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27th UPR session
Date of review: 10 May 2017
Date of report adoption: 22 Sep 2017
Document number: A/HRC/36/16
SOGIESC issues during South Africa’s 3rd UPR review
I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
Information provided by the national human rights institution of the State under review accredited in full compliance with the Paris Principles
6. Regarding recommendations relating to the rights of LGBTI persons, 9 the need for legislation addressing hate crimes was reiterated and the critical importance of the public’s full participation in the development of such legislation emphasized.
Equality and non-discrimination
26. JS3 noted that violence against transgender and intersex persons was underpinned by societal stigma; and that they faced obstacles and discrimination when attempting to alter their legal sex description. Human rights violations experienced by intersex children due to non-consensual treatments were highlighted. JS3 recommended public condemnation of all forms of transphobic and intersexphobic violence; and the enactment of protective legislation, regulations and policies in the spheres of crime prevention, education and access to healthcare.
Right to health
61. JS3 noted that intersex and transgender persons had to navigate a healthcare system that is discriminatory and unresponsive to their healthcare needs.
68. ERI stated that South Africa not only had extremely high rates of rape, but was also known for reports of ‘corrective rape’, especially against lesbian women. However, as these hate crimes were not yet recognized as unique crimes under the law, there were no reliable figures about the extent of this issue. JS5 noted that many lesbians and bisexual women experienced physical, sexual and social violence and discrimination in multiple spaces.
67. JS5 indicated that violence suffered by women in South Africa was often brutal, particularly due to the multiple and intersecting forms of discrimination faced by women. CSVR indicated that a lack of understanding of the extent of the problem of gender-based violence (GBV) and inaccurate statistics continued to inhibit effective responses.
II. Excerpts on SOGIESC issues from the national report
Constitutional, legislative and policy measures
67. The Government, working with relevant stakeholders, developed a strategy to address gender-based and sexual orientation-based violence against lesbian, gay, bisexual, transgender and intersex people in South Africa. A National Task Team (NTT) was reestablished in 2013, with the Government together with representatives from Chapter 9 institutions and civil society organisations working in partnership to achieve a number of formidable tasks. These include, amongst others, the development of a National Intervention Strategy to respond to, and prevent, gender and sexual orientation-based violent crimes perpetrated against LGBTI persons and the development of an Inter-sectoral Implementation Plan which would link parallel and complementary initiatives. The NTT also undertook to strengthen the Government’s ability to respond to LGBTI needs and to strengthen the capacity of civil society organisations to deliver related services. The Government sets out to improve linkages amongst Government Departments, to undertake programmes such as the Access to Justice and the Promotion of Constitutional Rights Programme and the National Action Plan (NAP), as well as working closely with relevant human rights institutions – such as the Human Rights Commission and the Commission for Gender Equality – to combat racism, xenophobia and related intolerance and in that manner address the impact of different forms of discrimination targeting LGBTI persons. It seeks to improve the management of cases by relevant role-players in the criminal justice system, including the SAPS, the NPA, the DSD, the DoH and the Department of Correctional Services (DCS).
68. South Africa has taken significant steps to improve coordination between Government and civil society in combatting violence (including rape and murder) against LGBTI persons.
69. The Government is making strides to ensure that LGBTI persons are treated as equal citizens and ensure that any challenges to fulfil the rights of the LGBTI community are dealt with. The Government does not allow any discriminatory practices in respect of the marriage of same-sex couples, or any form of degrading and harmful treatment of transgender persons. The Government’s commitment to protect the rights of LGBTI persons in South Africa was recently exemplified by action by the Minister of Home Affairs, who denied a visa application by a cleric well known for preaching homophobia from the pulpit. The Minister of Home Affairs has established a task team to deal with similar cases in the future.
Human rights infrastructure
82. The Government always aims to include civil society role-players as much as possible in processes to provide input on Government programmes, draft legislation and policy as well as in general consultation. There has also been meaningful engagement on this issue with various court cases affirming the obligation of Parliament to facilitate public participation in legislative processes at all levels.29 Some examples of successful civil society involvement include the National Task Team on LGBTI Rights, the draft National Action Plan against Racism, Xenophobia and Related Intolerance, a Reference Group on the Traditional Courts Bill and various programmes to increase constitutional rights awareness and education.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
13. The Committee on the Elimination of Racial Discrimination welcomed the Prevention and Combating of Hate Crimes and Hate Speech Bill. It encouraged South Africa to ensure that the bill was in accordance with the International Convention on the Elimination of All Forms of Racial Discrimination and recommended that South Africa expedite its enactment. UNHCR and the country team recommended ensuring that the draft bill was the subject of broad consultations, contemplated the development of guidelines for investigators, prosecutors and judges and included restitution. The Special Rapporteur on violence against women and the country team recommended that South Africa consider enacting hate crime legislation that addressed both the hate dimension of crimes and the sexual orientation of lesbian, gay, bisexual, transgender and intersex victims of gender-based violence.
16. The Human Rights Committee expressed concern about the persistence of stigma against persons based on their real or perceived sexual or gender orientation, gender identity or physical diversity and about the fact that such persons were subject to harassment, acts of discrimination, and sexual and physical violence. It recommended that South Africa eradicate such discrimination and violence. The country team recommended that South Africa promote nationwide school policies and guidelines that explicitly promoted sexual diversity and tolerance for different gender identities.
Fundamental freedoms and the right to participate in public and political life
31. The Human Rights Committee was concerned about reports of threats, intimidation, harassment, excessive use of force and physical attacks by private individuals and police forces against human rights defenders, in particular those working on corporate accountability, land rights and transparency issues, against lesbian, gay, bisexual, transgender and intersex persons and against HIV activists.70 It also noted with concern reports that law enforcement officers were not demonstrating due diligence in their efforts to ensure accountability for such violations and recommended that South Africa take all measures necessary to protect the rights of human rights defenders and ensure that police officials received adequate training to protect such defenders.
