Master’s Thesis International and European Law – Human Rights Law – 2016-2017
To what extent can the issue of “corrective” rapes be addressed by combining the legal frameworks of LGBT rights and women’s rights?
Thesis by
Rati Gujadhur Snr: 2005082
Submitted in partial fulfilment of the requirements for the
LL.M International and European Law
Supervised by
Mr. dr. A.K. Meijknecht
Tilburg Law School
June 2017
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
I would like to express my sincerest gratitude to my supervisor Anna Meijknecht for her guidance and
support,
I would like to thank my parents and my brother for their unconditional love and support,
And my friends who kept supporting me and encouraging me throughout this year!
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
TABLE OF CONTENTS Introduction 8
I. Issue of ‘’corrective’’ rapes in South Africa 13
II. How can LGB rights help with the issue of “corrective” rapes in South Africa? 17
2.1. LGBT rights in the international legal framework (international human rights law) 17
2.1.1. First resolution (UN Res 17/19) 18
2.1.2. Anti-LGBT violence 19
2.1.3. Alarming nature of this late resolution 19
2.1.4. Report (A/HRC/19/41) 20
2.2 .Born Free and Equal Booklet – published by the OHCHR 22
2.2.1. The protection of individuals from homophonic and trans-phobic violence 23
2.2.2. The prevention of torture and cruel, inhuman and degrading treatment of LGBT persons 25
2.2.3. The decriminalization of homosexuality 26
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
2.2.4. The prohibition of discrimination based on sexual orientation and gender identity 28
2.2.5. The obligation to respect freedom of expression, association and peaceful assembly 31
2.3. LGBT rights in the African legal framework 33
2.4. LGBT rights in the South African legal framework 37
2.4.1. Establishing LGBT rights in South Africa 37
2.4.2. The issue: the non-application of the laws – is South Africa following its obligations as a state regarding the protection of LGBT individuals? 39
2.4.2.1. The obligation to decriminalize homosexuality 39
2.4.2.2. The obligation to respect freedom of expression, association and peaceful assembly 40
2.4.2.3. The obligation to protect individuals from homophobic and trans-phobic violence 40
2.4.2.4. The obligation to prevent torture and cruel, inhuman and degrading treatment of LGBT persons. 41
2.4.2.5. The obligation to protect LGBT people from discrimination 44
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
III. How can women’s rights help with the issue of ‘’corrective’’ rapes in South Africa? 46
3.1. Women’s rights in the international legal framework 46
3.2. Women’s rights in the African legal framework 49
3.3. Women’s rights in South Africa 54
IV. How can a combination of LGBT rights and women’s rights may help solve the issue of
‘’corrective’’ rapes? 58
4.1. Combining LGBT rights and women’s rights in the international legal framework. 58
4.2. Combining LGBT rights and women’s rights in the African legal framework. 60
4.3. Combining LGBT rights and women’s rights in the South African legal framework 61
4.3.1. Application of the South African Constitution to “corrective” rapes 61
4.3.2. Qualifying ‘’corrective’’ rape as a hate crime 63
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
Conclusion 67
Bibliography 71
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
GLOSSARY
ACHPR African Commission on Human and Peoples’ Rights
CEDAW Committee on the Elimination of all forms of Discrimination against Women
ECOWAS Economic Community of West African States
HRC Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
LGBT (QI) Lesbian Gay Bisexual Transsexual (Queer Intersex)
OAU Organisation of African Unity
OHCHR Office of the High Commissioner of Human Rights
UN United Nations
UNGA United Nations General Assembly
UNHRC United Nations Human Rights Council
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
INTRODUCTION
“Some say that sexual orientation and gender identity are sensitive issues. I understand. Like many of my generation, I did not grow up talking about these issues. But I learned to speak out because lives are at stake, and because it is our duty under the United Nations Charter and the Universal Declaration of Human Rights to protect the rights of everyone, everywhere.” — UN Secretary-General Ban Ki-moon to the Human Rights Council, 7 March 2012
The United Nations (UN) was established with the aim to maintain national peace and security, thus it will take all the necessary and non-violent steps to settle disputes that might lead to a breach of the peace. Unlike its predecessor, the League of Nations, the United Nations gives more importance to Human Rights, by establishing the Office of the United Nations High Commissioner for Human Rights (OHCHR). The OHCHR represents the world’s commitment to universal ideas of human dignity. Since taking office in 2014, the Commissioner’s priorities, expected accomplishments and strategies have been set out in the OHCHR Management Plan 2014-20171. In the section regarding implementation at the national level, of the Management Plan, we observe that one of the thematic priorities regards enhancing equality and countering discrimination with a focus on: women; racial and religious discrimination; migrants; persons with disabilities; indigenous peoples; minorities; and lesbian, gay, bisexual and transgender (LGBT) persons2. This could be due to the presence of inequality and all forms of discrimination, which are often manifested in xenophobia and hate crimes.
The international human rights organizations, specifically the Committee on the Elimination of all forms of Discrimination against Women (CEDAW) has expressed concern on the situation of
1 OHCHR Mission Statement: The mission of the Office of the United Nations High Commissioner for Human Rights (OHCHR) is to work for the promotion and protection of all human rights for all people; to help empower people to realize their rights and to assist those responsible for upholding such rights in ensuring that they are implemented. 2 OHCHR intends to contribute to this change by: Advocating for increased compliance with international norms and standards relating to persons deprived of their liberty, including those pertaining to women and specific groups, such as: migrants; asylum-seekers; refugees; children, including children of incarcerated parents; persons with disabilities; lesbian, gay, bisexual, transgender and intersex (LGBTI) persons; persons on death row; and persons serving life sentences. - OHCHR Management Plan 2014-2017 – Working for your rights
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 women in South Africa who are being victim of gender based violence due to being lesbian3.
This brings us to the subject of South Africa itself as a legal entity in international law. The South African legal system can be described as a hybrid creation; similar to its previously colonized counterparts we see the influence of the colonizing countries. South Africa being colonized by the Portuguese, Dutch and the British, has seen its legal system being highly influenced by two uncodified systems of law: the roman-Dutch civil law and the English common law. Like its influencers, South African Law is also uncodified4. If we go further down the timeline of the country’s history, we can establish that its system of law has radically changed, going from the Apartheid, a system based on oppression, towards a more just and equitable society5.
South Africa was one of the 51 founding members of the United Nations in 1945, but due to the Apartheid the country was suspended from participating in the UN. In 1994 it was re-admitted following its transition into a democracy. The government declares to be faithful to the purposes and principles of the United Nations Charter as it strongly advocates a rules-based multilateralism6. Unfortunately, South Africa may look like the most progressive country in Africa regarding human rights; some major fundamental issues remain untouched by the government.
Nevertheless, in 2006 the South African government legalized gay marriage, becoming the first African country to do so. Although it was a positive move towards the promotion of human rights in the country, it didn’t mean that South Africa itself was progressive enough for gay people to live their lives entirely without fear. In its report on “corrective” rapes, published in December 2011, Human Rights Watch, states that over the past decade activists in South Africa have recorded and analysed dozens of incidents of sexual and physical violence against lesbians and transgender men, including rape and murder7. Corrective rape is a hate crime aimed at converting lesbians to heterosexuality it is an attempt to 'cure' them of being gay. The term was
3 Concluding observations of the Committee on South Africa (CEDAW/C/ZAF/CO/4), para. 39 4 CG Van der merwe and JacquesE Du Plessis, Introduction to the Law of South Africa (The Hague : Kluwer Law International, cop 2004 2004) 5 Ibid. 6 Ibid. 7 “We’ll show you you’re a woman” – Violence and discrimination against black lesbians and transgender men in South Africa – report by the Human Rights Watch, December 2011
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 used in South Africa in the early 2000s when charity workers first noticed a rise in the number of these types of attacks8.
Considering these facts and the constitution of South Africa described as being probably one of the most progressive ones in history when it was established it might be argued that South Africa is failing at protecting the human rights of its LGBT community.
Ultimately considering the fearful faith of the South African LGBT community, the research question of this thesis will be as follows: “To what extent can the issue of ‘’corrective’’ rapes be addressed by combining the legal frameworks of LGBT rights and Women’s rights?
METHODOLOGY
To be able to answer the research question the thesis will use as primary sources the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Universal Declaration on Human Rights (UDHR), the Charter of the African Union on Human and Peoples’ rights (CAHPR). Along with resolutions and reports from the Human Rights Council (HRC), the United Nations General Assembly (UNGA) will be used, followed by reports and concluding observations by the Committee on eliminating all Forms of Discrimination against Women (CEDAW) and its Special Rapporteurs. As secondary sources books, journal articles, websites, news articles and reports from non- governmental organisations will be used.
The thesis will be structured in a specific manner. In a first instance the first chapter will introduce the issue at stake. Secondly, the vertical description used in the second and third chapters goes from the international legal framework, to the African legal framework and finally the South African legal framework. The purpose of this structure is aimed at setting the
8 Patrick Strudwick, 'Crisis in South Africa: The shocking practice of 'corrective rape' - aimed at 'curing' lesbians' (The Independent , 4 January 2014)
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 international legal standards and African legal standards regarding women and LGBT rights, which are implemented in the South African legal framework. Furthermore, the aim of this structure is being used to show how LGBT rights and women’s rights may help the issue of ‘‘corrective’’ rapes independently from each other. In the final and fourth chapter a horizontal link will be made between the three frameworks discussed in the second and third chapters. The aim is to combine the strongest characteristics of LGBT rights and women’s rights so as to find possible recommendations to the problem of ‘’corrective’’ rape.
Subsequently, the first chapter will discuss the issue of ‘’corrective’’ rapes in South Africa through various research led by Non-Governmental Organisations and information from news articles. The aim of this first chapter is to introduce the issue which the thesis is trying to address.
The second chapter will attempt to answer the following question: How can LGBT rights help with the issue of “corrective” rapes in South Africa? The answer will be developed through a vertical description of three different legal frameworks. Therefore this chapter will first begin with a discussion on LGBT rights in the international legal framework, followed by a second part on LGBT rights in the African legal framework followed by LGBT rights in South Africa. Each section of this chapter will have specific regard to ‘’corrective’’ rapes. The aim of this chapter is to set ‘’corrective’’ rapes in the context of LGBT rights on different levels. Recourse to international human rights instruments, African human rights instruments and South African human rights instruments will be made.
The third chapter will attempt to answer the following question: How can Women’s rights help with the issue of ‘’corrective’’ rape in South Africa? To be able to do so, this chapter will follow the same format of the previous chapter and the same legal sources. Which means that in a first section women’s rights will be discussed in the international legal framework, followed by women’s rights in the African legal framework and women’s rights in South Africa, with specific regard to the issue of ‘’corrective’’ rapes. Thus this chapter will attempt to set “corrective” rapes in the context of women’s rights in different legal framework.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
The fourth chapter is where both the second and third chapter will be combined. The discussion will be made in the way of a horizontal comparison between LGBT rights and women’s rights so as to find how the combination of both legal framework can help the issue of ‘’corrective rape’’. Ultimately in the same format again, both LGBT rights and Women’s rights will be compared on the international level, the African level and finally the South African level. The comparison is aimed at finding recommendations which could help solve the issue of ‘’corrective’’ rapes.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
I. The issue of ‘’corrective’’ rapes in South Africa
This first chapter will introduce the problem of ‘’corrective’’ rapes in South Africa and the impact it has on the South African LGBT community, especially black lesbian South African women.
Fifteen years since adopting one of the most progressive constitutions in the world, the level of violence and discrimination against lesbians, gay men, and bisexual and transgender people shows that the promise of equality is hard to believe9. In 2006, Zoliswa Nnkonyana, a 19-year-old woman from Khayelitsha, a village outside Cape Town, was stoned and stabbed to death by four men. When the case was sent to court it was judged that the death was fuelled by homophobia and hatred10. The perpetrators were sentenced to 18 years in jail11. “The magistrate on the case named hate and intolerance on the basis of sexual hate and intolerance on the basis of sexual orientation as an aggravating factor in sentencing – that is the first time that has happened in a criminal trial in South Africa”, as stated by Jill Henderson from the Triangle Project – an NGO that fights for the rights of gay and lesbian people in Khayelitsha12. This case brought to light the situation of lesbian women in South Africa, even if it was already known before that they were victim of violence and hatred this case brought more emphasize to their situation. The most common type of violence lesbian women in South Africa are victim of are “corrective” rapes, which is the act of raping a woman so as to “convert” her to being heterosexual, or as they think it “cures” her. In 2011, Human Rights Watch published report on ‘‘corrective’’ rapes in South Africa, in which more than 120 interviews were conducted in six different provinces13. With the data received, they observed that lesbians and transgender men face extensive discrimination and violence in their daily lives, both from private individuals and government officials. These forms of violence fuelled by homophobia go unpunished in most cases. Amongst the people interviewed they experienced
9 “We’ll show you you’re a woman” – Violence and discrimination against black lesbians and transgender men in South Africa – report by the Human Rights Watch, December 2011 10 http://www.huffingtonpost.com/2012/02/01/south-africa-zoliswa-nkonyana-lesbian-killed- sentencing_n_1247320.html 11 Case RCB216/06 12 http://www.bbc.com/news/world-africa-16835653 13 We’ll show you you’re a woman” – Violence and discrimination against black lesbians and transgender men in South Africa – report by the Human Rights Watch, December 2011
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 physical assault, sexual violence, fear, vulnerability and issues with staying safe. For instance regarding physical assault, in May 2008, fived armed men broke into the house of Kaya, a 26- year-old lesbian, who lives with her mother. They broke in at night, tied the mother up and took Kaya to another room where they beat her up with a gun and almost raped her. She feels guilty because she feels the way she dresses makes her a vulnerable target14. Regarding sexual violence, the experiences are more gruesome, as sometimes they include physical beating followed by rape. Being raped for being a lesbian doesn’t matter what age they are. In 2000, at 15 Nosizwe who presents as masculine was “wearing clothes like a boy”, when on one Saturday night when returning alone from a school sports trip she was approached by a group of four men. When she passed them they asked her if she was a girl. She said no, when they asked are you a boy she said yes. Once she passed them one of the men said, “This is a girl. Let me show you it’s a girl”. They ran after her, grabbed her, and started hitting her. The four men raped her. She doesn’t remember very well, she remembers waking up the next with her clothes torn and that there was blood15. Stories like Nosizwe’s happen regularly in South Africa. Most of the time these women don’t come forward as they would rather not face as we saw before embarrassment, the fear of being disowned by their families, since they are most of time still depending on them for their livelihood. According to an article by the Independent in 2014, from 1999 to 2014 there have been at least 31 murders linked with lesbianism and an average of 10 lesbians are raped per week to “correct” their sexual preferences16. Their cases are not being processed by justice in time or adequately.
