One of the key votes, which merit further analysis, was the vote by South Africa. South Africa, it bears recalling, was the country which sponsored the first resolution on sexual orientation and gender identity at the Human Rights Council in 2011. From sponsoring the SOGI resolution in 2011, to voting in favour of the next resolution in 2014, South Africa moved to an abstention in 2016. What accounted for this fairly dramatic shift?
The vote by South Africa can perhaps be best understood through an analysis of the statement by the South African Ambassador Ms. Nozipho Mxakato-Diseko, which bears full citation:
For South Africa, respect for the promotion, protection and fulfillment of human rights and fundamental freedoms as enshrined in our Constitution constitutes the critical pillar of our foreign policy. We believe that no person should be subjected to discrimination and violence on any ground including on the basis of sexual orientation.
Guided by this conviction, South Africa tabled the original resolution on the SOGI and the LGBTI issue in 2011. Our approach on the issue of protection against violence and discrimination of LGBTI persons was and remains to focus on issues that will draw maximum unity in this Council and carry even countries that have some challenges with this issue. How the current sponsors have sought to build on South Africa’s initiative on 2011, has added divisiveness and created unnecessary acrimony in this Council. We learnt from our struggle against apartheid that if we are clear about the end goal which for us is to end the violence and the discrimination against LGBTI persons a better approach is built in maximum consensus. This could have been achieved had it not been for the arrogant and confrontational approach which adopted.
Mr. President, there is an African proverb that says, “If you want to walk fast, then walk alone. If you want to walk far, walk together with others”.
South Africa remains firmly committed to invest all its resources to ensure the violence and discrimination against LGBTI persons is eradicated, leaving no one behind. Recklessness, pointing fingers to others and brinkmanship will not take us anywhere. Lives are at stake.
It is for these reasons that while we have supported those parts of this resolution which focus primarily on ending violence and discrimination against LGBTI persons, South Africa cannot support this resolution as it stands and will therefore abstain. I thank you. (Emphasis added)
The themes Ms. Nozipho Mxakato-Diseko’s addresses were important ones. As highlighted above she emphasised the importance of the South African Constitution, the anti apartheid struggle as well as the need for dialogue as justifications of the South African vote. Interestingly these themes were also the subject of the address by Ambassador JM Matija who introduced the first resolution sponsored by South Africa on sexual orientation and gender identity in 2011. Like Ms.Nozipho Mxakato-Diseko, Ambassador Matija also invoked the anti apartheid struggle and the South African Constitution to make the case for why South Africa was sponsoring the SOGI resolution.
South Africa believes that no-one should be subjected to discrimination or violence based on their sexual orientation or gender identity. No-one should have to fear for their lives because of their sexual orientation or gender identity. No–one should be denied services because of sexual orientation and gender identity. The resolution before us today does not seek to impose values on Member States but it seeks to initiate a dialogue which will contribute towards ending discrimination and violence based on sexual orientation or gender identity. In South Africa non-discrimination on the basis of sexual orientation is constitutionally guaranteed, yet we still have challenges related to violent acts against individuals because of their sexual orientation and gender identity.
All of us, who were engaged in liberation struggles, without exception, drew our aspiration from the 1948 Universal Declaration of Human Rights, whose very opening preambular paragraphs became a clarion call to fight for freedom. It says and I quote “All human beings are born free and equal in dignity and right and that everyone is entitled to all rights and freedoms set forth in that Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status”.
When we were imprisoned, tortured and forced into exile, we received moral, political and material support from all sections of society all over the world. We never said we cannot accept your support due to gender identity. Our migrants, refugees and those who are continuously visited by severe hunger, receives help from everyone and we never say, we don’t want help from you due to your sexual orientation and gender identity. When we seek jobs, investments, capacity building and technology, we never say only from that section of society and not from that section of society, depending on gender identity. (Emphasis added)
While the anti-apartheid struggle is invoked by both speakers, they do so to make very different points. For Ms. Nozipho Mxakato-Diseko, the lesson drawn from the anti apartheid struggle is that to ‘end the violence and the discrimination against LGBTI persons a better approach is built in maximum consensus’, without being ‘arrogant and confrontational’. For JM Matija, the anti-apartheid struggle was one which broadened human rights thinking and taught one that discriminating against anyone on any ground including SOGI is unacceptable.
