Denying rights and undermining jurisprudence

BACKGROUND

1) In May 2008, The Coalition of African Lesbians (CAL) applied for observer status at the African Commission on Human and Peoples’ Rights (ACHPR). On 25 October, the ACHPR sent an email dated 10 May 2010 communicating its decision not to grant CAL observer status.

2) This memorandum sets out why the decision of the ACHPR in refusing observer status to the Coalition of African Lesbians is inconsistent with the established jurisprudence and work of the African Charter on Human and Peoples’ Rights (the charter). It has been made necessary by the absence of a mechanism to review or appeal the administrative decisions of the ACHPR.

3) The purpose of the memorandum is to highlight how one wrong decision, not based on human rights, can undermine years of jurisprudence developed by the African Human Rights Commission on Human and Peoples’ Rights. The memorandum

4) The ACHPR was not asked to make a determination on specific rights that affect lesbians. The ACHPR was only requested to grant observer status to an organisation that works to protect the human rights of human being who are lesbians.

5) The following should therefore be noted:
a. Sexual orientation remains a deeply divisive and emotive issue on the continent. That fact, does not however determine whether human beings can be accorded the rights under the charter.
b. The rights that are provided for in the charter belong to all persons. All human beings are bearers of rights by virtue of being human.
c. The fact that some people may feel differently about lesbians, in itself, is not a justifiable limitation to the limitations of the rights to a fair administrative action, freedom of association, the right not to be discriminated against, equal protection of the law, and protection from and the prohibition of torture, cruel, inhuman and degrading treatment.
d. To the extent that rights may be limited the charter and the jurisprudence of the ACHPR provides a legal framework that serves as a test on how rights can be limited.

IMPORTANCE OF OBSERVER STATUS IN THE WORK OF THE ACHPR

6) Observer status entitles organisations that have an interest in the work of the ACHPR rights to address the public sessions of the ACHPR, to read and present statements before the ACHPR and to follow discussion on the developments of the human rights situations and other issues that are of interest to them. Organisations with observer status have access to documents of the ACHPR and may be specially invited to closed sessions of the ACHPR dealing with particular issues of interest to them. In passing the resolution that sets out criteria for granting observer status the ACHPR acknowledged the role played by civil society in enhancing the work the ACHPR. Without the involvement of civil society and the information provided by civil society organisations it would be difficult to the ACHPR to fulfil its promotional and protective mandate. Likewise, the ACHPR’s ability to fully carry out its work is affected if certain human rights organisations, because they do not have observer status before it, cannot receive information from the ACHPR or be invited to engage with it regarding specific issues. Denying observer status to qualifying human rights organisations therefore hinders both the organisation denied observer status and the ACHPR itself in the exercise of its mandate.

7) The observer status granted by the ACHPR differs in substance from observer status granted by other bodies. The ACHPR is an independent body that is the premiere mechanism tasked with the promotion and protection of human rights. It is tasked with setting human rights standards that must be observed by member states. The ACHPR does not represent member states of the AU, it helps individuals who are aggrieved by the failure of states to respect and protect their rights. In doing so; it ensures that member states’ actions, policy and legal frameworks are not inconsistent with their regional and international human rights obligations. The ACHPR is a body that is comprised of human rights experts. In other intergovernmental bodies members vote according to their persuasions or interests. The ACHPR makes its decisions based on its mandate to protect and promote rights.

APPLICATION FOR OBSERVER STATUS

8) Chapter 1 of the Resolution on the criteria for granting and enjoying observer status to non-governmental organizations working in the field of human rights with the ACHPR on Human and Peoples’ Rights sets out the procedure for application:
All Non-Governmental Organisations applying for observer status with the African ACHPR on Human and Peoples' Rights shall be expected to submit a documented application to the Secretariat of the ACHPR, with a view to showing their willingness and capability work for the realisation of the objectives of the African Charter on Human and Peoples' Rights. Have objectives and activities in consonance with the fundamental principles and objectives enunciated in the OAU Charter and in the African Charter on Human and Peoples' Rights;
All organisations applying for observer status with the African ACHPR shall consequently:
Have objectives and activities in consonance with the fundamental principles and objectives enunciated in the OAU Charter and in the African Charter on Human and Peoples' Rights;
Be organisations working in the field of human rights; and
Declare their financial resources.

