Africa’s hyprocrisy on human rights, sexual orientation and gender identity

Lawrence M. Mute

During the month when the World celebrated the 60th anniversary of the Universal Declaration on Human Rights, an extremely rare, indeed one-time event, was witnessed at the United Nations General Assembly. On the 18th of December, 2008, a Statement on Human Rights, Sexual Orientation and Gender Identity [1] with the backing of 66 states including six African countries [2], was read at the General Assembly.

The Statement drew its message exclusively from human rights normative frameworks such as the International Bill of Rights and interpretive statements from Treaty Body Committees. Among other things, it:

- Reaffirmed “the principle of the universality of human rights, … that everyone is entitled to the enjoyment of human rights without distinction of any kind, ... (and) the principle of non-discrimination which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity”;

- Raised concerns about: “violations of human rights and fundamental freedoms based on sexual orientation or gender identity ... (and) that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine the integrity and dignity of those subjected to these abuses”;

- Condemned “human rights violations based on sexual orientation or gender identity wherever they occur...And;

- Urged “states to take all the necessary measures … to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention …, to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice ... (and) to ensure adequate protection of human rights defenders, and remove obstacles which prevent them from carrying out their work on issues of human rights and sexual orientation and gender identity [3].”

The symbolic and actual importance of this Statement was dramatised by the reading of a counter-statement arguing against the Statement on Human Rights, Sexual Orientation and Gender Identity, supported by 60 states including a multitude of African countries. The counter-statement was based on classic stereotyping, prejudice and disinformation most often articulated by homophobes and transphobes. It, among other things, stated that: protection of sexual orientation could lead to the social normalisation and possibly the legalisation of deplorable acts such as paedophilia and incest. It charged that the Statement was an attempt to create « ‘new rights’ or ‘new standards’ by misinterpreting the Universal Declaration and International Treaties to include such notions that were never articulated nor agreed by the general membership [4].

A High Level Side Event on Human Rights, Sexual Orientation and Gender Identity [5] to commemorate the Statement’s reading was addressed, among others, by Rama Yade, France’s Secretary of State for Human Rights; Maxime Verhagen, Minister of Foreign Affairs of the Netherlands; Sunil Pant, an MP from Nepal; Michael O’flaherty, Raporteur of the Yogyakarta Principles on the Application of International Human Rights in Relation to Sexual orientation and Gender Identity and member of the Human Rights Committee; Navanethen Pillay, the UN High Commissioner for Human Rights; and Lawrence Mute, a Commissioner with the Kenya National Commission on Human Rights. The Event sought both to celebrate as well as reflect on the way forward for ensuring the rights of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) communities around the World.

But, back to the Statement itself, where one is bound to query why countries and mainstream civil society organizations which espouse human rights as universal, indivisible and interdependent still fail to acknowledge the unacceptability that fellow human beings should be killed, violated, discriminated or excluded from society simply because of their sexual orientation or gender identity. In particular, why did the whole of Anglophone Africa decline to support the Statement? Why did such little empathy flow from many discriminated groups to LGBTI communities? Why would many a group discriminated on grounds of race, disability or gender still find it rational to perpetuate discrimination on homosexuals or lesbians? Was it that human rights are guaranteed to some and not to others?

States, as enjoined by the United Nations Charter and the plethora of Human Rights Treaties to which they are party, are the ultimate bastions for ensuring respect, protection and fulfillment of the rights of all individuals and communities, regardless of their sexual orientation or gender identity. Article 2 of the African charter on Human and Peoples’ Rights replicates anti-discrimination injunctions in other Human Rights Conventions when it requires that: “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status [6]. (Emphasis added) The Committee on Economic, Social and Cultural Rights has interpreted the phrase “other status” in Article 2.2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to include the ground of sexual orientation [7]. Then again, the Human Rights Committee has interpreted the word “sex” in Article 2.1 of the International Covenant on Civil and Political Rights (ICCPR) , in Toonen v. Australia [8], as: “to be taken as including sexual orientation”.

