By Caroline James
This week, South Africa was one of eight countries in the United Nations Committee on Non-Governmental Organisations that voted to deny the Committee to Protect Journalists (CPJ) observer status at the United Nations (UN). South Africa voted against accreditation along with countries like China and Russia who are not known for their commitments to free speech.
The CPJ is an international organisation that researches press freedom around the world, and works to protect journalists who are targeted as a result of their work. According to a report in the Guardian, South Africa cited concerns with the CPJ’s financial stability and the fact that they refuse to support punishment for hate speech as reasons for the country’s decision to reject their application.
This isn’t the first time the UN Committee has been criticised for refusing to accord organisations observer status. In 2008, it declined the application for status from LGBT advocacy groups from Spain, the Netherlands and Brazil, and it took 17 years for the International Lesbian and Gay Association (ILGA) to be granted observer status – and this was only after an appeal to the larger Economic and Social Committee. Countries that do not support the interests promoted by the organisations seeking admission are often able to block their applications.
It is not only at the UN level that groups are being refused observer status. Last year, the African Union requested that the African Commission on Human and People’s Rights withdraw the observer status that had been granted to the Coalition of African Lesbians, on the grounds that the granting of the status had not taken into account fundamental African values. The implication was that African values did not include homosexuality, and any organisation seeking to protect and promote the rights of LGBTI individuals could not operate within the African system.
Non-governmental organisations have always been recognised as having a role to play at transnational bodies. The African Commission, in its resolution 33 of 1999 on the granting of observer status, recognised “the need to strengthen its co-operation and partnership with NGOs working the field of human rights”, and the UN Economic and Social Council acknowledged “the breadth of non-governmental organisations’ expertise and the capacity of non-governmental organisations to support the work of the United Nations” in its resolution 31 of 1996. The involvement of NGOs at this level has two functions: to promote the interests of their own members, and to share their knowledge and expertise, which enhances the decision making and knowledge base of the bodies.
However, the danger is that transnational bodies and their members believe they have the power to determine which groups’ interests deserve to be represented. In both the African Commission and UN resolutions there is a recognition that organisations with observer status must “[h]ave objectives and activities in consonance with the fundamental principles and objectives enunciated in the … African Charter on Human and Peoples’ Rights” and that “[t]he aims and purposes of the organisation shall be in conformity with the spirit, purposes and principles of the Charter of the United Nations.” Unfortunately, the values and principles of the African Charter and the Charter of the United Nations have been narrowly interpreted, and these provisions are used to exclude groups that seek the challenge the scope of the protection afforded by the Charters.
In the recent landmark judgment of Rammoge v Attorney General in Botswana where the Supreme Court of Appeal ordered that an LGBT advocacy group be registered, the court explained the value and necessity of advocacy for controversial topics in a democracy. Judge President Kirby held that even though same-sex sexual activity was currently unlawful in Botswana there was nothing to prohibit groups advocating for the rights of LGBT individuals and for the decriminalisation of same-sex relationships. The court recognised that some groups may believe that homosexuality is a “social ill”, but said that this cannot be used to prohibit the lawful advocacy for rights and interests of minority groups. The judgment reflects the changing African attitudes towards LGBTI persons.
Hate speech, and how to address it, is always a divisive issue. Almost all international human rights instruments and domestic constitutions prohibit speech that advocates hatred, because of the need to balance to right to freedom of expression with the rights to dignity and safety and security. However, there is significant disagreement over how far that prohibition should go – particularly over whether hate speech should be prohibited on its own, or only when it incites discrimination or violence. Hate speech remains a pressing issue in South Africa – particularly after the many race and xenophobia challenges that South Africa has experienced in recent times. South Africa has yet to find a mechanism to deal with these issues.
The role of NGOs at international bodies is to develop and deepen knowledge and debates, and for South Africa to refuse to recognise CPJ on the grounds that it has different views on the punishment of hate speech, is to reject the very purpose of NGOs’ involvement at the UN. The UN and African Commission need to be vibrant democratic spaces, where views of all sides are heard and debated. If only those groups that reinforce the prevailing morality are admitted, the developmental potential and legitimacy of the UN and the African Commission are threatened, and minority groups will have even less faith in the transnational systems. South Africa, in seeking to effectively tackle hate speech, would benefit more from hearing views from diverse perspectives, and the same should apply at the international level.
Caroline James is a freedom of expression lawyer at the Southern Africa Litigation Centre.