53. The Human Rights Committee was concerned that gender-based and domestic violence remained a serious problem and that the conviction rate for such acts was low. The Committee on the Rights of the Child was seriously concerned at the high prevalence of gender-based and sexual violence against children and the low age of the victims. The Special Rapporteur on violence against women noted that the Domestic Violence Act had broadened the definition of domestic violence and provided for victims and others to request protection orders. However, it did not typify domestic violence as a criminal offence. The country team noted that there were no centralized statistics at the national level on the number of incidents of gender-based violence, just the data on sexual offences released by the police annually.
58. The Committee on the Rights of the Child was concerned at the high prevalence of harmful practices, including virginity testing, witchcraft, female genital mutilation, violent or harmful initiation rites and intersex genital mutilation. It urged South Africa to ensure that its legislation prohibited all forms of harmful practices carried out on children, including by regulating initiation schools, and to develop and adopt an effective national action plan to eliminate such practices. The Human Rights Committee recommended that South Africa amend the Children’s Act with the aim of prohibiting virginity tests on children, irrespective of their age.
IV. References to SOGIESC issues during the Working Group review
10. With regard to the recommendations to criminalize hate speech and related hate crimes, in October 2016 the Cabinet had approved the publication of the Prevention and Combating of Hate Crimes and Hate Speech Bill for public comment. The Bill would establish the offences of hate crimes and hate speech. According to the Bill, a hate crime would have occurred when someone commits any recognized offence when motivated by unlawful bias, prejudice or intolerance based on race, gender, sex, ethnic or social origin, colour, sexual orientation or gender identity, religion, belief, culture, language, birth, HIV status, nationality, albinism, occupation or trade. In addition, the crime of hate speech had been included in the Bill more recently, in response to the increase in racist incidents that had taken place over the past few years.
17. The delegation provided information on legislative reforms undertaken to address gender and sexual violence and reported that a national task team had been established to counter discrimination based on sexual orientation and gender identity against members of the lesbian, gay, bisexual, transgender and intersex community.
58. Ireland was concerned at the prevalence of gender-based and sexual violence in South Africa.
59. Israel was concerned, inter alia, at the rise in hate crimes and hate speech in South Africa.
76. While appreciating legislation to prohibit discrimination on the basis of sexual orientation, the Netherlands noted persisting violence against lesbian, gay, bisexual, transgender and intersex people.
86. Rwanda encouraged South Africa to combat sexual and gender-based violence through the implementation of relevant laws to ensure justice for victims.
90. With regard to the issue of lesbian, gay, bisexual, transgender and intersex people, it was highlighted that discrimination based on sexual orientation and gender identity was unlawful in the country. Equality courts, which were civil, not criminal, courts, could receive complaints regarding allegations of discrimination on the basis of a whole range of criteria, including sexual orientation.
117. Ukraine welcomed the steps taken to ensure the right to education for all and combat different forms of gender-based violence and discrimination
119. The United States of America was concerned that women, girls, migrants and lesbian, gay, bisexual, transgender and intersex individuals continued to suffer from violence and societal prejudice.
120. Uruguay welcomed the Prevention and Combating of Hate Crimes and Hate Speech Bill and measures to ensure access to water and sanitation.
123. Zambia was concerned about the high prevalence of harmful practices, including virginity testing, violent or harmful initiation rights and intersex genital mutilation.
V. Conclusions and/or recommendations
South Africa accepted the following recommendations
139.97 Engage non-governmental organizations on the lesbian, gay, bisexual, transgender and intersex task team and update and implement the national lesbian, gay, bisexual, transgender and intersex strategy (United States of America);
139.98 Develop policies, plans and information campaigns to eradicate at all levels stereotypes and discrimination against people based on their sexual orientation or gender identity, focusing particularly on public officials and those in charge of law enforcement (Chile);
139.99 Strengthen the protection of lesbian, gay, bisexual, transgender and intersex persons against stigmatization, harassment and discrimination by promoting tolerance for sexual diversity and different gender identities and by clearly classifying acts of violence against these persons as hate crimes (Belgium);
139.100 Take urgent measures for the investigation and effective punishment of perpetrators of discrimination and violence against lesbian, gay, bisexual, transgender and intersex persons (Argentina);
139.101 Take steps to ensure the prevention, investigation and prosecution of cases of violence against persons based on sexual orientation and gender identity (Israel);
139.102 Strengthen its system for monitoring, reporting and analyzing crimes of violence and discrimination against individuals based on grounds of sexual orientation or gender identity (Netherlands);
139.195 Step up its fight against gender-based discrimination and violence, uproot its social acceptability and increase efforts for the protection of its victims and redress for violations of their rights, as well as efforts on accountability of perpetrators (Czechia);
139.209 Set in place a comprehensive, national coordinated strategy to address gender-based violence in order to ensure the implementation of the legal framework and to tackle the high prevalence of sexual and gender-based violence, including against children (Finland);
139.210 Develop a comprehensive, multisectorial national strategic plan on gender-based violence (Netherlands);
139.211 Revive efforts to develop a national action plan on combating gender based violence (Georgia);
139.212 Revive efforts to develop a national strategic plan on gender-based violence and ensure appropriate resources for its implementation (Slovenia);
139.215 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 to the police, of the necessity to act against all cases of sexual and gender-based violence, including on the grounds of real or perceived sexual orientation, gender identity or expression (Sweden);
139.216 Carry out a national outreach campaign for the elimination of sexual and gender-based violence which includes information on the rights of victims (Mexico);