Several legal scholars have attempted to find ways in which the law could be shaped to protect women from violence. In his note entitled “Correcting Corrective Rape”17, Lorenzo di Silvio, uses a famous South African case regarding the rape of Alix Jean Carmichele by Francois Coetzee18, to show how the constitutional court stepped in when common law was insufficient to
14 We’ll show you you’re a woman” – Violence and discrimination against black lesbians and transgender men in South Africa – report by the Human Rights Watch, December 2011 15 Ibid. 16 Strudwick 2014 http://www.independent.co.uk/news/world/africa/crisis-in-south-africa-the-shocking-practice-of- corrective-rape--aimed-at-curing-lesbians-9033224.html 17 Lorenzo Di Silvio, 'Correcting Corrective Rape: Carmichele and Developing South Africa's Affirmative Obligations To Prevent Violence Against Women ' [2011] 99(1469) The Georgetown Law Journal. 18 Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) (16 August 2001)
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 deal with the situation of rape. In this case, Carmichele v. Minister of Safety and Security, Carmichele brought a claim against the government for damages, stating that members of the police and the prosecutor in the Terblanche case19 had owed her a legal duty to protect her from harm and with which they had failed to comply. The trial court dismissed the case establishing that there was no evidence upon which a court could reasonably find that the police or prosecutors had acted wrongfully. The Supreme Court of Appeal affirmed. However the Constitutional Court reversed the decision saying that the matter should be referred back to the trial court for further evidence. The Court noted that the lower courts had applied the pre- constitutional test for negligence without referring to either the 1993 or 1996 Constitutions. The Constitutional Court, established upon the basis of sections 39(2)20 and 17321 of the 1996 Constitution, which was the one that should have been referred to during the trial, that courts in South Africa have a “general obligation” to develop the common law consistently with the Constitution where the common law is different. Additionally the Court established that the “police [are] one of the primary agencies of the State responsible for the protection of the public in general and women and children in particular against the invasion of their fundamental right by the perpetrators of violent crime”22. This statement led to observations establishing that these are sufficiently important factors that warrants protection for additional groups and that the police have a general duty to protect the most vulnerable in society. The author of the note, states his conclusion that due to the violence directed at gay women in South Africa as well as their isolation and vulnerability, the police’s duty stated by the Court extends to women at risk of ‘’corrective’’ rape. For the purpose of this thesis this case will be discussed further in the third chapter so as to show how women’s rights may help the situation of ‘’corrective’’ rapes. The reason for using this case
19 “On March 4 1995, Francois Coetzee, a man with a history of violent behaviour and sexual offences, attempted to rape and murder E. Terblanche. He appeared before a magistrate the following day on a charge of rape. He was released on his own recognisance because the police saw no reason to deny Coetzee bail, they actually recommended his release and the prosecuting authority did not bother to inform the magistrate”, Lorenzo Di Silvio, 'Correcting Corrective Rape: Carmichele and Developing South Africa's Affirmative Obligations To Prevent Violence Against Women ' [2011] 99(1469) The Georgetown Law Journal 20 Constitution of South Africa Article 39(2): ‘’When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’’ 21 Constitution of South Africa Article 173: ‘’ The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.’’ 22 Carmichele, 2001(4) SA at 965 para 62.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 is due to the fact that the judgment highlighted the gap between the South African common law and the South African Constitution, which led to proving that the south African justice system failed victims of ‘’corrective ‘’ rape. Most importantly, the case brings together women’s rights and LGBT rights, with regards to ‘’corrective’’ rapes, together thus consolidating the essence of this thesis.
Conclusion:
Having now established the situation of ‘’corrective’’ rapes in South Africa, the rest of the thesis will attempt to find a solution to this situation through first a discussion to see how LGBT rights may help the issue separately from how women’s rights may help the issue.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
II. How can LGBT rights help with the issue of ‘’corrective’’ rapes in South Africa?
The purpose of this chapter is aimed at finding how can LGBT rights help find a solution to ‘’corrective’’ rapes, by answering the following question; How can LGBT rights help with the issue of ‘’corrective’’ rapes in South Africa? Thus the answer to the question set will be elaborated through a vertical description and analysis of laws in favour of LGBT rights in international law, in the African legal framework and the South African framework.
2.1. LGBT rights in the international legal framework (international human rights law)
Homosexual behaviour has existed throughout human history and perhaps in every single human culture23. As such, we must first go back in time and observe where LGBT rights made their initial steps in legal history.
It is argued that LGBT rights are an aspect of natural human rights law. Considering the aspect of natural rights, we can go back to Plato and Thomas Aquinas, theorists in Natural law. Both authors applied natural law to sexual behaviour. Plato saw same-sex acts as problematic as he couldn’t explain it since lovemaking should bring the creation life. Aquinas shared a similar opinion, he did not write much about same-sex acts, although he did rule out the possibility that homosexual sex could ever be moral24. Up till now the stigma surrounding individuals belonging to the LGBT community remains. The idea of homosexuality being un-natural still remains the same in societies around the world. This social stigma often leads to violence and discrimination towards members of the LGBT community internationally.
In his book Doug Meyer, studies the persistence of Anti-LGBT discrimination in the United States. Amongst the many testimonies he gathered, one statement came from a woman named Jessica, she is a 44-year-old black lesbian. She shared her story, where one day, a man spit her on
23 Brent Pickett, 'Homosexuality ' (Stanford Encyclopedia of Philosophy, 5 July)
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 while she was holding hands with her girlfriend. He followed by telling her “don’t start walking like a dyke, you’re still a woman”25.
Thousands of women around the world who identify themselves as lesbians experience situations like Jasmine’s on a daily basis. This could be due to institutional sexism, which women are often victim of. Lesbian women are especially prone to this type of abuse, may it be verbal or physical, since they “do not conform to the typical” definition of a woman in different aspects. Lesbians who were part of the study, led by the author Meyer, stated that they experienced violence differently depending on their gender presentation of themselves26.
The accounts of LGBT women going through violence based on their sexual orientation brings us to the question: “What is international (human rights) law doing for LGBT rights?” When it comes to LGBT rights, international human rights law does not have specific treaties which are legally binding and that can be ratified by states. Instead, resolutions are adopted notably by regional and international organizations like the United Nations Human rights Council (UNHRC). Resolutions are defined by the Black’s law dictionary as the main motion that formally expresses the sense, will or action of a deliberative assembly27. The nature of the resolution determines if it is considered binding on State. As a result the non-binding nature of this resolution provides for a fragile legal framework when it comes to LGBT rights internationally.
Although considering this fact, the international legal community has taken steps to improve the situation of the LGBT community on the international level.
2.1.1. First resolution (UN Res 17/19) In June 2011 the Human Rights Council, adopted the first resolution regarding the rights of LGBT individuals. The resolution was adopted by a recorded vote of 23 to 19 with 3 abstentions. The resolution 17/19 concerned sexual orientation and gender identity, where the Council
25 Doug Meyer, Violence against queer people: race, class, gender, and the persistence of anti-LGBT discrimination (New Brunswick, New Jersey: Rutgers University Press, [2015] ) 26 Ibid 27 Bryan A Garner, Black's Law Dictionary (10th edn, St Paul, MN: Thomson Reuters, 2014)
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 expressed “grave concern” in the matter of violence and discrimination against individuals based on their sexual orientation and gender identity28. Before moving on to the next resolution, it is essential to point out the delay of the international legal community when it was time to address the issue of anti-LGBT violence.
2.1.2. Anti-LGBT violence Recorded traces of violence specifically aimed at LGBT individuals can be traced back to the medieval times, although for the purposes of this thesis we will shorten the timeline and start from the 1900s. According to data gathered by German author Eric Heinze, in 1980 Cuban law required that parents report their children to the authorities if the latter commit homosexual acts. In the former Soviet Union and some former Soviet Bloc Countries the situation was the same and up to today it hasn’t improved29. Moreover, Latin America wasn’t spared by the brutalities. Incidents of violence and discrimination against lesbians and gay men commonly go un-punished by the law.30 Although now with the Inter American Court of Human Rights some improvements have been made regarding the reparations for victims of human rights violations. Heinze also drew together data from other countries. In the United Kingdom, “men who commit consenting homosexual acts are four times more likely to be convicted than men who commit heterosexual and violent sex offenses”. Finally in the United States, lesbians and gay men are now considered to be more subject to violent attacks, than any other minority groups. Heinze’s aim was to show that LGBT individuals are experiencing violence all around the world. His book was published in 1994.
2.1.3. Alarming nature of this late resolution
Considering the amount of violent crimes endured by individuals in the LGBT community over the past years, it is alarming that the international legal community acted upon this phenomenon only as from 201131. Although this could be strongly due to the condition of human rights
28 United Nations, General Assembly, Human Rights Council – Human rights, sexual orientation and gender identity – A/HRC/RES/17/19 29 Eric Heinze, Sexual orientation: a human right: an essay on international human rights law (Dordrecht: Nijhoff, 1994) 30 Ibid 31 A/HRC/RES/17/19
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 differing vastly amongst countries and the mind set of different societies regarding the social stigma concerning LGBT individuals.
Nevertheless, the United Nations Human Rights Council’s (UNHRC) resolution of June 2011 paved the way for the first official report on the issue of discriminatory law and practices and acts of violence against individuals based on their sexual orientation and gender identity. The United Nations High Commissioner for Human Rights (UNHCHR) prepared the report. It was drafted following the establishment of the resolution 17/19 in which the Council requested the UNHCHR to call for a study documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity. The other part of the request constituted an account as to how international human rights law can be used to end the on-going violence against the LGBT community.
2.1.4. Report (A/HRC/19/41)
In the report dated 17th November 2011, the UNHCHR discusses first the applicable international standards and obligations32. Even though it is not explicitly said that States must protect LGBT individuals, their rights already exist under the Universal Declaration of Human Rights (UDHR), the two international covenants: International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR). In a first instance, human rights are universal, equal and non-discriminative, therefore States are obligated to protect and respect their obligations under these three international human rights instruments regardless of an individual’s sexual orientation. More specifically with regards to the situation of the LGBT communities around the world, there are five core rights, which States are obligated to respect so as to protect LGBT individuals. First the obligation to protect right to life, liberty and security of persons, secondly, the obligation to prevent torture and other cruel, inhuman or degrading treatment on grounds of sexual orientation or gender identity, third, the obligation to protect the right to privacy and against arbitrary detention. Fourth, the obligation to protect individuals from discrimination. Finally, fifth, the obligation to protect the
32 United Nations General Assembly – Human Rights Council – Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity - A/HRC/19/41
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 right to freedom of expression, association and assembly in a non-discriminatory manner. All of these obligations must be respected and followed by States irrespective of an individual sexual orientation or gender identity33. In the end, we can suppose that LGBT rights are by de-facto protected already under the different international human rights instruments, the question arises as to whether States are abiding to their obligations. Essentially, it may be argued in this case that to be able to have an effective international implementation there needs to be further government application. This means that the domestic law of States must have provisions allowing the application of international human rights instruments to its jurisdiction. So as to facilitate the implementation of international human rights instruments in 2011 the Office of the United Nations High Commissioner for Human Rights (OHCHR) developed the training material on Human Rights in the Administration of Justice. Aimed at conveying a basic knowledge of and skills in implementation of international human rights law to judges, prosecutors and lawyers. The OHCHR focused on these professions since without them there cannot be an efficient protection of the rights of individuals at the domestic level34. As a result to be able to give further protection to LGBT rights, specifically the protection of lesbians, countries can use instruments such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to give further protection to women who are part of the LGBT community. Contrary to a non-existent legal instrument for LGBT rights, CEDAW regards the protection of women’s’ rights therefore it has been accepted by most states around the world. Ultimately, if a state accepts the convention it needs to commit to put the provisions stated in practice35. Thus the end result depends on the situation of human rights protection in the different countries.
In the following part of the report, the Commissioner tackles the issue of violence suffered by individuals based on their sexual orientation and their gender identity. Homophobic violence ranges from different types of physical to psychological abuse. Physical abuse may include murder, beatings, kidnapping, rape and sexual assault on the other hand, of the same gravity; psychological abuse includes threats, coercion and arbitrary deprivations of liberty. In the report,
33 United Nations General Assembly – Human Rights Council – Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity - A/HRC/19/41 34 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyer – Office of the United Nations High Commissioner for Human Rights (OHCHR, 2011) 35More information available at: http://www.un.org/womenwatch/daw/cedaw/
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 the Commissioner discusses the issue of LGBT individuals often being the victims of honour killings, rapes and torture36. Moreover, the UNCHR estimates that at least 42 States have granted asylum to individuals with a well-founded fear of persecution owing to their sexual orientation or gender identity, although the precise figure is unclear. The commissioner ends her observations by reporting on discriminatory laws and practices. In the end, she concludes that the situation regarding LGBT and Intersex persons needs further study and regular reporting37. She further lists out recommendations for member states to improve the situation. She also recommends that the Human Rights Council be kept regularly informed and updated on incidents of violence and discrimination linked to sexual orientation and gender identity and to encourage existing special procedures to continue to investigate and report on human rights violations affecting individuals on the basis of sexual orientation or gender identity within the context of their specific mandates38.
2.2 Born Free and Equal Booklet – published by the OHCHR
Taking into consideration the report and the current state of affairs regarding anti-LGBT violence, the Office of the High Commissioner of Human Rights at the United Nations, took upon themselves the task of publishing a booklet, in 2012, titled “Born Free and Equal”. The booklet sets out the core obligations that states have towards LGBT people. Bearing in mind these obligations are not legally binding it can be argued that there needs to be a separate charter or convention which can be made legally binding by states regarding LGBT rights specifically. Although, Navi Pillay, OHCHR at the time, established that the protection of protection of people on the basis of sexual orientation and gender identity does not require the creation of new rights or special rights when it comes to LGBT people. On the other hand, their protection
36 See A/61/122/Add.1, para. 124, E/CN.4/2002/83, paras. 27-28, A/HRC/4/34/Add.2, para. 19; and A/HRC/4/34/Add.3, para. 34. 37 81. The present report summarizes only some of the information gathered by United Nations treaty bodies and special procedures, regional and non-governmental organizations on violence and discrimination based on actual or perceived sexual orientation or gender identity. A more comprehensive analysis of the human rights challenges facing LGBT and intersex persons would require a more extensive study and, in future, regular reporting. – A/HRC/19/41 38 84. The High Commissioner recommends that Member States: (a) Investigate promptly all reported killings and other serious incidents of violence perpetrated against individuals because of their actual or perceived sexual orientation or gender identity, whether carried out in public or in private by State or non-State actors, and hold perpetrators accountable, and establish systems for the recording and reporting of such incidents. – A/HRC/19/41
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 requires an enforcement of universally applicable guarantee of non-discrimination in the enjoyment of all rights. The core obligations are the following: the protection of individuals from homophobic and trans phobic violence (1), the prevention of torture and cruel, inhuman and degrading treatment of LGBT persons (2), the decriminalisation of homosexuality (3), the prohibition of discrimination based on sexual orientation and gender identity (4) and finally to respect the freedom of expression, association and peaceful assembly (5)39.
