by Professor Henning Melber, ICWS Senior Research Fellow and Extraordinary Professor, University of Pretoria
The world has edged closer to placing the same value on the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people as it does on human rights. Sadly, not all states, including many African countries, are on the same page.
The 47-member Geneva-based United Nations Human Rights Council has adopted a landmark resolution on “Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity”. For the first time an independent monitor will be appointed with the mandate to identify the root causes of discrimination against people because of their sexual orientation and gender identity.
The expert will, like other special rapporteurs, be tasked with talking to governments to protect LGBTI rights. She or he will have the power to document hate crime and human rights violations. The monitor, however, will not have a mandate to recommend sanctions.
The main initiative was taken by a core group of seven South American states – Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico and Uruguay. Forty-one additional countries co-sponsored the text. A record 628 nongovernmental organisations from 151 countries supported the effort. Notably, some 70% were from the global South.
But the resolution was adopted by a narrow margin: only 23 member states voted in favour, 18 against. Six abstained. African countries remained opposed or reluctant to take a stand. Ten of them voted against the resolution and four abstained.
The strongest resistance to the resolution came from the Muslim and African member states of the council. After all, half of the more than 70 countries that still criminalise same-sex relationships and behaviour are in Africa.
Champions and villains
The final text was considerably softened and watered down after a controversial and, at times, heated debate. A last-minute amendment stressed that
the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.
But the resolution also states:
It is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
As the International Commission of Jurists stressed:
Although a number of hostile amendments seeking to introduce notions of cultural relativism were adopted into the text by vote, the core of the resolution affirming the universal nature of international human rights law stood firm.
Voting in favour were: Albania, Belgium, Bolivia, Cuba, Ecuador, El Salvador, France, Georgia, Germany, Latvia, Macedonia, Mexico, Mongolia, Netherlands, Panama, Paraguay, Portugal, Republic of Korea, Slovenia, Switzerland, United Kingdom, Venezuela, Vietnam.
Voting against were: Algeria, Bangladesh, Burundi, China, Congo, Côte d’Ivoire, Ethiopia, Indonesia, Kenya, Kyrgyzstan, Maldives, Morocco, Nigeria, Qatar, Russia, Saudi Arabia, Togo, United Arab Emirates. Abstentions were from: Botswana, Ghana, India, Namibia, Philippines, South Africa.
While ten of the African council members voted against, the other four abstained. Those that abstained argued that the resolution – despite several far-reaching amendments curbing the power of the expert – remained divisive and would impose cultural-specific (read Western) values.
The puzzling case of South Africa and Namibia
Ironically, South Africa was the first country in the world to include protection on the grounds of sexuality in its constitution. It championed gay rights in a lead role when the Human Rights Council adopted a first resolution in 2011. It remained committed to the cause when voting for the next landmark resolution adopted by the Human Rights Council three years later.
As a South African legal expert has observed, South Africa’s approach
was focusing on maximum unity within the council. … Thus, our lives as gay men, lesbians, bisexuals, intersex and transgender people are less important to the government than maintaining maximum unity within the UN Human Rights Council. … it appears as if our government believes that our lives are pretty worthless. Who cares about LGBTI people being assaulted and murdered across the world if caring about it will upset the unity within the Human Rights Council?
As he pointed out, homophobia, rather than free choice of sexual preferences, has been historically a construct of (19th century) Western imperialism and missionary zeal in Africa. This was imposed and legally codified in the colonised societies.
Put differently: while those opposing the freedom of sexual preferences argue these are Western values and a form of ideological imperialism, true decolonisation would actually – just as in the case of South Africa’s constitution – require them to abandon homophobic legislation. After all, countries voting in favour of the resolution – such as Bolivia, Cuba, Mexico, Venezuela and Vietnam – can hardly be classified as neo-colonial agencies of the West.
Similar criticism was articulated against Namibia. The country’s abstention was already some progress compared with its outright “no” vote in 2014. (Then, South Africa – albeit reluctantly – voted for the adoption of the Human Rights Council’s second resolution on “Human Rights, Sexual Orientation and Gender Identity”.)
Namibia defended its stance to abstain this time on the grounds that any kind of discrimination against any person in Namibia is regarded as unconstitutional. Thus, it was in full compliance with the intentions of the resolution.
But, instead of voting “yes” based on such an understanding, in a kind of 180-degree turnaround, Namibia bemoaned that, in the absence of international human rights law, it remains questionable what would guide the independent expert when assessing the compliance of states. Therefore, this mandate would allow interference in sensitive issues at national level. Hence Namibia would abstain.
The abstention was motivated more drastically by South Africa than Namibia. Despite its constitutional principles, the explanation of its vote declared that the draft resolution would – despite the significant compromises watering down the mandate – be unnecessarily divisive and “an arrogant approach. Recklessness and point scoring would not take anyone anywhere.”
The battle for rights has always been divisive
Divided lines seem to be by nature an integral part of the battle for human rights and dignity. After all, the promotion and protection of human rights has been divisive throughout history.
Take the campaign to abolish the slave trade. Or the ongoing fight for the adequate recognition of equal rights for women and the promotion of children’s rights. And campaigns for indigenous minorities.
Fighting racial and other forms of discrimination, including the fight for religious freedom, remains divisive. Advocating human rights and dignity will remain a contested matter.
But states have to make choices. Abstaining from the promotion of human dignity is a choice too, but a bad one.
As UN Secretary-General Ban Ki-Moon once declared:
As men and women of conscience, we reject discrimination in general, and in particular discrimination based on sexual orientation and gender identity. When there is a tension between cultural attitudes and universal human rights, rights must carry the day.