So, why did so many African countries prefer to sign a counter-statement purveying homophobia and transphobia rather than support a cogent anti-discrimination and anti-violence position? In my address to the High Level Side Event, I noted that the discourse for ensuring that the rights of LGBTI communities are respected, protected and fulfilled has over the years been framed as a decidedly Northern/developed countries agenda, with minor exceptions at the legal if definitely not the popular level in developing jurisdictions such as South Africa. IN my assessment, five dynamics continue to dictate the manner in which developing countries in Africa and perhaps other regions interact with the rights of LGBTI communities.

First, is the dynamic of criminalization under which sodomy laws were nearly a century ago legislated into colonial Africa to criminalise homosexual and related acts. By the time that Africa’s colonizers began to expunge sodomy legislation from their statute books (through processes such as the 1956 Wolfenden Committee in the United Kingdom) [9], sodomy laws in Africa had become entrenched in a value ethic of their own sheathed in culture and religion under which homosexuality was touted as “un-African” and “unholy” [10]. This is the basis upon which sodomy laws today remain on the statute books of countries such as Kenya, Uganda and Tanzania as “offenses against morality” [11], and are being legislated most recently in countries such as Burundi [12].

Second, is the dynamic of discrimination and violation. The legal plight of LGBTI people is not determined as such by sodomy laws, for these laws tend to be difficult or inconvenient to prosecute successfully. Far more pressing is the discrimination or the violation of LGBTI peoples’ rights to life, liberty, education, health or employment on account of their sexuality. A lesbian person in East Africa today fears to be “outed” because her homophobic employer may then engineer dismissal, in clear violation of the ICESCR as well as a host of other international, regional and national laws. “Outing” might also incite groups on the fringes of some cultural or religious traditions to hurt or kill such lesbian person in breach, among other norms, of the ICCPR.

Third, is the dynamic of political mobilization against LGBTI peoples. African experiences during the last two decades include a procession of heads of states – from President Moi, President Museveni, President Mugabi and President Nujoma - making decidedly homophobic statements equating homosexuality with beastliness and Western-derived baseness, and as a consequence mobilizing popular opprobrium against homosexual people. Our Legislatures have responded either through stony silence and prevarication or rabid rejection of LGBTI issues as policy or legislative concerns. The effect of this, for example, was a proposal in the Draft Constitution of Kenya, 2005, specifically stating that marriage may happen only between a man and a woman.

Fourth, however, is the dynamic of pragmatism which has increasingly informed the administrative actions and responses of our states’ bureaucracies. The HIV/AIDS pandemic has forced administrators in our Ministries of Health to realize that they must craft interventions specific to groups such as men who have sex with men (MSM’s) and commercial sex workers. The plans of our Ministries of Health now include express or implicit strategies on how to ensure that MSM’s conduct of sex is safe.

Fifth, the human rights discourse has finally began to impact the lives of Africa’s LGBTI peoples. The last few years have seen LGBTI communities beginning to “claim” their rights as rights-holders. When the World Social Forum was held in Nairobi in January 2007, the LGBTI communities socialized in the ‘Q-Spot’ tent where they articulated their rights concerns with conviction and courage. In East Africa, one notes the particular courageous activism of organizations like Sexual Minorities Uganda (SMUG) and the Gay and Lesbian Coalition of Kenya (GALCK) [13].

A more specific commentary must be made regarding the behaviour of South Africa in this matter. It was greatly disappointing that by “abstaining”, South Africa failed to show political and diplomatic leadership when its Constitution [14] as well as its Judiciary (for example its Constitutional Court) [14] have spoken so resoundingly against discrimination on the ground of sexual orientation. South Africa’s credentials as a “non-racist” and “non-sexist” nation had to be found wanting when her politicians and diplomats failed to stand alongside other World leaders in condemnation of homophobia and transphobia; a paradox that totally impeaches the philosophy of equality and non-discrimination. Could it really be that South Africa’s political leadership tolerates the dehumanizing violence so graphically meted out on lesbians in that country? South Africa’s silence at the General Assembly on the 18th of December was compounded when the United Nations High Commissioner for Human Rights, herself a South African, while addressing the Side Event, recollected with warmth South Africa’s firm anti-gay constitutional provisions and past supportive statements from South Africa’s Minister of Health at the 1995 Beijing Women’s Conference.