2.2.1. The protection of individuals from homophonic and trans-phobic violence
The first obligation, concerning the protection of individuals from homophobic and transphobic violence, is enshrined in three international human rights instruments. If a State fails to investigate and punish this kind of violence, the State is breaching its obligation to protect everyone’s right to life and liberty and security as a person. Therefore breaching obligations as a state under international human rights law. Such obligations are enshrined, first under article 3 of the UDHR40, article 641 and 942 of the ICCPR and article 33(1)43 of the Convention relating to the Status of Refugees. LGBT individuals have been for years the targets of violence at the hands of private individuals who are driven by a desire to punish those seen as defying gender norms. These gender “norms” are the product of societies’ pre made-up mind regarding what is “normal” and what is “not normal”. In 2006 the Special Rapporteur presented his report to the Human Rights Council he stated that regarding anti-LGBT violence two situations has come to his attention44. The first one concerns those who have been killed because of their sexual identity, often by agents of the state, and their murders go unpunished. The second concern is about the prosecution of individuals engaging in consensual practice sin private. Both of these situations go against the basis of human rights and the fact that they are a source of controversy
39 Born Free and Equal – Sexual Orientation and Gender Identity in International Human Rights Law – United Nations Human Rights – Office of the High Commissioner (2012). 40 Article 3 UDHR: Everyone has the right to life, liberty and the security of person. 41 Article 6 ICCPR: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 42 Article 9 ICCPR: Everyone has the right to liberty and security of person. 43 Article 33(1) Convention relating to the Status of Refugees: No Contracting State shall expel or return (refouler) a refugee in a manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of particular social group or political opinion. 44 Oral presentation of report E/CN.4/2006/53 by the Special Rapporteur to the Human Rights Council, 19 September 2006, available at www.un.org/webcast/unhrc/archive.asp?go=060919
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 rather than a matter of concern raises a red flag. In the first concern of the Special rapporteur, this behaviour violates the human right of non-discrimination and the second the human right to privacy. The source of the problem also comes with the fact that some individuals do not admit their LGBT status and most importantly there is a lack of official statistics provided by States45, regarding the number of LGBT individuals and whether they have been killed based on their sexual orientation46. LGBT individuals are also the victims of “honour” killings. An honour killing is defined as the practice of killing a family member who is believed to have brought shame on the family. For instance in Turkey, the issue of honour killings is intensifying even though same-sexual relations between consenting adults in private have been legal in turkey since 1868 and Turkey was the first country in the Muslim world to hold an LGBT (QI) pride march47. The views of the people in the Turkish society hasn’t changed much regarding the LGBT (QI) communities as homophobic behaviour is on the rise, in 2010 the minister for women and family affairs said homosexuality is a disease and in early 2016 the Prime Minister Erdogan said homosexuality is contrary to Islam48.
Moreover LGBT persons are also victims of non-fatal attacks such as rape and sexual assault. The Special Rapporteur on violence against women has reported alleged incidents of gang rape; family violence and murder experienced by lesbian, bisexual and transgender women in El Salvador, Kyrgyzstan and South Africa. In addition the Special Rapporteur noted, regarding the situation in South Africa “Lesbian women face an increased risk of becoming victims of violence, especially rape, because of widely held prejudices and myths”, including “for instance, that lesbian women would change their sexual orientation if they are raped by a man”49.
45 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on his mission to Guatemala (A/HRC/4/20/Add.2). 46 Born Free and Equal – Sexual Orientation and Gender Identity in International Human Rights Law – United Nations Human Rights – Office of the High Commissioner (2012). 47 Emily Thomas, '7 Stunning Images From What May Be Muslim World’s Largest LGBT Celebration' (Huffpost , 7th January )
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
Setting up obligations will not be enough to change the behaviour of homophobic individuals, there needs to be sanctions therefore international human rights law needs a legally binding document or harsher sanctions regarding the violation of human rights based on a person’s sexual orientation or gender identity. More importantly there needs to be more effective systems established for recording and reporting hate-motivated acts of violence.
2.2.2. The prevention of torture and cruel, inhuman and degrading treatment of LGBT persons
The second obligation concerns the prevention of torture and cruel, inhuman and degrading treatment of LGBT persons. This obligation is enshrined in article 5 of the UDHR50, article 7 of the ICCPR51 and articles 1(1)52 and 2(1)53 of the Convention against Torture. If the States fails to investigate and bring to justice perpetrators of torture is a breach of these international human rights law.
United nations human rights mechanisms’ such as the Committee against Torture and the Special Rapporteur on torture have gathered considerable evidence of abuse and mistreatment of LGBT individuals by police, prison guards and other law enforcement officers54. For example in the United States, a 2014 report on a national survey of LGBT people and people living with HIV found that 73% of respondents had face-to-face contact with the police in the past five years. Amongst those respondents, 21% reported encountering hostile attitudes from officers, 14% reported verbal assault by the police, 3% reported sexual harassment and 2% reported physical assault at the hand of law enforcement officers. Police abuse, neglect and misconduct were
50 Article 5 UDHR: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 51 Article 7 ICCPR: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular no one shall be subjected without his free consent to medical or scientific experimentation. 52 Article 1(1) Convention against Torture: For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 53 Article 2(1) Convention against Torture: Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 54 Concluding observations of the Human Rights Committee on the United States of America (CCPR/C/USA/ CO/3), at para. 25; concluding Observations of the Committee against Torture on the United States of America (CAT/C/USA/CO/2), at paras. 32, 37.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 consistently reported at higher frequencies by respondents of colour and transgender and gender nonconforming respondents55. The fact that this behaviour has been reported highlights a lacuna in international human rights law, since under the Declaration on the Elimination of Violence against women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, States have the obligation to criminalize acts of torture and violence against women, to prosecute perpetrators and provide reparations to victims. Accordingly, States must do their utmost to prevent the perpetration of sexual violence, address any act of sexual violence and offer judicial remedies to the victims56.
Ultimately States should provide a procedure whereby victims of such acts can seek remedies, including compensation. States are also under an obligation to take preventive measures, such as training of law enforcement officers and monitoring of places of detention57.
2.2.3. The decriminalisation of homosexuality
The third obligation recognises that criminalising homosexuality violates an individual’s right to be free from discrimination, which is protected by articles 258, 759, 960 and 1261 of the UDHR and articles 2(1)62, 6(2)63, 964, 1765 and 2666 of the ICCPR. When the booklet was published, up to 76
55 Discrimination and harassment by law enforcement officers in the LGBT community, a report by C. Mallory, A. Hasenbush and B. Sears at the Williams Institute – March 2015 (available at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Discrimination-and-Harassment-in-Law- Enforcement-March-2015.pdf) 56 State obligation re sexual violence: A/HRC/14/22/Add.1, at para. 19 57 Born Free and Equal – Sexual Orientation and Gender Identity in International Human Rights Law – United Nations Human Rights – Office of the High Commissioner (2012). 58 Article 2 UDHR: Everyone is entitled to all the rights and freedoms set forth in this 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 59 Article 7 UDHR: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 60 Article 9 UDHR: No one shall be subjected to arbitrary arrest, detention or exile. 61 Article 12 UDHR: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. 62 Article 2(1) ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 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.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 countries had laws in effect that are used to criminalise consensual relationships between adults of the same sex67. Nowadays the number has only been reduced by one, making it 75 countries that criminalise homosexuality.
In March 1994, a ground-breaking decision by the Human Rights Committee (HRC) in the case of Toonen v. Australia 68found that Tasmanian laws criminalizing all sexual relations between men were in breach of the International Covenant on Civil and Political Rights (ICCPR), whose non-discrimination provisions were interpreted as including “sexual orientation”69. This decision was the first step on the international level to decriminalize homosexuality.
If a state criminalizes the consensual act of sex between two consenting adults of the same sex, this action goes against a State’s obligations under intentional law including the obligations to protect privacy and guarantee non-discrimination. In addition some countries, criminalize homosexuality with the sanction of death penalty.
Ultimately all states should immediately repeal all laws criminalising private, adult, consensual same-sex sexual conduct.
63 Article 6(2) ICCPR: In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. 64 Article 9 ICCPR: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 65 Article 17 ICCPR: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 66 Article 26 ICCPR: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status 67 “State-sponsored Homophobia: a world survey of laws criminalising same-sex sexual acts between consenting adults”, International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA), Brussels, May 2011, p. 9. 68 Toonen v. Australia, Human Rights Committee Communication No. 488/1992, CCPR/C/50/D/488/1992, 4 April 1994 69 Toonen v. Australia, Human Rights Committee Communication No. 488/1992, CCPR/C/50/D/488/1992, 4 April 1994, at para. 8.2.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
2.2.4. The prohibition of discrimination based on sexual orientation and gender identity
The fourth obligation regards the prohibition of discrimination based on sexual orientation and gender identity. The roots of this obligation rests upon the following international human rights instruments: articles 270 and 771 of the UDHR, article 2(1)72 and 2673 of the ICCPR, article 274 of the ICESCR and article 275 of the Convention on the Rights of the Child. The topics of these articles are non-discrimination and equality. Although the lists in the articles do not explicitly include the terms of “sexual orientation” or “gender identity”, they all conclude with the words “other status”. The use of the words “other status” shows that the lists are open ended; therefore the grounds of discrimination are not closed76. International law defines discrimination as any distinction, exclusion, restriction or other differential treatment that is directly or indirectly based on a prohibited ground of discrimination and that has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of rights guaranteed under international law77.
Nevertheless, even if the grounds for non-discrimination are open-ended brings along the risk of anti-LGBT acts going un-punished. The international legal community has attempted to deal
70 Article 2 UDHR: Everyone is entitled to all the rights and freedoms set forth in this 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. 71 Article 7 UDHR: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 72 Article 2(1) ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 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. 73 Article 26 ICCPR: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 74 Article 2 ICESCR: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 75 Article 2 Convention on the Rights of the Child: States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 76 Born Free and Equal – Sexual Orientation and Gender Identity in International Human Rights Law – United Nations Human Rights – Office of the High Commissioner (2012). 77 Human Rights Committee, General Comment No. 18, para. 7; and Committee on Economic, Social and Cultural Rights, General Comment No. 20, para. 7.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 with this shortcoming in different ways. The United Nations treaty bodies have consistently held that sexual orientation and gender identity are prohibited grounds of discrimination under international law. The Human Rights Committee has often paved the way for the enactment of legislation that included sexual orientation among the prohibited grounds of discrimination. The Convention on the Elimination of all forms of Discrimination against Women does not include a list of discriminatory grounds. The Committee on the Elimination of Discrimination against Women has called attention to discrimination against women on the basis of their sexual orientation and gender identity78. In 2010, in their concluding observations on Uganda they voiced their concerns regarding the reported harassment, violence, hate crimes and incitement of hatred against women on the account of their sexual orientation and gender identity. Following this statement they called upon Uganda to alter the situation79. The situation of Uganda hasn’t changed and has significantly worsened the situation of its LGBT community by passing the anti-homosexuality act in 2014.
Bearing in mind the concerns of the international legal community, there are particular areas of concerns where discrimination against LGBT individuals is stronger. In a first instance, when it comes to employment, States must guarantee that the right to work will be exercised without discrimination of any kind, especially with regard to employment benefits the State cannot distinguish between heterosexual and same-sex unmarried couples. Article 680 of the ICESCR provides that the States parties to the present Covenant recognises the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. In the case of X v. Colombia, the Human Rights Committee found that the state failure to extend pension benefits to an unmarried same-sex partner, when such benefits were granted to unmarried heterosexual couples, was a violation of rights guaranteed by the Covenant81.
78 CEDAW/C/PAN/CO/7 79 Concluding observations of the Committee on the Elimination of Discrimination against Women on Uganda (CEDAW/C/UGA/CO/7), at paras. 43-44 80 Article 6 ICESCR: 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. 81 CCPR/C/89/D/1361/2005, at para. 7.2.
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The second context where LGBT individuals face discrimination is health. The right to health is provided by article 12(1)82 of the ICESCR. In its general comment 1483 the Committee on Economic, Social and Cultural Rights stated that the Covenant “proscribes any discrimination in access to health care and the underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of … sexual orientation”. Even though discrimination on the basis of sexual orientation is banned regarding health care, it was only 1992 that the World Health Organisation removed homosexuality from its classification of diseases84. Yet again, the international community was late in normalising the fact of being homosexual. However some countries still classify homosexuality as an illness. In 2013, An Iranian official whose job is to protect human rights has described homosexuality as an illness85. Criminalizing homosexuality creates stigma and also has a negative impact on public health campaigns against HIV. For example following the Toonen judgment by the Human Rights Committee, the Australian Government observed “statutes criminalizing homosexual activity tend to impede public health programs by driving underground many of the people at risk of infection”86.
The third area of concern is education. The Human rights committee, the committee on economic, social and cultural rights and the committee on the rights of the child have expressed concern about homophobic discrimination in schools and called for measures to counter homophobic and transphobic attitudes. The Special Rapporteur on the right to education noted “in order to be comprehensive, sexual education must pay special attention to diversity, since everyone has the right to deal with his or her own sexuality”87.
82 Article 12(1) ICESCR: 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 83 General Comment No. 14 (2000) – Annex IV (available at: http://www.un.org/documents/ecosoc/docs/2001/e2001-22.pdf) 84 Bulletin of the World Health Organization: Proposed declassification of disease categories related to sexual orientation in the International Statistical Classification of Diseases and Related Health Problems (ICD-11) - 2014 85 Saeed Kamali Dehghan, ' Iranian human rights official describes homosexuality as an illness' (The Guardian, 14th March 2013)
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
Finally, the last area of concern is recognition of relationship, which has been one of the longest battles of LGBT individuals regarding their human rights. Under international human rights law, States are not required to allow same-sex couples to marry88. Although, the obligation to protect individuals from discrimination on the basis of sexual orientation extends to insuring that unmarried same-sex couple are treated in the same way and entitled to the same benefits as unmarried opposite sex-couples89.
Ultimately, if a state enacts legislation that prohibits discrimination on the grounds of sexual orientation and gender identity in both the public and private sphere, the said legislation should include remedies for victims of discrimination90. The fight doesn’t stop at legislation; states should also entice awareness-raising campaigns and training programs to prevent discrimination by tackling discrimination social attitudes.
2.2.5. The obligation to respect freedom of expression, association and peaceful assembly.
The fifth and final obligation concerns the obligation to respect freedom of expression, association and peaceful assembly. Articles 1991 and 20(1)92 of the UDHR and article 19(2)93, 2194 and 22(1)95 of the ICCPR guarantee this obligation. If there are limitations to these rights, they must be compatible with the non-discrimination provisions of international law.
88 CCPR/C/75/D/902/1999; 89 CCPR/C/78/D/941/2000, para. 10.4. 90 Born Free and Equal – Sexual Orientation and Gender Identity in International Human Rights Law – United Nations Human Rights – Office of the High Commissioner (2012). 91 Article 19 UDHR: Everyone has the right to freedom of thought and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas. 92 Article 20(1) UDHR: Everyone has the right to freedom of peaceful assembly and association. 93 Article 19(2) ICCPR: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 94 Article 21 ICCPR: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. 95 Article 22(1) ICCPR: Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
In some countries, when LGBT marches or parades are organised they are sometimes refused permits or are met with threats and violence from homophobic individuals96. After LGBT pride marches were banned in Moscow, the HRC urged the Russian Federation to “take all necessary measures to guarantee the exercise in practice of the right to peaceful association and assembly by the LGBT community”97.
States must guarantee the rights to freedom of expression, association and peaceful assembly to everyone, without taking into account someone’s sex, sexual orientation or gender identity; additionally it must ensure that any restrictions on these rights are not discriminatory98.
As a result the Born Free and Equal pamphlet could be a step towards a more rigorous protection of LGBT communities around as it enshrines the fact that LGBT rights already exist within the existing international human rights.
Following the publication of this booklet, the UN General Assembly and the Human Rights Council adopted more resolutions and will continue in the future, the issue relies upon States adopting these resolutions and making them legally binding, since they cannot be coerced to do so. Regarding the resolutions that were adopted by the Human Rights Council following the publication, the status quo has not substantially changed. In the resolutions from 201499, concerning human rights, sexual orientation and gender identity, and the one from 2016 about the protection against violence and discrimination based on sexual orientation and gender identity100, approximately the same countries abstained or rejected the resolutions. It can therefore be argued that the situation hasn’t substantially changed since the publication of the pamphlet. On the contrary, South Africa for instance moved from being in favour of the development of the protection of LGBT individuals to abstaining itself.
