INTRODUCTION
The Universal Periodic Review (UPR) is a unique mechanism of the UN Human Rights Council (HRC) that relies entirely on cooperation and dialogue to implement human rights. Unlike other UN human rights mechanisms, states are the principal actors and reviewers in the UPR mechanism. The review takes place every four and a half years in three main stages, which include the preparation of state reports, review of the state in Geneva and the follow-up process. The four major principles underlying the UPR are objectivity, universality, cooperation and complementarity,Footnote 1 with the principal objective of improving the human rights situation on the ground.Footnote 2 Legal bases for the UPR include the UN Charter, the Universal Declaration of Human Rights, binding human rights treaties, voluntary pledges and commitments made by states, and applicable international humanitarian law.Footnote 3 The UPR equally welcomes the, albeit limited, participation of non-governmental organizations (NGOs) during HRC plenary sessions when a state report is being adopted.Footnote 4 This article examines the themes emerging from the engagement of African states in the first and second cycles of the review (UPR I and II) and the extent to which that engagement prevents the UPR from acting as an effective mechanism for enforcing human rights.
Whether the UPR is an effective mechanism for the enforcement of human rights has been a source of contention among many scholars. Some authors argue that human rights mechanisms that rely on states’ cooperation are weak and cannot meaningfully advance human rights.Footnote 5 Olivier de Frouville argued that UPR is flawed because it depends on states’ goodwill and that it does not represent real progress for the universal human rights protection system.Footnote 6 Furthermore, he advocated a more confrontational mechanism through the establishment of a World Commission of Human Rights.Footnote 7 In addition, the UPR has been criticized for its tendency to allow states to engage in hollow ritualism, which undermines the aspirations of the UPR to address human rights violations comprehensively.Footnote 8
However, exclusive reliance on “strong” enforcement mechanisms would undermine the potential of cooperative mechanisms. Avoiding human rights rhetoric or ritualism does not necessarily require a “strong” enforcement mechanism. About 25 years ago, Opsahl advocated the necessity of a “softer approach”, rather than the traditional notion of “right-breach-responsibility-process-sanction, leading to punishment of any violator or at least to redress for any victim”.Footnote 9 Kenneth Roth has argued that coercive mechanisms are not suitable for dealing with violations of economic, social and cultural rights,Footnote 10 and this now reflects many of the recommendations made to African states during the UPR. There has also been evidence that questions the effectiveness of coercive mechanisms. Empirical analysis from 1981–2000 concluded that “economic sanctions deteriorate citizens’ physical integrity rights”,Footnote 11 especially when directed towards dictatorial regimes.Footnote 12 The UPR mechanism, which relies on cooperation and gives the state some degree of control over the process, can sometimes be at least as, if not more, effective than coercive mechanisms.
African states have engaged more actively with UPR than with other human rights mechanisms like the treaty bodies. While many states have overdue reports with the treaty bodies, Africa represents the region with the highest number of overdue reports, with 89 such reports more than ten years overdue.Footnote 13 There is no state in the region without an overdue report.Footnote 14 Even with the African Commission, states like Nigeria, Kenya, Ghana and Namibia have at various times failed to send delegates to the commission for the examination of their state reports.Footnote 15 In contrast, the quality of their UPR reports and delegations has been remarkable. The majority of reports have met the guidelines.Footnote 16 Many of their UPR delegations have been composed of legal personnel and some have also demonstrated gender parity as required by resolution 5/1.Footnote 17 For example, seven of the 14 Kenyan UPR I delegates were female, as were eight of the 13 during UPR II. Both UPR delegations included a representative from the National Gender and Equality Commission. This indicates more active engagement with the UPR than with the treaty bodies.
The enthusiasm and level of engagement of Africa states with the UPR can also be contrasted with their engagement with the African Peer Review Mechanism (APRM).Footnote 18 According to McMahon, Busia and Asherio, despite the progress made by APRM, it faces major challenges among African states, such as the “lack of political will and capacity … [A]nd the number of acceded countries ‘sitting on the fence’ with no serious signals to kick-start the review process could dilute the initial enthusiasm and effectiveness of the mechanism overall”.Footnote 19 19 African states have not yet signed up to the review and, of the 35 African states that have signed up to the APRM, more than half are yet to undertake their self-assessment process.Footnote 20 The fact that all African states participated in both UPR cycles and engaged in the UPR reporting and interactive dialogue processes indicates a greater enthusiasm and level of engagement with the UPR.
