In 2008, an NGO, the Coalition of African Lesbians (CAL), working for the protection and promotion of the rights of lesbians, bisexuals and transgendered (LBT) persons in Africa, applied to be granted observer status with the African Commission on Human and Peoples’ Rights (African Commission). In 2010, the African Commission decided to decline this application without stating any reasons.
As many members of the Commission know, the Centre for Human Rights has walked a long and supportive road with the Commission. It is therefore not without careful consideration that we today express our outrage and deep disappointment at the Commission’s refusal to grant observer status to the Coalition of African Lesbians (CAL).
Commissioners serve in their personal capacity, and apply, as independent experts, the law of the African Charter - nothing more, nothing less. In this instance, the applicable law is the Commission’s Guidelines for NGO Observer status (Resolution for the Granting of and for Maintaining Observer Status with the African Commission on Human and Peoples’ Rights, 1999).
Although the Commission did not provide any reasons for its finding of refusal, it is clear that since the CAL application met all the administrative and procedural requirements, the only application criterion on which the finding could have been based is the one that applying NGOs should have objectives and activities ‘in consonance with’ the fundamental principles and objectives in the African Union Constitutive Act and the African Charter.
Assessed against this yardstick, the Commission’s reasoning is not tenable, for the following three main reasons:
1. CAL’s objectives are consonant with the AU Constitutive Act and African Charter.
With its objectives firmly rooted in the advancement of gender equality and social justice, and the protection of the rights of particularly vulnerable individuals, CAL meets the criterion of having objectives and activities ‘in consonance with’ the fundamental principles and objectives in the African Union Constitutive Act and the African Charter.
The activities and principles of CAL are consistent with the following provisions of the AU Constitutive Act: promotion of human rights (art. 3[h]); promotion of gender equality (art. 4[l]); and promotion of social justice (art. 4[h]). There is no principle in the AU Constitutive Act that is inconsistent with the work and principles of CAL. In addition, CAL’s activities and principles are in line with at least the following provisions of the African Charter: the promotion of equality before the law (art. 3); protection of the right to liberty and security of the person (art. 5); the right to the best attainable status of health (art.16).
To bring into the debate issues such as the right to family under the Charter is not appropriate and misses the point. The issue is whether CAL represents a constituency whose rights under the Charter may be - and are - violated. If women are raped, for whatever reason including ‘corrective rape’, and states fail to take effective action, it is the Commission’s concern. If an NGO advances the right to health of women, whoever they are, it works towards the promotion and protection of a right under the Charter and deserves to be heard by the Commission.
2. The Commission’s own practice confirms that sexual minority rights are protected under the Charter.
In its practice, the Commission itself acknowledged that the rights of sexual minorities are included within its mandate. This inclusive approach appears from the exercise of the Commission’s principal mandate to examine state reports. On numerous occasions, the Commission posed questions on the situation of sexual minorities during the examination of state reports. In one notable example, when it examined Cameroon’s state report, in 2006, not only did three of the Commissioners pose questions related to the abuse of the rights of 11 gay men, but the Commission as a whole included ‘concern for the upsurge of intolerance towards sexual minorities’ in its official record of the proceedings, the Concluding Observations.
In addition, special mechanisms of the Commission have also on numerous occasions engaged with and protected the rights of sexual minorities.
In fact, it is impossible to argue otherwise. The Charter rights belong to ‘everyone’. How could someone be excluded from the right to a fair trial or not to be tortured or the right to education, just because he or she displays a sexual orientation or gender identity that some may find uncomfortable? Taken to its logical extreme, the exclusion of claims on the basis that they relate to rights of sexual minorities would see a Commission sitting with its hands folded in the face of even the mass extermination of members of sexual minorities.
The fact that CAL works on the rights of LGBTI persons brings sexual orientation and gender identity into play. Let us be unequivocal: the rights of lesbians, gays, bisexuals, transgendered and intersex (LGBTI) persons (also referred to as ‘sexual minorities’) are in principle protected under the African Charter. The rights bearers under the Charter are ‘everyone’, ‘every human being’ and ‘every individual’ (see articles two to 17 of the Charter). These rights are thus available to everyone without any distinction. This position is underlined in article two of the Charter, which provides that there is no ground on which any person may be denied the protection of the Charter. In other words, every person enjoys the Charter rights irrespective of her or his sexual orientation or gender identity. (Such an interpretation is supported by article 60 and 61 of the Charter. ‘Sex’, one of the specific grounds for non-discrimination in article two, has also been interpreted by the UN Human Rights Committee to include ‘sexual orientation’; and the Commission is empowered to have reference to international law in interpreting the Charter by virtue of the two articles.)
