South Africa’s Obligations to React to the Intensified Criminalisation of Samesex Conduct in Nigeria and Uganda Under Domestic and International Law

Abstract

Discrimination against LGTB persons is endemic in most African countries. The bias against LGTB persons is often supported by discriminatory legislation. Legislation criminalising same sex intimacy, sexual acts, LGTB advocacy and same sex marriages has in the last few years been introduced in Nigeria and Uganda. The SAHRC has called on the South African government clearly and visibly to reject these laws and to appeal to have them repealed. The government however has made it clear that it relies on what it perceives to be the sovereign rights of these states to adopt this type of legislation and it has therefore declined to respond to this call. The way in which the executive has approached this situation is an expression of what foreign policy so often is, a manifestation of the state’s self-interest strategies. However, the critical issue that this article aims to interrogate is whether there are any restrictions on these self-interest strategies when gross violations of basic human rights are taking place. The article draws attention to a number of key issues; first, whether the executive is bound by the constitutionally protected principles of equal rights and non-discrimination in setting out its foreign policy; second, whether South Africa as a member of the UN and AU is under any international/regional legal obligations to act when basic rights are being grossly violated; third, whether South Africa’s obligations under customary international law on state responsibility is relevant in this case; and last, if there are such legal obligations internally, externally or in combination whether these obligations would move South Africa’s responsibility beyond the point of relying solely on the use of quiet diplomacy.