Notwithstanding African states’ enthusiasm for the UPR, some of the themes that have emerged from their review during the first and second UPR cycles raise questions regarding the effectiveness of their participation and the extent to which UPR can contribute to improving the human rights situation on the ground. This article examines the themes of regionalism, cultural relativism, selectivity, complementarity and ritualism.Footnote 21 It also examines the issues of complementarity in the case of Kenya and ritualism in the case of South Africa. These have ramifications for the UPR mechanism and may either hinder or assist the mechanism in achieving its objective of improving the human rights situation on the ground.
REGIONALISM
Regionalism generally occurs within an international organization when a group of interdependent states form a subgroup within the main organization.Footnote 22 Regionalism is a useful concept to understanding membership and voting in the HRC. Voting in the HRC usually reflects the regional positions of the five groups of states that share seats in the HRC. Rosa Freedman stresses the negative influence of regionalism in polarizing and undermining the UN's work.Footnote 23 However, Abebe, an HRC delegate from Ethiopia, argues that “such subgroups are necessary because human rights discourse and practice are skewed towards western experiences, resulting in developing states requiring subgroups to represent their views and allow participation in human rights bodies”.Footnote 24 In the UPR process, regionalism has been utilized by African states despite the universality of the review process.
African states have mostly adopted a soft approach to the UPR and are more inclined to accept recommendations from African states than from other states. During UPR I, Kenya accepted recommendations from Angola and Rwanda to “[c]ontinue its efforts towards the abolition of the death penalty”,Footnote 25 but rejected recommendations from France and Poland to “[a]bolish the death penalty”.Footnote 26 Similarly, it accepted a “softer” recommendation from Albania to “[r]aise public awareness on the abolition of the death penalty”,Footnote 27 but rejected a “tougher” recommendation from Australia to “formalize its moratorium on the death penalty”.Footnote 28 Similarly, Nigeria adopted a regional approach in its review. During UPR I, it accepted a general recommendation on the death penalty from Benin,Footnote 29 but rejected a similar recommendation from western states such as the UK and Sweden.Footnote 30 During Chad's UPR II, Togo and Czech Republic recommended that Chad “[r]atify the Optional Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”.Footnote 31 Chad rejected the recommendation from Czech Republic because it added “without delay”.Footnote 32
In the review of its peers, South Africa has utilized regionalism to shield some regional allied states like Zimbabwe and Sudan from critical peer review.Footnote 33 South Africa's recommendation to Zimbabwe ignored the government's repression and commented only on the economic sanctions impeding the human rights efforts of the Zimbabwean government.Footnote 34 In the review of Sudan, it made only one general recommendation that Sudan should “[g]ive priority to the promotion and protection of human rights in all policies developed by the Government”.Footnote 35 This ignored the continuous humanitarian and human rights violations by the Sudanese government.Footnote 36 Employing regionalism in this manner would limit the UPR's effectiveness as a human rights regulatory mechanism.
Nonetheless, regional alliances within the UPR may not altogether be detrimental to the process. They may cause recommendations that may otherwise be rejected to be accepted because they were made by allies in the same regional group. The likelihood that recommendations on controversial issues will be accepted can be increased when made by states bound together by a common interest, as opposed to states with divergent interests. African states have been more inclined to accept recommendations from their regional peers. For example, all South Africa's 65 recommendations to African states during UPR II were accepted, including specific recommendations on the death penalty and gender violence. Nigeria and Kenya made and accepted more recommendations to and from the African group than to or from any other group of states during their reviews.Footnote 37 Nigeria accepted all UPR I recommendations from African states.Footnote 38 These states also participated more in the review of African states than in the review sessions of other states.Footnote 39
The attitude of some Africa states, as examined above, whereby they accept recommendations from their regional peers but reject similar recommendations from other states, provides evidence of regional solidarity against external states. States within the African region may be more aware and sometimes affected by human rights issues in neighbouring states.Footnote 40 As such, they are in a better position to make relevant recommendations in the spirit of cooperation. There have been a few examples of statements by African states expressing solidarity during the review of their regional peers. During UPR I, Senegal “[r]eaffirmed its solidarity with the sister nation of Guinea-Bissau”.Footnote 41 Likewise, Burkina Faso stated during the review of Benin that the “difficulties faced by Benin in the implementation of its international human rights obligations were common to many developing countries”.Footnote 42 While there is a risk that regionalism may polarize the UPR and undermine the mechanism's effectiveness by preventing cooperation across regional groups, cooperation across regional groups of states can exist alongside regionalism when properly utilized. Therefore, regionalism can achieve a positive outcome in the UPR process.
