The African Commission on Human and Peoples’ Rights, Africa’s regional human rights body, has recently reinforced the problematic notion held by many African governments: that lesbian and gay people are second class citizens. By denying observer status to the Coalition of African Lesbians (CAL), the Commission has in effect adopted the position that African lesbians are not worthy of the legal protection or the respect for inherent human dignity that all other African women are entitled to. The decision to deny observer status to CAL expressly communicates that as far as the Commission is concerned, universality of human rights is not a concept that they adhere to and that in fact, as a regional body, their approach is one of selective application of universally accepted human rights norms and standards.

By deciding that CAL will not be permitted to participate in its proceedings and bring to its attention human rights violations experienced by lesbian and transgender women, did the Commission deliberately misconstrue its own mandate to protect fundamental human rights and freedoms guaranteed by the African Charter on Human and Peoples’ Rights? Was this an isolated or issue-based misinterpretation of its mandate or is the Commission on a downward spiral of excluding difficult, sensitive and controversial human rights concerns from its agenda?

If it is the former, then as African lesbian and gay people we can once again say: the struggle continues. We can discard the existing strategy and develop a new one which acknowledges that for the protection of the human rights of sexual minorities, the Commission has rendered itself a superfluous body.

However, if it is the latter, then the Commission’s denial of CAL’s observer status should be of grave concern for human rights defenders across the African Continent. That an ‘independent’ regional human rights body makes decisions based on personal prejudices and irrational fears of what its members may not know or understand about the diversity of human experiences, has far-reaching implications for the human rights agenda in Africa. Today it may be one group whose human rights are not protected, but tomorrow it may very well be another group that gets excluded from the realm of legal protection.

If the only feelings that the Commission’s decision invoked was disappointment and anger, we could move beyond that - we would just take some time out, reconvene and come up with new strategies for taking the struggle for equality forward in other human rights contexts. But in addition to the rage, the decision induces unimaginable fear of reprisals for many lesbian and gay people. It has fatal consequences for the millions who in almost all African countries are criminalised, routinely assaulted, subjected to arbitrary arrests, torture and cruel and inhuman and degrading treatment simply on the basis of their sexual orientation.

At this point I am tempted to say that if our identity as homosexual people was not criminalised and we were therefore not subjected to attacks simply because of our refusal to conform to patriarchal and hetero-normative perceptions of gender and womanhood, we would write the African Commission off as being an irrelevant body at this point and move on to other spaces. However, the reality is that for sexual minorities on the African Continent, the granting of observer status to CAL was going to provide a strategic opportunity for advocating for the protection of human rights which are denied at country level - thereby properly invoking the Commission’s mandate to protect human rights.

What makes the Commission’s decision especially ironic and devastating is that for the last five years, it has been one of the most meaningful political spaces for extra-national engagement on the protection of human rights of sexual minorities in Africa. For most African lesbian and gay people, organised civil groups and human rights defenders working on different issues ranging from women’s rights, sexual and reproductive rights and HIV and AIDS issues, the sessions of the African Commission provided the space for building solidarity and collective organising around human rights issues of concern to Africans.

Significantly, in many ways the African Commission represented the last hope for African lesbian and gay people who are struggling to survive and organise in homophobic and hostile country contexts. The denial of observer status unfortunately communicates the Commission’s absolute indifference to the plight and suffering of African lesbian and gay people whose civil and political rights are routinely violated. Ultimately, by denying observer statues to CAL, the decision is an endorsement of the flagrant impunity enjoyed in most African states for violations of the rights of lesbian and gay people and ultimately to the detriment of principles of democracy, respect for the rule of law and protection and observance of human rights.

The failure or refusal by the African Commission to provide reasons for denying CAL’s observer status suggests that they had a legal basis for doing so. If that is the case, their decision not only has fatal consequences for human rights on the continent, but it also lacks courage, conviction and a basic understanding of the concept of human rights.

Nothing in the African Charter on Human and Peoples’ Rights or in the African Women’s Rights Protocol expressly provided the Commission with a basis to exclude African lesbians from the ambit of protection available within the regional human rights system. So if the decision lacked legal basis, then it follows that the members of the Commission, as opposed to acting independently and in accordance with human rights standards, have just allowed the institution to buttress the powers of governments to continue with the repression of sexual minorities in Africa.

What will the Commission do the next time that it is confronted with a difficult and controversial human rights issue? In fact it is not even clear what the consequences will be for the many other human rights organisations working on sexual orientation, amongst other issues, and already enjoying observer status. Will that status be withdrawn? That prospect seems totally illogical. But at this rate anything is possible and perhaps we were wrong, perhaps the Commission has very little to do with human rights, but is rather a political body under the control of repressive governments.

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* Wendy Isaack is an African feminist and women's rights activist.
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