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The day the African Commission disavowed humanity

Fikile Vilakazi and Sibongile Ndashe

2010-11-22

http://pambazuka.org/en/category/features/68947

The decision of the African Commission on Human and Peoples’ Rights to deny observer status to the Coalition of African Lesbians (CAL) comes at a time when the struggle for visibility, tolerance and acceptance of the fact that lesbian, gay, bisexual, transgender and intersex (LGBTI) people exist is beginning to gain momentum.

Exactly four years after LGBTI rights activists and groups started organising and advocating for rights at the Commission, the 48th session underscored the point that African civil society that works with the regional human rights mechanism will not countenance a decision by the Commission when such decision is inconsistent with the value espoused in the African Charter on Human and Peoples’ Rights.
The unfounded allegation that sexual orientation was a fringe issue meant for eccentric individuals was resoundingly dispelled. If this was not on the Commission’s agenda, this session helped to decisively make it a human rights issue.

At the session, no less than 18 organisations who have observer status used the public session of the Commission to remind the Commission that the protection and promotion of human and peoples’ rights was their twin mandate and that their obligation was simply to protect and promote rights.

The two national human rights institutions who made statements, Burkina Faso and Kenya, mentioned the obligation of the Commission with regards protecting human rights. Burkina Faso urged the Commission to produce guidelines that assist member states in the protection of people whose rights have been violated because of their real or perceived sexual orientation.

At last, the South African government representative articulated South Africa’s position and commitment to the protection of all people, regardless of their sexual orientation. South Africa is the only government that could legitimately object to CAL’s application and they had been lamentably remiss in past sessions when other governments, notably Uganda, objected to CAL’s observer status. The only government to applaud the Commission for its stance was Zimbabwe, which thanked the Commission for the bold step of refusing to grant observer status to CAL.

The decision of the Commission is troubling at a number of levels. Many questions remain unanswered. It is patently homophobic. It dehumanises lesbians in reasoning that CAL does not seek to protect or promote rights in the charter. What if that divests members of CAL of their rights, all of them, that are guaranteed under the charter? If there was ever a legally unsound decision this has to be it. You are a lesbian = all your rights under the charter do not exist?

The Commission has worked hard to build solid jurisprudence on the importance of the right to equality before the law, equal protection of the law, inhuman and degrading treatment and dignity and this jurisprudence was either ignored, or worse, discarded by the Commission. What does the Commission stand to gain for undermining its own jurisprudence and working methods?

The decision of the Commission reverberated throughout the continent and all over the world. In this special edition there is a collection of statements from a variety of civil society formations, selected statements made by NGO’s at the Commission and other reactions from individuals all decrying the unfairness and gross injury inflicted by the African Commission on Human and Peoples’ Rights.

There was a time when the chair of the Commission decided to let NGO’s know that when something has already been said it does not have to be repeated. It depends: if the person you are talking to did not hear you, did not listen or did not understand then you may need to keep on saying it again and again. Human rights belong to all human beings by virtue of being human!

CAL remains outraged by the decision of the African Commission on Human and Peoples’ Rights not to grant observer status to the Coalition. CAL is extremely angered by the fact that this decision, if not challenged and reconsidered, will legitimise ongoing state and non-state violence against LGBTI people in Africa.

There is already an ongoing trend from various African states to tighten laws that criminalise homosexuality on the continent. Instead of condemning such acts, the African Commission appears to be condoning them through such an arbitrary decision. We commend civil society organisations in Africa and internationally that have taken a bold step to condemn such an arbitrary decision and call on the African Commission to reconsider and grant CAL observer status before the 49th Ordinary Session.

Human rights activists and organisations are requested to continue writing to the African Commission on Human and Peoples’ Rights asking them to reconsider their decision. Send your letter to Dr Mary Maboreke of the African Commission secretariat by email to colley@achpr.org cc sthydara@achpr.org

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* Fikile Vilakazi is the director of the Coalition of African Lesbians (CAL).
* Sibongile Ndashe is a lawyer in the Equality Programme at Interights. She writes in her personal capacity
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.

African Commission should reconsider decision on Coalition of African Lesbians

Statement to the 48th session of the African Commission on Human and Peoples’ Rights, November 2010, Banjul, The Gambia.

Centre for Human Rights, University of Pretoria

2010-11-22

http://pambazuka.org/en/category/features/68946

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.

CONCLUSION

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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* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.

The fallacy of human rights at the African Commission

Wendy Isaack

2010-11-22

http://pambazuka.org/en/category/features/68949

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.
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News

Are we not human?

Sokari Ekine and Mia Nikasimo

2010-11-22

http://pambazuka.org/en/category/features/68955

The African Commission on Peoples’ and Human Rights’ (ACPHR), denial of observer status to the Coalition of African Lesbians (CAL) is a denial of the rights enshrined in the Charter on Human and Peoples’ Rights of all Africans who identify as Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI). In the denial of rights, the ACPHR effectively removes the citizenship of all LGBTI. If we do not have rights then we are not citizens; if we do not have citizenship then we have been disenfranchised, discarded – we do not exist. But the fact is that WE DO EXIST and there are millions of us. From Algiers to Cape Town, from Dakar to Mombasa, we are everywhere.