CULTURAL RELATIVISM
UPR recommendations calling for the decriminalization of same-sex relations have presented a cultural relativist challenge limiting the engagement of African states with UPR. States that advocate cultural relativism in human rights implementation argue that human rights depend on the context and respective cultures in which they are applied.Footnote 43 Blackburn notes that the UPR offers an open platform to contrast such cultural assertions.Footnote 44
Many African states exhibited this cultural relativist aspect during their UPR sessions with respect to the issue of sexual orientation. Some states like Zimbabwe deny the existence of gay rights and consider it an attempt by the West to “prescribe new rights”.Footnote 45 Kenya rejected similar recommendations and stated that “same-sex unions were culturally unacceptable in Kenya”.Footnote 46 Similarly, Benin stated that the “phenomenon” was “marginal” and that decriminalization was unlikely in the near future.Footnote 47 Despite the fact that African states received the highest number of recommendations on sexual orientation, no African state made a recommendation on the issue. In recent years, there seems to have been an increase in the number of states in the region specifically moving towards the criminalization of same-sex unions. In 2012 Liberia introduced two anti-gay bills in its Parliament. In 2014 Uganda signed into law the Anti-Homosexuality Law. During its UPR I, Nigeria rejected both recommendations on sexual orientation and further strengthened its position by enacting the Same Sex (Prohibition Act) in 2013. The more entrenched the socio, cultural and religious sentiments against decriminalization, the more difficult it is for a state to accept recommendations for decriminalization.
South Africa is the only exception, although it lacks commitment. South Africa's Constitution offers protection for sexual minorities, although effective implementation has been problematic. During UPR II, South Africa accepted recommendations on the issue of sexual orientation and was the only African state that made a recommendation on the issue, but to a non-African state, Cuba.Footnote 48 In addition, it isolated itself from a statement made on behalf of the African Group at the HRC. Speaking on behalf of the African Group (excluding South Africa), the Nigerian delegate reiterated that same-sex relations stood against African values.Footnote 49 He stated that: “[t]he heads of states of governments of the African Union … resolved not to … accept or integrate concepts which have not been universally defined and accepted in international human rights law. The African leaders thereby rescind the obsession by other regions or groups to impose their own value system on other regions”.Footnote 50
Despite South Africa's apparent support for the rights of sexual minorities, it made no recommendations to its African peers on the issue, which would have clearly demonstrated its commitment to the issue within the African region. This cultural relativist approach to the UPR presents a challenge to the mechanism and questions the extent to which it can influence human rights changes within states on issues that are hyper-sensitive in cultural terms. A softer approach and recommendations on this sensitive issue, focusing more on raising awareness and sensitization on the need for decriminalization, could present a better outcome than recommendations calling for immediate decriminalization.
NON-SELECTIVITY
The principle of universality is an integral part of the UN human rights system. The notion that human rights are universal and that they apply to all peoples across the world was first enshrined in the Universal Declaration of Human Rights (UDHR).Footnote 51 Universality is a key principle of UPR, which is characterized not only in terms of the universality of the process, but also the rights covered. This distinguishes it from the human rights treaty bodies. The scope of the work of the treaty bodies is limited to states that have ratified the specific treaty within their competence. UN treaty bodies do not have the competence to examine the human rights compliance of states that have not ratified the relevant treaty. This allows for the human rights situation of some states to escape scrutiny.
On the other hand, in terms of the rights covered, the UPR examines broader obligations under the UDHR and applicable international humanitarian law, including commitments and voluntary pledges made by individual states.Footnote 52 With regard to the UPR process, it is truly universal since all UN member states are reviewed, regardless of whether they have ratified any human rights treaties. With the exception of Israel, which temporarily boycotted its UPR II in January 2013,Footnote 53 all UN member states have been reviewed in the two UPR cycles, even North Korea. In October 2013, Israel returned and undertook its UPR II. The UPR mechanism ensures universal coverage of all states. The fact that every single UN member state has submitted to the UPR, albeit with different levels of commitment, may be one of its greatest success stories.
However, the key principles of universality and non-selectivity may not have been fully achieved, in particular by the manner in which some African states have participated in the process. Smaller states within the African region have been less inclined to participate in the review of states outside the African region. Even larger and more influential African states, such as Kenya and Nigeria, have been very selective in the states that they review and are more attracted to the review of Asian states. For example, Kenya did not participate in the review session of its peers during UPR I. This may raise questions as to the universality and non-selectivity of the UPR process. Nevertheless, South Africa's engagement as a reviewer demonstrates the universality and non-selectivity of the UPR process. During UPR I, South Africa participated in the review sessions of all five UN groups of states. It participated and made recommendations to 32 African states, 16 Asian states, three states from the UN's Emerging Economies Group (EEG),Footnote 54 11 states from the UN's Latin American and Caribbean Group (GRULAC) and ten states from the UN's Western European and Others Group (WEOG).Footnote 55 It participated in a similar manner during UPR II.Footnote 56 South Africa is among the five African states that have made the largest number of recommendations during the first two UPR cycles. The participation of states across regional lines in the review of their peers may well have positive effects on the universal conception of human rights and in promoting the equal treatment of all states in monitoring state implementation of their various international human rights obligations.
