During apartheid, South Africa conducted foreign policy according to its own realist approach to the anarchic world system, amid fears of the encroaching independence of states across the African continent. The state’s identity was primarily focussed on security both of its borders and for the white minority that led the country (Serrão and Bischoff, 2009:364). This included military interventions within some of the frontline states directly neighbouring South Africa, both to thwart independence movements and to target supporters of exiled South African liberation groups, in clear violation of international sovereignty and human rights (Oswin, 2007a:103; Rousseau, 2014;
Esterhuyse, 2009). As a consequence of the Apartheid policies and violence against the liberation movements, South Africa was ejected from the UN in 1974 and did not return until 1994. During that time, as noted above, in domestic policy sexual and gender minorities were subject to severe penalties for engaging in same-sex conduct, forced aversion therapy in the military and gay and lesbian material was censored. As a consequence of international isolation, a focus on state security and the silencing of sexual and gender minorities domestically, there is no evidence that SOGI rights were a feature of foreign policy throughout the apartheid years.
However, the period between 1990, when the political party of South Africa’s largest national liberation movement, the African National Congress (ANC), was unbanned, and 1994, when the first universally democratic elections were held, was a turning point for the state and generated a new approach to its international relations. As evidenced above, the adoption of SOGI rights into the
57 constitutional and legal frameworks of post-apartheid South Africa were a hard won and on-going project. Evidence also emerged of their importance during the drafting of the Constitution within the overall aim of escaping the state identity of oppression and pariah status internationally.
This section continues that scrutiny by exploring the development of South African foreign policy, both as an extension of domestic policy into the international arena and as a key determinant of state identity, and the importance of SOGI rights within it. This begins by setting out some global expectations and then highlights important debates and discussions that evidence what South African foreign policy was intended to project and how SOGI rights have been treated within that. It introduces the domestic debates and draws upon some of the evidence already presented within the UN, as a key site of foreign policy. This section thereby contextualises the way the South Africa has approached SOGI rights within the UNGA and UNHRC.
A key aim of the incoming Government of National Unity (GNU) at the end of apartheid was to successfully shed the pariah status and re-enter the international community of states in a way that would enable South Africa to once again fully participate in the global economy and peace and security architecture. Landsberg also noted that given South Africa’s comparatively small size, similar to the middle power states typified by the Nordic countries, the Department of Foreign Affairs considered its image as a champion of human rights as its only international comparative advantage and a tool to help it shed its pariah status and come out “as a good and progressive world citizen”
(Landsberg, 2004:159-162). This image was aided by the international perception of new President, Mandela, who was viewed as “a Messianic figure, a prophet and a respected statesman” (Landsberg, 2004:159). Indeed, Mandela’s global status as a struggle hero and “one of the world’s great moral icons” had meant that he had been expected to show leadership on human rights (Black and Hornsby, 2016:152). Equal expectations were held of the state, as Borer and Mills asserted, “the world expected South Africa to make human rights a priority in foreign policy precisely because South Africa told the world that it would” (Borer and Mills, 2011:78).
As already established, it was imperative for the new leaders to implement a post-apartheid foreign policy that established a new identity for the state far removed from the oppressions of its apartheid past (Serrão and Bischoff, 2009:370; Oswin, 2007a:102). Consequently, Mandela declared the importance of South Africa’s commitment to human rights stating “[h]uman rights will be the light that guides our foreign affairs” and listing them alongside democracy; justice and international law;
peace; Africa; and economic development, as the six pillars of South African foreign policy (Mandela, 1993:87 and 88). Although Mandela originally framed human rights solely in terms of “race, color, creed, religion or sex” and “the right to life, liberty and the pursuit of happiness” (Mandela, 1993:86), they have since been expanded through the inclusion of age, belief, conscience, disability, ethnic or social origin, gender, language, marital status, sexual orientation and others in the Bill of Rights (The Constitution, 1996:6).
58 Since defined in 1993, Mandela’s six pillars have been have remained broadly consistent throughout the near 30 years after the transition and through the administrations of all five presidents27. They have been reflected in the 1996 DFA Green Paper (DFA, 1996), as well as in the Department of International Relations and Cooperation 2011 White Paper on South Africa’s Foreign Policy (Building a Better World: The Diplomacy of Ubuntu) and indeed all the DIRCO Strategic Plans published for 2004-2025 (DIRCO, 2011a; 2020a). In addition, the Constitution has always been touted as the reference point for foreign policy decisions (DIRCO, 2020a). Indeed, this continuity led Landsberg to conclude that fundamentally foreign policy changed little over time, albeit with some diffusion in how the policies were practised between the presidencies (Landsberg, 2012a:11).