9) CAL’s application for observer status met the requirements of this article. Its objectives and activities are in consonance with the fundamental principles and objectives enunciated in the AU Constitutive Act and the Charter.

10) CAL works in the field of human rights, responding to the violations of human rights suffered by lesbians across Africa. Typically, some of the violations faced by lesbians involve violence in all its forms, emotional, physical and psychological. These can take the form of sexual violence, forced marriages, and blackmail, among others. In some instances, lesbians have been murdered for being lesbians. Lesbians also suffer discrimination and often live in fear of people discovering their identity because of the repercussions that they may be subjected to. Reports of lesbians who have been ostracised by their families and societies are all too common. These consequences have an impact on the health, employment opportunities, education, general welfare and lives of lesbians. These violations interfere with the human rights guaranteed under the Charter.

11) CAL exists to document, research and report on these violations in order to get those who are responsible for the violations to be held accountable. CAL aims to provide a safe space for lesbians. It is an organisation that is set up to protect the human rights of lesbians in Africa.

THE JURISPRUDENCE OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS

12) In refusing to grant observer status to CAL the ACHPR did not heed its own jurisprudence on the application of fundamental rights as guaranteed under the Charter. CAL was entitled to observer status because it has been set up to provide advocacy and support to victims of human rights violations in Africa, who happen to be lesbian. In allowing the identities of the members of CAL and interest that CAL seeks to protect to constitute an absolute bar from receiving observer status failed to apply its own jurisprudence and the principles of the Charter. CAL was entitled to observer status because it meets the criteria for observer status and because there are no grounds to refuse their application. In addition, by denying CAL observer status, without providing reasons, the ACHPR leaves the inescapable conclusion that CAL was denied observer status because it represents lesbians and as such the decision was itself discriminatory on the basis of sexual orientation. The decision to refuse CAL observer status has the effect of infringing the following rights guaranteed under the Charter:

ENTITLEMENT TO THE ENJOYMENT OF RIGHTS AND FREEDOMS WITHOUT DISTINCTION

13) Article 2 of the Charter provides 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, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

14) In Institute for Human Rights and Development in Africa v Republic of Angola Communication 292/2004 the ACHPR itself emphasised that human rights belong to all persons, holding that unless the rights are reserved for citizens (such as some political rights) all people are entitled to enjoyment of human rights:

‘Although some rights, like the right to vote and to stand for elections are reserved for citizens of the particular State, human rights are in principle to be enjoyed by all persons…’
It is this principle that has been violated by the decision of the ACHPR to refuse observer status to CAL, by implying that lesbians do not have the same rights under the African Charter as other persons.

The ACHPR has confirmed that the principles of non-discrimination, as read with the right to equality, is an essential right guaranteed by the African Charter. Thus in Legal Resources Foundation v Zambia, Communication 211/98, the ACHPR held that:

‘63. Article 2 of the Charter abjures discrimination on the basis of any of the grounds set out, among them “language… national or social origin,… birth or other status…” 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. The right to equality is important for a second reason. Equality or lack of it affects the capacity of one to enjoy many other rights[3]. For example, one who bears the burden of disadvantage because of one’s place of birth or social origin suffers indignity as a human being and equal and proud citizen.’

This principle has been confirmed by the ACHPR in Zimbabwe Human Rights NGO Forum v Zimbabwe Communication 245/2002, where sexual orientation was noted as a ground on which it would be prohibited to discriminate against any person:

‘169. Together with equality before the law and equal protection of the law, the principle of non-discrimination provided under Article 2 of the Charter provides the foundation for the enjoyment of all human rights. As Shestack has observed, equality and non-discrimination “are central to the human rights movement.”71 The aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation.’