COMPLEMENTARITY: THE CASE OF KENYA
The need to prevent duplication of treaty body functions was a great concern during many stages in the negotiations leading to the establishment of the UPR mechanism in 2006.Footnote 57 The principle of complementarity is reflected in UN General Assembly resolution 60/251, which provides that the UPR mechanism “shall complement and not duplicate the work of treaty bodies”.Footnote 58 HRC resolution 5/1 reiterates this principle as one of the essential bases of the review, and guarantees that the UPR adds value to the human rights monitoring system.Footnote 59 The concept of complementarity is increasingly used in international law to underline the relationship between two or more autonomous organs. The International Criminal Court uses it to define its relationship with the national courts.Footnote 60 In the context of the UPR, complementarity regulates the relationship between the UPR mechanism and the UN human rights treaty bodies. It strives to achieve consistency and coherence in the operations of the monitoring organs, with the aim of avoiding unnecessary duplication of functions that could lead to the wastage of resources.
However, there is disagreement among scholars and practitioners regarding the ability of the UPR to complement the work of the human rights treaty bodies. This disagreement has been approached from three viewpoints: duplication, in that the UPR overlaps with the functions of the human rights treaty bodies; the debilitating effect that the UPR process has on existing human rights obligations, insofar as it weakens and overshadows treaty body recommendations; and the enhancement of state engagement with treaty bodies that results from the UPR process. Nadia Bernaz took the first perspective when she argued in 2009 that the UPR encroaches on the work of the treaty bodies, resulting in significant overlap between the two mechanisms because of the features they share.Footnote 61 This argument echoed some of the sentiments of Australia and the African Group during negotiations on the modalities of the UPR in 2006.Footnote 62 They argued that a separate UPR report would be an unnecessary duplication of the reporting obligations required by the human rights treaty bodies and would represent an additional, undue burden for states.Footnote 63 This problem was resolved by limiting the state UPR report to a maximum of 20 pages, but the UPR's complementarity with the treaty bodies was far from being proved.
Sir Nigel Rodley, former UN HRC member, argued in favour of the second perspective in the relationship between the treaty bodies and the UPR, which is that the UPR process has a debilitating effect on treaty body recommendations. He contended that the UPR enables states to evade their obligation to implement recommendations by treaty bodies.Footnote 64 According to Rodley, the fact that states have the freedom to reject certain UPR recommendations can negatively impact the work of the treaty bodies, because states “will invoke the gentler diagnosis of the UPR to discredit the harsher diagnosis of the treaty bodies”.Footnote 65 For example he found that, by the end of 2009, a total of nine UPR recommendations explicitly quoted recommendations from the Committee Against Torture, of which five were rejected.Footnote 66 On this basis, Rodley argues that the UPR process presents a risk to the work of the treaty bodies, as states could use the process to undermine the validity of recommendations from the treaty bodies.Footnote 67 While there is much validity in Rodley's critique, it may be asked what legal impact that could really have on treaty body recommendations, given that the rejection of a UPR recommendation cannot invalidate a state's legal obligation owed to the treaty bodies under the relevant treaties.
Frouville criticized the UPR for oversimplifying the hard work of the treaty bodies by summarising their recommendations.Footnote 68 According to Frouville, there is no real interaction between the UPR and other human rights mechanisms, because states will only accept UPR recommendations that are consistent with their purpose.Footnote 69 He argued that, in the worst case, the UPR is overshadowing the work of the treaty bodies by taking away material resources from treaty bodies and attracting more media and public attention.Footnote 70
In 2015, Helen Quane provided evidence in the case of Association of Southeast Asian Nations (ASEAN) states that supports the third point of view, and is more positive of the relationship between the UPR and the treaty bodies. She demonstrated that the UPR has enhanced the nature and level of the relationship between ASEAN states and the human rights treaty bodies.Footnote 71 Quane argued that, by recommending that states enhance their engagement with treaty bodies, submit overdue reports and ratify specific human rights treaties, the UPR has contributed to greater and more constructive engagement between many ASEAN states and the human rights treaty bodies.Footnote 72 This section of this article engages with this third viewpoint and adopts an approach to the relationship between the UPR and the treaty bodies that has received little attention in the literature. This approach, examined below with a focus on Kenya, considers whether the UPR can potentially create a synergy with other national, regional and international human rights mechanisms by amplifying and reinforcing their recommendations. While acknowledging that there are instances where UPR recommendations have in fact either watered down or contradicted treaty body recommendations,Footnote 73 there is evidence of the UPR's potential to reinforce and provide greater visibility to recommendations from both national and international human rights mechanisms.