96 Born Free and Equal – Sexual Orientation and Gender Identity in International Human Rights Law – United Nations Human Rights – Office of the High Commissioner (2012). 97 Concluding observations of the Human Rights Committee on the Russian Federation (CCPR/C/RUS/ CO/6), at para. 27. 98 Born Free and Equal – Sexual Orientation and Gender Identity in International Human Rights Law – United Nations Human Rights – Office of the High Commissioner (2012). 99 A/HRC/RES/27/32 100 A/HRC/RES/32/2
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Thus, LGBT rights in the International legal framework have seen many interventions regarding a stronger protection of LGBT communities around the world. Nevertheless these steps can be criticised of being made far too late in time and as illustrated by the resolutions adopted by the Human Rights Council LGBT rights still have a long way to go.
For the purpose of this thesis, the following part of this second chapter will now discuss the context of LGBT rights in Africa.
2.3. LGBT rights in the African legal framework
The African continent’s colonisation began around the 1870s and only ended in 1977101 when Djibouti was pronounced independent from the French Republic. Since human rights began in the western world with the UDHR, African nations dealt with them on a particularly late basis. The reason of this situation is due to their colonial past. As a result of their de-colonisation new political systems were put in place, legislations were being developed. Ultimately, human rights was not the first set of rights they were particularly concerned with as they had to set up economic, political, social and cultural rights. For instance, according to the OHCHR Dashboard concerning the ratification of international human rights treaties, most African countries have signed up to ten treaties although most of them have not ratified the treaties into their domestic law. The most common treaties ratified were the ICCPR and ICESCR. Nevertheless up till today a number of African nations do not respect or follow human rights as adequately as they are expected to, considering the international standards for human rights. For example, as stated before Uganda has passed the anti-homosexuality and in January of 2014, president of Nigeria at that time, Goodluck Jonathan signed a bill criminalising same sex relationships and membership of LGBT rights groups102.
For the purpose of this thesis, this section will discuss the situation of human rights in Africa.
101 Bureau of African affairs, 'US Relations with Djibouti ' (US Department of State - Diplomacy in Action, 1st August 2016)
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017
The African regional system for the protection of human rights has been described as the “newest, least developed/effective, most distinctive and most controversial”103 system for the protection of human rights. The first time that African Nations considered human rights was in the context of the adoption of the Constitutive act of the African Union on the 11th July 2000104. Article 3 of the Act states that “the objectives of the AU shall be to encourage international cooperation, taking due account of the Charter of the UN and the UDHR and to (...) Promote and protect human and people’s rights in accordance with the ACHPR and other relevant human rights instruments”105.
Nevertheless the African Union is not the only organisation available throughout the African continent, which is dealing with human rights. There is the Economic Community of Western African States (ECOWAS), which provides a Court of Justice where citizens of ECOWAS member states can file complaints against human rights violations of state actors. The Court can be found in Abuja, Nigeria and rules according to the provisions of the African Charter on Human and Peoples’ Rights. The decisions are legally binding to the member states of the ECOWAS. In addition citizens of African nations can turn to the West African Economic and Monetary Union (WAEMU), or the League of Arab States for example. The African Union also has also taken the initiative to partake in peacekeeping missions. For example the African Union/UN Hybrid operation in Darfur referred to by its acronym UNAMID106 that was established on the 31st July 2007 with the adoption of the Security Council Resolution 1769107.
Thus there are six human rights documents which are important on the African level: the Charter of the Organization of the African Unity (1963), the Constitutive Act African Union (2000), the African Charter on Human and Peoples’ Rights (1981) Banjul Charter, and the specialized treaties on Children (1990), Women (2003) and Children (2003).
103 Pierre De Vos, ‘A new beginning? The enforcement of social, economic and cultural rights under the African Charter on Human and Peoples’ Rights’ (Law, Democracy and Development 1 2004) 104 Constitutive Act of the African Union, 2000 (available at: http://www.au2002.gov.za/docs/key_oau/au_act.htm) 105 Ibid. 106 United nations, 'Protecting civilians, facilitating humanitarian aid and helping political process in Darfur' (African Union/United Nations Hybrid Operation in Darfur, 2013)
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Even though these acts have been established to protect human rights throughout the African nations, homosexuality is still a subject seen with stigma. Homosexuality is often considered as “un-African” and is mostly affiliated to problems that only the western world deals with. The LGBT community in Africa is still struggling with getting its voice heard and being respected.
It could be argued that the situation in Africa is getting better for its LGBT community with numerous NGOs and about four years ago, the president of Ghana was asked a question regarding his point of view on homosexuality. President Mahama was visiting the campus of Kennesaw State University, and was asked about gay rights and whether he supported them, he replied by saying “It’s controversial. And it’s the same, it’s controversial everywhere else, especially in Africa. It’s a difficult situation. People have a certain cultural hostility towards it, but I believe that laws must prevail. For instance, people must not be beaten or killed because of their sexual orientation.”108 Nevertheless, considering this fact it must be stated that he doesn’t say explicitly he supports gay rights, he does condemn anti-LGBT violence. The importance of this is that an African president made this statement and it somewhat pushed some political boundaries, because whenever someone from the LGBT community in Africa is beaten, raped or killed, the government of the states they belong in, do not condemn the acts, so for a president in Africa to condemn these acts as unlawful, means that it must not be taken lightly109.
In addition, only one country on the African continent has made a monumental step regarding LGBT rights: South Africa. On the 1st of December 2005 the Constitutional Court of South Africa decided to extend the definition of marriage so as to include same-sex marriage, in the case of Minister of Home Affairs and Another v. Fourie and Another110. Making South Africa the first African nation and the fifth nation in the world to break down legal barriers for
108 Udoka Okafor, 'LGBT Rights in Africa: A Step Forward?' (Huffpost , 10th February)
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LGBT individuals. On the 14th of November of 2006 the South African Parliament voted in favour of legalizing same sex marriage.
Although it may seem like there are some improvements, commissions and NGOs attempting to protect human rights in African nations, still face some issues regarding donations, funding and most importantly struggle to make anti-LGBT individuals change their perspective regarding homosexuality. South Africa has not been exempted of dealing with anti-LGBT issues even though legally speaking rights protecting LGBT individuals exists in its law. In addition the situation for LGBT individuals in other countries is getting worse, for instance Uganda when passed its anti-homosexuality bill111.
As we saw earlier, the HCHR in 2012, in the Born Free and Equal Pamphlet Navi Pillay, established the fact that human rights to protect LGBT individuals already existed within the international legal documents aimed at protecting and promoting human rights. Nevertheless, human rights are still being violated throughout African nations in general, the case of the LGBT communities seems to have been pushed under the rug.
If African citizens are experiencing human rights violations but at the same time there are international human rights treaties and African human rights treaties in force, it could be argued that the cause of these on-going violations is due to a lack of implementation. This lack of implementation leads to dangerous situations such as ‘’corrective’’ rapes in South Africa.
The following and last part of this second chapter will discuss the situation of LGBT rights in South Africa.
111 CNN, 'Uganda's President Museveni signs controversial anti-gay bill into law' (CNN International Edition, 25th February 2014)
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2.4. LGBT rights in the South African legal framework
2.4.1. Establishing LGBT rights in South Africa
The first step towards establishing LBGT rights can be found in the (first) south African constitution following the apartheid, discrimination based on sexual orientation was made illegal under article 9(3) “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age disability, religion, conscience, belief, culture, language and birth.” Following this, in 1998 the employment equity act 55 enacted in 1998 ensured that employees could not discriminate based on sexual orientation.
As seen previously, South African legislation made a point to rule out any discrimination based on sexual orientation and gender identity following the apartheid. Nevertheless a string of cases helped, established, and abolished certain laws going against the practices of an LGBT individual. In a first instance, in 1998 following the referral for confirmation to the Constitutional Court of an order made by the Witwatersrand High Court concerning the case of National Coalition for Gay and Lesbian Equality and another v Minister of Justice and others112. The court had to make a decision regarding the referral which sought to affirm that two laws are unconstitutional and invalid, first the common law offence of sodomy and second the inclusion of sodomy in schedules to the Criminal Procedure Act 51 of 1977 and the Security Officers Act 92 o 1987, and s 20A of the Sexual Offences Act 23 of 1957 which prohibits sexual conduct between men and in certain circumstances. Ultimately the court decided that the offences were aimed at prohibiting sexual intimacy between gay men, violated the right to equality as they unfairly discriminated against gay men on the basis of sexual orientation. This type of discrimination is unconstitutional as the constitution included sexual orientation as prohibited ground of discrimination. To continue, in 2002 the constitutional court of South Africa granted same-sex couples the ability to jointly adopt children in the case of Du Toit and
112 National Coalition for Gay and Lesbian Equality and another v Minister of Justice and others (1998) (6) BCLR 726
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Another v Minister for Welfare and Population Development and Others113. The case was brought to court by a lesbian couple who wanted to adopt children in 1995 but due to the law making it illegal for two unmarried people to adopt they could only make one of the partner the legal parents of the adopted children. The case was ruled in favour of the couple as the court ordered the amendment of the Child Care Act and the Guardianship Act that made it possible for permanent same-sex life partners to have the same rights as married spouses. Later on the Child Care Act and Guardianship Act were repealed and replaced by the Children’s Act. Finally, the biggest achievement for LGBT rights was in 2006, when on the 1st of December of that year, the Civil Union Act was passed. The act required the law of marriage be changed to ensure equality to gay men and lesbians114. The case which brought this Civil Union Act was the Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others115 in 2005. The constitutional court declared in this landmark decision that same-sex couples have constitutional rights to marry, making south Africa the fifth country in the world making same-sex marriage legal. The law was passed even though many religious groups and traditional leaders in the country were strongly against it. Homosexuality is unusual in Africa and is often seen as a taboo. While the project of passing was in process, religious groups had attempted a last effort to stop the law by demanding a referendum on the issue116. Nevertheless, the law was favourably welcomed by South African gay activists and the international LGBT community, as this was another step towards recognizing LGBT rights.
Although South Africa, may seem to be the utopia for LGBT individuals legally speaking, the social stigma surrounding their community has not changed and the number of crimes in the country against LGBTs is on the rise. After having discussed the pro-LGBT rights established by the South African government, the following section will debate as to whether South Africa is following its obligation as a state when it comes to protecting the human rights of LGBT individuals.
113 Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006 ; 2003 (2) SA 198 (CC) (10 September 2002) 114 http://www.washingtonpost.com/wp-dyn/content/article/2006/11/30/AR2006113001370.html 115 Fourie and Another v Minister van Binnelandse Sake and Another (Lesbian and Gay Equality Project a http://news.bbc.co.uk/2/hi/africa/6159991.stms Amicus Curiae) (17280/02) [2002] ZAGPHC 1 (18 October 2002) 116 Sharon Lafraniere , 'South African Parliament Approves Same-Sex Marriages' (The New York Times , 15th November 2006 )
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2.4.2. The issue: the non-application of the laws - is South Africa following its obligation as a state regarding the protection of LGBT individuals?
Despite the protection established by law, LGBT South Africans often face mistreatment and violence. According to a Human Rights foundation report more than 60% of South Africans reported that they found homosexuality unacceptable. In addition to this women are facing ‘’corrective’’ rapes and according to the US state department there is often a delay in prosecuting homophobic murders. From 1998 to 2011 there were thirty-one lesbian murders and only two convictions. The LGBT rights group triangle said it recorded ten rapes per week in the Western Cape. Many lesbians said that they live in fear of getting raped. The victims also said that the police forces are apathetic to their cause and did not take their cases seriously. The fact that these numbers are real, prove that South Africa is falling back on its obligation to implement laws that are there to protect LGBT individuals.
What could be the reason for such a rise in violence in South Africa against its LGBT community – could it be due to the government not implementing the laws?
To be able to answer this question, it would be ideal to follow the, non-legally binding, obligations set out in the Born Free and Equal pamphlet. As seen in the previous chapter the pamphlet is constituted of five obligations. Before addressing the obligations where South Africa is falling back on, we will first discuss the obligations that the South African government has successfully achieved.
2.4.2.1.The obligation to decriminalise homosexuality
First, the obligation to decriminalise homosexuality, South Africa has successfully followed in the steps of this obligation by making same-sex marriage legal, and giving all the rights possible to LGBT individuals in its country. The Constitution of South Africa guarantees equality on all grounds and makes it clear under article 9(3) that the “State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex,
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 pregnancy, marital status, ethnic or social origin, colour, sexual orientation, […]”117. Additionally, referring to the previous section of this chapter, South African government presents a consistent case-law when it comes to establishing LGBT rights.
2.4.2.2.The obligation to respect freedom of expression, association and peaceful assembly.
Second, the obligation to respect freedom of expression, association and peaceful assembly, South Africa has also successfully followed this obligation, since the fall of the apartheid the constitution of the country has a strong Bill of Rights guaranteeing its citizens these fundamental rights. For instance these rights can be found under articles 16 to 18 of the South African constitution118. On the other hand, when it comes to the three remaining obligations, South Africa’s track record remains unsatisfactory according to the standards set by the OHCHR.
2.4.2.3.The obligation to protect individuals from homophobic and trans-phobic violence.
The first obligation is about protecting individuals from homophobic and trans-phobic violence. As we have seen above, LGBT South Africans are facing violence due to their sexual orientation. The born free and equal pamphlet also highlights this issue by discussing the situation of South Africa when it comes to “non-fatal attacks”. Lesbian women are the ones that are usually targeted, following the report of the special rapporteur on violence against women, the situation in South Africa for lesbian women seems dire which led to the committee on the elimination of discrimination against women stating that they are gravely concern regarding the report on sexual offences and murders committed against women on account of their sexual orientation119. In addition, before the pamphlet was published, in 2006, a study was led on the anti-gay hate crimes in South Africa regarding the prevalence, reporting practices and experiences of the police120. Before the apartheid, homosexuality was illegal in the country and a
117 Constitution of the Republic of South Africa, 1996 118 Ibid. 119 Concluding observations of the Committee on the Elimination of Discrimination against Women on South Africa (CEDAW/C/ZAF/CO/4), at paras. 39-40. 120 Wells and Polders , 'Anti-Gay Hate Crimes in South Africa: Prevalence, Reporting Practices, and Experiences of the Police' [2006] 67(1) Agenda: Empowering Women for Gender Equity
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 significant amount of laws denied gay men and women justice when they experienced criminal abuse. During the 1970s and the 1980s police used to often raid bars looking for gay men and women and prosecute solely due to their sexual orientation and gender identity. This resulted in LGBT individuals either growing up, living in “survival mode, meaning they had to be careful with their actions for example fearing violence from either their close ones or the government authorities. Most South Africans have grown up in a heterosexist society, which meant that they grew up in a society where being heterosexual is the only normal and accepted sexual orientation. Considering the social stigma surrounding homosexuality, hate crimes, as we have seen, are a common sight in South Africa. Moreover, there is no separate crime register, which keeps record of hate crime statistics, which is why this study was led. The fact that there is no such record brings homosexual individuals a step back to being invisible, as it was during the apartheid. The study, highlighted the fact that amongst black South Africans homosexuality is perceived as “un-African” and the impact of the apartheid is still visible in the country following the apartheid since white South Africans are generally more highly educated and more economically stable than black South Africans. This is due to the fact that during the apartheid era there was racial discrimination and black South Africans were not offered the same opportunities as white South Africans during the apartheid.