We are angry at the grotesque indifference exercised by these charlatans whose misogyny, xenophobia, homophobia, lesbophobia and transphobia due to heteronormativity – whatever the origin – is being unleashed against us. Acting with hysterical fear in the face of a simple request by CAL to hold observer status, the ACPHR – as it represents and discusses issues of importance to all African citizens – is the mark of irresponsibility and shameful viciousness. And of course it is in violation of the treaties and international agreements to which it and its member countries are signatories.

This kind of underhanded attitude towards CAL is insulting; LGBTI people are still being marginalised, our human rights are being refused. We are being denied the duty to monitor what gets said and done in our names. Effectively the ACPHR, in denying CAL and the existence of LGBTI people, is facilitating the continual criminalisation of LGBTI individuals and is therefore absolutely complicit in the verbal, physical and sexual abuse of LGBTI people which goes unchallenged in country after country.

No wonder the church and governments are able to say things like, ‘homosexuality is against our culture’, when what is supposed to be an independent institution with the responsibility of upholding the rights of all Africans according to international treaties and agreements, refuses to acknowledge the existence of people based on their sexual orientation and gender identity.

The questions here are immense: On what grounds does the ACPHR act? In whose interests is it acting? How is it that this small group of people are able to hold power over millions of African people and put their lives at risk? Are they merely dancing to the sick orgy dictated by religious and political warlords back home? Or is it their postcolonial heritage which makes them feel justified in exerting quasi powers of exclusion in this way? What progress do they hope to make, piggy-backing deeply held indifferences and prejudices onto a shameful lack of transparency? When will all this hypocrisy end? Have they considered any of these questions or are they just too intransigent to fully consider what is meant by human rights? Are they saying that LGBTI people are not HUMAN? Because, there is no one, not a living soul on this continent who can prove to anyone that LGBTI people are a minority and who are not as firmly steeped in these lands as any other person.

Human rights is not a prescribed in-group of friends, family or close neighbours. Rather:

Human rights are those rights which are held by all human beings. The concept of human rights is a universalist product of the Enlightenment in Europe and the United States, and has since spread around the world...

Recently Indian writer and activist, Arundhati Roy spoke of the Indian state:

‘Pity the nation that has to silence its writers for speaking their minds. Pity the nation that needs to jail those who ask for justice, while communal killers, mass murderers, corporate scamsters, looters, rapists, and those who prey on the poorest of the poor, roam free.’

We say pity that 53 African nation states – and we really need to emphasise this because a few people are deciding about the validity of our lives – feel they have to silence the voices of their innocent citizens who ask for justice and the rights shared by their sisters and brothers, fathers and mothers while ‘communal killers, mass murderers, corporate and political scamsters, looters, rapists, and those who prey on the poorest of the poor, roam free’!

We feel strongly about the definition of human rights as quoted above and feel that it is important we voice this. We feel strongly that CAL be given observer status as requested by them and supported by all those who truly believe in an inclusive citizenship and notion of rights, in the light of homo/transphobia must be part of this process. When the African Commission in all its glory seeks to remove the human from human rights, it is risking taking us to a place where some people are human whilst others are not – and we all know what has happened in the past to those not viewed as ‘human’.

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* Sokari Ekine is author of Black Looks Blog and Mia Nikasimo is a writer, poet and regular contributor to Black Looks.
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.

If not, why not?

Doublespeak on LGBTI rights at the African Commission

2010-11-22

http://pambazuka.org/en/category/features/68956

'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).
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.

Face down

Jane Bennett

2010-11-22

http://pambazuka.org/en/category/features/68948

Last year, in Banjul, Alternatives-Cameroun was granted observer status at the African Commission on Human and Peoples’ Rights (45th Session, May 2009).

Alternatives-Cameroun is an NGO which works to protect people from ‘social exclusion’, and is explicit that the need to address the political, economic, and social vulnerability of lesbian, gay, and transgendered people (especially young people) is high on their agenda.

Some 16 months later, the Coalition of African Lesbians’ (CAL) application for similar status is turned down.

The application is turned down in the same month as the Kampala-based tabloid Rolling Stone publishes (under one Giles Muhame, as editor) a list of 100 people he thinks should ‘be hanged’ for homosexuality; the same month as Bishop (yes, Bishop: the ones who get ordained and serve God in the name of love and faith and hope) Ejiba Yampiale in Kinshasa vows very publicly to ensure the recriminalisation of the ‘spiritual abomination’ of homosexuality; the same month as my friend (who lives in Harare) has a bottle thrown at her head and is taunted and shoved by men bystanders (she is wearing a T-shirt with a slogan about sexual and reproductive health on it); the same month as I sit in a multi-national African group of trans-activists where Michael (no, not his real name; he lives in the SADC region) shakes his head over and over in pain, trying to dislodge the inner craziness of living in a permanently and viciously hostile world; and the same month in which a very pink and almost silly wooden closet (a symbol) standing on the public steps of Jameson Plaza at the University of Cape Town (part of a week long Pride event) gets torched.