During the Mandela presidency despite the 1994 South African intervention at the Beijing Women’s conference and the states international veneration as a positive example of the advancement of fundamental and inclusive human rights, the administration made no attempts to pursue the promulgation of SOGI right internationally and they weren’t mentioned in the 1996 DFA Green Paper (DFA, 1996). Foreign policy at the time followed the Mandela’s pillars, but tensions between these ideals were becoming apparent. In 1998 Deputy President Mbeki had lamented that domestic inequality persisted in South Africa, describing a bifurcated state, his two nations thesis, in which one part was populated by prosperous, white South Africans who coexisted alongside a much larger and poorer black population (Mbeki, 1998b). Landsberg noted that in fact these two nations resonated with the international divide between the global North and the global South (Landsberg, 2012a:3). This perspective also reflected the cultural and economic position South Africa found itself between the African continent and the global North and led Landsberg to further suggest that South African foreign policy “ha[d] typically tried to influence what it perceived to be a divided world: the developing “South”, and the developed “North” (Landsberg, 2004:185). The Economist determined that this had caused “South Africa's ambivalent sense of identity, with one foot in the rich world, where its main economic interests continue to lie, and the other in the poor one, with which many of its people identify” (“The see-no-evil foreign…”, 2008).
Mbeki, who took over the presidency in 1999 and had been described as Mandela’s right-hand man on foreign policy, was more pragmatic and although he maintained similar policy principles, they have been described as “democratic; Africanist; and anti-imperialist” with human rights linked to the spread of democracy across the continent (Nathan, 2005:363; Barber, 2005:1087). This suggested an increased focus on Africanism and anti-imperialism, which were intended both to reinforce South Africa’s African credentials and to support Mbeki’s desire to provide leadership for the continent as it continued to emerge out of colonialism and as part of his belief in the African Renaissance (Beresford, Schneider and Semper, 2007:221). This also appeared to reflect his domestic concern represented by his two nations thesis. The importance of Africa, and its renaissance, in the international relations of South Africa were enshrined within the strategic vision and mission for DIRCO, which stated:
27 Nelson Mandela (1994-1999); Thabo Mbeki (1999-2008); Kgalema Motlanthe (2008-2009); Jacob Zuma (2009-2018);
Cyril Ramaphosa (2018-to date).
59
“Vision: The Department of International Relations and Cooperation’s (DIRCO) vision is championing an African continent, which is prosperous, peaceful, democratic, non- racial, non-sexist and united and which aspires to a world that is just and equitable.
Mission: DIRCO’s mission is to formulate, coordinate, implement and manage South Africa’s foreign policy and international relations programmes, promote South Africa’s national interest and values and the African Renaissance (and create a better world for all)” (DIRCO, 2020b).
The African Renaissance vision included the embedding of democracy, so that countries could break free from external control and govern themselves; the adoption of the African (Banjul) Charter of Human and People's Rights, to develop the rights norms by which each state may measure the other; and emancipation from both colonial past and the contemporary threat of neo-imperialism (Mbeki, 1998a). While Alden and Schoeman (2016:1) determined that this Africanist orientation was predicated on the need to be relevant to and engaged in global summitry, as a state in its own right and as a representative of the African continent, it also demanded that South Africa must be seen to be both African and supportive of global concerns and norms. As part of this project, South Africa opened diplomatic missions in many African states, volunteered peacekeepers, fully engaged with the AU and supported the New Partnership for African Development (NEPAD) (van der Westhuizen, 2008:49). It also included submitting a national bid to host the 2010 Soccer World Cup, which Mbeki called “an African Cup hosted in partnership with all African nations” (Mbeki quoted in Landsberg, 2004:186). However, it soon became apparent that some of these African Renaissance aims have been inherently contradictory. For example, Mbeki’s support for Mugabe’s land reforms, which were anti-imperialist but also undemocratic and lead to many human rights abuses and a severe economic decline (Borer and Mills, 2011:87).
Mbeki’s presidency coincided with a period in which SOGI rights were still emerging on the international agenda, yet despite the rise of homophobic rhetoric from a few leaders on the continent and its focus on human rights, SOGI rights were not a visible part of his African Renaissance. However, it is noteworthy that during this presidency the South African Refugees Act, No. 130 of 1998 was introduced. Based on the Constitutional protections of the Bill of Rights, this ensured that Africans from across the continent fleeing violence and discrimination based on their gender identity or sexual orientation could seek asylum in South Africa (Camminga, 2019:20).