2.4.2.4.The obligation to prevent torture and cruel, inhuman and degrading treatment of LGBT persons.
The backlash of the apartheid era brings us to the second obligation where South Africa is lacking upon which is the obligation to prevent torture and cruel, inhuman and degrading treatment of LGBT persons.
The way homosexuality is perceived differently can also be explained by the cultural gap between white South Africans and black South Africans. In addition to this, the study, led by Wells and Polders121, aims at highlight the number of targeted hate crimes and how many lesbian women and gay men experience difficulties when they seek justice. The study led observed the
121 Wells and Polders , 'Anti-Gay Hate Crimes in South Africa: Prevalence, Reporting Practices, and Experiences of the Police' [2006] 67(1) Agenda: Empowering Women for Gender Equity
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 places of risk for anti-gay crimes in a first instance and noticed that there were differences between black and white gay and lesbian groups regarding the venues where hate crime incidents occurred. For example black LGBT South Africans experienced more risk on public transport, as they are the ones who most frequently use it compared to white LGBT South Africans. Furthermore, the study also gathered information regarding the reporting of anti-gay hate crimes to the police. Like many LGBT individuals around the world, LGBT South Africans sometimes refuse to report anti-gay hate crimes as they fear disclosing their sexual orientation. The other reason for also not reporting is the fear of how the police would take their report, some of them fear it would be taken unsympathetically or that they would not take it seriously. 78% of black South Africans questioned for this study said the reason why they do not report hate crimes was due to the fact that they felt the report would not be taken seriously. The most alarming fact that the study disclosed was that 34% of the black South Africans and 16% of white South Africans participating said that they not report the incident since these incidents happens to them so often they are used to it. These numbers are believed to be explained by the fact that the taboo of being homosexual is so deeply rooted, LGBT individuals being attacked based on their sexual orientation almost find it “normal”. This could also be due to a lack of knowledge regarding their rights122. In addition, the study also discussed the experiences with the police and for most of the black South Africans the experience was negative compared to white South Africans. In 2002 a same- sex married coupled were interviewed by the guardian, where they discussed their experience as gay policemen. Initially they had problems of acceptance to the point that there were erratic confrontations123. Considering the violent nature of the police towards homosexual men and women during the apartheid, it is necessary to educate the public sector such as the South African Police Services when it comes to dealing with LGBT individuals who are seeking justice. Refraining from giving them adequate justice and providing them with reparative measures is a breach of their human rights under international human rights law and most importantly the Constitution of South Africa. Nevertheless, even if this study was published in 2006, this gives us a descriptive idea of the context the LGBT South Africans are living in along with the Born Free and Equal pamphlet we
122 Wells and Polders, 'Anti-Gay Hate Crimes in South Africa: Prevalence, Reporting Practices, and Experiences of the Police' [2006] 67(1) Agenda: Empowering Women for Gender Equity 123 https://www.theguardian.com/world/2002/oct/31/gayrights.features11
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 have been able to see that South Africa is not abiding to its obligations as a state when it comes to protecting its citizens. Most importantly this study also highlighted the obvious culture gap between white LGBT South Africans and black LGBT South Africans. This gap can be explained by the apartheid as well. During this era, black South Africans did not have the same opportunities as white South Africans, they were not exposed to different cultures the same way white South Africans were. White South Africans had better chances at a better education, which meant a better awareness of society and personal wellbeing for instance. There has always been a certain disproportionate exposure to the South African population of Whites in the LGBT community and this has been one of the main reasons why being homosexual in South Africa is seeing as being a white or western phenomenon124. In his research report Graziano interviewed members of the LGBT community in South Africa and found that one of the main reasons black homosexual South Africans suffer more than White homosexual South Africans was a lack of education and information125. One of the participants, Msesho a 22-year-old female stated that Blacks are often told that being gay or lesbian is bad and un-African. She further stated that individuals in townships lack adequate education regarding sexuality and therefore assume that being gay or lesbian is not a home-grown element of the Black community126. Additionally the other main reason was cultural beliefs. Every participant in the research said they visited a “sangoma” which is a traditional healer in Black South African culture. The reason they visited this “healer” was because they were sent by their families because they were suspected of being homosexual and believed that visiting this healer will rid their sons or daughters of “evil spirits”127. The participants also stated that Black gay men and lesbians in South Africa are repeatedly raped and physically and mentally assaulted for challenging the heterosexual status quo. Amongst the participants 4 female and 1 male were raped for being homosexual128. Black lesbians are more likely to be raped and abused for their sexual orientation status since being women makes them more vulnerable to anti-homosexual individuals, notably men who raped
124 Oppression and Resiliency in a Post-Apartheid South Africa: Unheard Voices of Black Gay Men and Lesbians – Graziano, Kevin J.. Nevada State College, Henderson, NV, US - Cultural Diversity and Ethnic Minority Psychology, Vol 10(3), Aug, 2004. Special Issue: Lesbian, Gay, and Bisexual Racial and Ethnic Minority Individuals: Empirical Explorations. pp. 302-316. 125 Ibid. 126 Ibid 127 Ibid. 128Ibid.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 them so as to “cure” them from being homosexual. These facts bring us to the final obligation which concerned discrimination based on sexual orientation and gender identity.
2.4.2.5.The obligation to protect LGBT people from discrimination
With specific regard to the last obligation which is explicitly about discrimination based on sexual orientation and gender identity, the constitution of South Africa does prohibit it although the born free and equal pamphlet’s data on the country brings us to believe that South Africa is also lacking stronger implementation in that area. As discussed previously during the transition period of the apartheid women’s rights were a controversial topic that had to be dealt with amongst others. In 2011, the United Nations Convention on the Elimination of All forms of discrimination against women addressed the situation of women in South Africa. Regarding the issue of sexual orientation, the committee recognised the fact that the constitution does prohibit discrimination based on sexual orientation, yet the committee expressed grave concern based on the number of reported sexual offences and murder committed against women on account of their sexual orientation. Most notably the issue of ‘’corrective’’ rapes129.
Ultimately, applying the Born Free and Equal pamphlet to South Africa, highlighted the gap between the practice and the law regarding the situation of LGBT rights in the country and specifically the issue of ‘’corrective’’ rape.
Conclusion
This second chapter has discussed the situation of LGBT rights through a vertical description of three legal frameworks: international, African and south African. What can be concluded is that LGBT rights can help the issue of ‘’corrective’’ rapes due to the fact that they are already enshrined in existing human rights instruments which are gathered in the Born Free and Equal Pamphlet. Through the application of the Pamphlet to the situation in South Africa it is clear that the South African government is struggling when it comes to its obligations as a state towards its
129 CEDAW/C/ZAF/CO/4 paras 39-40
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LGBT community. If LGBT rights were correctly enforced the government followed its obligations then it may be argued that issue of “corrective” rapes might not have happened. Thus setting the legal standards of LGBT rights on three different legal framework brings us to the conclusion that they are a weak set of rights when it comes to protecting lesbians from ‘’corrective’’ rapes. The problem is that there is no international legally binding standards when it comes to LGBT rights, ultimately it is difficult to avoid situation such as ‘’corrective’’ rapes. If the international organisations and the African Union develop sets of legally binding instruments explicitly for LGBT rights it could make South Africa face sanctions on the international and African level. Nevertheless the international standard setting of LGBT rights faces the obstacle of universality since African countries have a very tense relationship with LGBT rights mainly due to culture. The issue with South Africa is that even if they have pro-LGBT rights in place they are not being followed thus the cases of ‘’corrective’’ rapes are kept in the dark. Thus, due to the shortcomings of LGBT rights, the following chapter will discuss how women’s rights can help the situation of ‘’corrective’’ rapes.
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III. How can women’s rights help with the issue of ‘’corrective’’ rapes in South Africa?
Women and LGBT individuals are two groups in society who faced and are still facing many obstacles in the form of discrimination. Although the struggles of the women’s rights movement have proved that there is no limit on what an individual can do when given a real chance. Since the previous chapter established that LGBT rights might be significantly weak when it comes to dealing with the situation of ‘’corrective’’ rapes, this third chapter will attempt to find how can women’s rights help with the issue of ‘’corrective’’ rapes in South Africa by answering the following question: How can women’s rights help with the issue of ‘’corrective’’ rapes in South Africa? Thus following the same structure as the previous chapter, this third chapter will attempt to answer the question set, also through a vertical description and analysis of women’s rights in the three different legal framework.
3.1. Women’s rights in the international legal framework
Before describing the situation on the African continent, this section will first introduce women’s rights under international law and policy.
In 1979 the United Nations General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The Convention is often referred to as an international bill of rights for women. Composed of 30 articles it defines what constitutes discrimination against women and sets up provisions for national action to end such type of discrimination. Discrimination is defined under article 1 of the Convention and if a State accepts the convention it commits itself to certain measures aimed at ending discrimination against women in all forms. The main three measures concern the obligation of the State to incorporate the principle of equality of men and women in their legal system, abrogate all laws, which are discriminatory and reform ones which prohibit discrimination against women. For example, part of this measure is enshrined under article 14.2 concerning equality of men and women in rural
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 areas130. Secondly, the state must establish tribunal and other public institutions to ensure the effective protection of women against discrimination. This measure is consecrated under article 15 concerning Women’s equality with men before the law131. Finally the State must ensure the elimination of all acts of discrimination against women by persons, organizations or enterprises, this obligation is exemplified under article 16.1 concerning the elimination of discrimination in marriage132. In addition to these measures, states that have ratified or acceded to the Convention are legally bound to put the provisions into practice. They also commit themselves to submitting national reports (at least every four years) regarding the measures they have taken to comply with their treaty obligations. Moreover, another international text regarding women’s rights is the Vienna Declaration and Programme of Action, World Conference on Human Rights (1993). There are five articles explicitly referring to women’s rights. The first states that women’s right are human rights, which is article 18133; the second concerns women’s full participation in the development process, which is enshrined under article 36134. Article 40135 regards the enhanced information dissemination and procedures for enhancing women’s equality and safeguarding their human
130 CEDAW Article 14.2: States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women that they participate in and benefit from rural development. 131 CEDAW Article 15: 1. States Parties shall accord to women equality with men before the law. 132 CEDAW Article 16.1: 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. 133 Vienna Declaration Article 18: Gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated. This can be achieved by legal measures and through national action and international cooperation in such fields as economic and social development, education, safe maternity and health care, and social support. 134 Vienna Declaration Article 36: The World Conference on Human Rights reaffirms the important and constructive role played by national institutions for the promotion and protection of human rights, in particular in their advisory capacity to the competent authorities, their role in remedying human rights violations, in the dissemination of human rights information, and education in human rights. The World Conference on Human Rights encourages the establishment and strengthening of national institutions, having regard to the "Principles relating to the status of national institutions" and recognizing that it is the right of each State to choose the framework which is best suited to its particular needs at the national level. 135 Vienna Declaration Article 40: Treaty monitoring bodies should disseminate necessary information to enable women to make more effective use of existing implementation procedures in their pursuit of full and equal enjoyment of human rights and non-discrimination. New procedures should also be adopted to strengthen implementation of the commitment to women's equality and the human rights of women. The Commission on the Status of Women and the Committee on the Elimination of Discrimination against Women should quickly examine the possibility of introducing the right of petition through the preparation of an optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The World Conference on Human Rights welcomes the decision of the Commission on Human Rights to consider the appointment of a special rapporteur on violence against women at its fiftieth session.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 rights. Finally articles 41136 and 43137 concerns a woman’s right to accessible and adequate health care and increase women’s access to decision-making processes and posts, respectively. Finally, the International Covenant on Civil and Political Rights (1966) also provides provisions for women’s rights. Article 23138 concerns equal rights and responsibilities in marriage and article 26139 regards equality before the law irrespective of sex. Nevertheless, according to the United Nations’ website, out of all the existing human rights treaties, the CEDAW convention is the only human rights treaty which affirms the reproductive rights of women and is aimed at different cultures and traditions which have influential forces when it comes to shaping gender roles and family relations.
Consequently these are the three human rights treaty dealing specifically with women’s’ rights on the international legal scene. Amongst the three the CEDAW convention is the one that has the most power when it comes to protecting and respecting women’s’ rights. Through its special rapporteurs, the CEDAW manages to have an up to date report on the situations around the world where women are facing violence and are being discriminated against. For instance as we saw earlier in the previous chapter, following the report of the special rapporteur on violence against women, the committee expressed grave concern regarding the situation of ‘’corrective’’
136 Vienna Declaration Article 41: The World Conference on Human Rights recognizes the importance of the enjoyment by women of the highest standard of physical and mental health throughout their life span. In the context of the World Conference on Women and the Convention on the Elimination of All Forms of Discrimination against Women, as well as the Proclamation of Tehran of 1968, the World Conference on Human Rights reaffirms, on the basis of equality between women and men, a woman's right to accessible and adequate health care and the widest range of family planning services, as well as equal access to education at all levels. 137 Vienna Declaration Article 43: The World Conference on Human Rights urges Governments and regional and international organizations to facilitate the access of women to decision-making posts and their greater participation in the decision-making process. It encourages further steps within the United Nations Secretariat to appoint and promote women staff members in accordance with the Charter of the United Nations, and encourages other principal and subsidiary organs of the United Nations to guarantee the participation of women under conditions of equality. 138 ICCPR Article 23: 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. 139 ICCPR Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 rapes in South Africa140. With this international committee women around the world facing violence and discrimination are somewhat given a voice.
Thus women’s rights have a strong foundation in the international legal framework. With the CEDAW convention, as stated earlier, states parties have the obligation to sanction violations of rights of women. If the latter, which is established in legally binding international human rights instruments, is combined with the obligation of the state to protect LGBT individuals, specifically in this case lesbians, from homophobic violence, international human rights law may find a solution to sanction the act of ‘’corrective’’ rapes. Although this point will be discussed further in the following chapter.
Having now established the situation of women’s rights in international law, the following section will establish the situation of women’s’ rights in the African union.
3.2. Women’s rights in the African legal framework
Along with Asia, Africa did not escape the hands of the colonial empires. Even if most of the time critics tend to blame the problems of Africa on colonialism, it would be a mistake to say that is not the case when talking about gender issues on the African continent. During the colonial period there was a form of racial apartheid, which was governed by all the British colonies, where law separated Europeans, Asians, Arabs, “Coloured” and Africans. In addition to this racial discrimination, colonialism also brought economic exploitation. The major colonial empires, such as Portugal, France and England got rid of the local and territorial economies so as to focus the production of the colonies on materials that are needed by big European businesses. This was generally characterized by a neglect of the blacks when it came to providing them socio-economic infrastructures and services. It may be argued that they were seen as merely a step in the chain of production. Most importantly, this neglect had a deeper impact on black women due to their gender and color. White women also experienced the neglect although only due to their sex. Black women due to their color had a harder time. Furthermore historically
140 Concluding observations of the Committee on the Elimination of Discrimination against Women on South Africa (CEDAW/C/ZAF/CO/4), at paras. 39-40.
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African States have placed greater importance on the maintenance of cultural and traditional values over women’s and girls’ human rights and freedoms.
