This paper discusses the relevance of the issue of sexual orientation[1] to the African Commission on Human and Peoples’ Rights, while recognising the controversial nature of the subject, and suggests ways in which the commission can proceed. It is intended as an internal paper for the information of and discussion by the commissioners.

NGOs and others from across the African continent have been drawing the attention of the African Commission during the last four sessions, seeking redress for attacks on the civil, political, economic, social and cultural rights of individuals on the basis of their sexual orientation. Commissioners have raised questions during the examination of state reports regarding the treatment of individuals in certain countries on the basis of their sexual orientation. Given reports of on-going allegations of human rights violations based on sexual orientation across the continent and the sensitivities of this area, is worth examining this issue in greater detail.

1. RELEVANCE TO THE COMMISSION

1.1) Abuse of individuals in Africa based on their sexual orientation by state and private actors has been documented by a number of organizations.[2] These acts take many forms including: discrimination in education, housing, employment, and access to health care; verbal and physical abuse; rape and sexual abuse; arbitrary arrest and detention; unfair trials; and extra-judicial executions and imposition of the death penalty.

1.2) More than two-thirds of African states continue to criminalize sexual acts between same-sex partners, some expressly criminalizing male-to-male sexual acts.[3] Most African nations inherited anti-homosexuality laws from their colonial powers. Two other states, Cameroon and Senegal, added criminal penalties for homosexuality post-independence, while Rwanda has been attempting to do the same thing most recently. Of the African states in which homosexuality was criminalized at independence, only two have legalized homosexuality. Cape Verde decriminalized homosexuality in 2004 as part of an overhaul of its entire penal code. South Africa has upheld its constitutional principle that the state may not unfairly discriminate against individuals on the basis of their sexual orientation, including with regard to prohibitions on sexual behaviour.[4]

1.3) Anti-homosexuality laws are generally used as pretexts for general arrests of gay[5] and bisexual men (primarily) gathered in public or private places even when not engaged in sex. In such cases, government action seems based on ‘status’ and not actual criminalized activity.

1.4) Although some organisations exist specifically in Africa to protect the rights of the gay and lesbian community,[6] mainstream civil society organisations have generally failed to speak out against such abuses. African human rights defenders advocating for the rights of sexual minorities themselves are often harassed.

1.5) Many African political and religious leaders, and sometimes heads-of-state, have publicly vilified gay and lesbian people, fuelling the hatred of homosexuals by the general public and inciting violence. In Cameroon, Kenya, Namibia, South Africa Uganda, and Zimbabwe senior government officials and notable civic figures have made statements condemning homosexuality and labelling it as ‘un-African’,[7] increasing levels of harassment, physical attacks and discrimination in education, health care, and employment and providing impunity to human rights violators.[8]

1.6) Abuse is often based on perceptions of same-sex sexual orientation by virtue of a person’s appearance and conformity with gender roles (that is, men who appear effeminate, wear makeup, are unmarried, or women who wear ‘men’s clothing’, have short hair, work in occupations traditionally reserved for men, or are unmarried), or patronage of establishments or areas associated with LGBT people.

1.7) Examples of abuses against LGBT people by government and private actors include:
- In Cameroon, Kenya, Nigeria and Uganda, school administrators, teachers and other students have chased gay and lesbian youth away from schools at both the secondary and tertiary levels.
- In Botswana and Sierra Leone, LGBT people have been denied the right to register their non-profit, non-governmental associations. In other countries, LGBT human rights defenders, fearing exposure, do not even attempt to obtain official registration, preventing them from seeking funding and mounting self-help programmes.
- In Uganda, the government has imposed fines and bans against journalists, media organs, and theatre groups that have attempted to present a positive or neutral perspective on homosexuality.
- In nearly every African country, extortion and blackmail of LGBT, often with the participation of security forces, has been documented. Often the Internet is used to entrap gay and bisexual men, and to lure them into plots in order to blackmail them. Dozens of men have been robbed and beaten in the process.
- In Botswana in 1995, two men were arrested and convicted on sodomy charges stemming from a private sexual act.[9]
- In Cameroon, eleven men spent more than a year in prison before seven of them were convicted on sodomy charges in 2006.[10] One man, Alim Mongoche, died within a week of his release due to the conditions of detention. At least a dozen other men and women are currently in prison in Cameroon on charges related to sexual orientation.
- In Senegal in February 2008, suspected homosexuals were attacked by mobs and ten people – nine men and one woman – were arrested after photographs taken at a private gay wedding reception were published in a magazine. Following their provisional release, religious organisations issued a press release calling for the stoning of gay people and a riot broke out after Friday prayers protesting the release of the individuals throughout the country, resulting in mob and vigilante attacks.
- Sudan, Nigeria and Mauritania maintain the death penalty for consensual homosexual acts. There have been several trials in Northern Nigeria in the last five years in which the death penalty was the proposed punishment.
- More than a dozen lesbians have been murdered in South Africa in the last five years with few arrests and little government reaction.[11]

