6.2 Analysing South Africa’s Contribution to UN SOGI Rights Debates
6.2.9 Extension/Deferment of the IE SOGI Mandate
At the 41st UNHRC session the IE SOGI presented his latest report, A/HRC/41/45 Data collection and management as a means to create heightened awareness of violence and discrimination based on sexual orientation and gender identity, prior to the vote on the extension of his three-year mandate.
The IE SOGI participated in a clustered interactive dialogue, alongside the Special Rapporteur on the Independence of Judges and Lawyers, to present the report, which included country visit reports to
122 Georgia, who voted in favour of 32/2 in 2016, and Mozambique, which has never been a member of the UNHRC and did not vote during the contentious debate of the African Group attempt to defer 32/2 in the 71st Session of the UNGA.
In response, Mozambique welcomed the visit of the IE SOGI and advised that its Parliament was reviewing legislation that the mandate holder had noted discriminated against some sexual minorities and concluded by stating their support for the forthcoming extension of the mandate (UNHRC, 2019a). The main report was an important intervention to catalogue the situation of sexual and gender minorities, but also to counter the oft-repeated argument that people with non- normative sexual orientations or gender identities do not exist in all cultures and societies. As Victor Madrigal-Borloz summarised:
“The reality is that negation is only a political discourse and I would warmly advise that anybody who is ready to say that LGBTI persons do not exist in a particular setting is actually devoid of any credible evidence base” (UNHRC, 2019b).
The UK delivered a joint statement with Argentina as co-chairs of the ERCSOGI supporting the extension of the mandate. Although Angola on behalf of the African Group, Burkina Faso, Tunisia, Algeria, Gambia and Morocco all spoke, only the Tunisian delegate acknowledged the presence of the IE SOGI, stating “we’d like to thank the Independent Expert and Special Rapporteur for their reports” (UNHRC, 2019a; UNHRC, 2019b).
Once again, Ambassador Mxakato-Diseko spoke in commendation of the IE SOGI and urged further action, especially to include the LGBTI communities in the digital economy framework being developed by the OHCHRC, she further agreed with the report’s finding on the intersectional nature of SOGI discrimination with race and asserted, with a fairly inflammatory rebuke to many continental neighbours, that “[w]e agree with the view of the Independent Expert that self-serving interpretations of religion, tradition and culture constitute hate speech, thereby fanning the flames of violence and discrimination” (UNHRC, 2019b).
Following the interactive dialogue, seven of the original 32/2 sponsors (hereafter LAC783) tabled A/HRC/RES/41/L.10/Rev.1 (41/L10/Rev.1) to request the extension of the IE SOGI mandate for a further three years, with 52 co-sponsors84 but only South Africa from the African Group (Albania et al, 2019). In contrast to the positive comments from delegations in all continents in the previous meeting, including from Mozambique and South Africa, and despite extensive consultations by the sponsor states in the informal meetings during the 41st Session, the draft was met with ten proposed
83 Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico and Uruguay.
84 Albania,* Argentina, Australia, Austria, Belgium,* Bolivia (Plurinational State of),* Brazil, Bulgaria, Canada,* Chile, Colombia,* Costa Rica,* Croatia, Cyprus,* Czechia, Denmark, Ecuador,* Estonia,* Fiji, Finland,* France,* Georgia,*
Germany,* Greece,* Honduras,* Iceland, Ireland,* Israel,* Italy, Japan, Latvia,* Liechtenstein,* Lithuania,* Luxembourg,*
Malta,* Mexico, Montenegro,* Netherlands,* New Zealand,* North Macedonia,* Norway,* Portugal,* Romania,* Slovakia, Slovenia,* South Africa, Spain, Sweden,* Switzerland,* Ukraine, United Kingdom of Great Britain and Northern Ireland and Uruguay (* not UNHRC member states).
123 amendments85 tabled by Pakistan on behalf of the OIC, but now with the exceptions of Albania and Tunisia (UNHRC, 2019m).
These ten amendments were the same in content as the 11 put forward in 2016 (two were combined) against 32/2. They sought to:
• Remove all references to SOGI entirely;
• Replace the role of the mandate holder with a report from the OHCHR; and
• Highlight the potential political, financial or aid related coercion, particularly on developing nations, to accept ideas of development from other states (UNHRC, 2019c; 2019d; 2019e;
2019f; 2019g; 2019h; 2019i; 2019j; 2019k; 2019l)
When presenting the collection of amendments, Pakistan, on behalf of the OIC group with the exception of Albania and Tunisia, advised that they were adhering to the OIC’s 46th Council of Foreign Ministers resolution on cultural, social and family affairs of in March 2019 and claimed that the proposed 41/L.10/Rev.1 resolution aimed “at using the issue of violence and discrimination to advance another cause” (Resolution no.4/46-CUL on Social and Family Issues, 2019; UNHRC, 2019m).
A 2017 “study to examine the controversial subject of ‘Sexual Orientation and Gender Identity (SOGI)” commissioned by the Independent Permanent Human Rights Commission of the OIC (IPHRC) suggested that SOGI rights were an LGBT community campaign to introduce “genderless marriage”
(IPHRC, 2017).