Although it has been noted by many researchers that the lived experiences of these queer African migrants once in South Africa have not necessarily reflected the utopian ideal that they had anticipated, it provided them with a continental destination during a period of increasing homophobic rhetoric in some countries (Kheswa, 2014; Bhagat, 2018a; 2018b; Camminga, 2017a;
2017b; 2018a; 2018b; 2019). This legislation could be seen as meeting both the human rights and pan-Africanist aims of the Mbeki policy, whilst allowing the state to remain silent on neighbouring discrimination and still exercise its progressive SOGI credentials.
The focus on Africa continued through the Zuma presidency that began in 2009 (Coly, 2013:25).
However, it was also the period in which the South African UNHRC delegation took the lead on SOGI
60 rights, but not until after the controversial 2010 appointment of “self-confessed homophobe” and supporter of Mugabe’s stance on homosexuality Jon Qwelane as the new Ambassador to Uganda (Thamm, 2014; Chabalala, 2020). As detailed in Chapter Six, in March the following year, the South African UNHRC delegation tabled the immediately aborted draft resolution 16/L.27, which concerned international SOGI rights activists and western diplomats for its destructiveness (Jordaan, 2017a:215). Then in June successfully led on the adoption of 17/19. At the same time as this was being passed, Kenneth Mubu MP, DA, asked DIRCO Minister, Maite Nkoana-Mashabane, whether the government intended to respond to the development of homophobic legislation and the perceived increase in homophobia on the African continent through tabling a resolution at the AU.
The Minister replied that although the government regretted the rise in homophobic sentiments, there were no plans to submit any AU resolutions, but that they remained committed to the promotion of human rights for all (DIRCO, 2011b). The following August, an Equality Court ruling was made against Ambassador Qwelane for homophobic journalism in 2008, in response to which Mubu again questioned Nkoana-Mashabane, asking whether Qwelane would be recalled or disciplined for his homophobia. She replied that his misdemeanour had occurred prior to his appointment, that he would be accountable to the provisions of the Bill of Rights in his current role and that additionally the ruling was under appeal28 (Thamm, 2014; DIRCO, 2011c).
This period coincided with the finalisation of South Africa’s first post-apartheid Foreign Policy White Paper (hereafter the White Paper). Initiated in 2010 by the Minister of DIRCO, it was the first review of policy since the 1996 Department for Foreign Affairs Green Paper (Parliamentary Monitoring Group (PMG), 2014:1). In May 2011 the draft White Paper firmly identified continental development and emancipation through the principle of ubuntu as key drivers. Titled Building a Better World: The Diplomacy of Ubuntu it stated:
“Since the birth of democratic South Africa in 1994, the country has prioritised an Afro-centric foreign policy rooted in national liberation, the quest for African renewal, and efforts to negate the legacy of colonialism as well as neo-colonialism”
(DIRCO, 2011a:7)
“Our struggle for a better life in South Africa is intertwined with our pursuit of a better Africa in a better world. ... Consequently, Africa is at the centre of South Africa’s foreign policy.” (DIRCO, 2011a:10).
“…the infusion of Ubuntu into the South African identity, shapes our foreign policy.”
(DIRCO, 2011a:4)
Alden and Wu suggested that the use of ubuntu allowed issues like human rights to be understood in a more collectivist African way that “consciously [drew] on African values” (2016:222). This use resonated with Tamale’s assessment of the importance of ubuntu for the adoption of sexual orientation within the Constitution (Tamale, 2013:40). The departmental presentation of the White
28 The 2011 Equality Court decision was referred to the High Court and upheld in 2017 before being overturned by the Supreme Court of Appeal in 2019 (Chabalala, 2020).
61 Paper to Parliament declared that South Africa adopted a soft approach to foreign relations, in opposition to the hard approaches of states like the USA, which could be counterproductive (PMG, 2014:2). As will be evidenced in Chapter Six, this reflected much of the criticisms witnessed against states of the global North during SOGI rights debates at the UN. Although the White Paper did not mention SOGI rights, Fadl Nacerodien, the DIRCO Acting Deputy Director General for Policy Research and Analysis clarified that a policy with a life span of five to ten years could not be too specific on operational issues as it needed to allow for change (PMG, 2014:2).
The strategic plans for the department, however, have a shorter lifespan and are more detailed.
Even though SOGI issues have never appeared in the any of the available published strategic plans for DIRCO29, during his 2012 presentation of the DIRCO 2012-2017 Strategic Plan to the Portfolio Committee for International Relations, Matjila, the erstwhile Director General of DIRCO, stressed the importance of global debate on violence based on gender identity and sexual orientation (DIRCO, 2020a; PMG, 2012:3). The absence of SOGI rights in any written foreign policy is an obvious weakness in establishing any firm commitment to their promulgation internationally, although the primacy of the Constitution, and the protection of SOGI rights therein, has been referred to during national and international debates.
