Media coverage of the position taken by the South African government on a number of key resolutions passed at the 32nd Session of the United Nations Human Rights Council in Geneva earlier this month warrant clarification.
The African National Congress (ANC) affirms its support of the South African government’s position taken on these two key resolutions.
The first resolution was on Freedom of Opinion and Expression entitled “The promotion and protection of human rights on the Internet”
It has been incorrectly reported that South Africa voted against the Resolution on Enjoyment of Human Rights on the Internet – when in fact the resolution was adopted unanimously without a vote. South Africa voted in support of amendments.
South Africa’s primary concern with the draft resolution was that it did not take into account Permissible Limitations and the Prohibition of Hate Speech in accordance with international human rights law; specifically the International Covenant on Civil and Political Rights.
Permissible limitations under this covenant include inter alia the prohibition of propagation of racism, anti-Semitism, homophobia and xenophobia. It renders redundant the pertinent provisions contained in international human rights treaties that place obligations on States to enact legislation in order to criminalize and punish in law incitement to hatred.
The ANC believes in the primacy of international law and in particular the provisions of international human rights treaties in relation to the exercise of the rights to freedom of opinion and expression, including the existence of the permissible limitations in the exercise of these rights.
As a number of high-profile incidents have shown, the Internet, and social media in particular, is increasingly being used as a platform for bigots, and even incitement to violence and the dissemination of racist views; views that threatens to undermine our fragile nation building and social cohesion project.
In the debate prior to the adoption of the resolution, the sponsors of the resolution requested the Council members to vote on the amendments and South Africa voted for the inclusion of the amendments in the resolution. These amendments were ultimately defeated.
This should not be confused with voting against the resolution.
The Council members were then afforded an opportunity to explain their position on the resolution before adoption. South Africa then delivered its explanation of vote (EOV) highlighting its concern on the resolution.
The ANC supports the concerns put forward by the South African government at HRC32.
The second resolution was on the ‘Protection against violence and discrimination based on sexual orientation and gender identity (LGBTI).
The ANC supports the decision by South Africa to abstain from a vote calling for the establishment of an Independent Expert (IE) to report on issues relating to the rights of lesbian, gay, bisexual and transgender (LGBT) persons, and specifically, on protection against violence and discrimination based on sexual orientation and gender identity.
South Africa raised legitimate concerns regarding the terms of reference and the implementation of such a reporting mechanism, and its potential conflict with the national sovereignty of countries, without promoting constructive dialogue.
This is within a context of independent reporting mechanisms on human rights related issues historically singling out African countries for ‘naming and shaming.’
The resolution effectively empowers an external expert to audit South Africa’s compliance with its international human rights obligations and possibly enforce sanction – which is problematic.
It further empowers the Independent Expert to compile adverse reports on any country and present these in an international forum – without due regard to pre-existing and functional performance, monitoring and reporting instruments already existing inside that country.
The ANC notes that South Africa in fact voted in favour of the clauses on non-discrimination and non-violence against LGBTI persons.
Abstaining from voting on the Resolution for the establishment of an Independent Expert should not be conflated with government’s longstanding position on LGBT rights, which are Constitutionally-enshrined, and amongst the most progressive in the world.
The ANC government is guided by our Constitution that outlaws discrimination on the basis of sexual identity and sexual orientation, and that we have a robust legal system not only to enforce respect for the promotion, protection and fulfilment of the human rights and fundamental freedoms of all – but also to punish those found guilty of violence.
The ANC reaffirms the need for partnerships and close cooperation at a multilateral level to address issues of international concern. All decisions taken at this level should be in accordance with our existing laws, and not seek to supersede or replace them.
CDE. EDNA MOLEWA IS CHAIRPERSON OF THE ANC INTERNATIONAL RELATIONS SUBCOMMITTEE