The fact that LGBTI persons are rights-bearers does not mean that they have a free pass to do everything they like. Their rights, like the rights of everyone else, may be limited, but only in a rational process guided by article 27(2) of the Charter and the jurisprudence of the Commission. On a case-to-case basis, any limitation by a state of their rights will have to be assessed by the Commission. However, the starting point of the Charter is very clear: no person loses the protective shield of the Charter on the basis of her or his sexual orientation or gender identity. It is, quite obviously, unthinkable that one may be refused to rely, before the African Commission, on the right not to be tortured or the right to a fair trial, just because she is a lesbian.
The African Commission has in the past heard of concerns that lesbians have been subjected to ‘corrective’ rape and targeted with other acts of violence and even murder. CAL’s application for observer status aims to enable them to raise inadequate state responses to such incidents before the Commission. The question before the African Commission is thus a limited one, namely: should LGBTI groupings, such as CAL, be allowed to raise human rights concerns before the Commission?
Denying CAL observer status contradicts the practice of the Commission itself, and the logic of the African Charter.
3. Many NGOs already use their observer status to advance the rights of sexual minorities before the African Commission.
For many years now, the Commission has been allowing numerous ‘mainstream’ NGOs with observer status to raise, during public sessions, issues pertaining to the protection of the rights of gays, lesbians and other sexual minorities. This has certainly been true of the Centre, as it has been of many other NGOs. Allowing us to speak on these issues implies that the Commission has accepted that the protection of sexual minority rights is part and parcel of its mandate under the African Charter. By implication, the Commission acknowledged that NGOs have activities and principles related to the promotion and protection of the rights of sexual minorities. On what basis could the Commission now decide to refuse the voice of CAL to be heard in the same forum? Surely, the Commission only has two options - either (1) it continues allowing the practice of permitting NGOs with observer status to speak out and work on sexual minority issues, and also allow CAL observer status; or (2) it denies CAL observer status, and then also from now onwards censures every statement by every NGO and scrutinises every activity of every NGO that already has observer status, to ensure that none of us speak out on sexual minority rights.
Surely, this option is unthinkable, given the practice of the Commission, international trends, and the principle of the indivisibility of rights.
In addition, it should be noted that the Commission in 2009 has already granted observer status to Alternatives-Cameroun, an NGO that has an explicit mandate to work on the right to health and other rights of men who have sex with men and other sexual minorities. There are great similarities in the mandates of Alternatives-Cameroun and CAL. Granting CAL observer status will thus be consistent with the Commission’s recent practice.
In addition, granting observer status serves to uphold the freedom of association, assembly and speech, and is in line with the Kigali Declaration.
It should also be kept in mind that the granting of observer status is premised on the right to free association, assembly and speech, and also the right to equality. The Commission itself, in deciding on applications for observer status, should be guided by these rights. As an applicant, CAL - its members individually and collectively - has the right to associate, assemble and engage in speech equally with other NGOs in the public forum established by the Commission.
The very rationale of a regional human rights system is to provide a level of protection that is difficult or impossible to attain at the national level. The regional system should provide a safety net, normative guidance towards a common consensus, and a forum to articulate concerns and be given a voice - especially when no such space exists at the national level, which is the case for many of the constituent members of CAL. It is precisely when voices are silenced at the national level that the regional forum of the Commission becomes a crucial space. There are few groups to whom this regional space is more important than for LGBTI persons in many African states.
The Kigali Declaration, adopted by the AU Ministerial Conference on Human Rights in May 2003, reiterates the important role of civil society and human rights defenders, in the promotion and protection of human rights in Africa. It called on states and regional institutions, such as the African Commission, to encourage the participation of civil society. No exception has been stated, and none should now be created by the Commission.
In conclusion, we therefore urge the Commission to reconsider its decision to refuse. Applying the applicable law, and leaving aside personal preference and prejudice, can only lead to one conclusion.
The Commission should carefully consider that its decision comes in a context of increasing homophobia in many AU member states. What is the message the Commission, the primary human rights institution of all Africans, sends into this very real context? By disallowing CAL a space around its table, the Commission supports sentiments that members of sexual minorities are free game, that they are the only Africans not covered by the protective umbrella of the African Charter, and that they are less than human, as they are not part of the term ‘everyone’ used by the Charter in determining the rights-holders under its ambit.
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