Concurrent to the development of the White Paper and despite the success of the South African delegation with resolution 17/19, the Ugandan and Nigerian parliaments had continued to debate increased penalties for homosexual activity in their own countries. Meanwhile, in the September of 2011 at the UNHRC, Ambassador Matjila had noted that South Africa’s sponsorship of resolution 17/19 based on the commitment to LGBT rights within the Constitution had already “ruffled the feathers” of delegations from other African states (Fabricius, 2011). Additionally, Matjila had been particularly disparaging of the claim that homosexuality was considered culturally un-African since criminalisation had been imposed by colonisers (Fabricius, 2011).
The imminent Nigerian and Ugandan legislations subsequently motivated further questions to Nkoana-Mashabane in 2012 by the Shadow Minister of International Relations and Cooperation, Ian Davidson. He challenged the department to issue a position statement on the development of such legislations and probed whether there would be lobbying of the UNHRC on this matter given South Africa’s leadership on resolution 17/19. The Minister responded that although aware of the legislation the department would adhere to the principles of non-interference and state sovereignty but would continue to advocate internationally for the ending of discrimination on the basis of sexual orientation whenever discussed (DIRCO, 2012:1). In addition, she determined that the South African delegation would continue to engage with stakeholders on the issue but would adhere to the
“principles of non-confrontation, consensual, cooperation and constructive dialogue” and thereby avoid the “naming and shaming” applied by other states (DIRCO, 2012:2). This response resonates strongly with the policy of quiet diplomacy preferred by South Africa and the assertion of a soft foreign policy within the White Paper.
29 Strategic plans from 2004 are available online at http://www.dirco.gov.za/department/strategic_plan/index.htm.
62 Consequently, in the three years since leading resolution 17/19, South Africa had continued to refrain from speaking out against discriminatory legislation on the continent, even at the high profile passing of the Nigerian Same-Sex Marriage (Prohibition) Act 2013 and Ugandan AHA (2014), maintaining the argument that to do so would infringe upon the states sovereign right to define their own laws (“South Africa respects…”, 2014). In addition, the administration had not delivered a follow-up resolution, nor the African regional conference promised in partnership with Norway.
Nkoana-Mashabane faced further criticism in March 2014 when her UNHRC statement on South Africa’s commitment to human rights failed to include SOGI rights (South Africa, 2014). DIRCO Spokesperson, Clayson Monyela, later confirmed that the following line, which had been in the prepared speech, was removed due to time constraints:
“South Africa is committed to host the African regional seminar focusing on the plight of the LGBTI during the first half of this year, mindful that this challenge is a global challenge that is widespread far beyond South Africa and the African continent.” (DeBarros, 2014b).
On 25 February 2014, DA MP Santosh Kaylan raised a motion in Parliament to discuss homophobia on the continent and the Ugandan and Nigerian legislations, which “was blocked by both the ANC and the ACDP” (Parliament National Assembly (South Africa), 2014:150). Subsequently on the same day, however, the Executive issued a short statement, titled Developments regarding the status of LGBTI persons worldwide, which did not name any state, but noted:
“The South African Government will, through existing diplomatic channels, be seeking clarification on these developments from many capitals around the world.
South Africa views the respect for the promotion, protection and fulfilment of human rights and fundamental freedoms as a critical pillar of our domestic and foreign policies; hence they are enshrined in our Constitution” (DIRCO, 2014).
Despite this vague response, six South African civil society groups30 endorsed the DIRCO statement, jointly announcing that “further public pressure from the South African Government might have the negative effect of further polarisation and hardening of attitudes,” adding that “at this point, a more constructive approach might lie within further relationship building to address homophobia within Africa on the longer-term” (DeBarros, 2014a).
In 2016 South Africa finally delivered on its promise to stage the African regional SOGI conference, although the Minister for Justice and Correctional Services, Tshililo Masutha, hosted it rather than DIRCO (Masutha, 2016). During the conference Masutha reiterated the South African commitment to advancing human rights even if they conflicted with cultural or traditional beliefs, upholding the ACHPR resolution 275 and continuing to strive for legislative and policy change in partnership with networks across the globe (Masutha, 2016). Despite this positive start to the year, as is detailed in Chapter Six, in June at the 32nd sessions of the UNHRC, Ambassador Mxakato-Diseko abstained in the
30 The Durban Lesbian and Gay Community and Health Centre; Forum for the Empowerment of Women; Gay and Lesbian Memory in Action; OUT; Pietermaritzburg Gay and Lesbian Network; and the Triangle Project.