As a result when the African (Banjul) Charter on Human and Peoples’ rights was drafted it built upon the ideas, which were set out in the Charter of the Organization of African Unity (OAU). In the latter, the member states of the OAU acknowledged their responsibility of using the natural and human resources of the African continent for the global advancement of their peoples141. Ultimately the Banjul Charter aimed at expanding the ideas set out in the Charter of the OAU, under article 2142 it confers on every individual the right to the enjoyment of the rights and freedoms recognized and guaranteed in the Charter without distinction of any kind, such as race, ethnic group, color, sex, language, political or any other opinion. With specific regards to women’s rights, article 18(3)143 specifically prohibits any type of discrimination against women and imposes on the States parties the responsibility of ensuring the protection of the rights of the woman and the child as stipulated in international declarations and conventions. Nevertheless even if the OAU Charter and the Banjul charter had provisions stating that there must not be any discrimination against women, when they were drafted, there were still no steps taken to put in place a legally binding African instrument addressing the rights of women. Taking into account this absence, the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children undertook the necessary steps to draft a legal instrument on the elimination of harmful traditional practices affecting the fundamental rights of women and girls144.
Later on, in March 1995, the African Commission on Human and Peoples’ rights organized a conference in Togo to address the promotion and protection of women’s rights. Amongst the ideas that were brought up, the countries present at the deliberation decided that there is a need to have a Protocol on women’s rights in Africa which should be annexed to the Charter and that
141 ʿAbdal-Qawī Yūsuf, The African Union: legal and institutional framework : a manual on the Pan-African organization (Leiden : Martinus Nijhoff Publishers, 2012) 142 ACHPR article 2: Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. 143 ACHPR Article 18(3): The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. 144 Abdal-Qawī Yūsuf, The African Union: legal and institutional framework : a manual on the Pan-African organization (Leiden : Martinus Nijhoff Publishers, 2012)
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 there is a need for the Commission and States Parties to take measures for the protection of women’s rights.
As a result the Protocol on women’s rights145 sets out the rights of African women in an African context to be able to deal with their issues as accurately as possible. The definition of discrimination in the Protocol is consistent with Article 1146 of Part 1 of the CEDAW. Taking this into account, the fact that the Protocol has a very similar definition of discrimination to an international legal instrument, could facilitate the implementation of the international provisions aimed at protecting women. Additionally, the Protocol was made specifically for African women with specific regards to their issues in the different African societies. Consequently with the Protocol, African women can authoritatively demand the elimination of laws, practices, conducts, actions, attitudes that are aimed at discriminating against them directly or indirectly147.
Moreover, when the Protocol was drafted it took into account the specific areas in which African women have been denied their rights. By addressing the issues in those specific areas the Protocol’s provisions were aimed at redressing the situation. For the purpose of this thesis, this section will focus on the area of security. Article 4148 of the Protocol concerns the area of security, which it deals with in the form of three layers. First it reaffirms the right to life as a fundamental human right of every woman. Second, the security and integrity of the person of every woman is a human right. The inviolability of the woman’s life precludes any form of violence, exploitation, and cruel and inhuman or degrading punishment. It requires that every woman have access to basic necessities. Third the security of every woman invokes State responsibility so as to intervene and guarantee protection of
145 PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA - Adopted by the 2nd Ordinary Session of the Assembly of the Union - Maputo, 11 July 2003 146 CEDAW Article 1: For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. 147 Abdal-Qawī Yūsuf, The African Union: legal and institutional framework: a manual on the Pan-African organization (Leiden : Martinus Nijhoff Publishers, 2012) 148 PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA Article 4: 1. Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 women’s rights. Ultimately article 4 establishes for every woman the right to respect for life, integrity and security of person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment are prohibited. States Parties have an obligation to act to end impunity, punish perpetrators of violence against women and implement programs for the rehabilitation of women victims. Additionally, since the Protocol is concerned here by security of women, it gives a broad definition of the word violence, so as to eliminate all forms of violence in the public and private sphere. The aim of extending the definition is due to the fact that respect for privacy does not exclude the State from having responsibility and from taking the necessary action to protect from violence. Nevertheless even if the provisions available under the protocol are extensive and are made specifically for women in Africa, there is no mention of any discrimination based on their sexual orientation or gender identity. The closest provision to covering this type of right is article 3149 of the Protocol, which recognizes the right to dignity inherent in a human being and the right to respect as a person and to the free development of her personality. Although even if there is no specific regard to the rights of no discrimination based on sexual orientation, the rights put in place by the Protocol are enough to guarantee protection of lesbian women from any type of violence.
Ultimately, like any legally binding instrument of human rights, the States that adopt the protocol have obligations to follow. The Protocol obliges them to do so. Amongst such obligations, the States must legislate, train, inform and raise awareness so as to protect the right of women. Article 2150 is the main provision, which establishes States’ two obligations. The first one concerns the need to combat all forms of discrimination against women and second to modify the social and cultural patterns of conduct of women and men, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or stereotyped roles for women and men. Under the first paragraph the protocol provides for a list of actions that states
149 Protocol to the African Charter on human and people’s rights on the rights of women in Africa Article 3: 4. States Parties shall adopt and implement appropriate measures to ensure the protection of every woman’s right to respect for her dignity and protection of women from all forms of violence, particularly sexual and verbal violence. 150 Protocol to the African Charter on human and people’s rights on the rights of women in Africa Article 2: 1. States Parties shall combat all forms of discrimination against women through appropriate legislative, institutional and other measures.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 parties must undertake so as to meet those obligations. Most importantly, the obligations were established so as to be consistent with State responsibility under human rights and humanitarian law and act as benchmarks that the Commission will use when reviewing States Parties’ periodic reports. Regarding the implementation of the Protocol, article 26151 calls on states parties to ensure implementation of the provisions at the national level. Finally, article 27152 can be engaged when matters of interpretation are concerned when it comes to the application or implementation of the Protocol. Consequently, to achieve the discussion on women’s rights in Africa, it is necessary to state that the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of women in Africa, is the first time the issues of African women were addressed in one comprehensive human rights instrument. The Protocol has managed at its best to demonstrate the complex relationship between the African traditions and culture and human rights. Up to now 36 African states have signed and ratified the protocol153, which is 9 more countries since 2010. Considering this higher level of countries who have ratified the Protocol, it could be debated that the protocol is the Bill of Rights for African women, such as the CEDAW is considering the international bill of rights for women.
The Protocol regarding women’s rights in Africa, is a strong human rights instrument which must be effectively implemented in every single African country, the problem stems mainly from the continent’s colonial past and gap between culture and the law. Nevertheless compared to the situation of LGBT rights in the African Union, which are non-existent, women’s rights are explicitly established and ratified by most African countries. Thus since women’s rights are legally binding on the African level and the protocol was ratified by South Africa women’s rights may have a better approach when it comes to correcting ‘’corrective’’ rapes.
151 Protocol to the African Charter on human and people’s rights on the rights of women in Africa Article 26: 1. States Parties shall ensure the implementation of this Protocol at national level, and in their periodic reports submitted in accordance with Article 62 of the African Charter, indicate the legislative and other measures undertaken for the full realization of the rights herein recognized. 2. States Parties undertake to adopt all necessary measures and in particular shall provide budgetary and other resources for the full and effective implementation of the rights herein recognized. 152 Protocol to the African Charter on human and people’s rights on the rights of women in Africa Article 27: The African Court on Human and Peoples' Rights shall be seized with matters of interpretation arising from the application or implementation of this Protocol. 153 African Commission on Human and Peoples' Rights website available at http://www.achpr.org/instruments/women-protocol/ratification/? s=state
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Having now established the legal status of women internationally and on the African level, the following part of this chapter will deal with the situation of women’s rights in South Africa.
3.3.Women’s rights in South Africa
When discussing women’s rights in South Africa, it is necessary, to take into account the international legal instruments implemented by the South African government. The first one, CEDAW was signed by South Africa on the 29th January 1993 and ratified it without reservation on the 15th December 1995. The second one relevant to women’s rights is the ICCPR which South Africa ratified in 1998. Both instruments, once ratified have obligations that states must follow and are legally obliged to follow otherwise consequences follow. Additionally, South Africa is also part of the African Commission on Human and Peoples’ Rights and has ratified all the legally binding instruments including the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. The South African Constitution also provides under article 9(1)154 for equal access to justice, therefore South African women are guaranteed equal protection before the law. As a result legally speaking women’s right in South Africa are protected and guaranteed. Nevertheless, gender-based violence in the country has been an on-going issue. According to the regional book produced by the Women in Development Southern Africa Awareness (WIDSAA) programme of the Southern African Research and Documentation Centre (SARDC)155, studied gender-based violence in the specific context of Southern African countries so as to explore the cultural and socially constructed forms and perceptions of violence that occur in the region. For the purpose of this thesis it is necessary to point out that in this specific region of Africa, rape is the most recognised form of sexual violence156. The fact that sexual violence is common in southern Africa it is necessary to try and understand the reason why it happens. According to the authors of the book, there are some people who say that “culturally” a woman never expresses desires for sex, she always says “no”. There is a certain contradiction as when thinking about
154 Constitution of South Africa Article (9)1: ‘everyone is equal before the law and has the right to equal protection and benefit of the law’. 155 Bookie. M Kethusegile and others, Women in Southern Africa (Harare [etc]: Southern African Research and Documentation Centre (SARDC) [etc], cop 2000) 156 Ibid. page 156
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 who has control over sexuality between the man and the woman. Men are supposed to be in control of decisions in general and about sex in particular, which ultimately gives them “power” over sexuality and women’s sexuality as well. This is due to the cultural belief that the men are more powerful and in charge and this automatically means that they can do whatever they want with the women even if they don’t agree. With sexual violence also comes the issue of silence. Silence is a way of making young girls ignorant about sexual choices they can make. “Culturally” it is said to be inappropriate for children to discuss sex with their parents. Children are expected to be taught about sex by the aunts, uncles or other relatives157. This information, explains a statement made by a 22-year lesbian South African woman in the study, which was discussed, in the second chapter. Her cousin raped her and her mother did not react, as it was normal and she was hoping at the same time her daughter would not be a lesbian anymore, through intercourse with her male cousin158. Moreover, the danger of silence is that a girl may use it to hide sexual violence. Most of the time they don’t speak out because of the impact it would have on their family their society. For lesbian women being raped by a man and saying she didn’t like it would lead to her most probably establishing her sexual orientation. When the women in this region are the victims of sexual violence, they face many obstacles when they want to get help. First of all, if they are coming from rural areas they will have difficulties accessing hospitals, police and courts, which are vital so to gain reparation and justice. Second of all, being raped often brings a sense of embarrassment. Finally, they feel helpless women who are abused and who live with their families for instance and require their economic support, cannot do anything because if they do they might get disowned. Ultimately, observing the situation of solely women in South Africa, it is necessary to establish that the situation is dire and this could be due to the fact the available and the government is not implementing ratified legal human right instruments. Nevertheless, women can seek remedy with the CEDAW and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Which means that lesbian women can seek the same remedies than the heterosexual
157 Bookie. M Kethusegile and others, Women in Southern Africa (Harare [etc]: Southern African Research and Documentation Centre (SARDC) [etc], cop 2000). Page 161 158 Oppression and Resiliency in a Post-Apartheid South Africa: Unheard Voices of Black Gay Men and Lesbians – Graziano, Kevin J. Nevada State College, Henderson, NV, US - Cultural Diversity and Ethnic Minority Psychology, Vol 10(3), Aug, 2004. Special Issue: Lesbian, Gay, and Bisexual Racial and Ethnic Minority Individuals: Empirical Explorations. pp. 302-316.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 women, although their situation is rather different as we have seen throughout this thesis, being a lesbian women in Africa, and specifically in this case South Africa, is not easy.
Thus, South Africa legally speaking has established all possible legally binding instruments aimed at protecting women against discrimination and violence. Nevertheless as established in this chapter even if all possible laws are present, the most important step comes with implementation. If the laws are not implemented correctly they cannot achieve their goals.
Conclusion
Women’s rights have already a strong international legal foundation in which women around the world can seek remedies for wrongs caused to them, such as rape or domestic violence. Because ‘’corrective’’ rapes affect women mostly in South Africa, it could be necessary to apply the system of protection of women’s rights to women who are victim of ‘’corrective’’ rapes. This would be possible through further government implementation of women’s rights, which are established by the international legal organisations and the African union. Moreover to facilitate the implementation, it is necessary for the government to inform the women in the country about the legal instruments available to them. The issue in South Africa is that ‘’corrective’’ rapes happen more in rural areas, where most of the time the women do not know their rights or they are scared to speak up due to the repercussion it may have on them. The government has an obligation under CEDAW, the ICCPR and the Protocol established by the African Union, to protect the lesbian women vulnerable of ‘‘corrective’’ rapes. If the cases which were brought to court were handled better then it may be possible to see a rise in the number of women coming forward after being raped for being a lesbian. Moreover the CEDAW convention stated in its concluding observations in 2011 that the situation in South Africa is highly alarming because of this specific issue of ‘’corrective’’ rapes159, it should engage the country’s responsibility as a state to protect lesbian women.
159 39. The Committee notes that the State party has in its Constitution the prohibition of discrimination based on the sexual orientation of individuals. However, the Committee expresses grave concern about reported sexual offences and murder committed against women on account of their sexual orientation. The Committee further expresses serious concern about the practice of so called “corrective rape” of lesbians. - CEDAW/C/ZAF/CO/4
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Additionally, with the introduction of the Protocol, a Special rapporteur on the Rights of women in Africa was put in place so as to monitor the situation of women in South Africa. The mandate of the special rapporteur includes the need to follow up on the implementation of the African Charter on Human and Peoples’ Rights and its Protocol relative to the Rights of Women in Africa by State Parties, notably by preparing reports on the situation of women rights in Africa and propose recommendations to be adopted by the Commission.
Therefore in order to engage the responsibility, it is necessary for the government of South Africa to further implement the laws already established and ratified by the State and have a stronger monitoring process. The fact is that South Africa has on paper all the legal instruments that can protect women but the problem, which is causing this situation of violence, is due to non-education and not providing information to its people on the situation and the possible sanctions that may arise from raping lesbian women due to their sexual orientation. Finally even if South Africa has established pro-LGBT rights it still has not elaborated a law regarding the crime of ‘’corrective’’ rapes. This is why women’s rights should be used with this issue so as to provide more protection to lesbian South African women and strengthen LGBT rights.
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IV. How can a combination of LGBT rights and women’s rights may help solve the issue of ‘’corrective’’ rapes?
LGBT individuals and women are the two groups in societies who have and still are facing the battle of equality and non-discrimination. The issue of ‘’corrective’’ rape combines these both groups as they concern lesbian women mostly. This chapter will attempt to combine LGBT rights and women’s rights through a horizontal comparison. Thus in a first part both sets of rights will be combined framework so as to find recommendations for the situation of ‘’corrective’’ rape at the international level. Followed by a second part where the same combination will be applied to the African legal framework and finally a third part, using the same structure, applied to South Africa. These combinations will be composed of particular characteristics from both sets of rights so as to strengthen and complete each other and find possible solutions to the problem.
4.1.Combining LGBT rights and women’s rights in the international legal framework.