It’s fairly certain that in the 16 months between Alternative-Cameroun’s acceptance as observer and the Coalition of African Lesbians’ rejection, violence, discrimination and broad-based hate-mongering against LGBTI African people has not exactly abated. The evidence of concerted and organised attacks against LGBTI organisations and individuals has in fact mounted.

If the people being savaged by the media as ‘devils’ (who should be killed) were members of a faith-based group, would an NGO working to protect their rights be denied access to the African Commission on Human and Peoples’ Rights? If the people raped and assassinated as they walked out of club spaces in their own neighbourhoods were attacked because they identified as members of a particular ethnicity, would an NGO working to protect their rights be denied access to the African Commission on Human and Peoples’ Rights? If activist organisations were put under police surveillance because the organisation tried to support those outcast by their families because they were paralysed or albino-skinned, would an NGO working to protect their rights be denied access to the African Commission on Human and Peoples’ Rights?

If the levels of intimidation, hostility and frankly murderous assaults suffered by LGBTI people in Africa were suffered by any one other ‘constituency’, it’s hard to believe that African peoples of multiple locations, views, and contexts, would not scream out in disgust and outrage. And it’s inevitable that the African Commission on Human and Peoples’ Rights would have something to say about what was, and was not, ‘African’.

It’s probable, too, that NGOs defending this beleaguered constituency would be welcomed as observers and celebrated for their courage, insight, dignity, and dedication.

There are a number of reasons for NGOs’ applications for observer status to be turned down at the ACHPR; technical problems with the process or documentation of the application are the usual cause. The ACHPR makes much of its diverse bodies’ overarching commitment to human rights and to the active and vigorous defence of all African people’s dignity, safety, and well-being and has given over 500 NGOs and INGOs with interests in peace-building and human rights protection observer status since 2002.

I have a strong suspicion that it was not technical difficulties which caused the ACHPR to reject CAL’s application for observer status. I suspect that those most powerful in the ACHPR were pleased to have something of a small opportunity to ‘fight back’ against the Western powers who strongly advised the release of Tiwonge and Monjeza, advised against taking the Bahati bill very far, advised against moving to recriminalise homosexuality in Rwanda. I suspect great cowardice among the members responsible for granting - or not granting - observer status (I suspect that they felt their own dignity would be irrevocably compromised were they to recognise the Coalition of African Lesbians). I suspect that the rejection of CAL’s application worked as a helpful platform to reconsolidate alliances whose interests have very little to do with the protection of African people from violence. I suspect most of the people responsible for the rejection gave very little time or thought to the impact of their decision. I suspect some of those responsible for making the decision were a little regretful: it might have been interesting, after all, to have ‘an African lesbian’ or two to watch, in horror and fascination, in some of the more tedious afternoon sessions of debate and discussion…

From where I sit (a very small desk), the political power of the rejection is very serious. Observer status grants NGOs access to ACHPR members, to certain documents, and to the right to dialogue outside formal meeting spaces. Networking here has the potential to benefit everyone. Excluding CAL from this clearly jeopardises conversations already underway on strategic choices around LGBTI legal advocacy and movement building. Years of work may be threatened.

At a symbolic level, the rejection carries a different sort of weight. To be excluded as an ‘observer’ is to be rendered invisible; the message is clear - your body is irrelevant to us. In an environment where LGBTI African people struggle every day against maxims of hate and interpretations about their ‘un-African-ness’, to add a public, trans-national, continental message about LGBTI irrelevance to the pyre is nothing short of inhuman.

The ACHPR decision to reject the CAL application affects me in diverse ways. It forces me to recognise (again) that South Africa’s leadership in volatile human rights discussions is weak; it damages careful work initiated by long-respected colleagues, in different organisational settings; it reinforces the homophobia against which I fight (with and for my students) as a teacher, and writer, every day and it reinforces the idea that this homophobia is ‘African’.

This is the absolutely last thing I need: the vision of powerful, politically smart, well-resourced African men and women throwing the bodies and hearts of our LGBTI daughters, sons, friends, teenagers, grandfathers, and lovers into the dust. Face down.

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* Jane Bennett is professor and head of department of the African Gender Institute, University of Cape Town. She writes in her personal capacity.
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News

Sexual orientation under the African Charter on Human and Peoples’ Rights

2010-11-22

http://pambazuka.org/en/category/features/68953

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.

Where can we find refuge and justice?

2010-11-22

http://pambazuka.org/en/category/features/68957

* The following article is a transcript from an audio recording:

My name is Kasha Jacqueline. I am a feminist, a human rights defender, a gay activist and Pan-African[ist]. When I first heard about the denial of CAL’s [Coalition of African Lesbians] observer status at the African Commission I was devastated. The decision is not only going to affect CAL’s secretariat, it is also going to affect all the members and being a member of CAL I felt that my rights have been violated by stopping me from getting involved with the African Commission.

Why is it that other organisations have been given observer status and why is it that for us we are not given observer status? If the body that is really supposed to protect us as citizens of the continent, citizens of Uganda and different countries that are part of CAL does not grant observer status, we feel that there is no protection at all, because if a big body like the commission just denies our application without even giving us reasons – if you look at the denial letter, it simply says we were denied, why were we denied in the first place? We need to know the reasons as to why we were denied, aren’t we human beings? Are the people at the commission different from us?

