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www.khrc.or.ke

1 November 2010

The chairperson and vice chairperson
The African Commission on Human and Peoples’ Rights (ACHPR)

Dear chairperson and vice chairperson,

Re: The rejection of the application for observer status of the Coalition of African Lesbians (CAL)

The Kenya Human Rights Commission (KHRC) is a national, non-governmental organisation founded in 1992 that monitors human rights violations in Kenya and is involved in advocacy and civic action towards the enjoyment of all human rights by all Kenyans. The KHRC has observer status with the African Commission on Human and Peoples’ Rights (ACHPR).

The KHRC has always worked with disadvantaged groups to enable them to articulate, defend and realise their civil, political, economic, social and cultural rights. One such group is that of sexual minorities, comprising lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.

We are writing in respect of the recent decision of the ACHPR to deny observer status to the Coalition of African Lesbians (CAL). The CAL has informed us their application for observer status was rejected without reason, despite their application meeting all conditions stipulated in the African charter for the granting of observer status. In light of the lack of reason, we are further advised by the CAL that your decision was discriminatory, a violation of equality rights and could be deemed an expression of homophobia.

We wish to draw your attention to international legal instruments, including the International Covenant on Civil and Political Rights (lCCPR), all of which, like the African charter, enshrine rights aimed at protecting equality. The United Nations Human Rights Committee, which authoritatively interprets the ICCPR, to which most African states are parties, affirmed in the 1994 case of Toonen v. Australia[1] that gender identity or sexual orientation are not grounds for discrimination.

The African charter prohibits discrimination in a similar way. The African charter further requires the promotion of, respect for and reinforcement of ‘mutual respect and tolerance’. Articles 2 and 3 of the African charter also enshrine equality and non-discrimination ‘without distinction of any kind’, including on the grounds of sex. As the ACHPR emphasised in Legal Resources Foundation v. Zambia, ‘The right to equality is very important. It means that citizens should expect to be treated fairly and justly within the legal system and be assured of equal treatment before the law and equal enjoyment of the rights available to all other citizens within legally established institutions.’

Such case law from the ACHPR provides guidance on the normative obligation in respect of equality and non-discrimination to be upheld both by member states and African Union (AU) institutions such as the ACHPR. This normative obligation was, however, apparently not respected in relation to CAL's application for observer status with the ACHPR.

We have been encouraged by the jurisprudence emanating from the ACHPR in protecting human rights enshrined in international law and advancing universalism in the application, protection and defence of human rights. We encourage the ACHPR to expand its body of knowledge, appreciate the extent of human rights violations experienced by LGBTI people in Africa and support organisations like the CAL that seek redress for the same. We ask the ACHPR to provide leadership in the protection and promotion of the human rights of sexual minorities in Africa, starting by granting observer status to the CAL.

Sincerely,

L. Muthoni Wanyeki
Executive director

Cc: Fikile Vilakazi, CAL

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NOTE

[1] United Nations Human Rights Committee, Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C//50/D/488/1992 (1994)