Africa already has a host of laws, policies and structures to address violence, gender inequality and sexuality. We note the commitment of the government to a new framework – A Policy Framework on Combating Hate Crime, Hate Speech and Unfair Discrimination – and look forward to working alongside the government to inform and shape this framework so that it meets the needs of the communities it is intended to serve. However, the current crises of violence in the country and in particular, sexuality- and gender- related violence are unlikely to be overcome through any further laws, policies, frameworks and structures. These policies and laws must now be implemented and applied, and this implementation monitored and tracked and accounted for.

We call on South Africa to ensure the urgent implementation of these laws and policies by

  1. Addressing directly, religious, traditional and political leaders whose which serves to legitimise violence against women and against marginalised people based on their gender identity and sexual orientation;
  2. Ending the criminal justice system delivers justice in dealing with those who violate the human rights of women and people based on gender identity and sexual orientation;
  3. Addressing the serious shortcomings in the implementation of refugee related legislation, international human rights commitments and policies, including  refoulement;
  4. Developing, through meaningful participation by communities most affected by the violence, a comprehensive, sustained public education programme across all parts of society. This education must address human rights, women’s rights, gender oppression and sexuality education; It must also empower women and address violent masculinities as on-going programme areas with budgets and accountability mechanisms in place

VI. Further information

UPR Documentation

For first cycle reports of South Africa, please see here

National report 1 :  AC | E | FR | S
Compilation of UN information 2 :  AC | E | FR | S
Summary of stakeholders’ information 3 :  AC | E | FR | S
Questions submitted in advance :  E
Addendum 1 :   E
Addendum 2 : E
Addendum 3 : E

Outcome of the review

Draft report of the Working group: A | CE | F | R | S
Addendum 1 :  E
Annex 1 : E