'If not, why not?'This phrase was very popular with the participants of the 43rd session of the African Commission on Human and Peoples’ Rights (ACHPR) in Ezulwini, Swaziland in May 2008. The locution ‘if not, why not’ carried a different connotation from one participant to the other among those who attended the session. It was used to challenge the commission’s protective mandate with respect to the protection of LGBTI people from human rights violations, as well as to challenge the its role in ensuring the enjoyment of rights by LBT women. The phrase of just four words represents a cornerstone for LGBTI struggle in the African human rights system.

‘If not, why not’, is what many of the activists and lawyers who were visiting Swaziland for the first time referred to as ‘the exotic dancing club’. In Swaziland, people simply refer to the place as a ‘strip club’. Regardless of what one calls it, most of those who attended this session, including members of the commission itself and the lesbians from the Coalition of African Lesbians (CAL) delegation, will remember this club’s name very vividly. The club’s name inspired LGBTI activism, honed their advocacy and helped establish their place among the civil society delegation at the Commission.

‘If not, why not’ also summarises the questioning process that CAL and the broader LGBTI community went through before, when and after they made the decision to submit an application for observer status to the commission. A decision that was finally taken under the belief that it was time to formalise relationships with the commission, to put an end to the egregious human rights violations faced by LBTI women on the continent. And CAL, as a human rights organisation defending the rights of LBTI women in Africa, had the legitimacy to advocate for the protection of the rights of these women in Africa.

Now, over two years since the application was lodged, the question that CAL thought had been answered remains. The question does not only remain answered, it now sits as an addition to the many ‘nos’ that many LBTI people are being subjected to. This has been reinforced by the decision of the commission not to grant the observer status to CAL. The reason, although not provided to CAL can be found in the commission’s activity report, is that CAL’s activities ‘do not protect and promote the rights enshrined in the African Charter’. If not, why not?

In Swaziland, nearly one third of the civil society participants were made up of LGBT activists who came from various part of the continent. Their main motivation in participating at this session was the same as the four previous sessions: They came to seek protection from the commission. Given the need to formally address this human rights body as a constituency, CAL decided to formalise its relationship with the commission through the application for observer status. For CAL, the time was ripe to formalise its relationship with the commission. If not here, why not – and where, when?

The observer status is the single formal authorisation granted by the commission to civil society organisations working in the field of human rights, upon application, giving them legitimacy to address human rights-related issues in that space. In the past, non-governmental organisations have used the observer status to make formal statements, recommendations, and bring formal complaints before the commission. The application for the observer status is an essentially administrative process, of which CAL met all requirements. Assured that all criteria for eligibility were met, CAL had nothing to worry about. If not, why not?

For the Coalition of African Lesbians there were other reasons to believe that this was a done deal. The commission would grant them observer status, since they had not turned down a single application in the twenty-four years of the commission’s existence. The commission had been acquainted with the issues faced by LGBT people on the continent through the various statements, resolutions and appeals that it had received from the LGBTI community. They had in several instances asked questions to governments and made statements referring to the violations of the human rights of LGBT people on the continent. If not, why not?

’The reasons provided in the commission’s activity report is astonishingly absurd. What does protection and promotion of rights enshrined in the charter mean? Nothing! Such statements only point to the abuse of power to undermine the human rights they are supposed to protect. I also know that when homophobia entered the room the African Charter disappeared. For a process that is essentially administrative, the commission has gone out of its way, and out of its usual practice, and against its mandate, to deny the observer status to CAL

Recalling the commission’s mandate to promote, protect and fulfil the human rights of everyone on the continent, without discrimination of any kind, one wonders what stopped its commissioners from upholding this value and applying the principle when they considered CAL’s observer status application. They have often held statement promoting the respect of the rights of LGBTI people, but when they turn back and violate their rights in such is violent manner, why won’t states do the same?

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* Joel Nana is executive director of African Men for Sexual Health and Rights (AMSHER).
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