In the domestic context of change within Kenya, the UPR is a very important mechanism that can support and strengthen the transition and development process. UPR recommendations can play a role vis-à-vis the national level by promoting the inclusion of international human rights standards in constitutional or legislative drafting, and by strengthening mechanisms that will improve access to justice, most especially for vulnerable and marginalized groups. This can be very valuable to transitional societies undergoing various institutional reforms. In Kenya for example, the UPR occurred at a time of increased local calls for transitional justice, police and judicial reforms, constitutional change and for socio-economic rights, as well as calls to address the plight of internally displaced persons. Many of the recommendations during Kenya's UPR I reemphasized and reinforced transitional justice processes that were taking place within Kenya. For example, the recommendations made by the Commission of Inquiry on Post-Election Violence (CIPEV)Footnote 74 regarding police reforms and, in particular, the establishment of an Independent Policing Oversight Authority, were reemphasized in the report of the National Task Force on Police Reforms.Footnote 75 These were subsequently amplified by many states in their recommendations to Kenya. The UK recommended that Kenya “establish an independent, credible and authoritative Police Oversight Authority, with sufficient powers and resources”.Footnote 76 Another state recommendation called on Kenya to “fully implement the proposals made by the National Task Force on Police Reforms”.Footnote 77 Also, CIPEV recommended that the Freedom of Information Bill be enacted forthwith.Footnote 78 Norway reinforced this recommendation during UPR I by recommending that Kenya “[e]nact as a matter of urgency the Freedom of Information Bill”.Footnote 79 During UPR II, nine states buttressed the recommendations of the Kenyan Truth and Reconciliation Commission's report by each recommending that the state should implement the recommendations in the commission's report.Footnote 80 Kenya accepted these recommendations.
Similarly, states also used Kenya's UPR I and II to reinforce recommendations made by other regional and international human rights mechanisms regarding the human rights situation in Kenya. During Kenya's UPR I, Denmark recommended that the government implement the recommendations of both the special rapporteur on extrajudicial killing and the special rapporteur on the rights of indigenous people, following the latter's visit to Kenya in 2007.Footnote 81 Despite Kenya's denial of many of the findings on Kenya in the report of the UN special rapporteur on extra-judicial killings,Footnote 82 it accepted this recommendation.Footnote 83 It also accepted the recommendation to “[i]mplement the recommendations and decisions of its own judicial institutions and of the African Commission on Human and Peoples’ Rights, particularly those relating to the rights of indigenous peoples”.Footnote 84
The UPR has equally reinforced the recommendations of the treaty bodies. For example, the UPR reinforced many of the previous recommendations to Kenya of the Committee on Economic, Social and Cultural Rights. The committee had recommended in 2008 that Kenya criminalize domestic violence and female genital mutilation, and allocate sufficient resources for the fight against poverty. Without weakening any of these recommendations, the UPR strengthened and amplified their importance during Kenya's UPR I in 2010. States made more than 20 recommendations addressing these issues, many of which were specific.Footnote 85 For example, it was recommended that Kenya “[i]mplement measures to prevent, punish and eradicate all forms of violence against women … and also completely eradicate the practice of female genital mutilation”Footnote 86 and “[u]rgently … adopt legislation criminalizing female genital mutilation”.Footnote 87 Kenya accepted all these recommendations.
This section demonstrates the potential for the UPR to reinforce the human rights concerns raised, as well as recommendations by domestic, regional and other international human rights mechanisms. While there is a possibility for the UPR to weaken treaty body recommendations, it is also important to acknowledge that this may be a result of the softer approach of states to the UPR and may reflect its very nature as a cooperative, non-technical and non-confrontational human rights mechanism, driven by states rather than human rights experts. Moreover, rejecting a recommendation cannot relieve a state from its legal obligation under the relevant treaties as interpreted by the responsible treaty body, regardless of the outcome of a state's UPR. However, there is contention that the UPR has the capacity to undermine the legitimacy of the treaty bodies to sustain more progressive interpretations of the treaty texts and that sufficient push-back from states might adversely affect the claim to certain rights interpretations having the quality of opinio juris.Footnote 88 With the completion of the first two UPR cycles, a comprehensive assessment of the impact of the UPR process on the work of the treaty bodies would significantly contribute to the debate. Nevertheless, in the case of Kenya as examined in this section, the state's engagement with the UPR demonstrates the ability of the UPR to strengthen and reinforce human rights concerns raised by other human rights mechanisms. This aspect of the UPR is seen to serve as a model and has inspired proposals on human rights and the post-2015 development agenda, which advocates for a global web of effective monitoring that complements and reinforces efforts at domestic and regional levels.Footnote 89 In the case of Kenya, the UPR has been used as a platform to strengthen and support judicial and police reform, as well as the truth and reconciliation process in the region, among other human rights issues challenging the state.