On the international level, LGBT rights have been established under pre-existing legally binding human rights instruments by the OHCHR in the Born Free and Equal pamphlet which was discussed throughout the thesis. Although this pamphlet is not legally binding and more of a reminder of the obligations states have decided to abide to, notably the ICCPR and the ICESCR. Nevertheless, the substantial problem with LGBT rights is that they are not explicitly established in law. Thus even if the pamphlet sets LGBT rights in international human rights instruments, LGBT rights are still not explicitly established in international human rights law. On the other hand, as seen in the previous chapter, women’s rights in the international legal framework are enshrined in the CEDAW convention which is legally binding for all states who are part of the convention. This convention brings along the supervisory body responsible for monitoring the situation of violence and discrimination against women. Ultimately what may be argued as a recommendation here is that the CEDAW convention develops a definition on ‘’corrective’’ rapes so as to first establish the problem. Once defined, the Committee can work on the establishment of an optional protocol which may be ratified by States who wish to protect the women in their country from being raped due to their sexual orientation. Equality for women is
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 based on non-discrimination, thus why shouldn’t her sexual orientation benefit from the same specific protection her status as a women does? The CEDAW Convention only protects women from discrimination based on their gender, what would help the situation of lesbian and transgender women is that there is a clause stating that their sexual orientation and gender identity should not be taken into account when it comes to benefiting and using the rights enshrined in the Convention. ‘’Corrective’’ rape has been brought to light in South Africa because of the high number of such types of rapes, what we don’t know is that many more women around the world are facing the same fate as South African lesbian women. For instance in India lesbian women also are being ‘’correctively’ ’raped because of their sexual orientation. According to statistics with the Crisis intervention team of LGBT collective in Telangana, there have been 15 instances of ‘corrective’ rapes that have been reported over the last five years160. Just like most cases lesbian women who get raped never come forward due to the fear or what type of consequences it would bring along. The problem in India is also due to lack of information and awareness that being ‘correctively’ is not normal. Therefore the issue of ‘’corrective’’ rape goes beyond South Africa and African countries, it goes until India in this particular instance. If the international organisations does not address this issue, lesbian women who have been raped for being homosexual will in a first instance never get justice, secondly they will never speak up if they are not given a voice and thirdly the biggest step would be to publish a pamphlet such as the Born Free and Equal pamphlet which defines the rights of LGBT people but also reminds the obligations of states. With this combination of these two sets of rights, women’s rights will offer more protection to LGBT rights and the latter will give more strength and protection to its lesbian community. Women’s rights strength is that they are already established and if they are applied to ‘’corrective’’ rapes, women who are victims may be able to seek justice.
Nevertheless, developing an international law is not enough, the crucial step comes to implementation of the law, which brings us to the following section where this chapter will discuss a possibility to combine both sets of rights in the African legal framework.
160 Rupaim Jaini ‘Parents use ‘corrective rape’ to ‘straight’en their gay kids’ (31 May 2015)
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4.2.Combining LGBT rights and women’s rights in the African legal framework.
As discussed in the second chapter of this thesis, LGBT rights are rather inexistent in the African legal framework, therefore this is where women’s rights will have a stronger impact on potentially solving the problem of ‘’corrective’’ rapes. The solution is: implementation. Although the problem with implementation is the gap between the law and the culture and the different communities in the multiple African countries. Most African countries have ratified the Protocol for the protection of women’s rights in Africa which bring along a set of legally binding obligations. The same recommendation may be given here as the international legal framework which is defining the issue of ‘’corrective’’ rape, establishing a definition legally gives the problem more exposure. Alternatively, the Protocol on women’s rights in Africa may also include a clause regarding ‘’corrective’’ rape as it would offer more protection to lesbian women. The only way to address the issue is to change the laws of the countries individually and educate the societies that hatred against lesbian women due to their sexual orientation goes against the ACHPR. The reason why the latter goes against the ACHPR is due to the fact that the hatred against lesbian women is practiced in the form of physical violence and often leads to their death, thus violating their right to life in this case. Moreover with crimes against lesbian women going on the rise the states’ obligations to protect its people will be under scrutiny. The problem is that there is no strict sanctioning, since countries protect each other most of the time when it comes to reporting and reviewing each other. Thus as the governing supervisory body for human rights in Africa, the ACHPR must exercise a stronger hold on this situation of violence against lesbian women.
Nevertheless the number of ‘’corrective’’ rapes are very high in South Africa and haven’t stopped rising, it is necessary in this case to go to the root of the problem and discuss the combination of LGBT rights and women’s rights in the South African legal framework.
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4.3.Combining LGBT rights and women’s rights in the South African legal framework.
South African laws can be argued as being the best laws for the protection for LGBT people along with women’s rights. Both sets of rights are ratified and protected by South African laws extensively, the problem is about implementation. Thus, in this instance both sets of rights are strong and legally binding in the country, this is why this part of the chapter will propose two solutions to solving ‘’corrective’’ rapes which would affect pro-LGBT laws and laws for women’s rights directly. In a first instance, this part will discuss how to apply the South African Constitution to the specific issue of ‘’corrective’’ rapes followed by how defining these types of rapes as hate crime may help solve the problem.
4.3.1. Application of the South African Constitution to ‘’corrective’’ rapes
When the Carmichele case was brought to the South African Constitutional Court, the latter found that the country’s common law was in need of reform so as to be in harmony with the core constitutional values of dignity, equality and freedom which are set out in the Bill of Rights. To do so the court made reference to the country’s international legal obligations, which instruct the lower courts to develop the government’s duty to protect women161. The Constitutional Court’s approach in this case engaged South Africa’s international responsibility and ultimately proposes a foundation to obligation the government to prevent ‘‘corrective’’ rape. In his note on Correcting Corrective Rapes, legal scholar Lorenzo Di Silvio addresses the constitutional implications of ‘‘corrective’’ rapes and addresses a specific way as to how the 1996 Constitution can extend to private acts of violence and the government’s failure to prevent them. The first part of this chapter will focus on the argument of the horizontal application of the South African Constitution, which the author argues in favour of so as to tackle the problem of ‘‘corrective’’ rapes. When fundamental rights are applied directly to the conduct of private parties, it is called horizontal application. Legal theorist such as Currie and De Waal noted that the South African Bill of Rights sometimes directly protects individuals against abuses of their right by other
161 Lorenzo Di Silvio, 'Correcting Corrective Rape: Carmichele and Developing South Africa's Affirmative Obligations To Prevent Violence Against Women ' [2011] 99(1469) The Georgetown Law Journal.
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 individuals by providing for the direct horizontal application of the Bill of Rights162. Although there are two ways of applying the constitution horizontally: directly or indirectly. Direct horizontal application involves “the regulation of private relations being automatically subjected to the provisions of the Bill of Rights and can never result in the infringement or limitation of any fundamental right protected in such an instrument”, as argued by legal theorist Currie and De Waal163. On the other hand indirect horizontal application was defined by Sprigman and Osborne as the situation in which “the rights in the Bill of Rights are justiciable only in disputes in which an action of the state or a statute or executive act relied upon by a private party, is attacked as unconstitutional”164. Although to be able to have this horizontal application of the Constitution, the common law must be reformed, as it is the one that shapes the government’s duty regarding private parties. The author argues further on the fact that indirect horizontal application places the burden on the government to prevent ‘‘corrective’’ rapes, which might necessarily involve a demand that the government engages the exercise of certain rights in order to protect women from violence. Ultimately, agreeing with the author Lorenzo Di Silvio, South Africa needs to monitor the compliance of constitutional protections and develop the common law notion of negligence, hence why Carmichele may be considered as the stepping-stone to finding a solution to punishing ‘’corrective’’ rapes. Therefore, the indirect horizontal application of the constitution will engage the government’s duty to act in favour of the protection of South African women when faced with gross human rights violations165 such as ‘’corrective’’ rapes. Although the application of the constitution and the need to reform South African common law may seem to be the most important part to put an end to these gross human rights violations; the biggest obstacle is educating the public166. The government needs to educate the public on how anti-gay behaviour is not tolerated under the South African government, who in 1996 published, most probably, the most progressive constitution in history.
162 See Currie and De Waal, The Bill of Rights handbook (2013), supra note 164 para. 3.3(b)(i) at 43 - Lorenzo Di Silvio, 'Correcting Corrective Rape: Carmichele and Developing South Africa's Affirmative Obligations To Prevent Violence Against Women ' [2011] 99(1469) The Georgetown Law Journal. 163 See Currie and De Waal, The Bill of Rights handbook (2013) supra note 164 para. 3.1 164 Sprigman and Osborne , 'Du Plessis is not dead: South Africa's 1996 Constitution and the application of the bill of rights to private disputes' [1999] 15(1) South African journal on human rights supra note 166, at 26 n.3. 165 Rebecca J. Cook, State Responsibility for Violations of Women’s Human Rights, 7 Harv. Hum. Rts. J. 125, 137, 151 (1994). 166 Lorenzo Di Silvio, 'Correcting Corrective Rape: Carmichele and Developing South Africa's Affirmative Obligations To Prevent Violence Against Women ' [2011] 99(1469) The Georgetown Law Journal.
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Thus, as demonstrated through this first section, following suggestions regarding the application of the constitution along with reforming the common law of negligence and the availability of international legal instruments South Africa is able to “correct” corrective rape legally. This specific application of the Constitution will involve both LGBT rights and women’s rights directly as the Constitution provides for both sets of rights to be respected and protected.
The following section discusses how a way of providing justice to lesbian victims of ‘’corrective’’ rape would be to qualify it as a hate crime.
4.3.2. Qualifying “corrective’’ rape as a hate crime.
Currently, ‘’corrective’’ rapes are not classified under a separate crime category, which makes it difficult to keep track of these types rapes, that lesbian women are being victim of in South Africa. Ultimately these cases will be classified as rape, when even though it is a rape engages the notion of hate, as a “corrective” rape is fuelled by hate for lesbians. The fact that ‘’corrective’’ rapes are not being taken care of more accurately by the law explains why many women refrain from reporting their attacks since they fear of not being taken seriously. So as to classify ‘‘corrective’’ rapes in a different category from other types of sexual violence crimes, it is necessary to establish a definition and the mens rea. When a rape is occurred the actus reus is the act of penetration as defined by the Sexual Offences Act which provides a definition for rape: “a person who unlawfully and intentionally commits an act of sexual penetration on another person without consent is guilty of the offence of rape”167. The mens rea constitutes the fact that the perpetrator knows that the victim does not consent to the act but still forces themselves upon the victim. When a ‘‘corrective’’ rape occurs, the actus reus is also the same although to the mens rea it is necessary to add the notion of hate and homophobia. The men raping women to “cure” them know what they are doing; they are attempt to prove to the woman against her consent that she is heterosexual rather than homosexual. Considering the amount of women being raped in South Africa due to their sexual orientation, the country’s constitution must take it into account and produce a specific definition of ‘’corrective’’ rape,
167 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (available at: https://www.saps.gov.za/resource_centre/acts/downloads/sexual_offences/sexual_offences_act32_2007_eng.pdf)
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 which is punishable under the constitution. Legal scholars Lea Mwambene and Maudri Wheal argue in their article how a “corrective” rape should be considered a hate crime168. If it were to be considered a hate crime and not merely as a crime of rape then it would be easier to successfully prosecute perpetrators of this offence. A hate crime is an act, which is considered a criminal offence and is motivated in whole or part by prejudice or hate169. If ‘’corrective’’ rapes remain classified as rape only then the criminal justice system of South Africa would be ignoring the prejudice involved in the act of the crime. Nevertheless, South Africa in the meantime is not being able to handle the cases efficiently with the aim to find a solution or reparation for the victims. The cases that have been brought to court were handled in a way where there was misrecognition of the conflict between the right to culture of the perpetrators and the right to equality of the victims. For example, in the Eudy Similane judgment, the court when considering reason and motive for her murder ruled out her sexual orientation as being relevant170. According to Mbaru, a co-ordinator of IGLHRC’s Africa Programme, the level of homophobia in the courtroom was distinguishable when Mogothleng J objected to the use of the word ‘lesbian’ in his court171. As a result if the motive for her killing had been established the case could have been ground breaking in the battle against ‘‘corrective’’ rape. The Zoliswa case introduced the use of evidence, which was related to hatred and prejudice so as to produce a harsher sentence for the accused. Even though the case was about murder and not rape, the mens rea was that the perpetrators were acting upon their hate for homosexuals. If the Eudy judgment used the words lesbians and considered hatred and prejudice when considering the evidence then the case would have had a different outcome and future perpetrators would be sent a clear messaged that crimes based on hate and prejudice will not be excused. The Eudy judgment was a missed opportunity to find a solution to conflict between the right to culture and the right to equality in the context of ‘‘corrective’’ rape. This idea that the South African justice system failed in resolving this conflict was shared by the period review of the HRC where the CEDAW Committee expressed concern relating to harmful cultural practices and
168 Lea Mwambene and Maudri Wheal, 'Realisation or oversight of a constitutional mandate? Corrective rape of black African lesbians in South Africa ' [2015] 15(1a3) African Human Rights Law Journal 169 ‘Hate crimes in South Africa’ background paper for the Hate Crimes Working Group 1. 170 D Smith “Life for man in rape and killing of lesbian South African footballer”(2009) (available at: http://www.guardian.co.uk/world/2009/sep/22/eudy-simelane-gangrape-and-murder) 171 S Tobias “Scant justice in South African murder case; Courts must value lesbian lives!” (2009) (Available at: http://www.iglhrc.org/cgi-bin/iowa/article/pressroom/pressrelease/976.html)
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Master’s Thesis International and European Law – Human Rights Law – 2016-2017 stereotypes, which discriminate against women172. For instance, CEDAW noted the prohibition, in the Constitution, of discrimination based on the sexual orientation of individuals. However it expressed concern about reported murder and sexual offences committed against women on account their sexual orientation. It urged effective protection from violence and discrimination against women based on their sexual orientation, continued sensitization campaign and training for law enforcement officials and other relevant actors173. In addition the authors argue how the clash between culture and equality regards that the perpetrators may have their opinion based on their culture where possibly being homosexual is seen as un-pious but it was noted in the Zoliswa judgment that although everyone is entitled to their opinion, one may not acted based on such opinion in a brutal manner professing your intolerance of the opinion of another174. Ultimately South Africa is failing its victims of ‘‘corrective’’ rapes. Although if it starts by giving a specific definition to the notion of “corrective” rape then the number of these types of rapes might be known and the problem may addressed by the justice system more efficiently. Most importantly, through the Zoliswa case and particularly the Eudy case, the South African justice system missed the possibility to resolve the conflict between the right to culture and the right to equality. The Eudy case’s judge was not in line with the effect of prejudice, which evidently motivated the murder, and rape of the victim, which led to the court ignoring her sexual orientation when establishing the judgment. As a result, a recommendation for the state of South Africa would be to consider ‘’corrective’’ rape as a separate crime from rape. In this instance, giving “corrective” rape a definition under South African Criminal law and in the Constitution will notably engage both LGBT rights and Women’s rights and re-enforce both sets, as this new definition would considerably change the status of protection of lesbian women.
172 Human Rights Council, Working Group on the Universal Periodic Review. 13th session, Geneva, Switzerland, 21 May-4 June 2012. Compilation prepared by the Office of the High Commission for Human Rights in accordance with para 5 of the annex to Human Rights Council Resolution 1 6/21, South Africa, UN Doc A/HRC/ WG.6/1 3/ZAF/2 (23 March 2012) para 1 7. 173Ibid. para 20 174 Zoliswa case (n166 above) 692.
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Conclusion:
This chapter has attempted to combine both sets of rights on three different levels legally. The aim was to find recommendations for all three legal frameworks. Thus on the international level and the African level the recommendation was to develop an explicit legal definition of ‘‘corrective’’ rape. The most important part regarded the country where ‘’corrective’’ rape victims are not getting any justice: South Africa. The combination of the rights is discussed through a specific application of the Constitution to the issue as this application engages both sets of rights. The second recommendation which regards defining ‘’corrective’’ rape as a hate crime under South African, not only engages both sets of rights but strengthens them and ultimately both recommendations would give further protection to lesbian women.