2) SEXUAL ORIENTATION AND THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

2.1) The African Charter on Human and Peoples’ Rights (African Charter) has the advantage of being unanimously ratified by all African Union (AU) states. Through some innovative jurisprudence on the range of rights available in the Charter, and the adoption of working groups on thematic areas such as indigenous peoples, the work of the commission is becoming increasingly important to national, regional and international human rights dialogues. However, the right to equality on the basis of sexual orientation has remained largely outside the consideration of the African Commission.

2.2) The African Charter grants rights to everyone, without distinction, under a state party’s jurisdiction. The formulation that ‘every individual’ is entitled to the rights in the Charter is repeated in articles 2, 3, 5, 6, 7, 9, 10, 11, 12, 15, 16 and 17. In article 2, the right of ‘every human being’ to respect for life is reiterated; Article 8 provides that the freedom of conscience of ‘no one’ may be restricted; and article 13 provides for the rights of ‘every citizen’.

Article 2 of the African Charter underlines that the rights in the charter may be invoked without discrimination. It provides that individuals are entitled to the rights under the African Charter ‘without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national or social origin, fortune, birth or other status’. The use of the phrases ‘such as’ and ‘or other status’ clearly shows that the list of grounds for non-discrimination is not exhaustive. This suggests that the drafters foresaw that the African Charter ought to allow for an expansion of the specific grounds, thus accepting the principle that the exact content of the charter will not be frozen in time, but will evolve. There is no limit to the growth that would be allowed. The logic of the charter also demands that ‘other status’ should be an expansive and open-ended concept, because exclusion from the ambit of article 2 has the far-reaching effect of foreclosing reliance on all other charter rights. On this construction, sexual orientation should be included as a ground on which ‘distinctions’ should not be tolerated. A denial of the equal benefit of the law on the basis of this personal characteristic is thus prohibited by article 2. On the basis of articles 60 and 61 of the charter, reliance is also placed on a far-reaching ‘General Comment’ of the Committee on Economic, Social and Cultural Rights, which considers that Article 2 of the Covenant, proscribing any discrimination also includes discrimination based on ‘sexual orientation’.[12]

2.3) It may alternatively be argued that ‘sex’, a factor already explicitly provided for in article 2 of the charter, should be understood to include ‘sexual orientation’. At the request of the state, the Human Rights Committee in Toonen v Australia clarified that the meaning of ‘sex’ in the listed grounds of non-discrimination under article 2 of ICCPR includes sexual orientation.[13] It may be argued that the adoption of the African Charter predates the use of terms such as ‘sexual orientation’. In so far as these concepts are related to sex (in the sense of ‘sexuality’), their later emergence may justify their inclusion within the term ‘sex’. This is all the more arguable in that there is no record of any specific rejection of the inclusion of sexual orientation as a ground for non-discrimination during the drafting process.

2.4) Not every ‘distinction’ constitutes ‘discrimination’, and the grounds that are ‘allowed in’ as ‘other’ grounds should be sufficiently serious. If such an approach were to be followed, it is suggested that an unspecified ground should be included if denying rights based on the characteristic has the impact of impairing inherent human dignity in a manner that is serious and comparable to the impact of the factors already listed.[14] ‘New’ grounds have to be analogous to those already specifically included. It has been argued that ‘sexual orientation’ is similar to those factors listed in Article 2, such as ‘race’, ‘sex’, ‘colour’ and ‘ethnic group’, which are considered to be immutable characteristics, in a similar way that sexual orientation may be biologically determined.[15] Even if this issue is still being debated, a person’s sexuality remains a matter intimately associated to his or her dignity, making its protection imperative.

2.5) The consequence of the interpretative inclusion of ‘sexual orientation’ in article 2 is that gays and lesbians fall within the protective scope of the charter as a whole. This conclusion is clearly the situation given that persons under the jurisdiction of African states should clearly not forfeit, for example, the right to a fair trial, to assemble freely, or to property, on the basis merely of their sexual orientation.[16] To argue differently could lead to absurd consequences. It is indeed difficult to countenance an argument that a right such as the right not to be treated cruelly and inhumanely (under article 5 of the Charter) could not be invoked by a person merely on the basis of his or her sexual orientation. Similarly, it would be unthinkable that an NGO be denied the right to freely express itself and assemble merely because it advocates for equality on the grounds of sexual orientation. One of the most important rights for persons belonging to sexual minorities is the right of equality before the law, and ‘equal protection of the law’ (article 3 of the Charter).

2.6) Instances such as those referred to in part 1.7 of this paper, above, are considered human rights violations under various UN, European and American human rights treaties and statements of principle.[17]

3) LIMITATION TO CHARTER RIGHTS

3.1) Even if the charter accepts some level of protection of the rights of gays and lesbians, it may still be argued that these rights may be ‘limited’ by other provisions in the charter or by factors listed in article 27, which requires ‘due regard to the rights of others, collective security, morality and common interest.’ Where a state seeks to limit an established right –the circumscription must be ‘strictly proportionate with and absolutely necessary for the advantages that are to be obtained’[18] and most importantly, ‘may not erode a right such that the right itself becomes illusory.’[19] This substantial standard, which itself reflects an expression of the collective morality and common interest, acknowledges the primacy of the individual and his or her rights while allowing for consideration of broader social concerns.

3.2) Although there have been no communications challenging the rights of the charter as applied to protect LGBT, reference to analogous cases as well as general awareness of cultural attitudes in Africa gives rise to three potential challenges. These are: (a) whether African morality and traditional values allows or even requires discrimination against LGBT people; and, (b) whether the moral majority can dictate the rights of others; and (c) whether preventing the spread of HIV is a legitimate interest that warrants outlawing homosexuality.

3.2.1) ‘AFRICAN VALUE SYSTEM’ AND ‘AFRICAN FAMILY VALUES’
At first glance, one may gain the impression that the charter’s emphasis on ‘values of African civilisation’[20] and the family as ‘custodian of morals and traditional values recognised by the community’[21] may pose a justification for laws discriminating against gays and lesbians, such as the criminalisation of consensual same-sex acts or same-sex marriage. African leaders, such as presidents Mugabe, Nujoma and Museveni, Ugandan ethics minister Nsaba Butoro, and former South African deputy president Jacob Zuma have all expressed their disdain for a gay and lesbian life-style on the basis of that it is ‘unAfrican’.[22]

A factual enquiry casts a shadow over the veracity of these generalisations. Homosexual practices between consenting adults are not alien to traditional African societies[23] and there is no doubt that homosexuality is practised in Africa – by Africans – today.[24] One of the main reasons for the inclusion of sexual orientation as a ground for non-discrimination in the South African Constitution is the realisation among members of the African National Congress (ANC) that some of its leadership, such as Simon Nkoli, a co-defendant in the anti-apartheid ‘Delmas Trial’, were homosexual.[25]

The argument that decriminalising same-sex relationships would be destructive to African ‘family values’ makes several unjustified assumptions. First, it ignores the fact that LGBT have long been part of African civilisations and families and have yet to cause a collapse in the well-being of the family; Second, it denies that LGBT Africans play important roles in upholding the best and most important values of African cultural life and make important contributions, both financially and morally to their families; and finally, it refuses to acknowledge that African LGBT are often heads-of-households and in need of the kinds of protections the development of the African Charter was meant to afford. Indeed, the African Commission has interpreted the notion of ‘family’ in a broad sense, calling on states to take measures ‘to abolish such customs, ancient laws and practices as may affect the freedom of choice of a spouse’[26] and has recognised that contact with one’s family is essential for an individual’s dignity.[27]

Even if it were to be accepted that same-sex intercourse is inimical to traditional African values, the question must be posed as to whether criminalising is ‘necessary’ to further these values. Responding to the argument during the Toonen case that the restriction of privacy rights caused by such penal laws is ‘reasonable’ in order to uphold the morals of society, the Human Rights Committee remarks that ‘all laws criminalising homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether sections 122 and 123 should not also be repealed’.[28"> In light of the fact that these laws have not been implemented for a decade,[29"> they could not be regarded as ‘essential to the protection of morals in Tasmania’.[30"> Similarly, in many African states these laws are rarely enforced.

The question is not whether ‘homosexuality’, as such, is an acceptable value, but rather whether tolerance for diversity and minorities has value in a particular society. Clearly, in multi-lingual, multi-ethnic and multi-religious states, which predominate in Africa, the tolerant accommodation of divergence and of minorities should be of paramount importance to the African Commission. In line with this approach, the existence of sexual minorities should be accepted as just another layer of diversity in African societies, further highlighting the need to ensure tolerance for diversity by way of the African Charter.

3.2.2) MAJORITY MORALITY

Linked to the argument based on (African) morality is the contention that discrimination against sexual minorities (for example, by refusing the registration of LGBT organisations or through the existence of sodomy laws) reflects the moral views of the majority. Although scant evidence exists about public opinion, it may be assumed that this contention is correct.

Although the views of the majority have some relevance, the African Commission has made it clear that the charter’s interpretation cannot be conclusively defined with reference to the views of the majority, even as it is reflected by parliament, acting on their behalf. In Legal Resources Foundation v Zambia, the African Commission held that justification of limitations cannot be derived solely from popular will: ‘Justification … cannot be derived solely from popular will, as this cannot be used to limit the responsibilities of states parties in terms of the Charter.’[31">

This approach is in line with that of domestic courts in Africa. In a case before the South African Constitutional Court, National Coalition for Gay and Lesbian Equality v Minister of Justice,[32"> Sachs J expressed the view that the Constitutional Court does not ‘banish concepts of right and wrong’.[33"> As a ‘document founded on deep political morality’,[34"> the constitution does not ‘debar the state from enforcing morality’.[35"> Issues such as (de)criminalising are therefore determined with reference to diversity, central to the spirit and values of the constitution, and not by simply relying on societal prejudices. In terms of the values of the constitution, those members of society who disagree with homosexual conduct are also ‘tolerated’ in their freedom to condemn and criticise.[36">

In the Toonen case, the Human Rights Committee rejected the argument that moral issues are exclusively a matter of domestic concern, because ‘this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy’.[37"> These arguments are all the more pertinent in Africa, where domestic law often denies the rights of gays and lesbians, as has been illustrated above. Indeed, the absence of domestic protection increases the need to extend the charter’s protective shield to include sexual minorities. If members of these groups cannot turn to the African Charter for protection, they will be reduced to a sub-human existence.

3.2.3) PREVENTION OF HIV
One of the justifications that is invoked for one of the pertinent forms of discrimination against gays and lesbians, namely penal laws criminalising same-sex conduct, is that these laws create a buffer against the spread of HIV.[38"> This contention is most clearly contradicted by the fact that HIV transmission in Africa occurs overwhelmingly through heterosexual sex.

In its arguments during the Toonen case,[39"> the Tasmanian authorities submitted that the criminalisation of sodomy is justified on the grounds of public health and morals, as these laws are intended, at least in part, to prevent the spread of HIV/AIDS in Tasmania. As far as the public health argument of the Tasmanian authorities is concerned, the committee noted that the criminalisation of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV. Accepting that criminalising homosexual activity tends to impede public health programmes ‘by driving underground many of the people at the risk of infection’, the Human Rights Committee found that statutes criminalising homosexual activity run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. The committee also noted that no link has been shown between the continued criminalisation of homosexual activity and the effective control of the spread of HIV.

An important consequence of non-recognition of the existence of gays, and of a denial of their rights, is that men who have sex with men are – despite increased biological vulnerability – excluded from HIV prevention strategies, educational campaigns and other sex education, and organisations that might want to provide HIV prevention services for LGBT are dissuaded from doing so. This may foreclose the possibility of those at risk having access to HIV education and prevention, exposing them to greater risk, further reinforcing internalised stigma, and thus placing them at greater risk of HIV infection. As long as they are legally compelled to hide their sexuality, they will be unable to access HIV-related information and tools with which to protect themselves and their partners – both homosexual and heterosexual.