RITUALISM: THE CASE OF SOUTH AFRICA
South Africa's engagement with the UPR illustrates the potential for UPR to degenerate into ritualism when there is a lack of effective NGO engagement.Footnote 90 Braithwaite and others define ritualism as “acceptance of institutionalized means for securing regulatory goals while losing all focus on achieving the goals or outcomes themselves”.Footnote 91 Charlesworth and Larking, in their study on the UPR's regulatory power, define ritualism as “participation in the process of reports and meetings but an indifference to or even reluctance about increasing the protection of human rights”.Footnote 92 Ritualism may take various forms.Footnote 93 The form of ritualism examined here is capitulation.Footnote 94 Capitulation refers to the willingness to abide with or accept the legitimacy of an institution, in the absence of genuine commitment to the institutional goals.Footnote 95
Capitulation can best describe South Africa's engagement with the UPR. South Africa claims to attach “great importance” to the HRC's work as a body of “first instance” responsible for the universal enforcement of human rights and having “equal importance” to the UPR as the “hallmark of the Council's work”.Footnote 96 However, the extent of South Africa's engagement with the UPR suggests that it has found the UPR process useful in securing its foreign policy aims, rather than an actual commitment to the intrinsic goals of the UPR mechanism.
South Africa's responses to the recommendations from its peers suggests that it tries to shield itself from effective scrutiny and to mask human rights concerns with its past human rights achievements. In response to UPR I recommendations from its peers, South Africa stated that “[m]ost of the recommendations proposed for South Africa require serious contextualization … and have already been implemented through national legislation and programmes”.Footnote 97 This could be interpreted to mean the recommendations were not relevant.Footnote 98 This section examines three issues that denote that the government's responses were substantially rhetorical. These three issues featured prominently in the recommendations to South Africa and included corporal punishment, violence based on sexual orientation and gender identity, and xenophobia. Many of them were relevant and addressed the inadequacy or ineffectiveness of the measures put in place by the government to address these human rights concerns.
Corporal punishment
The issue of corporal punishment featured among state and NGO recommendations during both UPR I and II. During UPR I, Slovenia made a specific recommendation that South Africa, “[c]ommit not only to removing the defence of reasonable chastisement but also to criminalizing corporal punishment with the concomitant pledges towards raising awareness and providing the necessary resource to support parents in adopting positive and alternative forms of discipline”.Footnote 99
Similar recommendations were made by NGOs such as Children Now, the South African Human Rights Commission and Global Initiative to End All Corporal Punishment of Children.Footnote 100 In response to these recommendations, the South African government stated during UPR I that the issue of corporal punishment at home is being dealt with by the South African Domestic Violence Act 1998.Footnote 101 It further stated that legislation has outlawed corporal punishment at school but there are only “isolated cases of non-compliance with legislation for which corrective measures are usually taken”.Footnote 102
However, findings by the Centre for Child Law at Pretoria University in 2014 suggest that there is an “official ambivalence” towards the ban on corporal punishment.Footnote 103 The centre found that approximately 2.2 million children were exposed to corporal punishment and that the phenomenon has been increasing steadily in certain provinces in South Africa.Footnote 104 This suggests that the government's response to UPR recommendations on this issue is mere rhetoric. It attempts to deflect attention on the inadequacy and ineffectiveness of the measures put in place to end corporal punishment at school and home. Similar recommendations made by the Committee on the Rights of the Child, the Committee Against Torture and more recently the African Committee of Experts on the Rights and Welfare of the Child have not been implemented.Footnote 105 They expressed concern at the continuous use of corporal punishment in schools. Their recommendations were that the government ensure that legislation banning corporal punishment be “strictly implemented” in schools and that it take effective measures to prohibit corporal punishment at home.Footnote 106
The government's response simply points to existing legislation on corporal punishment, which undermines its receptiveness to the UPR recommendations. Corporal punishment remains lawful at home in South Africa and the existing enforcement mechanisms regulating the prohibition of corporal punishment in schools have been found to be inadequate and ineffective.Footnote 107
Violence based on sexual orientation
Violence based on sexual orientation is one of the issues that featured prominently among state recommendations to South Africa during UPR I and II. Recommendations that states made to South Africa on sexual orientation included: undertake credible investigation and prosecute perpetrators; enhance prevention and monitoring capacity; train police and the judiciary; and launch awareness-raising campaigns.Footnote 108 In some ways, South Africa is an exception to the general criminalization and discriminatory treatment confronting the LGBT community in Africa. The South African Constitution explicitly prohibits discrimination against anyone based on sexual orientation.Footnote 109 At the international level, South Africa has achieved a milestone in advancing LGBT rights worldwide. In 2011, despite strong criticism from its regional peers, South Africa tabled a draft resolution before the HRC that expressed concern at violence and discrimination against persons based on their sexual orientation.Footnote 110 South Africa was the only African state that voted in favour of a subsequent resolution on sexual orientation in 2014.Footnote 111 With this in mind, South Africa's response to state recommendations on the issue during UPR I, simply made reference to the constitutional protection in place.Footnote 112 During UPR II, its response referred to the government policy framework on combating hate crime and its international endorsement of the rights of sexual minorities at the HRC.Footnote 113
However, South Africa's role on the issue of sexual orientation lacks a consistent actual commitment domestically and internationally. The government's responses do not reflect on the need to address the inadequacies of the existing protective measures. Domestically, the situation of LGBT individuals generally remains grim, as they reportedly face violence and intimidation because of their sexual orientation.Footnote 114 In 2011, Human Rights Watch published a report that found a dichotomy between the constitutional ideals and public attitude towards these individuals.Footnote 115 Furthermore, it found that, despite constitutional protection of the rights of LGBT persons, discrimination against them remained institutionalized in communities, families, the police and educators.Footnote 116
State responses to violence based on sexual orientation have fallen short in many aspects.Footnote 117 Notably, there is a lack of official monitoring and reporting.Footnote 118 Moreover, there is the growing phenomenon of “corrective” or “curative” rape,Footnote 119 in relation to which Lea Mwambene argues that the government has failed to fulfil its constitutional mandate.Footnote 120 Likewise, in 2011, the Committee on the Elimination of All forms of Discrimination Against Women expressed “serious concern about the practice of so called ‘corrective rape’ of lesbians” in South Africa.Footnote 121
In addition, some public figures and those who design government policies in South Africa hold strong conservative views about sexual minorities. In 2012, Peter Holomisa, chair of Parliament's Constitutional Review Committee, stated that “homosexuality was a condition that occurred when certain cultural rituals have not been performed” and further said, “when rituals are done, the person starts to behave like others in society”.Footnote 122 Jacob Zuma, former president of South Africa, was criticized in 2006 for publicly describing same-sex marriages as “a disgrace to the nation and to God”.Footnote 123 Such conservative views undermine the commitment of the South African government to protect the rights of LGBT individuals.
At the International level, South Africa's commitment to protecting the rights of sexual minorities is fraught with inconsistencies and double standards. As noted above, it made no recommendations on the issue to its regional peers during their reviews. This demonstrates a reluctance to take a definite position at odds with the majority of African states. Graeme Reid has criticized South Africa for supporting a regressive HRC resolution on “protection of the family”, which infringed the rights of LGBT people.Footnote 124 He also observed that South Africa stopped attending meetings of the core group of LGBT-friendly states.Footnote 125
South Africa's role in advancing the rights of LGBT people is an important one. However, the state needs to be consistent in its commitment internationally and take the lead in engaging its regional peers on the decriminalization of same-sex relations. At the domestic level, South Africa's response to the UPR recommendations is substantially rhetorical. Most of the recommendations addressed the inadequacies of the existing protective measures and the need for the state to provide effective protection for sexual minorities. Engaging with the UPR recommendations, by enhancing prevention, monitoring capacity and launching awareness-raising campaigns, can help narrow the gap between constitutional ideals and the public attitude towards LGBT individuals and help counter ritualism.
Racism and xenophobia
This was a prominent issue in South Africa's HRC review, with a dramatic increase from two recommendations during UPR I to 12 recommendations during UPR II. Most of these recommendations required the government to “reinforce measures to combat and prevent xenophobia” and to “take all necessary steps to address the issue of xenophobia through legislation”.Footnote 126 Xenophobia has been a social problem in South Africa for almost two decades, entrenched by the legacy of apartheid.Footnote 127 However, the extent of the government's response to racism and xenophobia is questionable, and undermines its commitment to recommendations aimed at combating them.
In August 2006, the Committee on the Elimination of Racial Discrimination was concerned about the frequency of hate crimes in South Africa and the “inefficacy of the measures in preventing such crimes”.Footnote 128 It recommended that the government “adopt legislative and other effective measures to prevent, combat and punish hate crimes”.Footnote 129 In 2007, similar recommendations came from the APRM after observing that “xenophobia … is currently on the rise and should be nipped in the bud”.Footnote 130 In May 2008, a resurgence of xenophobic violence in South Africa left more than 60 people dead and about 100,000 displaced.Footnote 131 This indicated that the government did not proactively engage with the recommendations.
During the adoption of South Africa's UPR I report in June 2008, the South African delegation was questioned on the May 2008 xenophobic incident. In its response, the government was hesitant to recognize the incident as xenophobic. It stated that “[t]he government of South Africa is on record as having publicly deplored the recent acts of violence against foreigners in the country by individuals and groups, ostensibly motivated by xenophobia”.Footnote 132
South Africa has undertaken some measures to address the problem of xenophobia, but the effectiveness of these measures in preventing future reoccurrence in some parts of the country is questionable. In its official response to the UPR II recommendations on racism and xenophobia, South Africa referred to the substantive content of a draft National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance (NAP), which was being finalized.Footnote 133 It also pointed to its leadership on resolutions against racism and xenophobia at the international level.Footnote 134 However, it has not met such rhetoric with concrete action. South Africa envisaged that the NAP would be lodged with the UN by May 2013, but it has not yet been deposited.Footnote 135 Moreover, instances of xenophobic attacks continued after 2011.Footnote 136 The reoccurrence of major xenophobic violence in April 2015 (in Durban) underscores the ineffectiveness of the government's measures to combat xenophobia.
In addition, the narratives constructed by some South African government officials and elites on the xenophobic attacks undermine South Africa's commitment to combat racism and xenophobia. Shortly after the April 2015 xenophobic attacks in Durban, Small Business Development Minister Lindiwe Zulu stated that “the businesses of foreign Africans based in townships could not expect to co-exist peacefully with local business owners unless they share their trade secret”.Footnote 137 King Goodwill Zwelithini, king of the Zulu people in South Africa, arguably played a role in inciting the 2015 xenophobic violence when he said at a public gathering that “African migrants should take their things and go”.Footnote 138 The initial denial and “ritual” condemnation of such rhetoric and narratives bring into question South Africa's commitment to combat racism and xenophobia, and undermine its reception to recommendations on the issue.
The responses of the South African government to these three issues indicate a lack of commitment to address them effectively. On corporal punishment, the government's response that simply points to existing legislation fails to address the inadequacies and ineffectiveness of the current measures. It also ignores several recommendations from regional and international human rights mechanisms for stronger protection. Violence and discrimination based on sexual orientation remain institutionalized in communities, despite South Africa's constitutional protection and international support for the issue. Moreover, the recurrence of xenophobic violence in April 2015, despite international leadership, indicates the extent of the government's ritualism in handling racism and xenophobia.
CONCLUSION
It is difficult to reconcile some of the underlying UPR principles with some of the themes emerging from the UPR. Regionalism may polarize the UPR process, prevent cooperation across regional groups and undermine the effectiveness of the UPR mechanism. However, the regional alliance may not altogether be detrimental to the UPR process because it may cause recommendations that may not have been accepted because they were made by allies in a particular regional group. This is more so within the African Group due to the “soft approach” that African Group members adopted in making recommendations. Given the entrenched socio, cultural and religious sentiments against decriminalization of same-sex unions, it is difficult for many African leaders to accept recommendations for decriminalization. A softer approach could make a big difference by focusing more on recommendations requesting African states to raise awareness and sensitization on the need for decriminalization rather than tougher recommendations calling for decriminalization. Nevertheless, the issue of selectivity in attending review sessions may raise questions regarding the universality and non-selectivity of the UPR process.
As a cooperative mechanism, the UPR can complement other existing mechanisms as it was designed to do in the first place. The case of Kenya notes the potential for the UPR to strengthen existing human rights mechanisms, give renewed visibility and reinforce the human rights concerns raised by various national and international human rights mechanisms. The potential for this synergy within a cooperative, inclusive and collaborative human rights mechanism can ensure that the UPR recommendations are relevant and target the improvement of the human rights situation on the ground.
However, ritualism, as examined in the case of Kenya, presents a danger to the effectiveness of UPR in improving the human rights situation on the ground. The state needs to be held accountable for implementing the recommendations and commitment entered into during the UPR. According to Takele Bulto, ritualism may be a temporal weakness of the UPR mechanism.Footnote 139 However, it is vital that the mechanism addresses this weakness in time before it becomes entrenched. As rightly pointed out by Charlesworth and Larking, the ability of UPR to move beyond rhetoric and ritualism, and actually improve the human rights situation on the ground, depends profoundly on effective NGO engagement.Footnote 140 NGOs should therefore actively engage in the various stages of the review, form coalitions and follow up on the extent to which the state implements the UPR recommendations. While effective NGO engagement can contribute to the effectiveness of the UPR process, it is important to be wary of NGOs that are in reality “government mouth pieces” or those that prioritize the agenda of their donors, which may not necessarily reflect the priority of the people they claim to serve.Footnote 141