Perhaps one needs to go back to South African history to ponder as to whether both interpretations are equally valid. One of the great contributions of the anti-apartheid struggle was that it made possible for one to see that discrimination had many facets and a true liberation movement would commit to combating the many facets of discrimination. Seen from this perspective, JM Matija’s statement is true to the history of the South African liberation movement and implicitly acknowledges and builds on the historic contribution of people like Simon Nkoli who played a key role in both the anti apartheid movement as well as the gay movement. As Simon Nkoli put it, “I am black and I am gay. I cannot separate the two into secondary or primary struggles.” Within JM Matija’s vision there is no primary and secondary struggle, hence South Africa will move the resolution on violence and discrimination on grounds of sexual orientation and gender identity. It is precisely this unwavering commitment to liberation to which Ms. Nozipho Mxakato-Diseko does great disservice, by implying that when it comes to the core agenda of ensuring a life free of violence and discrimination for LGBT people, it’s okay for notions of consensus to take precedence over the need to combat violence and discrimination. By invoking the anti apartheid struggle in service of a vote which does grave injustice to the ideals of the struggle, Ms. Nozipho Mxakato-Diseko’s violently distorts the very meaning of the liberation struggle.
Ms. Nozipho Mxakato-Diseko’s statement should be analysed within the framework outlined by Orwell in his classic work 1984, where he describes the creation of a new language for a totalitarian state. In Orwell’s totalitarian state, Newspeak replaces English which is then called Oldspeak. The predominant characteristic of Newspeak is that words begin to lose the specificity of what they signified and begin to have the opposite meaning. The example Orwell gives is of the Declaration of Independence which begins with ‘We declare these truths to be self evident, that all men are created equal and that they are endowed by their creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness…’ In Newspeak the only word which can capture this sentiment is crimethink .
Ms. Nozipho Mxakato-Diseko’s ill-thought invocation of the anti-apartheid struggle seeks to empty the liberation struggle of its subversive content and replace it with the bland notion of consensus. Today the anti-apartheid struggle is used to justify not acting to rectify violence and discrimination and tomorrow, in the final Orwellian nightmare, it will be used to justify violence and discrimination.
Further, the invocation of the South African Constitutional commitment to non-discrimination on grounds of sexual orientation to abstain on a vote on violence and discrimination on grounds of SOGI has similar problems. The 2011 statement by Ambassador Matija specifically drew attention to the fact that ‘non-discrimination on the basis of sexual orientation is constitutionally guaranteed’
In 2014, in an explanation after the vote South Africa again drew support for its vote from the Constitution
No person should fear for their safety or be deprived of their dignity because of their sexual orientation or gender identity. South Africa had lent its support for similar resolutions in other multilateral fora. Guided by the principle of supremacy of its Constitution and the rule of law, the Government was enjoined to promote and respect the rights of all persons without discrimination.
In 2016, the same constitution was invoked to support an abstention. Clearly the Constitution cannot be invoked to both support a SOGI resolution in 2011 and 2014 and to abstain on a SOGI resolution in 2016. If it is so invoked, one of those doing the invoking is doing violence to the plain language of the Constitution which enshrines a fundamental commitment to non discrimination on grounds of sexual orientation. In fact the 2016 vote abdicated Constitutional responsibility and eschewed fidelity to the Constitution in the name of the Constitution.
As South African academic Melanie Judge aptly put it:
The rights and justice principles in the Constitution mandate the terms for how leaders are to govern, both inside and outside our borders. As a consequence, retrogressive and contradictory stances on sexual orientation and gender identity must be accounted for. Leaders who determine the pace and content of sexual and gender politics in ways that undermine constitutional rights and protections are, in the words of Mxakato-Diseko herself, guilty of arrogance and recklessness.
 George Orwell, 1984, Penguin, London, 2000.