We are all human beings regardless of our race, sexual orientation or gender identity, regardless of our age, so I believe that it was injustice at the highest order and something has to be done because it’s violating our rights, our fundamental human rights.

We are part of the African Commission – as members of the continent, as citizens, nationals of the African continent. If the body that is supposed to protect our human rights denies us that space, then it’s like they are throwing us to the graves because everyone is going to take advantage of that denial to harass us, to insult us and to violate our rights, because they will say that if the highest body has violated their rights it means that they are less human than we are and they will also go on.

Already we have a lot of injustices in our constitutions and penal codes around the continent and this is going to be a bad example to other countries that are trying to repeal these laws. We are here struggling, insulted on the streets everyday, evicted from our houses, losing our jobs and the countries that are supposed to protect us are not protecting us. Where we are supposed to go and hold our countries accountable is also not supporting us. It also makes me feel so sad and unwanted in this continent and to be sincere I am speechless because I don’t know where to run now for refuge and justice just to get back what belongs to me that was taken away from me. I just want what belongs to me fundamentally as a human being to be returned. I feel that is injustice at the highest order and that it is so embarrassing what the commission has done. This decision has set a bad example for other bodies and member countries.

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* Kasha Jacqueline is director of Freedom and Roam Uganda.(FARUG). FARUG has been an active member of CAL since 2005. FARUG works to promote,protect and empower LBT persons in Uganda and on the removal of draconian laws in the penal code of Uganda.
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.

Lesbians can no longer be silent

Rose Wanjiku

2010-11-22

http://pambazuka.org/en/category/features/68958

Recently, I attended a conference session where those gathered were discussing Kenya’s penal code that criminalises homosexuality.

Sadly, the issue was narrowed to gays versus lesbians and it degenerated to an ugly debate when one of the participants snapped: ‘You lesbians have it so easy, nobody bothers about two women living together and displaying affection in public. You people should not even bother about the law because it is silent on lesbians. Do not stir trouble by insisting to be part of the bid to push for decriminalisation.’ A few people clapped, but after that there was deafening silence. The session ended prematurely and most women present left without a word as though agreeing that they were better of in silence.

This tale reminded me of the women of my grandmother, my mother’s and those of my generation who were/are condemned to silence. These women have been forced to be silent even when it is vital to speak.

The same tale of ‘women should be silent’ was replayed recently when the African Commission on Human and Peoples’ Rights denied the Coalition of African Lesbians (CAL) observer status because apparently CAL does not promote and protect human rights.

With a rude three sentence letter declining the application, CAL was expected to sit pretty because ‘after [all] it is a bunch of women’ out to cause trouble in the rather ‘progressive’ but conservative African Commission. Ironically, the commission held celebrations to mark 30 years since the launch of the African Charter on Human Rights. The trumpet blowing about the achievements and progress made was deafening. The women of Congo, Darfur, Somalia, Chad, Guinea and other war-torn areas were forgotten. It is these women that the commission wants CAL to be silent about when they declined the application for observer status. It is the voice of millions of women in Africa they want silenced.

Repeating the ‘homosexuality is un-African’ statement is like trying to inflate a punctured tyre – it just doesn’t work.

The commission has let African women down, it has looked the other way when they are killed, maimed, raped or forced into labour and other forms exploitation. Now the same commission cannot deny women a voice on moral, cultural, religious or whatever basis. The reason the African Charter on Human Rights was drafted was because rights are not given through whims. They are guaranteed for every African, whether homosexual or heterosexual.

African governments are averse to respect of human and peoples rights; the commission should not be an avenue to coalesce oppression.

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* Rose Wanjiku is director of Artists For Recognition and Acceptance (AFRA-Kenya).
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.

Let this group find comfort and safety here

Statement at the 48th Session of the African Commission on Human And Peoples’ Rights

Asha Ramgobin

2010-11-22

http://pambazuka.org/en/category/features/68960

Dear Commissioners and participants,

Before I begin my statement, I would like to make a special request and I hope that everyone will appreciate it. If it is okay with you, Madame Chairperson, could we have a moment of silence to contemplate and remember all those who have been raped, tortured and killed simply because they were different or misunderstood? I assure you that I will still keep to my five-minute time allocation.

Thank you.

My name is Asha Ramgobin and I am the executive director of Human Rights Development Initiative, an organisation that is privileged to have observer status with the commission.

I do not represent an organisation of gays and lesbians. I am not myself gay and I do not have a mandate to speak on behalf of this movement. But I am a social justice activist and therefore cannot turn away when I see a social injustice.

Dear Commissioners, if I were here representing an organisation of women who had been raped and tortured in Rwanda and I applied for observer status so that I could ensure that my members can also seek protection here, would you turn me and my organisation away?

If I were here representing an organisation of women who had been raped and tortured in Darfur and I applied for observer status so that I could ensure that my members can also seek protection here, would you turn me and my organisation away?

If I were here representing an organisation of women who had been raped and tortured in Congo and I applied for observer status so that I could ensure that my members can also seek protection here, would you turn me and my organisation away?

