EMERGENCY LETTER TO PRESIDENT JACOB ZUMA AND THE SOUTH AFRICAN GOVERNMENT
16 December 2010
Dear President Zuma, Minister Nkoane-Mashabane, Minister Jeff Radebe and Deputy-Ministers
REVERSE SOUTH AFRICA’S UNCONSTITUTIONAL COMMITTEE VOTE AND CO-SPONSOR AN AMENDMENT ON SEXUAL ORIENTATION AND EXTRAJUDICIAL, SUMMARY AND ARBITRARY EXECUTIONS AT THE UNITED NATIONS GENERAL ASSEMBLY ON MONDAY 20 DECEMBER 2010
As a range of civil society, faith-based, community organisations and individuals we write to you with a sense of extreme urgency. Some of our organisations are united in the Coalition to End Discrimination (a coalition against all forms of discrimination including on the basis of sexual orientation and gender identity) and we collaborate with the Joint Working Group an organisation of lesbian, gay, bisexual, transgender and intersex organisations.
In November the United Nations General Assembly’s Third Committee on Extrajudicial, Summary, and Arbitrary Executions voted by 79 votes to 70 in favour of an amendment removing “sexual orientation” from a resolution condemning the extrajudicial killing of vulnerable people around the world. The resolution urges States to protect the right to life of all people, including by calling on states to investigate killings based on discriminatory grounds. For the past 10 years, the resolution has included sexual orientation in the list of discriminatory grounds on which killings are often based.
South Africa voted in favour of the amendment. We can now reverse that vote because we have learnt that the United States with the support of Brazil and other countries will be offering an amendment to the resolution to ask for the explicit inclusion of lesbians, gay men, bisexuals, transgender and intersex individuals.
The November amendment in committee aggravates an already difficult environment for gay, lesbian, bisexual, and transgender and intersex (LGBTi) people and their defenders, who live in continual fear of violent attack and experience discrimination throughout Africa and many other parts of the world. It strips one of the world’s most vulnerable minorities of an important part of their protection under international law, and ignores the overwhelming evidence that people are routinely killed around the world because of their actual or perceived sexual orientation.
The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has highlighted documented cases of extrajudicial killings on the grounds of sexual orientation including individuals facing the death penalty for consensual sex with persons of the same sex, individuals tortured to death by State actors because of their actual or perceived sexual orientation; paramilitary groups killing individuals because of their actual or perceived sexual orientation as part of “social cleansing” campaigns; individuals murdered by police officers with impunity because of their actual or perceived sexual orientation; and States failing to investigate hate crimes and killings of persons because of their actual or perceived sexual orientation.
There is no plausible justification for South Africa’s vote.
Our representatives at the UN argued that a formal process to define sexual orientation and its parameters under human rights law was needed to prevent future division on the issue. They argued that the concept of ‘sexual orientation’ was vague and had no legal foundation in international human rights instruments.
This argument has no basis in fact or in law. Our Constitutional Court relied on a range of jurisdictions in developing the concept sexual orientation. In the first case before that Court on sexual orientation on the decrimnalisation of consensual sex between partners of the same sex in different jurisdictions and regional courts such as the then Justice Ackermann quoted the Irish case Norris and argued:
The European Court of Human Rights [ECHR] has correctly, in my view, recognised the often serious psychological harm for gays which results from such discriminatory provisions:
“[o]ne of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow . . .” 
The Constitutional Court further argued:
 In 1967 in England and Wales, and in 1980 in Scotland, sodomy between consenting adult males in private was decriminalised. However, in Northern Ireland the criminal law relating to sodomy remained unchanged. In 1981, in Dudgeon v United Kingdom, the European Court of Human Rights held that the sodomy laws of Northern Ireland was in breach of the article 852 privacy provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”) to the extent that they criminalised sodomy between adult consenting males in private. In 1982 Northern Ireland amended its laws accordingly. The same conclusion was reached in 1988 in Norris v Ireland. It took Ireland nearly five years to comply with Norris but it eventually did so in 1993.
In India, the Delhi High Court considered the fact that, the Indian Constitution adopted more than fifty years ago, did not contain an explicit provision on sexual orientation equality. Delhi Chief Justice, Ajit Prakash Shah and Justice S. Muralidhar held:
In the present case, the two constitutional rights relied upon i.e. ‘right to personal liberty’ and ‘right to equality’ are fundamental human rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian consideration. A Bill of Rights does not ‘confer’ fundamental human rights. It confirms their existence and accords them protection. (Paragraph 123)
The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. (Paragraph 52)
The Constitution of India recognizes, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality. (paragraph 80) 
The argument that there is no internationally recognised definition is therefore untenable and unsustainable in law and in fact.
South Africa’s vote and the stated justification for it are inconsistent with the South African Constitution, South African legislation and numerous judgments of South African Courts. We hope that the government will recognise that the vote is inconsistent with our Constitution and will be prepared to reconsider its position.