During the Side Event, Mr Verhagen urged the Human Rights Committee to prepare a new General Comment on Article 2 of the ICCPR covering non-discrimination. Mr O’Flaherty urged states and mainstream human rights organizations to provide the UN’s Treaty Committees and Special Procedures’ holders information with relevance for LGBTI communities. This would enable these human rights mechanisms to ask more searching questions and make more incisive recommendations in the areas of women’s rights, torture, etc, as these relate to LGBTI communities. I warned that as much as we may desire and rhetorise constitutional and legislative reforms including decriminalisation, this would be unlikely to happen in the immediate short term. I hoped that in the medium term our Judiciaries had limitless possibilities of making enlightened decisions to enhance the rights of LGBTI communities [16]. I urged activists to deploy the intersectional approach to leverage the technical and lobbying capacities of all groups which are discriminated on grounds such as race, ethnicity, gender, disability, sexual orientation or others to work together to combat discrimination. Our experiences thus far have tended to range one discriminated group against the whole society such that such group’s gains or losses have also to be borne singly. I noted that even as we acknowledge that human rights are universal, strategies for the realization of human rights may be localized to particular regions. Northern advocates on the rights of LGBTI communities and backers from the North must not presume that the strategies of their peers from the South must coincide with theirs. It should not be about how rights are realized; it should be that rights do become realised.

In conclusion, African states must acknowledge that there is an irreducible minimum of rights which must apply to LGBTI peoples simply because they do apply to all other human beings in our various jurisdictions. As articulated in the Yogyakarta Principles on the Application of International Human Rights Law in Relation to sexual Orientation and Gender Identity [17], this irreducible minimum of rights that must be protected does not envisage the promulgation of new rights, but rather stresses the imperativeness of ensuring already existent rights, including protection of LGBTI people from discrimination, respect of the right to privacy and ensuring their rights to life, liberty, expression and movement. The Yogyakarta Principles are a critical component in the toolkit of states and advocates as we seek to ensure that the rights of LGBTI communities are realized; and their localization in an African context should happen.

* Commissioner, Kenya National Commission on Human Rights; email: [email][email protected]
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/

Notes:

1. Available at (accessed on 24 December 2008).

5. Held at UN Headquarters, New York, between 1:00 and 3:00 pm on 18 December 2008

6. For the approach of the African Commission on Human and Peoples’ Rights on sexual orientation and gender identity, see Rachel Murray and Frans Viljoen, “Towards Non Discrimination on the Basis of Sexual Orientation: The Normative Basis and Procedural Possibilities before the African Commission on Human and Peoples’ Rights and the African Union”, available at https://www.up.ac.za/dspace/bitstream/2263/4092/1/Murray_Towards(2007).pdf (accessed on 25 December 2008).

7. This is the case, for example, in General Comment Nos 18 of 2005 (on the right to work), 15 of 2002 (on the right to water), and 14 of 2000 (on the right to the highest attainable standard of health). (See Michael O’Flaherty and John Fisher: Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, Oxford University Press, 2008)

8. Available at: www1.unnedu/humanrights/undocs/html/vws488.htm (accessed on 25 December 2008).

9. This Committee concluded that homosexual behaviour between consenting adults in private was part of the “realm of private morality which is not the law’s business” and should no longer be criminal”. For relevant analysis, see Philip Dayle with Alok Gubta: “Beyond the Polemics: The Continuing ‘Gay’ Rights Project and the Post-Colonial South”, paper presented at the Experts’ Meeting on Sexual Orientation, Gender Identity and Human Rights, Yogyakarta, 6-9 November 2006.

10. For an erudite discussion on the manner in which colonial Britain forced its sodomy laws on its colonies and the consequences of that, see: This Alien Legacy: The Origins of (Sodomy) Laws in British Colonialism, Human Rights Watch, 2008, available at http://www.hrw.org/en/reports/2008/12/17/alien-legacy-0 (accessed on 27 December 2008).

11. Kenya’s Penal Code still stipulates punishments of 14 years for the offense of having carnal knowledge on or by another “against the order of nature”; Tanzania’s sentencing in this regard is 30 years while that of Uganda is life imprisonment (see Sylvia Tamale’s reflections in: This Body: Supporting LGBTI Organising in East Africa, Urgent Action Fund, 2006).

12. See “Burundian Gays Oppose New Anti Homosexual Penal Code”, available at www.yogyakartaprinciples.org/principles_en.htm (accessed on 25 December 2008).