From what I know about the Coalition of African Lesbians, those whom they represent are subjected to rape and other awful forms of abuse just because people don’t understand them or see them as a threat to their beliefs. Can that justify rape? Can that justify murder? Can that justify beating them up? Are they not human and our brothers and sisters?

Are we the old apartheid state of South Africa that decided that some people are less human than others just because of their hair, colour of their skin or because they conducted traditional rituals that involved killing animals? The colonisers and missionaries did not understand these practices and decided that we are heathen and uncivilised. We lived with this oppression and we fought it. All of us.

I am South African. Not Indian as my outer appearance might indicate. Many people hear us, South Africans, talking about these issues and judge us as not being truly African. Especially since South Africa still has white people in economic power. We lived through what could have been a de-humanising period. But our human nature prevailed in the end and we declared NEVER AGAIN. We declared Never Again in Sierra Leone and then in Rwanda, but we seem to see this over and over again.

After what we have been through in our beloved continent, it is very difficult to turn a blind eye to anyone who is silenced or dehumanised. We come from a continent that believes in the concept of UBUNTU. Even though we might use different words in the end it is about respecting the divinity in all

Today can we truly silence a group or deny them a voice at the one place they should feel the safest? I implore you, dear Commissioners, to look deeply in your hearts and with a sense of compassion and duty reconsider your decision and let this group also find comfort and safety here.

Thank you!

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* Asha Ramgobin is the executive director of Human Rights Development Initiative

* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.

Denying rights and undermining jurisprudence

INTERIGHTS

2010-11-22

http://pambazuka.org/en/category/comment/68954

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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* INTERIGHTS, the International Centre for the Legal Protection of Human Rights, works to promote respect for human rights through the use of law.
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.

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

Denounce the rejection of CAL’s application for observer status

Women Human Rights Defenders International Coalition

2010-11-22

http://pambazuka.org/en/category/comment/68959

On the occasion of the 48th Ordinary Session of the African Commission on Human and People’s Rights (ACHPR), the Women Human Rights Defenders International Coalition denounces the rejection of the application for observer status made by the Coalition of African Lesbians (CAL) before the African Commission on Human and Peoples’ Rights (ACHPR). CAL’s application was submitted in May 2008, it was deferred twice, and finally rejected on 25 October 2010.

Dr Mary Maboreke, who manages the African Commission Secretariat, wrote: ‘The ACHPR has deliberated on your application and decided not to grant observer status to the Coalition of African Lesbians.’ No explanation was given regarding the denial of the application, even as special rapporteur on freedom of expression Pansty Tlakula of South Africa endorsed it before the commission and stated that the application met all the necessary legal requirements.

When CAL submitted its application in 2008, it was deferred to May 2009; then to November 2009; then deferred again to a private session of the commission in May 2010. The commissioners justified that they needed more information on sexual orientation and gender identity in order to inform their decision. Several studies and a panel of LGBTI experts were presented before the commissioners to bring their attention to the pervasive and punitive violence against lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Africa. The commissioners however maintained that sexual orientation and gender identity are not guaranteed rights in the African Charter on Human and Peoples’ Rights.

CAL is a network of organisations committed to promoting African lesbian equality and giving visibility to their concerns. The network aspires for ‘all lesbians to enjoy the full range of human rights, secure in the knowledge that (they) are recognised as full citizens, with rich and diverse cultures, and a significant and respected presence in all spheres of life, through personal and organisational growth’.

Contrary to the claim of the commissioners, Article 2 of the African Charter on Human and Peoples’ Rights explicitly states: ‘Every individual shall be entitled to the enjoyment of the rights and freedoms recognised 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.’

The United Nations Declaration on Human Rights Defenders, which the UN General Assembly adopted by consensus in 1998, recognises that ‘everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms’ at all levels.

Given that there is no legitimate basis to deny the application of CAL and to do so contravenes the provision of the African Charter and existing international human rights instruments, we call on the ACHPR to reconsider its decision and grant CAL’s application for observer status before the ACHPR.

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* Women Human Rights Defenders International Coalition is a resource and advocacy network for the protection and support of women human rights defenders worldwide.
* Please send comments to editor@pambazuka.org or comment online at Pambazuka News.

Commission should grant CAL observer status

Alternatives Cameroon

2010-11-19

http://pambazuka.org/en/category/comment/68888

Alternatives Cameroon, in collaboration with the Coalition of African Lesbians (CAL), would like to congratulate the African Commission on Human and Peoples' Rights for passing a resolution establishing a committee on People Living with HIV/AIDS and Those most at Risk to address the violations of the rights of vulnerable groups, with a specific emphasis on women, children, sex workers, migrants, men who have sex with men and prisoners.

We express our responsibility, willingness and commitment to work with the commission in fulfilling its mandate in terms of article 45 of the African Charter on Human and Peoples' Rights, which is to promote and protect human rights of African people, more particularly lesbian women, bisexual, transgender people and gay men. We further assert our deepest disappointment, dissatisfaction and concern for the decision of this commission to deny observer status to the Coalition of African Lesbians. By denying observer status, the Commission has betrayed two of its major functions, established by article 45 of the African Charter on Human and Peoples’ Rights, that is to say its mandate to protect and promote human rights. Through this decision the commission has legitimised ongoing violations by both state and non-state parties, thereby aggravating the vulnerability of LGBTI (lesbian, gay, bisexual, transgender and intersex) people to violence, prejudice and homophobia.