The vote is inconsistent with the Constitution
The South African Constitution is supreme, and all law and conduct inconsistent with it is invalid. The government’s exercise of its discretion to conduct foreign policy is subject to the Constitution and susceptible to judicial review. Even the exercise of Executive powers, the Constitutional Court has held, must comply with the requirements of rationality and legality. Where the exercise of such powers is irrational or unlawful, courts will be prepared to declare it invalid and set it aside as they have done in the past. Moreover, the Bill of Rights imposes a positive obligation on the state to “protect, promote and fulfil the rights in the Bill of Rights”.
It is clear that South Africa’s vote was inconsistent with the provisions of our Constitution. The South African Bill of Rights explicitly and proudly prohibits unfair discrimination, both by the state and by private persons, on the ground of sexual orientation. South Africa is founded on the values of “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms.”
The South African Constitution also enshrines the right to life and the right not to be treated or punished in a cruel, inhuman or degrading way. In the Mohamed case, the Constitutional Court has held that measures by the state which fail to respect the rights to life and dignity will be declared invalid and set aside. It found that there is a “commitment implicit in the Constitution that South Africa will not be party to the imposition of cruel, inhuman or degrading punishment.” The Court declared that the handing over of Mohamed to the United States in the absence of an undertaking that he would not face the death penalty, infringed his rights to life, dignity and freedom from cruel and unusual punishment and was invalid. Our vote to remove sexual orientation from the UN resolution implicates and infringes the very same rights.
The vote to remove protection from arbitrary execution from LGBTI people in international law is an affront to the dignity and equality of LGBTI South Africans, and is deeply at odds with the values of the South African constitutional order.
The Government’s explanation is irrational and unsustainable
The argument that the concept of “sexual orientation” is too vague to do service in international law is demonstrably irrational and unsustainable.
This is demonstrated by the fact that sexual orientation appears in our own Constitution as one of the grounds on which discrimination is prohibited. Similarly, the concept of “sexual orientation” has been included by Parliament in 16 pieces of legislation. These include recently enacted pieces of legislation such as the Films and Publications Amendment Act 3 of 2009, which was signed into law by the President earlier this year.
The concept has also formed the basis of numerous judgments of the Constitutional Court, and has presented no interpretive difficulties for our progressive and humane constitutional jurisprudence. In fact South Africa has built an internationally admired anti-discrimination jurisprudence drawing directly upon the concept of sexual orientation.
We also wish to bring to your attention that on 26th July 2010 the Department of International Relations and Cooperation’s Human Rights and Humanitarian Affairs Directorate met with the Lesbian and Gay Equality Project (LGEP), the Congress of South African Trade Unions (COSATU), the South African Human Rights Commission, the Commission for Gender Equality, the Treatment Action Campaign (TAC), the Triangle Project, Section 27, and the LGBTI Joint Working Group. The meeting was requested by these organisations following several positions taken by the South African government at UN fora on the issue of sexual orientation. At this meeting, the DIRCO committed government to the following:
1. The South African government will endeavour to explain to civil society and the international community at large, the rationale behind its voting patterns on contentious human rights resolutions;
2. The approach of the South African government is not to trade off human rights in preference for other interests as South African foreign policy seeks to uphold international human rights law;
3. Civil society organisations should formally request the President to adopt a policy framework on the implications of sexual orientation, human rights and equality for South African foreign policy;
4. DIRCO agreed to consult with its Branch on Diplomatic Training, Research and Development to consider the feasibility of inviting representatives of Chapter Nine Institutions to participate in training programmes, consistent with their Constitutional mandates, and in this process to interface with the Department’s Diplomats including Heads of Missions prior to their deployment abroad; and
5. DIRCO will undertake special efforts to liase and cooperate with South African and international civil society in order to advance principles of equality, human rights and the right to development.
The 16th November 2010 vote goes against the spirit and letter of this July 2010 meeting.
An opportunity to make amends
South Africa now has the opportunity to correct its vote. The United States has announced that it will re-introduce an amendment in the General Assembly to prohibit the violent targeting of people based on their sexual orientation. We call on South Africa to vote in favour of this amendment, and to bring its powers of persuasion to bear on other SADC and African countries to do the same.
We call on South Africa to co-sponsor the US amendment, in this way sending a clear message that South Africa stands for the protection of the most vulnerable.
We call on the South African government to vote in accordance with the spirit, purport and objects of our Bill of Rights. We call on our government to honour former President Mandela’s pledge that “human rights will be the light that guides our foreign affairs”.
In the event that South Africa votes against or abstains or is absent during the vote on inclusion of “lesbian, gay, bisexual, transgender and intersex people or sexual “orientation” in the resolution on Extrajudicial, Summary, and Arbitrary Executions, we request that the Government of the Republic of South Africa provides us with formal reasons for such conduct.
We are calling on people who support freedom, equality, dignity and privacy for all in Africa, Asia, the Carribean, Europe, Latin America and North America to support our requests to you.