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CONCLUSION
In the words of Ban Ki Moon, ex-UN secretary General, ‘’Violence against women and girls continues unabated in every continent, country and culture. It takes a devastating toll on women’s lives, on their families and on society as a whole. Most societies prohibit such violence – yet the reality is that too, it is covered up or tactically condoned’175’. The issue of ‘’corrective’’ rape only started to get more exposure up to recently due to the rising numbers of lesbian and transgender women being raped based on their sexual orientation. Most of the time, as seen176 in this thesis the problem of violence against LGBT individuals is more prominent in African countries. Nelson Mandela’s biggest and most important legacy for LGBT individuals can be found in the South African Constitution. As discussed in this thesis, the South African Constitution is one of the only countries in the world that explicitly prohibits discrimination on the basis of sexual orientation. Nevertheless, as proven in this thesis, for LGBT people to enjoy their rights it is necessary that they are promoted, protected and fulfilled by state. Following research made on the situation on the South African LGBT community, it was established that ‘’corrective’’ rapes are on the rise although since they are being classified as solely rapes it is difficult to establish the exact number of victims. Since ‘’corrective’’ rapes affect lesbian women mostly, the research question of this thesis focused on LGBT rights and women’s rights and attempted to combine both sets so as to find a solution that might the situation of lesbian women, not only in South Africa but also internationally. Thus is it may be argued that a combination of both sets of rights may help the issue of ‘’corrective’’ rapes although it this combination must be first established internationally so that governments around the world can then adapt themselves, since international laws are only effective if there is government implementation.
Ultimately through the first chapter the thesis, introduced the situation of ‘’corrective’’ rapes in South Africa, through a case study of the situation of lesbian women in the country. This was made possible with the use of testimonies gathered by different NGO’s reports and news articles.
175 Hate crimes: The rise of ‘’corrective’’ rape in South Africa – a report by Action Aid UK – September 2009 (available at: https://www.actionaid.org.uk/sites/default/files/publications/hate_crimes_the_rise_of_corrective_rape_in_south_afri ca_september_2009.pdf) 176 Ibid.
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Once the problem was established and introduced to the reader, the thesis then attempted to see how LGBT rights may help to solve the issue of ‘’corrective’’ rapes in a second chapter. Through a vertical description of three legal frameworks, LGBT rights may help the issue of ‘’corrective’’ rape to a certain extent by engaging the responsibility of the state with the rights stated under the Born Free and Equal Pamphlet, on the international level. On the African level, this is situation is slightly more difficult, because of the different cultures in African countries and religions, most of them do not believe in homosexuality and reject LGBT individuals. The only solution is education and informing the people that being homosexual is not a reason to be discriminated and be the victim of violence. On the South African level, the thesis established that the country has a very progressive law system when it comes to LGBT individuals. Although applying the Born and Free and Equal pamphlet to the South African government settled the fact that there is a real problem when it comes to implementation because the government was not following its obligations. The issue with LGBT rights is that they cannot really help solve the situation of ‘’corrective’’ rape unless the laws protecting the rights of LGBT individuals are effectively and explicitly implemented by the States.
Thus, establishing that LGBT rights are rather weak when it comes to solving the issue, the thesis attempted to answer the question of how can women’s rights help solve the issue of ‘’corrective’’ rapes. Through a vertical description of the same legal framework as the second chapter the third chapter established how much stronger women’s rights can be if they are applied to the ‘’corrective’’ rapes. On the international level, this third chapter established the strong position of women’s rights with the CEDAW convention, considered as the international bill of rights for women. On the African level, with the Protocol on Women’s rights in Africa, women’s rights are a much stronger set of rights when it comes to possibly solving the problem of the ‘’corrective’’ rape. Finally on the South African level, Women’s rights are as strong as LGBT rights and again similar to LGBT rights the problem comes with implementation. Ultimately, women’s rights has a stronger legal body and supervisory body in the three legal framework when it comes to correcting ‘’corrective’’ rapes.
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In the fourth and final chapter of thesis, a horizontal approach was taken so as to find recommendations on all three levels. Using this way, the recommendation on the international front brought along the need to first defined the issue of ‘’corrective’’ rape and to change the wording in the CEDAW convention so as to explicitly say that a women should also not be discriminated based on her sexual orientation. The need to do so is not only due to South Africa, many countries around the world are facing the same problem but are not being able to deal with the issue. Most importantly women victim of this type of crime most of the time do not know their right and feel that their justice system is failing them as human beings. Additionally, on the African level, the same recommendation was proposed although, it is highly important in this case to take into account how homosexuality is perceived in most African countries, thus implementation by the governments plays a big role and education of their citizens. Finally, the recommendations on South Africa, established again that the country has a dignified set of laws when it comes to LGBT people and women. Although, South Africa is not being able to keep up with its country’s liberal constitution. There is a problem with the education of human rights in the public bodies which are concerned by justice, such as the courts and the police177. Ultimately the first recommendation concerned a different application of the Constitution to the specific issue of “corrective” rape. The aim of this recommendation is that South Africa monitors the compliance of the protections established in its constitution so as to protect women from violence, and in this particular case, lesbian women. Finally the second recommendation regards classifying a “corrective” rape under a hate crime so as to take into account the prejudice that constitutes the mens rea of this specific act of rape. The aim of this recommendation is to be able to monitor the number of “corrective” rapes better and ultimately give more exposure to this urgent situation. Subsequently the first most important step when it comes to solving the problem of ‘’corrective’’ rape is to legally define it and establish it in an international legally binding document, which can then be ratified by the countries. With specific regards to South Africa in this case, the government solely needs to follow its Constitution, it needs to give an extensive and obligatory human rights education to members of the justice system. Thus if the latter go against the constitution they must be sanctioned.
177 Lydia Smith, ‘Corrective rape: the homophobic fallout of post-apartheid South Africa’ (21 May 2015) < http://www.telegraph.co.uk/women/womens-life/11608361/Corrective-rape-The-homophobic-fallout-of-post- apartheid-South-Africa.html> accessed 1st April 2017
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Consequently, the thesis was aimed at giving more exposure to the specific issue of ‘’corrective’’ rape and finding solutions to correct ‘’corrective’’ rapes. There is still a long way to go for the victims of these rapes and finding a solution will only be made possible if the international organisations and countries affected by this crime work together to put an end to this gross human rights violation.
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BIBLIOGRAPHY
Primary Sources Cases - S v Lubabalo Ntlabati and Others (the Zoliswa Nkonyana case) Case RCB216/06 [2006] - Toonen v. Australia, Human Rights Committee Communication No. 488/1992, CCPR/C/50/D/488/1992. - Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006 ; 2003 (2) SA 198 (CC) - Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355(CC); 2006(1) SA 524(CC) (1 December 2005) - Fourie and Another v Minister van Binnelandse Sake and Another (17280/02) [2002] ZAGPHC 1 - Carmichele v Minister of Safety and Security (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) - National Coalition for Gay and Lesbian Equality and another v Minister of Justice and others (1998) (6) BCLR 726
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Statutes and statutory instruments International - Universal Declaration of Human Rights, 1948 - International Covenant on Civil and Political Rights, 1966 - International Covenant on Economic, Social and Cultural Rights, 1966 - Convention relating to the Status of Refugees, 1967 - Convention on the Elimination of All Forms of Discrimination against Women, 1979 - Convention Against Torture, 1984 - Convention on the Rights of the Child, 1989 - Vienna Declaration and Programme of Action, 1993 African - African Charter on Human and Peoples’ Rights, 1987 - Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, 1995 - Constitutive Act of the African Union, 2000 South African - Constitution of the Republic of South Africa, 1996 - Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
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Resolutions, concluding observations and general comments United Nations Documents (a) Committee for the Elimination of All forms of Discriminations against Women - UN Committee for the Elimination of All Forms of Discriminations against Women, “Concluding observations of the Committee on South Africa” CEDAW/C/ZAF/CO/4 - UN Committee for the Elimination of All Forms of Discriminations against Women, “Concluding observations of the Committee on Uganda ” CEDAW/C/UGA/CO/7 - UN Committee for the Elimination of All Forms of Discriminations against Women, “Concluding observations of the Committee on Panama” CEDAW/C/PAN/CO/7
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Human Rights Council - UNGA Human Rights Council Res 17/19 (14 July 2011) UN Doc A/HRC/RES/17/19. - UNGA Human Rights Council ‘Report of the United Nations High Commissioner for Human Rights on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’ (17 November 2011) 19th session UN Doc A/HRC/19/41. - UNGA Human Rights Council ‘Report of the Special Rapporteur on Violence against women, its causes and consequences’ (17 January 2007) 4th Session UN Doc A/HRC/4/34. - UNGA Human Rights Council Res 27/32 (2 October 2014) UN Doc A/HRC/RES/27/32. - UNGA Human Rights Council Res 32/2 (12 July 2016) UN Doc A/HRC/RES/32/2. - UNGA Human Rights Council ‘Report of the Special Rapporteur on violence against women, its causes and consequences’ (23 April 2010) A/HRC/14/22. - UNGA ‘Report of the Secretary-General - In-depth study on all forms of violence against women’ (2006) UN Doc A/61/122.
(c) United Nations Security Council (UNSC) - UNSC Res 1769(31 July 2007) UN Doc S/RES/1769.
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(d) United Nations Human Rights Committee - Human Rights Committee, General Comment No. 18, para. 7
Committee on Civil and Political Rights - Concluding observations of the Human Rights Committee on the United States of America (18 December 2006) UN Doc CCPR/C/USA/ CO/3. - International covenant on civil and political rights ‘Communication No.941/2000’ (18 September 2003) UN Doc CCPR/C/78/D/941/2000. - Concluding observations of the Human Rights Committee on the Russian Federation (24 November 2009) UN Doc CCPR/C/RUS/ CO/6. - International covenant on civil and political rights ‘Communication No.902/1999’ (30 July 2002) UN Doc CCPR/C/75/D/902/1999.
Committee on Economic Social and Cultural Rights - Committee on Economic, Social and Cultural Rights, General Comment No. 20 (2 July 2009) UN Doc E/C.12/GC/20. - CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) (11 August 2000) UN Doc E/C.12/2000/4.
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(e) United Nations Economic and Social Council
- Report of the Special Rapporteur on violence against women, its causes and consequence submitted in accordance with Commission on Human Rights resolution 2001/49 (31 January 20020 UN Doc E/CN.4/2002/83.
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Secondary Sources
Books - Van der Merwe C.G and Du Plessis J.E, Introduction to the Law of South Africa (The Hague: Kluwer Law International, cop 2004) - Meyer D, Violence against queer people: race, class, gender, and the persistence of anti- LGBT discrimination (New Brunswick, New Jersey: Rutgers University Press, 2015) - Heinze E, Sexual orientation: a human right: an essay on international human rights law (Dordrecht: Nijhoff, 1994) - Bookie M.K and others, Women in Southern Africa (Harare [etc]: Southern African Research and Documentation Centre (SARDC) [etc], cop 2000) - Abdal-Qawī Y, The African Union: legal and institutional framework : a manual on the Pan-African organization (Leiden : Martinus Nijhoff Publishers, 2012) - Currie and De Waal , The Bill of Rights handbook ( 2013)
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- Lorenzo Di Silvio, 'Correcting Corrective Rape: Carmichele and Developing South Africa's Affirmative Obligations To Prevent Violence Against Women ' [2011] 99(1469) The Georgetown Law Journal. - Pierre De Vos, ‘A new beginning? The enforcement of social, economic and cultural rights under the African Charter on Human and Peoples’ Rights’ (Law, Democracy and Development 1 2004) - Oppression and Resiliency in a Post-Apartheid South Africa: Unheard Voices of Black Gay Men and Lesbians – Graziano, Kevin J. Nevada State College, Henderson, NV, US - Cultural Diversity and Ethnic Minority Psychology, Vol 10(3), Aug, 2004. Special Issue: Lesbian, Gay, and Bisexual Racial and Ethnic Minority Individuals: Empirical Explorations. - Rebecca J. Cook, State Responsibility for Violations of Women’s Human Rights, 7 Harv. Hum. Rts. J. 125, 137, 151 (1994).
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- Lea Mwanbene and Maudri Wheal, ‘Realisation or oversight of a constitutional mandate? Corrective rape of black African lesbians in South Africa’[2015] 15(1a3) African Human Rights Law Journal - Wells and Polders , 'Anti-Gay Hate Crimes in South Africa: Prevalence, Reporting Practices, and Experiences of the Police' [2006] 67(1) Agenda: Empowering Women for Gender Equity - Sprigman and Osborne , 'Du Plessis is not dead: South Africa's 1996 Constitution and the application of the bill of rights to private disputes' [1999] 15(1) South African journal on human rights
Reports, papers, presentation of reports United Nations
- Office of the High Commissioner of Human Rights “Management Plan 2014-2017 – Working for your rights”. - Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyer – Office of the United Nations High Commissioner for Human Rights (OHCHR, 2011) - Born Free and Equal – Sexual Orientation and Gender Identity in International Human Rights Law – United Nations Human Rights – Office of the High Commissioner (2012). - Human Rights Council, Working Group on the Universal Periodic Review. 13th session, Geneva, Switzerland, 21 May-4 June 2012. Compilation prepared by the Office of the High Commission for Human Rights in accordance with para 5 of the annex to Human Rights Council Resolution 1 6/21, South Africa, UN Doc A/HRC/ WG.6/1 3/ZAF/2 (23 March 2012) para 1 7. - ‘Hate crimes in South Africa’ background paper for the Hate Crimes Working Group 1.
Non-Governmental Organisations and Others - “We’ll show you you’re a woman” – Violence and discrimination against black lesbians and transgender men in South Africa – report by the Human Rights Watch, December 2011.
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- Discrimination and harassment by law enforcement officers in the LGBT community, a report by C. Mallory, A. Hasenbush and B. Sears at the Williams Institute – March 2015 (available at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT- Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf) - “State-sponsored Homophobia: a world survey of laws criminalising same-sex sexual acts between consenting adults”, International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA), Brussels, May 2011, p. 9 - Bulletin of the World Health Organization: Proposed declassification of disease categories related to sexual orientation in the International Statistical Classification of Diseases and Related Health Problems (ICD-11) – 2014 - Hate crimes: The rise of ‘’corrective’’ rape in South Africa – a report by Action Aid UK – September 2009 (available at: https://www.actionaid.org.uk/sites/default/files/publications/hate_crimes_the_rise_of_cor rective_rape_in_south_africa_september_2009.pdf)
Websites and blogs - Patrick Strudwick, 'Crisis in South Africa: The shocking practice of 'corrective rape' - aimed at 'curing' lesbians' (The Independent , 4 January 2014)
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- Emily Thomas, '7 Stunning Images From What May Be Muslim World’s Largest LGBT Celebration' (Huffpost , 7th January)
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- Rupaim Jaini ‘Parents use ‘corrective rape’ to ‘straight’en their gay kids’ (31 May 2015)
Oral presentations - Oral presentation of report E/CN.4/2006/53 by the Special Rapporteur to the Human Rights Council, 19 September 2006, available at www.un.org/webcast/unhrc/archive.asp?go=060919 - Oral presentation of report E/CN.4/2006/53 by the Special Rapporteur to the Human Rights Council, 19 September 2006, available at www.un.org/webcast/unhrc/archive.asp?go=060919
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