Chapter 1 of the resolution on the criteria for granting and enjoying observer status to non-governmental organisations working in the field of human rights with the African Commission on Human and Peoples' Rights sets out the procedure for application, stating that:

‘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 [Organisation of African Unity] Charter and in the African Charter on Human and Peoples' Rights
- be organisations working in the field of human rights
- declare their financial resources.’

CAL meets these criteria for eligibility.

The lack of information with regard to human rights violations against African women on the grounds of their real or perceived sexual orientation and gender identity – and the denial of access to this space for the Coalition of African Lesbians – will, as a consequence, seriously undermine the capacity of this institution to ensure protection, as mandated by article 45(2).

CAL is an organisation that works to protect human rights guaranteed from article 1 to article 29 of the African Charter on Human and Peoples' Rights for African people who self-identify as lesbian, bisexual and transgender women. The African Commission is an organisation set up to protect and promote human rights. It only makes sense that CAL should be in this space working with the commission in fulfilling its mandate to promote and protect human and peoples' rights of LBT women as well.

In addition, we call for the inclusive participation of persons living with disabilities in the drafting of the protocol for persons with disabilities. Their voices must be heard. We urge the commission to call on SADC (Southern African Development Community) member states to hold an extra-ordinary session to lift the suspension of the SADC Tribunal in the interests of promoting and protecting human rights in the SADC region.

Noting that 2010 is the year of peace and security and the launch of Africa decade for women (2010–20), we urge the commission to reconsider its decision and grant observer status to the Coalition of African Lesbians at this 48th Ordinary Session of the African Commission on Human and Peoples' Rights as a symbol of a commitment to promoting and protecting the rights of African women regardless of sexual orientation and gender identity.

Thank you.

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Protesting denial of CAL’s observer status

Rose Wanjiku

2010-11-19

http://pambazuka.org/en/category/comment/68887

The chairperson, African Commission on Human and Peoples' Rights

Dear Madam/Sir,

Re: Protest on denial of observer status to Coalition of African Lesbians (CAL)

This is a protest letter at the decision by the African Commission on Human and Peoples' Rights to deny observer status to the Coalition of African Lesbians (CAL).

When the African Charter on Human Rights was being discussed this year in the May session and the issue of discrimination based on gender and sexuality came up, one government delegate (from Egypt) is said to have snapped: ‘This is Africa.’ As usual when women matters come up and are belittled, there was laughter. The statement was not only sad but disturbing. Did it mean that in Africa there is no respect for human rights, that only a few people get to enjoy the rights or that it is OK to lock some people out?

One of the reasons the Organisation of Africa Union was disbanded was because it was stuck in a rut and sadly operating on the basis of exclusion, especially by rulers who wanted to cling on to power. The AU (African Union) was formed to herald a new dawn, especially one based on respect for all human kind despite their gender, race, sexuality, region, tribe and religious affiliations, among other things. The union realised and agrees that women have been marginalised and continue to be by many governments. Sadly, the union continues to watch as violence on women and girls goes unabated. Why, for example, has the AU been quiet on the plight of thousands of women who continue to be raped in the DR Congo? Why is AU quiet when thousands of women and children are displaced in wars in some African countries?

Does it mean in Africa the plight of women can be ignored? Is this what it means to be in Africa?

By denying the Coalition of African Lesbians observer status, the African Commission is clearly saying that its activities are like an exclusive club that is free to pick membership with little regard for human rights tenets. The decision also means that the Commission is unable to view the coalition beyond the ‘sexual’ – a thing that has been used to marginalise women and violate their rights. It also means the commission has little regard for democratic principles and does not welcome diversity in composition and in voice. In such a global world, if the commission were to account for its action, what would it say? On what grounds would it say it denied call observer status?

We expect the commission not to make decisions based on negative cultural perceptions, religious convictions, stereotypes and other personal biases, which we doubt are the guiding principles.

Discrimination on whatever grounds, especially by the African Commission on Human and Peoples' Rights, is unacceptable. Therefore, the Artists For Recognition and Acceptance (AFRA-Kenya), which is a group of lesbian, bisexual and transgender women artists in Kenya, condemn the move. We demand that CAL be granted observer status at the commission. The commission must learn to view sexual diversity as a means of progress and through its actions and activities promote tolerance, acceptance and recognition of all the people it claims to represent.

Signed,

Rose Wanjiku,
Director, AFRA-Kenya

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Regarding the denial of CAL’s observer status

Lydia Alpízar Durán

2010-11-19

http://pambazuka.org/en/category/comment/68890

Dr Mary Maboreke
Executive secretary, African Commission on Human and Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District
Western Region P.O. Box 673
Banjul, The Gambia

3 November 2010

Dear Dr Maboreke,

We are writing to you today as AWID (Association for Women’s Rights in Development), an international women’s rights membership organisation with individual and institutional members in 140 countries around the world. We are contacting you regarding the denial of the application from the Coalition of African Lesbians (CAL) for observer status at the ACHPR (African Commission on Human and Peoples’ Rights), news we received with great disappointment.