The African Union (AU) itself at the May 2006 Special Summit of the African Union on HIV/AIDS, in Abuja, elaborated a clear common position on HIV, which defined the concept of ‘vulnerable people’ to include men who have sex with men.[40"> At least four African countries however, have already recognised the importance of committing attention and resources toward the HIV-related needs of men who have sex with men. Kenya, Malawi, Nigeria, and Senegal, have called for particular attention to the needs of men who have sex with men in their national AIDS control plans. Similarly, Zimbabwe’s National AIDS Council Strategic Plan for 2006-2010 states:

‘While homosexuality remains illegal in Zimbabwe, there can be no doubt that there are men who have sex with men. They are at risk of HIV infection and passing on the virus to their partners, including female partners. Furthermore, international experience has shown that ignoring this group or adopting punitive approaches will only serve to drive MSM underground and reduce opportunities to dialogue with this group. An assessment of MSM partners, meeting points and behaviours will therefore be carried out, and adequate public health interventions developed on the findings.’

Nevertheless, few African governments have provided any funding or launched public HIV prevention programs targeting men who have sex with men.

4) CONCLUSION AND WAY FORWARD

4.1) Given that the treatment of individuals on the basis of their sexual orientation is clearly within the protection of the African Charter and therefore within the remit of the African Commission, how should the African Commission proceed?

4.2) The African Commission has a variety of mechanisms and tools at its disposal, including the ability to adopt resolutions, establish working groups, and hold seminars on particular issues. Indeed, the African Commission has already begun to address the issue of sexual orientation in its work, for example, by asking questions of states during the examination of their reports under article 62.[41"> The establishment of a working group to gather more information on this issue on the Continent with a view toward the eradication of discrimination based on sexual orientation would be a major step forward.

4.3) Various NGOs that focus on sexual rights are willing to engage with the African Commission and have already shown interest in this area of its work by attending both the NGO Forum and Commission sessions and discussing the issues with Commissioners and other NGOs present. These groups and organisations are keen to continue their involvement in the Commission but appreciate the sensitive nature of this subject. The African Commission could work with these organisations to consider the issue further.