South Africa has the opportunity to restore its reputation as a defender of human rights and equality in the international sphere, to make amends to LGBTI South Africans for its initial vote, and to re-assert its moral claim to being a regional leader on human rights issues. We must not let it pass us by.
Professor Quarraisha Abdool-Karim,
Professor Saleem Badat,
Reverend Dr. Scott Carper,
Professor Paula Ensor,
Advocate Adila Hassim,
Professor Leslie London,
Professor Loyiso Nongxa
Professor Derek Swartz,
Professor Carole Vance,
Professor Yousuf Vawda,
Jody Michell Wishnia.
1. Action Aid International South Africa
2. Activate Wits
3. Art for Humanity
4. Article Showcase
5. Black Sash
6. Centre for Rural Legal Studies
7. Children’s Rights Centre
8. Community Media Trust
9. Durban Lesbian and Gay Community Health Centre, KZN
11. Equal Education
12. Ethical Currency
14. Gay & Lesbian Network
15. Gay Christian Community
16. Gordon Art
17. Higher Education Association of South Africa (HESA)
18. Incudisa, UCT
19. Intersex South Africa
21. Knysna animal welfare
22. Leeuwkop Cottage
23. Lesbigay (Stellenbosch University)
25. Mhlathuze LGBTI Community Health Center, KZN
26. Mnambithi LGBTI Community Health Canter, KZN
27. Mpumalanga Versatile society-lgbt
28. Nelson Mandela Metropolitan University (NMMU)
30. Out @Kovsies
31. Out African Magazine
32. OUT Rhodes
33. Pambazuka News
34. Pauline Mitchell Property Management
35. People’s Health Movemen
36. SA-Right to Health Campaign
39. Rhodes University
40. Scalabrini Centre Cape Town
41. School of Public Health and Family Medicine, UCT
42. Simply said and Done
43. Social Justice Coalition
44. Southern Africa Centre for Survivors of Torture
45. Southern Africa HIV Clinicians Society Exco
46. Sustainability Action Movement
47. The Centre for Human Rights (UP)
48. The Keiskamma Trust
49. The Ubuntu Centre
50. Treatment Action Campaign (TAC)
51. Up &Out
52. University of Witwatersrand
53. Women’s Legal Centre
 http://www.un.org/News/Press/docs/2010/gashc3997.doc.htm: “South Africa voted based on its belief in the principle of non-discrimination on any grounds, including sexual orientation. South Africa was conscious of the fact that there was no international agreement regarding the definition of sexual orientation, and believed that there needed to be a formal process on the issue. South Africa believed that they should define sexual orientation and establish parameters under human rights law. Until there was such a discussion, there would be division, which had characterized the issue over past years.”
 Norris v Republic of Ireland (1991) 13 EHRR 186 at 192 para 21 quoting with approval the finding of an Irish judge.
 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC)
 NCGLE & Another v Minister of Justice & Others at paragraph 40 footnotes omitted.
See The Naz Foundation v. Government of NCT of Delhi and Others Judgment of the Delhi High Court – 2nd July 2009
 Section 2 of the Constitution.
 There is no absolute rule of non-justiciability in respect of the conduct of foreign relations. In Kolbatshenko v King 2001 (4) SA 336 (C), the Western Cape High Court found that courts will be unlikely to adopt a hands-off approach where a discretion has been exercised which directly affects the rights or interests of an individual applicant.
 See Albutt v Centre For The Study Of Violence And Reconciliation, And Others 2010 (3) SA 293 (CC) at para 49; Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529 at para 49; Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) at para 20; President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU) 2000 (1) SA 1 (CC); at para 38; and Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) at para 32.
 Section 7(2) of the Bill of Rights.
 Section 9(3)-(4) of the Bill of Rights.
 Section 1(a) of the Constitution.
 Section 11 of the Bill of Rights.
 Section 12(1)(d) of the Bill of Rights.
 Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC) at para 52.
 Mohamed at para 58.
 For example: Electronic Communications and Transactions Act 25 of 2002, Promotion of Access to Information Act 2 of 2000; Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; Electoral Commission Act 51 of 1996; Promotion of National Unity and Reconciliation Act 34 of 1995; Employment of Educators Act 76 of 1998; Medical Schemes Act 131 of 1998; Labour Relations Act 66 of 1995; Employment Equity Act 55 of 1998; Refugees Act 130 of 1998; Civil Union Act 17 of 2006; Home Loan and Mortgage Disclosure Act 63 of 2000; Communal Property Associations Act 28 of 1996; Rental Housing Act 50 of 1999; and Defence Act 42 of 2002.
 See Geldenhuys v National Director of Public Prosecution and Others 2009 (2) SA 310 (CC); Minister of Home Affairs v Fourie (Doctors For Life International And Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs 2006 (1) SA 524 (CC); Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC); Satchwell v President of the Republic of South Africa and Another 2003 (4) SA 266 (CC); J and Another v Director General, Department Of Home Affairs, and Others 2003 (5) SA 621 (CC); Hoffmann v South African Airways 2001 (1) SA 1 (CC); National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); and National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC).