The “Protection of the Family” Resolution: The Role of South Africa

In April 2014, a resolution on ‘The Family’ (A/HRC/L26/L.20) was placed before the Human Rights Council.  The resolution in its current form was first tabled by Egypt in 2013.  They decided to withdraw it, given that it was viewed as being too controversial and due to a lack of support. This resolution links to initiatives over the last four years,  in which some states, with the support of conservative Christian NGOs based in the United States, have tried unsuccessfully to go back to rigid conceptualisations of the family, trying to retreat from the more flexible and inclusive language currently used in resolutions pertaining to the family.

The essence of the narrowing approach is designed to get formulations of ‘the family’ into international law that will reinforce a family structure that is based on a married man and woman, with the man as the head of the family and woman/women and children subject to the marital authority of the man.  The effect of such a formulation would be to: (a) serve to reinforce restrictions on same-sex relationships; (b) dilute the gains made in terms of promoting women’s equality within marriages, including customary marriages and; (c) place restrictions on children’s rights, particularly in relation to their abilities to access sexual and reproductive health services. The restricted formulation of ‘the family’ may also restrict rights and services to women-headed households and child-headed households.

The ‘language of inclusivity’ is general and refers to the “recognition that in many parts of the world, political and cultural contexts prevail where various forms of the family are to be found”, which was used in a proposed amendment to Resolution A/HRC/L26/L.20 (proposed by Uruguay). Resolution A/HRC/L26/L.20 is also linked to significant political efforts, within and outside of governments, to use discussions on the family to roll back gains made with respect to women’s equality, the rights of children and the rights of people based on their sexual orientation and gendered identities.

In all its international relations engagements, various South African delegations to the United Nations (UN) and the African Union (AU) have always been careful to ensure that resolutions on the family accurately reflect the country’s Constitution and legal frameworks. This is especially important when international resolutions and international law falls short of what is provided for in the South African Constitution or national law. Where international agreements, resolutions or treaties contain elements that provide less protection than the South African Constitution or related national legislation (especially in terms of human rights), then South Africa needs to domesticate or interpret such agreements in line with the South African Constitution and national law.

At the Commission on Population and Development (CPD) in 2014, South Africa in the Africa Group had proposed language on families in line with our national legislation, the Addis Ababa Declaration (which was negotiated in Addis Ababa as a common African position in preparation for the CPD and the forthcoming Special Session on the ICPD scheduled for 22 September 2014, during UNGA69) and in line with previously agreed UN resolutions.  These include HRC Resolution 7/29; UNGA resolution 27/2; UNGA resolution 59/147 and UNGA resolution 65/277. Most importantly, the South African inputs have always sought to ensure that the language on families follow that of the International Conference on Population and Development (ICPD) Programme of Action and the Beijing Platform of Action.

At the core of South Africa’s view of families is the recognition of diversity as indicated in its White Paper on Families. The White Paper lists the following as part of its strategic priorities:

  • Respect the diverse family types and values in the country;
  • Put in place measures to eradicate discrimination related to, among others, age, gender, birth, sexual orientation, race, ethnic or social origin, marital status, disability, beliefs, culture, language, physical and mental conditions, family composition, financial conditions, and blood relations;
  • Provide families, regardless of structure, with parenting and relationship assistance, focusing particularly on the social and emotional side of a child’s development and parental relationships.

The White Paper is in line with section 9 (3)[1] of the Constitution which, aside from its strong emphasis on non-discrimination within the Bill of Rights, also provided for the development of legal instruments to protect the rights of people to have same-sex marriages through the Civil Union Act 17 of 2006 and for the protection of women married in customary law, through the Recognition of Customary Marriages Act 120 of 1998.

The idea of changing family structures and the diversity of families are indeed African positions. African Heads of State and Government demonstrated this through their endorsement of the Addis Ababa Declaration on Population and Development in Africa beyond 2014 at the AU Summit in January 2014. This outcome document was carefully negotiated in the interest of reaching a consensus and the following paragraphs pertaining to the family was agreed upon in that document:

  • Recognizing that population dynamics and growth, changing age structure, urbanization, migration and changing household and family structure, influence the opportunities for human development, and are essential to effective planning for inclusive economic growth and social development, as well as for sustainable development;
  • Address and improve the welfare, livelihoods and stability of families and communities and the longevity of people through inclusive social protection policies and programmes;
  • Develop and strengthen family related programmes that would address challenges facing emerging family structures such as female-headed households, child-headed households and households headed by older persons;
  • Adopt and implement legislation, policies and measures that prevent, punish and eradicate gender based violence within and outside of the family, as well as in conflict and post-conflict situations.

However, in response to the amendment tabled by Uruguay to Resolution A/HRC/L26/L.20, South Africa voted to block the tabling and discussion of this proposed amendment and supported the Resolution on the grounds that it was “merely procedural”.

Human rights are fundamental issues of the Global South. It is their distortion by narrow, reactionary agendas, often driven and financed from the North, that South Africa needs to consistently reject. There is nothing that can be held to be “merely procedural” in international political arenas and to use this as an explanation is disingenuous and unworthy.

Steps are needed to remedy the situation. Resolution A/HRC/L26/L.20 called for the Human Rights Council to debate the issue of the family in its September 2014 sitting, and this debate is happening today. South Africa needs to stand firm in its position, the position of the AU and the position of all who resist the manipulations of the religious right.

[1] Section 9(3) of South Africa’s Constitution expressly prohibits unfair discrimination on any grounds. It reads as follows: The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

By Janet Love

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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