Global concerns over SA's human rights policy - SAHRC to minister

2016-07-17 21:44

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Johannesburg - The SA Human Rights Commission (SAHRC) says it is often approached in international circles by those concerned by South Africa's recent UN abstention on gay rights and the country's failure to arrest Sudanese President Omar Al-Bashir.

"A few weeks ago, the Commission was approached by various civil society organisations over concerns regarding South Africa's voting patterns at the 32nd session of the Human Rights Council," wrote SAHRC chairperson Advocate Lourence Mushwana in a stern letter to International Relations Minister Maite Nkoana-Mashabane.

He said previous attempts to engage with the minister on the matter had been unsuccessful and that the SA government had then gone on to abstain from a vote on a UN resolution against discrimination and violence on the basis of gender and sexual orientation.

In the letter sent to the minister on Friday, the SAHRC requests a meeting in order to discuss the matter as well as other concerns about South Africa's seemingly "waning" commitment to human rights in its foreign policy.

"During our interactions at some international fora with other UN and international human rights bodies, we are often confronted with questions," writes Mushwana.

"However, because we have not had an opportunity to share your views on these matters, we have not been able to respond in a manner that correctly reflects the thinking behind some of our voting patterns… or indeed our approach to some of the matters alluded to above."

He requests a response from the minister before the end of the month so that a meeting can then be set up.

"The Commission avails itself to assist the South African government in any way possible, in order to ensure that its international relations policy reflects the highest ideals of our Constitution." 

The letter also berates the South African government's failure to arrest Sudanese President Omar Al-Bashir – who is wanted by the International Criminal Court for crimes against humanity, war crimes and genocide - when he was in the country in June last year.

Concern is raised over recent indications that South Africa was reviewing its participation of the Rome Statute of the International Criminal Court – which it originally signed in 1998.

African Court of Justice and Human Rights

"An exit from the ICC will not bode well for the rule of law," said Mushwana, suggesting that the establishment of the African Court of Justice and Human Rights was an action that "did not go far enough".

While the African court has been granted criminal jurisdiction, it also grants immunity to sitting heads of state and other senior government officials.

"Combined with the tendency of some heads of state to want to remain in power for life, the extension of such immunity will undoubtedly result in some heads of state not being held accountable."

As such, without the ICC, there was not a "viable alternative mechanism for holding African perpetrators of human rights violations and international crimes accountable".

In 1996, SA became the first country to enshrine gay rights in its Constitution. The Constitutional Court has consistently ruled that any form of discrimination based on sexual identity, whether by the government or a private entity, is unconstitutional. 

Consequently, SA has traditionally been viewed as the most progressive African country on gay issues.  

Although ultimately, the UN Human Rights Council's resolution to appoint an independent watchdog on sexual orientation for the next three years was passed last month with 23 votes for, 18 against, and six abstentions – no African country voted in favour of it.

Before the official vote, South Africa's delegate, Ambassador Nozipho Mxakato-Diseko, stated that while SA believed no person should be discriminated against on any grounds, the resolution itself was too divisive, unnecessary, and an "arrogant approach".

Mxakato-Diseko told the council, "We learned from our struggle against apartheid that if we are clear about the end goal, which for us is the end of violence and discrimination against the LGBTI [lesbian, gay, bi-sexual, trans-sexual and intersexed] persons, a better approach is building maximum consensus.

"This could have been achieved but for the arrogant and confrontational approach adopted [by the sponsors]… Grandstanding, recklessness, brinksmanship and point scoring will take us nowhere." 

LGBTI rights

It is unclear what exactly makes this resolution any more divisive than the previous resolutions SA pursued.

Over the past few months, activists have grown increasingly concerned that the South African government has backed down from speaking out for LGBTI rights on the international stage. They fear that continued abstentions and silence will strengthen the position of other African bloc countries, such as Uganda and Nigeria, who blatantly discriminate against gays.

Meanwhile, the SAHRC's other key concern relates to the controversy when in June last year, Al-Bashir entered South Africa for an African Union summit.

The SA Litigation Centre obtained a high court order preventing him from leaving and ordering the government to arrest him. Despite this, the government allowed him to leave.

Subsequently, a high court ruling found that the government's failure to arrest the Sudanese president was inconsistent with its constitutional duties.

A later approach to the Supreme Court of Appeal by the State was dismissed in March this year.

Read more on:    au  |  sahrc  |  omar al-bashir  |  human rights

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