As can be seen above CAL has the legitimate objective of representing a particularly vulnerable group of human beings, whose rights under the Charter are denied and infringed on a regular basis across the African Continent simply because of their sexual orientation. The ACHPR itself has said that sexual orientation is a prohibited ground of discrimination. This constitutes discrimination and as such is an infringement of the Charter. Further, the decision to deny CAL observer status was because it represents the interests of lesbians and therefore the ACHPR itself discriminated against members of CAL in denying them access to the ACHPR’s meetings.

EQUAL PROTECTION OF THE LAW

15) Article 3(2) provides that:

‘Every individual shall be entitled to equal protection of the law’

Constitutional Rights Project and Another v Nigeria Communication 102/93,

Ad hominem legislation, that is laws made to apply to specifically one individual or legal entity, raise the acute danger of discrimination and lack of equal treatment before the law guaranteed by article 2.

THE RIGHT TO DIGNITY AND THE PROHIBITION OF CRUEL, INHUMAN AND DEGRADING TREATMENT

16) Article 5 provides that:

Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

The ACHPR has considered the extent of this rights nad has noted that the right goes beyond the prohibition of torture. In International Pen and others v Nigeria, Communication Nos 137/94, 139/94, 154/96 and 161/97, the ACHPR noted that
Article 5 prohibits not only torture, but also cruel, inhuman or degrading treatment. This includes not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience.

As noted above lesbians are subjected to violence in all its forms, emotional, physical and psychological. These can take the form of sexual violence, forced marriages, and blackmail, among others. In some instances, lesbians have been murdered for being lesbians. In many countries across the African region states have failed to protect lesbians against such attacks and to prosecute perpetrators of the violence. This constitutes a violation of article 5 of the Charter. Considering the seriousness of these violations of the rights of lesbians it is unacceptable to deny CAL observer status at the ACHPR, when such status is an important tool in utilising the Charter in protection of the rights of the affected persons.

FREEDOM OF ASSOCIATION

17) Article 10 provides that:
Every individual shall have the right to free association provided that he abides by the law. 2. Subject to the obligation of solidarity provided for in 29 no one may be compelled to join an association.

In Sir Dawda K Jawara v the Gambia Communication Nos 147/95 & 149/ 96 the ACHPR noted that:

68. Competent authorities should not enact provisions which would limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermined fundamental rights guaranteed by the constitution and international human rights standards.

This right has been further explained by the ACHPR as follows:
1) The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international standards;
2) In regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom;
3) The regulation of the exercise of the right to freedom of association should be consistent with State’s obligations under the African Charter on Human and Peoples’ Rights.

Many states across the African region prevent lesbian, gay, bisexual, transsexual and intersex organisations from forming, registering and operating in their countries in violation of this right as protected in the Charter. CAL therefore has a role at the ACHPR to represent LGBTI organisations that have been denied their rights to association as protected by the Charter. The decision to deny CAL observer status both limits their opportunities to provide such advocacy and limits their rights to association as the right to represent its members’ concerns would be an integral part of its right to association.

PROTECTION OF MINORITIES

18) The ACHPR itself has noted the importance of providing protection to minorities, particularly in the context of indigenous communities. Thus the ACHPR has stated that,

‘Such negative stereotyping legitimises official discrimination, marginalisation, subjugation, exclusion and dispossession of indigenous peoples by government institutions and dominant groups. This at times extreme discrimination is a cause of profound suffering among indigenous communities and it is in violation of Article 5 of the African Charter, which states that every individual shall have the right to respect for the dignity inherent in a human being … Whatever the specific term used to analyse and describe their situation, it is highly important to recognize the issue and to do something urgently to safeguard fundamental … human rights.’

It is evident that this extract would be just as true if the words lesbians were to replace indigenous communities. Indeed the discrimination, marginalisation, subjugation, exclusion and dispossession of lesbians in Africa is extremely acute and as a minority there is particular need for the ACHPR to take steps to protect their rights. Preventing an organisation such as CAL, set up to do just that, from interacting fully with the ACPR can only harm its ability to undertake its own mandate.

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NOTES

[2] ACHPR/Res.5(XI)92: Resolution on the Right to Freedom of Association (1992).
[3]’Indigenous peoples in Africa: The forgotten Peoples?’, accessible at http://bit.ly/9D8rrB