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Just how serious is South Africa about gay rights?
27 February 2014

South Africa is still walking a tightrope between its strong constitutional commitment to protect gay rights and its solidarity with the largely homophobic rest of Africa. But it seems at least to be improving its balance. Some 38 of Africa’s 55 states criminalise homosexuality. South Africa, meanwhile, is not only a continental but indeed a world leader in protecting gay rights, as John Jeffery, Deputy Minister of Justice and Constitutional Affairs, told the Civil Society Organisations Alliance Building Workshop on lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in Johannesburg this week.

South Africa was ‘the very first country in the world to prohibit discrimination based on sexual orientation and has one of the most progressive constitutions along with other legislation that outlaws discrimination based on sexual orientation in the workplace, and legalises same-sex marriages. Few would argue with Jeffery that at home and on paper, South Africa is indeed exemplary in protecting gay rights.

However, it has had difficulties translating that record into foreign policy.

The Mbeki administration evidently chose to draw a clear and sharp line between domestic and foreign policy on sexual orientation. South Africa’s ambassador to the United Nations (UN) in New York, Dumisani Kumalo, refused to support a French-sponsored resolution in the UN Security Council in 2008 that called for the protection of gay people against violence, because South Africa did not want to offend other African governments.

The Zuma administration also began falteringly when Jerry Matjila, South Africa’s ambassador to the UN in Geneva at the time, opposed a similar report in the UN Human Rights Council in 2010. Matjila infamously said that adding sexual orientation to a list of categories of people requiring protection against discrimination would ‘demean’ the victims of racial discrimination and dilute their protection.

At home and on paper, South Africa is exemplary in protecting gay rights

South Africa caught a lot of flak for this mean-spirited abandonment of LGBTI people by fellow victims of discrimination, and it seemed to get the message. Just a year later, Matjila and his Brazilian counterpart led a campaign at the UN Human Rights Council for the adoption of an unprecedented resolution expressing concern about discrimination and violence against people because of their sexual orientation.

It was a very tough campaign, Matjila admitted later, and it cost South Africa a lot of sympathy – especially from other African governments. But, he explained at the time, South Africa had persevered because foreign policy is supposed to reflect domestic policy, and this was a particular priority of the Zuma administration.

That seemed to settle matters for a while.

However, the issue has flared up again in response to the new surge of official homophobia on the continent, exemplified by both Nigeria and Uganda adopting harsher new laws that increase penalties for homosexuality.

Uganda is leading the gay-bashing charge with an act that President Yoweri Museveni signed into law this week, which provides for life sentences for ‘repeat offenders’ and also makes it an offence not to expose gays. And so the witch-hunt duly intensified, with a gutter journal called Red Pepper naming 200 Ugandan gays. The last time a Ugandan tabloid did that, someone thus outed was murdered.

The international outrage sparked by the Ugandan legislation especially placed pressure on the South African government to take a stand. As did the arrival at OR Tambo International Airport last week of Paul Semugoma, a Ugandan gay-rights activist.

Immigration officials wouldn’t admit him because his visa had expired, and he was on the verge of being deported when he was reprieved by an urgent court order that the government opposed. He then applied for asylum, but Home Affairs Minister Naledi Pandor instead granted him a special skills work permit that allows him to stay in South Africa.

South Africa prefers mediation to shouting criticism from the rooftop

That was clearly a face-saving measure designed to avoid sending him home to persecution, while at the same time avoiding granting him asylum, which would have embarrassed Uganda by implying that Semugoma had good reason not to want to go home. It was a fairly adroit manoeuvre, given South Africa’s dilemma.

The government has handled the clamour from the media and human rights activists, for it to take a strong stance on Uganda and Nigeria’s harsh new anti-gay laws, in a similar way. Without naming specific countries, the government said this week it would be ‘seeking clarification’ from ‘many capitals’ about ‘recent developments regarding the situation of lesbian, gay, bisexual, transsexual and intersex persons worldwide.’

It implicitly criticised the likes of Nigeria and Uganda by saying ‘South Africa believes that no persons should be subjected to discrimination or violence on any grounds, including on the basis of sexual orientation.’ By past standards that was quite strong, though human rights advocates like the Treatment Action Campaign found it ‘inadequate.’

When the DA tried to go further by introducing a motion in parliament condemning Uganda’s new law, the ANC fiercely opposed it. So fiercely that DA MP Sandy Kalyan said it seemed that the ANC actually supported the Ugandan legislation.

That was a revealing observation. In his speech, Jeffery claimed that internationally South Africa has been ‘very actively involved in trying to mediate or bring about a better understanding of the importance of the protection of gay rights.’ He quoted Amnesty International praising South Africa for persuading other African countries to protect gay people. ‘But we don’t practice megaphone diplomacy,’ Jeffery added, saying South Africa preferred mediation to shouting criticism from the rooftop.

Of course, South Africa has to tread carefully in its relations with other African countries. Pretoria regards Uganda as a key ally in seeking peace in the Great Lakes region and beyond, for instance.

The trouble with quiet diplomacy, though, is how does anyone know it is actually happening? And what sort of message is being conveyed to Uganda when ANC MPs not only vote, but also loudly jeer against a resolution condemning Uganda's homophobic law? And when Zuma posts an unashamed homophobe, in the shape of journalist Jon Qwelane, as South Africa’s High Commissioner to Kampala?

There is another consideration here. Jeffery candidly acknowledged in his speech that there is a large gap between South Africa’s exemplary legal protection of gays and the reality of strong homophobia on the ground. He cited, for instance, the high incidence of ‘corrective rape’ against lesbian women and offered new measures, including criminalising hate speech, to try to close that gap. As Kalyan suggested, that gap seems to exist even between the government and its own MPs.

This indicates that there’s an even greater danger than not conveying strong disapproval of their homophobia to other African governments. And that is that our diplomacy may be so quiet that even South Africans begin to believe that their government is not serious about protecting gay rights.

Peter Fabricius, Foreign Editor, Independent Newspapers, South Africa

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