CAL is a network of organisations committed to the equality and visibility of African lesbians. CAL works to transform Africa into a place where all lesbians enjoy the full range of human rights and where lesbians are recognised as full citizens. The application for observer status, submitted in May 2008, is an attempt to provide much-needed information about the treatment of lesbians to the ACHPR in order to enable the commission to exercise its protective mandate. CAL documents rights violations of a group whose vulnerability is enhanced because of the intersection between gender and sexual orientation.

CAL submitted all necessary information and documentation required to meet the ACHPR’s eligibility criteria in 2008. In October 2010, the ACHPR finally communicated that CAL’s application has been declined. The decision to decline CAL’s application was made at a private session of the commissioners, and the letter informing CAL of their decision provides no grounds or justification. The arbitrary nature of this decision runs contrary to all international legal and human rights standards, and there is no basis under the African Charter for it.

AWID calls upon the commission to reconsider CAL’s application for observer status as a sign of the commission's commitment to fully respect women's rights, and in light of international and regional agreements such as the African Charter on Human and Peoples' Rights and the ACHPR Protocol on the Rights of Women, which aims to combat all forms of discrimination against women through appropriate legislative, institutional and other measures. We request your timely response on this critical matter.

Yours respectfully,

Lydia Alpízar Durán
Executive director
Association for Women’s Rights in Development

Cc:
Mme Reine Alapini-Gansou
Chairperson, African Commission on Human and Peoples’ Rights
Mr. Mumba Malila
Vice Chairperson, African Commission on Human and Peoples’ Rights

Association for Women’s Rights in Development www.awid.org
215 Spadina Avenue Suite 150 Toronto Ontario Canada M5T 2C7 T: +416 594 3773 F: +416 594 0330
A6 Waverley Court 7 Kotzee Road Mowbray Cape Town South Africa 7925 T: +2721 447 9989 F: +2721 421 4742
Cerrada de Mazatlán N°12 Colonia Condesa Delegación Cuauhtémoc México D.F. México C.P. 06140
T: +52 55 52120696 F: +52 55 52120626

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Deep concern about decision over CAL

Radhika Balakrishnan

2010-11-19

http://pambazuka.org/en/category/comment/68891

2 November 2010

Mr Mumba MALILA
Vice chairperson
African Commission on Human and Peoples’ Rights

Your excellency,

The Center for Women’s Global Leadership is writing to express our deep concern about the recent decision, made on behalf of the African Commission on Human and Peoples’ Rights (ACHPR), to not grant observer status to the Coalition of African Lesbians (CAL). As we understand, CAL applied for observer status at the ACHPR at its 43th Ordinary Session held in Accra, Ghana, May 2008. The coalition submitted all the necessary documentation and fulfilled all the administrative and legal requirements needed for organisations to apply for observer status. Between May 2008 and May 2010, the coalition did not receive any formal response from the commission regarding their application. On 25 October 2010, CAL received a letter written and signed by Dr Mary Maboreke, who manages the secretariat for the African Commission on Human and Peoples’ Rights, stating that:

‘I write in pursuant to the information earlier conveyed that consideration of your request for Observer Status had been deferred to the 47th Ordinary Session of the African Commission on Human and People’s Rights (ACHPR).

The ACHPR has deliberated on your application and decided not to grant Observer Status to the Coalition of African Lesbians.’

As we understand, the letter contained no explanation regarding why CAL’s application was not granted observer status. We find it discriminatory, unjust and unfair that their application was rejected on no apparent grounds since it met all the legal requirements.

The Coalition of African Lesbians – in partnership with other civil society organisations who have been pushing for observer status since May 2008, namely, the International Gay and Lesbian Human Rights Commission, Interrights, Global Rights, the Centre for Human Rights – University of Pretoria, People Opposing Women Abuse, African Men for Sexual Health and Rights, the International Commission of Jurists and the Human Rights Institute of Southern Africa, among others – has taken myriad actions to articulate the depth and extent of violence against LGBTI (lesbian, gay, bisexual, transgender and intersex) people in Africa. In order to end such violence, the African Commission on Human and Peoples’ Rights has an obligation to create mechanisms to protect and promote rights based on sexual orientation and gender identity and to end violence to this effect. One way to do so is for the commission to build a formal relationship with organisations like CAL to work together towards the protection and promotion of human rights.

As an international women’s human rights organisation dedicated to the protection of individual human rights throughout the world, we urge the ACHPR to review their decision to not to grant observer status to the Coalition of African Lesbians, as it is against the provisions of the African Charter on Human and Peoples’ Rights. Thank you for your attention to this urgent matter.

Sincerely yours,

Radhika Balakrishnan
Executive director
Center for Women’s Global Leadership

Rutgers, The State University of New Jersey, 160 Ryders Lane, New Brunswick, NJ 08901-8555 USA Tel: 1-732-932-8782, Fax: 1-732-932-1180, Email: cwgl@rci.rutgers.edu, Web: http://www.cwgl.rutgers.edu

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CAL meets requirements for observer status

INTERIGHTS

2010-11-19

http://pambazuka.org/en/category/comment/68892

Statement at the 48th session of the African Commission on Human and Peoples’ Rights

Your excellency madam chairperson, honourable Commissioners, distinguished ladies and gentlemen, thank you for giving INTERIGHTS the opportunity to address the commission.

