South Africa

For a summary of South Africa’s review at the second cycle please click here.

1st UPR session
Date of review: Tuesday, April 15, 2008
Date of report adoption: 11 June, 2008
Report of the Working Group: A/HRC/8/32

Summary

Recommendations: to “continue to promote and protect the right of all persons to equality without discrimination based on sexual orientation, at both the national and international levels”, to provide better remedies to victims of discrimination based on sexual orientation, and to seek to prevent such discrimination through sensitivity programmes and education.

Response: South Africa made a general statement affirming the principle of non-discrimination, including on the ground of sexual orientation, but left unclear its position on the specific recommendations.

I. Key issues/recommendations identified by NGOs

  • Commend South Africa for its leadership in including sexual orientation in its Constitution as a prohibited ground of discrimination;
  • Note that the Special Rapporteur on violence against women and several stakeholders have expressed concern at the high rate of hate crimes based on sexual orientation, including violence, rape and murder, particularly directed towards black lesbian and bisexual women;
  • Request the State’s views on what measures may be taken to address hate crimes on this ground;
  • Recommend that consideration be given to introducing hate crimes legislation on this ground, as well as to public education programs and sensitivity training to promote respect for all persons, including on the grounds of sexual orientation or gender identity.
  • Recommend that it might be helpful to consider whether a program such as the Brazil without Homophobia educational initiative might usefully be adapted to the South African context.

II. Excerpts from input reports
Compilation of UN information

II. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND
Implementation of international human rights obligations
2. Right to life, liberty and security of the person

9. […] The Special Rapporteur on violence against women in relation to the alleged murder of a lesbian woman attacked by 20 young men, who was reportedly beaten, stoned and stabbed to death,  noted with concern that although the police had identified and arrested six of the alleged  perpetrators, no official publicly condemned the incident as a hate crime, that this case does  not constitute an isolated incident, and that lesbian women face an increased risk of becoming  victims of violence, especially rape, because of widely held prejudices and myths.

Summary of stakeholder information

II. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND
Implementation of international human rights obligations

1. Equality and non-discrimination

4.  According to HRW [Human Rights Watch], while South Africa’s constitution outlaws discrimination based on sexual orientation, and same-sex marriage has been legalized, gay and lesbian people remain vulnerable.

2. Right to life, liberty and security of the person

15.  AI [Amnesty International] was informed by rape survivors and non-governmental service-providing organizations (SPOs) about cases of failed police response to these crimes, including by exhibiting gender-insensitive and prejudiced attitudes towards complainants, among them lesbian women […]

18.  According to the Joint Working Group (JWG), there is a high rate of hate crimes and violations targeted against Lesbian, Gay, Bi-Sexual and Transgender (LGBT) people, particularly black lesbians, in South Africa. These range from hate speech to physical abuse and assault, rape and other forms of sexual violence and murder. Sexual assault and even murder motivated by homophobic prejudice is a particularly common problem, especially for black lesbian and bisexual women. HRW noted that a spate of homophobia-induced murders of lesbians prompted the South African Human Rights Commission to develop a program of action to combat escalating hate crimes and to determine whether South Africa needs legislation in this regard.

III. References and recommendations made during the interactive dialogue of the Working Group
From the report of the Working Group –

56. The United Kingdom of Great Britain and Northern Ireland noted that South Africa’s liberal Constitution provides a strong institutional structure for the protection and defence of human rights. […] It congratulated South Africa on its progressive stance domestically on the rights of lesbian, gay, bisexual and transgendered people and commended it on its leadership in this area. In this regard, the United Kingdom recommended to South Africa to continue to promote and protect the right of all persons to equality without discrimination based on sexual orientation, at both the national and international levels.

57. Belgium […] also welcomed the progress made by South Africa by banning, in the Constitution, all discrimination on the basis of sexual orientation. According to information provided by representatives of civil society as contained in the stakeholders’ summary report, this category of the population nevertheless remains vulnerable. Belgium noted that the South African Human Rights Commission has developed a programme of action to combat hate crimes against this category of the population and Belgium sought more information on its implementation. Belgium recommended to South Africa to increase its efforts to provide mediation machinery to provide victims of discrimination on the basis of sexual orientation more accessible and rapid remedies. It also recommended making efforts on the sensitization in education to strengthen the prevention of these forms of discrimination.

65. […] On the issue of sexual orientation, [the delegation of South Africa, H .E. Mrs. Glaudine J. Mtshali] indicated that there is no specific legislation pertaining to it and that South Africa prohibits discrimination on any ground irrespective of a person’s sex or gender.

IV. Conclusions and/or recommendations
South Africa made a general statement affirming the principle of non-discrimination, including on the ground of sexual orientation, but left its position on the following specific recommendations unclear:

20. Recommended to South Africa to continue to promote and protect the right of all persons to equality without discrimination based on sexual orientation, at both the national and international levels (United Kingdom);

21. Recommended to South Africa to increase its efforts to provide mediation machinery to provide victims of discrimination on the basis of sexual orientation more accessible and rapid remedies (Belgium);

22. Recommended to make efforts on the sensitization in education to strengthen the prevention of these forms of discrimination (Belgium).

V. Adoption of the Report
Comments by States and other stakeholders

Human Rights Watch

HRW welcomes the UPR outcome report on South Africa, which includes numerous important recommendations to address the problems of sexual violence, equal access to HIV retroviral treatment and the enhanced protection of those seeking safety from persecution on South African territory. […]

The South African Constitution protects its citizens from discrimination on the grounds of sexual orientation. HRW supports the recommendation made to South Africa to provide victims of discrimination on the basis of sexual orientation more accessible and rapid remedies particularly given the increased number of killings and reports of violence suffered by gays and lesbians in the country and the delays experienced securing effective remedy for these violations. […]

VI. Further information
UPR Documentation

National report 1 :  E only
Compilation of UN information 2 :  A | C | E | F | R | S
Summary of stakeholders’ information 3 :  AC | E | F | R | S

Questions submitted in advance

Outcome of the review
Report of the Working group: A | C | E | F | R | S
Decision on the outcome: E only
Report of the eight session of the Human Rights Council: A | C | E | FR | S

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