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NOTES

[1] Sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.
[2] Detailed documentation of these abuses, which have occurred in nearly every African country, can be found at www.iglhrc.org, www.hrw.org, www.mask.org.za; see also, Human Rights Watch, More than a Name. State Sponsored Homophobia and its Consequences in Southern Africa, 2003; Amnesty International, Crimes of Hate. Conspiracy of Silence. Torture and Ill-Treatment Based on Sexual Identity, 2001
[3] See Behind the Mask (http//www.mask.org.za/index). See also International Lesbian and Gay Association (http://www.ilga.org/statehomophobia/State_sponsored_homophobia_ILGA_07.pdf)
[4] The South African Constitutional Court was called upon to determine the constitutionality of the common law offence of consensual same-sex between men in private (‘sodomy’). In National Coalition for Gay and Lesbian Equality v The Minister of Justice (‘Sodomy case’) (1998 12 BCLR 1517 (CC), the Court declared the continued criminalisation of sodomy unconstitutional.
[5] The terminology used in this paper to describe those who engage in same-sex practices raises key issues about sexuality, gender, identity and globalisation. While many African societies had normative explanations for exceptions to heterosexual ideals and ways of naming those who lived these exceptions, some of these terms describe a state of androgyny (man/woman, woman/man) which many contemporary same-sex practising people find incompatible with their personal experience. Words such as mashoga and wasagaji (Kenya, Tanzania and Uganda), gordjiden (Senegal, Gambia), ngochani (Zimbabwe) and moffie (South Africa) have pejorative connotations, but have to some extent been rehabilitated by same-sex practising people. The terms ‘gay’, ‘lesbian’, and ‘LGBT (Lesbian, Gay, Bisexual, Transgendered)’, which mainly originated in North America and Europe in the mid-to-late twentieth century, are not universally embraced by Africans. More neutral terms to describe African same-sex practising people are emerging such as the word ‘kuchu’ used in East Africa and ‘saso’ in Ghana.
[6] For example, Pan-African International Lesbian and Gay Association, the Coalition of African Lesbians, Alternatives-Cameroun, Gays and Lesbians of Zimbabwe, and the Rainbow Project (Namibia) .
[7] Presidents Moi, Mugabe, Nujoma and Museveni, Ugandan Ethics Minister Nsaba Butoro, and former South African Deputy President Jacob Zuma have all made such comments. President Moi has said that homosexual acts are ‘un-African as well as against both Biblical and Koran’ (allAfrica.com, 2 October 1999); ‘Namibia president orders gay purge’ (Queer Digest V1 237; V1 235); Motion for the treatment of lesbians and gays in Namibia is due to be debated in the European Parliament April 2001, regarding Nujoma’s orders that police should arrest, imprison and deport gays and lesbians and the Home Affairs Minister that they should be eliminated form the face of Namibia, etc. (Queer Digest V1 241); ‘MPs made homophobic statements against persons in the National Assembly’(allAfrica.com, 1 November 2000); SWAPO party Women’s Council stated that a human rights organisation for women should not incorporate homosexual issues as this confused members (allAfrica.com, 7 October 1999); Deputy Minister of Home Affairs called for legislation to punish homosexuality, quotations from him (allAfrica.com, 21 April 1999); ‘Traditional leaders[in South Africa"> fight same-sex marriages’, The Citizen (12 December 2005); (Cameroonian Minister of Justice cites article 29(7) of the African Charter while claiming that ‘by virtue of African culture, homosexuality is not a value accepted in the Cameroonian society’) as found in: Cameroonian Ministry of Justice, doc 2603/CD 05/022/PPE/DDHCI/MJ dated 23 January 2006, on file with authors.
[8] Human Rights Watch, More than a Name, State Sponsored Homophobia and its Consequences in Southern Africa (2003).
[9] See e.g. Kanane v The State, High Court of Botswana, Trial No F94 of 1995, and Kanane v The State, Court of Appeal of Botswana, Criminal appeal no 9 of 1995.
[10] This Commission heard statements presented by citizens of Cameroon via The Legal Defence and Assistant Project on 11 May 2006.
[11] STeen beaten to death for being a lesbian’ 19 February 2006, Sunday Times (South Africa) at 6.
General Comment No. 14 (2000), referring in paragraph 18 (under the heading ‘Non-discrimination and equal treatment’), to article 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights (the wording of which is similar to that of the above-cited article 2 of the International Covenant on Civil and Political Rights).
CCPR/C/50/D/488/1992.
[14] In line with the South African Constitutional Court’s approach in e.g. Harksen v Lane NO 1998 1 SA 300 (CC) para 53.
[15] See e.g. LeVay ‘A Difference in hypothalamic structure between heterosexual and homosexual men’ 1991 Science 1034.
[16] These rights are guaranteed under articles 7, 11 and 14 of the Charter, respectively, to ‘every individual’.
