South Africa is still walking the tightrope between its strong constitutional commitment to protecting gay rights and its solidarity with the largely homophobic rest of Africa. But at least the balance seems to be improving. About 38 out of 55 states in Africa criminalize homosexuality. Meanwhile, South Africa is not only continental, but actually a world leader in protecting gay rights, as Deputy Minister of Justice and Constitutional Affairs John Jeffrey told the Civil Society Organization Alliance Building Workshop on Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Rights in Johannesburg this week.
South Africa' was the first country in the world to prohibit discrimination based on sexual orientation and has one of the most progressive constitutions, outlawing discrimination based on sexual orientation in the workplace and legalizing gay marriage, among other laws. Few would argue with Jeffrey that at home and on paper, South Africa is actually exemplary in protecting gay rights.
However, there have been difficulties in translating that record into foreign policy.
The Mbeki administration apparently decided to draw a clear and sharp line between domestic and foreign policy on sexual orientation. South Africa's ambassador to the United Nations (UN) in New York, Dumisani Kumalo, refused to support a French-sponsored resolution in the UN Security Council in 2008 calling for the protection of gay people against violence, because South Africa did not want to offend other African governments.
The Zuma administration also began to stumble when Jerry Matjila, then South Africa's ambassador to the United Nations in Geneva, opposed a similar report at the UN Human Rights Council in 2010. Matjila notoriously said that adding sexual orientation to the list of categories of people requiring protection against discrimination would treat victims of racial discrimination as 'inferior' and reduce their protection.
South Africa has received a lot of criticism for this mean-spirited abandonment of LGBTI people by their fellow victims of discrimination, and it seems to have got the message. Just a year later, Matjila and his Brazilian counterpart led a campaign in the UN Human Rights Council to adopt an unprecedented resolution expressing concern about discrimination and violence against people because of sexual orientation.
As Matjila later admitted, it was a very difficult campaign, and it cost South Africa a lot of sympathy – especially from other African governments. But, he explained at the time, South Africa persisted because foreign policy must reflect domestic policy, and this was a particular priority of the Zuma administration.
It seemed that the matter was resolved for a while.
However, the issue has flared up again in response to a new surge of official homophobia on the continent, with for example Nigeria and Uganda both adopting harsh new laws that increase penalties for homosexuality.
Uganda is leading the charge on gay-criticism with a law, signed by President Yoweri Museveni this week, that provides for life imprisonment for 'repeat offenders' and also makes it a crime not to expose homosexuals. And so the witch-hunt duly intensified, a Gutter Journal was called. red chilli Uganda's 200 homosexuals named. The last time a Ugandan newspaper did this, someone who came out this way was murdered.
The international outrage sparked by the Ugandan law put pressure on the South African government in particular to take a stance. As Ugandan gay rights activist Paul Ssemugoma arrives at OR Tambo International Airport last week.
Immigration officials did not accept him because his visa had expired, and he was on the verge of being deported when he received relief from an urgent court order that the government opposed. He then applied for asylum, but Home Affairs Minister Naledi Pandor granted him a Special Skills Work Permit which allows him to remain in South Africa.
This was clearly a face-saving measure designed to avoid sending him home for persecution, while simultaneously avoiding granting him asylum, thereby embarrassing Uganda by saying that Semugoma had good reason not to go home. Given South Africa's dilemma, this was a very skillful maneuver.
The government has similarly handled clamor from the media and human rights activists for a tough stance on Uganda's and Nigeria's harsh new anti-gay laws. Without naming specific countries, the government said this week it would 'seek clarification' from 'several capitals' about 'recent developments regarding the situation of lesbian, gay, bisexual, transsexual and intersex persons around the world'.
It criticized Nigeria and Uganda, saying that 'South Africa believes that no person should be subject to discrimination or violence on any basis, including sexual orientation.' By previous standards this was quite strong, although human rights advocates such as the Treatment Action Campaign found it 'inadequate'.
When the DA tried to move forward by introducing a motion in Parliament condemning Uganda's new law, the ANC fiercely opposed it. So fiercely that DA MP Sandy Kalyan said it seemed the ANC actually supported Ugandan law.
That was a revealing observation. In his speech, Jeffery claimed that internationally South Africa 'has been very actively involved in trying to mediate or bring about a better understanding of the importance of protecting gay rights.' He cited Amnesty International in praising South Africa for inspiring other African countries to protect gay people. 'But we do not practice megaphone diplomacy,' Jeffrey said, adding that South Africa preferred mediation rather than criticizing from the rooftops.
Undoubtedly, South Africa will have to tread carefully in its relations with other African countries. For example, Pretoria considers Uganda a key ally in the quest for peace in the Great Lakes region and beyond.
However, the problem with quiet diplomacy is how does one know that it is actually happening? And what kind of message is being sent to Uganda when ANC MPs not only vote for, but also loudly mock, a motion condemning Uganda's anti-homosexuality law? And when Zuma posted a brazen homophobe in the shape of journalist John Quellan as South Africa's High Commissioner to Kampala?
Here's another idea. Jeffery candidly acknowledged in his speech that there is a huge gap between the exemplary legal protections for gays in South Africa and the reality of strong homophobia on the ground. For example, he cited the high incidence of 'corrective rape' against lesbian women and offered new measures to close that gap, including criminalizing hate speech. As Kalyan suggested, this gap also exists between the government and its own MPs.
This indicates that there is an even greater danger in not communicating to other African governments their strong disapproval of homophobia. And that is that our diplomacy can be so quiet that even South Africans begin to believe that their government is not serious about protecting gay rights.
Peter Fabricius, Foreign Editor, The Independent Newspapers, South Africa. This article first appeared in ISS Today, the online newsletter of the Institute for Security Studies.
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