The four core concerns of the OIC with resolution 41/L.10/Rev.1 were that it was:
• Intended to subversively impose genderless marriage;
• Based on sexual preferences and private behaviours that have no universal definition nor place in international human rights legislation;
• Threatened the universality of human rights, by imposing new categories of identities that are not enjoyed by all; and
• Did not respect “religious, cultural, social, political and economic backgrounds and particularities” (UNHRC, 2019m)
Each amendment was presented by a different OIC State, including Bangladesh, Egypt, Saudi Arabia, Nigeria and Qatar and once again the OIC complained that this was an attempt to introduce new ideas and notions with no foundation in international human rights law, while also raising concerns about the probable undermining of sovereignty and principle of non-interference through potential coercive measures, such as economic sanctions or aid conditionalities, being used to change national positions, particularly of developing countries, on the issue (UNHRC, 2019m).
85 A/HRC/41/L.27 (UNHRC, 2019c), A/HRC/41/L.28 (UNHRC, 2019d), A/HRC/41/L.29 (UNHRC, 2019e), A/HRC/41/L.30 (UNHRC, 2019f), A/HRC/41/L.31 (UNHRC, 2019g), A/HRC/41/L.32 (UNHRC, 2019h), A/HRC/41/L.33 (UNHRC, 2019i), A/HRC/41/L.34 (UNHRC, 2019j), A/HRC/41/L.35 (UNHRC, 2019k) and A/HRC/41/L.36 (UNHRC, 2019l).
124 In rebuttal, those opposing the amendments focused on the procedural nature of the extension and the need, therefore, not to change from the original mandate, as this would effectively introduce a new mandate (UNHRC, 2019m). Ambassador Mxakato-Diseko spoke for South Africa and was even more outspoken in praise of the IE SOGI and in countering the claim that the mandate was divisive and a threat to state sovereignty, while once again reiterating the progressiveness of the Constitution:
“My delegation is of the view that the Independent Expert has admirably fulfilled his mandate of privileging dialogue with affected communities and opening channels of communication with States. He has done so with a great deal of sensitivity, avoiding the ‘naming and shaming’ of countries … The Independent Expert could have taken a gun hold approach [sic], but he chose not to … South Africa deplores the use of government data to conduct surveillance harass, entrap and persecute LGBTI people in numerous countries” (UNHRC, 2019m).
Later, in opposition to the amendment to remove SOGI from the title, South Africa spoke again.
Despite abstaining in 2016 on the basis that the resolution caused “unnecessary divisiveness” (South Africa, 2016), this time Ambassador Mxakato-Diseko argued:
“Delegations will recall we had ample negotiations on the mandate in 2016. … Then in 2016, keen to take into account sensitivities, the Council stopped short of creating a special rapporteur. While not denying the intersectionality of forms of discrimination, we are of the view that dedicated attention is urgently required on the case of LGBTI, to ensure that in accordance with the UDHR their inherent dignity equal and inalienable rights as human beings are protected and abuses prevented.
Indeed, the current Independent Expert in his report highlights precisely how the living realities of the LGBTI, the intersectionality of race and gender compound the impact of violations of their human rights. While globally, the ideology of hatred is on the ascendant, to generalize the current mandate of the Independent Expert would dilute the resolution and in fact give license to the abuses of human rights. … The mandate as it currently stands where it should be showing us a fuller picture of what is happening. It does not point fingers at any particular country, but it is intended to engage all of us to do more. Where politicians in countries, which claim to be beacons of democracy and human rights are emboldening hatred with courts eroding the gains made no more than 10 years ago. In these circumstances, the Council must be the ultimate defender of those most in need of protection and put in place measures that will not be blown away by the changing fortunes of political leaders and parties” (UNHRC, 2019m).
This time, however, South Africa was not alone on the continent in supporting the mandate. Tunisia, a member of both the African Group and the OIC, came out as a new convert to SOGI rights, supporting the resolution stating ”[o]ur constitution provides for the protection of dignity of our
125 citizens and prevents aggressions against citizens or any discrimination on the basis of gender identity or sexual orientation” (UNHRC, 2019m).
In the end, none of the hostile amendments from the OIC were accepted and the extension of the mandate passed with a stronger majority than 32/2. The African Group made no official statement against the draft and in fact Angola, Burkina Faso and the Democratic Republic of Congo abstained on all votes; Senegal and Togo voted for most of the amendments, but abstained in the extension;
Rwanda voted for one amendment (replacing the IE SOGI with a report), abstained or voted against the rest and voted for the extension; South Africa voted no to every amendment and yes to the extension and Tunisia did not vote on the majority of the amendments, but voted for three of them and for the extension (UNHRC, 2019m). Only Egypt, Eritrea, Nigeria and Somali voted consistently with the OIC (UNHRC, 2019m).
Unlike in 71st Session of UNGA in 2016, when the African Group attempted to defer the mandate of the IE SOGI within the draft resolution for the Report of the Human Rights council, the report for 2019 passed in the 74th Session without calls for amendment of the renewed mandate for the IE SOGI. In addition, the IE SOGI presented his latest report, A/74/181 on data collection and management during the 33rd Meeting of the Third Committee. Among all the usual plaudits from several WEOG (Western European and Others Group) and North American countries, the Angolan delegation, who had abstained on the extension of the mandate vote at the UNHRC, asked for guidance on addressing concerns raised by the IE SOGI and about working without data and the cross referencing of data noting specifically data on transwomen in Angola. The Chinese representative also spoke, repeating the importance of local traditions and cultural difference, but asking for continued dialogue on how to work around these (UNGA, 2019b). Both interventions suggest positive movement towards greater acceptance of SOGI rights.