[17] For example, see the report of the Inter-American Commission on Guatemala, ‘the persecution and extermination of individuals linked to targeted groups, such as…homosexuals is a particularly reprehensible violation of the right to life and human treatment and has repeatedly been condemned as such by the Commission’, Fifth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.111, Doc.21, rev., 6 April 2001, para 41. The Human Rights Committee has urged Kenya to repeal the section of its Penal Code which criminalises homosexuality, CCPR/CO/83/KEN, 28th March 2005. The Human Rights Committee has also called on Namibia to introduce anti-discrimination measures for homosexuals, CCPR/CO/81/NAM, 30 July 2004. The Committee Against Torture has also expressed concern at ill treatment inflicted on men in Egypt on the basis of their sexual orientation, CAT/C/CR/29/4, 23 December 2002.
[18] Interights and Others v. Mauritania (2004) AHRLR 87 (ACHPR 2004) para 78.
[19] Constitutational Rights Project, para 42. para 42; Media Rights Agenda and Others v Nigeria AHRLR paras 69 and 70; Communication 105/93, 128/94, 130/94 and 152/96.
[20] Preamble to the African Charter.
[21] Art 18(2) of the African Charter.
[22] See above note 7.
[23] See e.g. M. Epprecht, Hungochani: The History of a Dissident Sexuality in Southern Africa (McGill-Queen's University Press, Montréal, 2004; E. E. Evans-Pritchard, Witchcraft, Oracles and Magic among the Azande (Clarendon, Oxford, 1976); R. Morgan and S. Wierenga, Tommy Boys, Lesbian Men and Ancestral Wives (Jacana Media, Guateng, 2005); S. Murray and W. Roscoe, Boy-wives and female husbands: studies of African homosexualities (1998) New York: St Martin’s Press; W. Dynes, ‘Homosexuality in Sub-Saharan Africa’, Gay Books Bulletin, Spring/Summer 1983, 20-21; C.A. Johnson, ‘Hearing Voices: Unearthing Evidence of Homosexuality in Precolonial Africa’, in D. Constantine Simms, 132-148; N. Hoad, ‘Tradition, Modernity and Human Rights: An Interrogation of Contemporary Gay and Lesbian rights’ claims in southern African nationalist discourses’, (1998) 2(2) Development Update, 32-43; P. de Vos, ‘The Constitution Made us Queer. The Sexual Orientation Clause in the South African Constitution and the Emergence of Gay and Lesbian Identity’, in C. Stychin and D. Herman, Sexuality in the Legal Arena, Athlone Press, London, 2000, 194-207; G. Conerly, ‘Are you Black first or are you Queer?’, in D. Constantine-Simms, The Greatest Taboo. Homosexuality in Black Communities, Alyson Books, Los Angeles, 2001, 7-23
[24] To President Mugabe’s embarrassment, his vilification of gay sexuality backfired with the conviction in the late 1990s of Zimbabwe’s former titular President, the Reverend Canaan Banana, on charges of sodomy (see S v Banana 2000 3 SA 885 (ZS)). See also O. Phillips, ‘Constituting the Global Gay. Issues of Individual Subjectivity and Sexuality in Southern Africa’, in C. Stychin and D. Herman, Sexuality in the Legal Arena, Athlone Press, London, 2000, 17-34; J Spruill, ‘A Post With/out a Past? Sexual Orientation and the post-Colonial ‘Moment’ in South Africa’, in Stychin C and Herman D, Sexuality in the Legal Arena, Athlone Press, London, 2000, 3-16.
[25] See M. Gevisser ‘Mandela’s stepchildren: homosexual identity in post-apartheid South Africa’ in P. Drucker, Different rainbows (2000) London: GMP; and M. Lekota, ‘Address at Simon Nkoi’s memorial service’ in N. Hoad et al (eds) Sex and politics in South Africa (2005) Cape Town: Double Story.
[26] Guidelines for National Periodic Reports, Second Annual Report of the African Commission on Human and Peoples’ Rights, para II.A.28.
[27] Communications 48/90, 50/91, 52/91, 89/93, Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan, 13th Annual Report, Annex V, para 54.
[28"> Para. 8.6.
[29"> Para. 2.4.
[30"> Para. 8.6.
[31"> (2001) AHRLR 84 (ACHPR 2001).
[32"> 1999 1 SA 6 (CC).
[33"> Para. 136.
[34"> Para. 136.
[35"> Para. 136.
[36"> Para. 137. See also the minority view in S v Banana, above, articulated by Gubbay CJ and supported by Ebrahim JA., in which 2 of the 5 Zimbabwean Supreme Court judges found the criminalization of consensual male sodomy to be unconstitutional.
[37"> Para. 8.6.
[38"> See e.g. Kanane v The State, High Court of Botswana, Trial No F94 of 1995, and Kanane v The State, Court of Appeal of Botswana, Criminal appeal no 9 of 1995.
[39"> In Toonen v Australia, Communication No. 488/1992: Australia. 04/04/94, CCPR/C/50/D/488/1992.
[40"> African Union, ‘Africa’s Common Position on to the UN General Assembly Special Session on AIDS,’ June 2006.
[41"> E.g. during the examination of the Cameroonian state report at the 39th session of the African Commission, Commissioner Tlakula (from South Africa), observed that discrimination on the basis of sexual orientation is incompatible with article 2 of the African Charter. She asked the delegation whether the criminalisation of sodomy under Cameroonian law is compatible with the Charter. Commissioner Malila (from Zambia, who is also the Special Rapporteur on Prisons and Conditions of detention in Africa) asked questions related to the trial process, and wanted to know, amongst other things, whether subjecting the suspects to invasive medical examinations did not contravene article 5 of the African Charter which proscribes torture, cruel, inhuman and degrading treatment. Commissioner Alapini-Gansou (from Benin, Special Rapporteur on Human Rights Defenders) raised the lack of tolerance on the grounds of people’s sexual orientation.