INTERIGHTS is a legal centre that uses international human rights law to protect human rights through strategic litigation. We have worked with the commission for almost 25 years; we value this collaborative relationship which has grown from strength to strength over a period of time.

Madam chairperson, allow me to address the commission on two points that cause us great concern.

The first issue is the implementation of the commission’s decisions. Under the complaints procedure, states are bound to respect and implement the commission’s decisions as part of their obligation under article 1 of the charter to take measures to realise and give effect to the rights in the treaty.

The failure and refusal by member states to implement the decisions of the commission is well-known – a 2005 study estimated that only 14 per cent of the recommendations of the commission had been implemented. This troubling trend seriously undermines the African human rights system.

We are particularly concerned when governments themselves attack the commission. This was so in the case of Good–Botswana, where this commission found that Botswana had violated the charter by unlawfully deporting Professor Good. The minister of foreign affairs stated publicly that Botswana would not comply with the decision because it was not binding.

We urge the commission to encourage state parties to respect their obligations under the charter by implementing its decisions. In addition to steps it is already taking, we humbly ask the commission to raise these issues with state parties during visits by commissioners and in special mechanisms. We note that follow up will be emphasised under the new rules of procedure and look forward to working with the commission in this regard.

The second issue is the refusal by the commission to grant the Coalition for African Lesbians (CAL) observer status without any reasons being given. Observer status allows NGOs (non-governmental organisations) to formally engage with the commission on issues that they work on.

We are particularly concerned about this refusal because CAL is a human rights organisation that meets all the requirements to be granted observer status. It works across Africa to protect lesbians, a vulnerable group, against violations of their human rights, including rape, murder and unlawful arrest, which occur with little or no protection from national authorities.

Honourable chairperson, this decision flies in the face of the commission’s mandate and jurisprudence. For example, in the Institute v Angola the commission emphasised that human rights belong to all persons. The decision also departs from the commission’s progressive work in which it has outlined the need to protect vulnerable groups and minorities such as indigenous peoples, refugees and IDPs (internally displaced persons). The refusal therefore is an unfortunate blight on the good name of the commission.

Honourable chairperson, we would request the commission to kindly reconsider its decision refusing CAL observer status. INTERIGHTS remains dedicated to working with the commission in its mandate to protect the rights guaranteed under the charter.

Thank you,

INTERIGHTS

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Denial of CAL: Disappointment, dissatisfaction and concern

Global Rights

2010-11-19

http://pambazuka.org/en/category/comment/68893

Statement by Global Rights (international human rights law group)

Honourable chair, honourable commissioners,

We express our deepest disappointment, dissatisfaction and concern for the decision of the commission to deny observer status to the Coalition of African Lesbians (CAL).

By denying observer status, the commission has betrayed two of its major functions, established by article 45 of the African Charter on Human and Peoples' Rights, that is to say its mandate to protect and promote human rights.

Article 45(1)(a) states that the commission shall promote human and peoples' rights by, inter alia, collecting documents, organising studies and research, disseminating information, and encouraging national and local institutions concerned with human and peoples' rights. Furthermore, the resolution on the criteria for granting and enjoying observer status to non-governmental organisations working in the field of human rights with the African Commission on Human and Peoples' Rights, approved in Bujumbura in 1999, founds its rationale on the opportunity of cooperation, consultation and exchange of information, as also established by the Rules of Procedure of the commission. The commission, by denying the Coalition of African Lesbians the possibility to participate in this forum and directly interact with this institution, has created the conditions to impede that information related to human rights violations that undermine the life, the integrity and the inherent dignity of African women because of their real or perceived sexual orientation and/or gender identity will be conveyed to this forum.

The lack of information with regard to human rights violations against African women on the grounds of their real or perceived sexual orientation and/or gender identity and the denial of access to this space for the Coalition of African Lesbians will, as a consequence, seriously undermine the capacity of this institution to ensure protection as mandated by article 45(2).

By stating that CAL does not promote or protect any right established by the charter, the commission is actually arguing that the rights enshrined by the charter, such as the right to life, the right to freedom from torture and other inhuman and degrading treatments, cease when they are committed on human beings because of their alleged or real sexual orientation or gender identity. If this is what this decision on CAL observer status means, then the commission is arguing that there are individuals that do not have human rights, and thus is questioning the principle of universality of human rights.

By denying observer status to the Coalition of African Lesbians, the commissioners have betrayed their duty of impartiality established by articles 31 and 38 of the charter. Considering that there was no irregularity in the CAL application and no formal impediment for the commission to decide otherwise based on chapter I of the criteria for the granting and maintaining observer status; considering that the objectives and activities of the Coalition of African Lesbian are fully compatible with the principles and objectives of the charter; considering that the Coalition of African Lesbian works in the field of human rights, focusing on human rights violations against African women on the grounds of their perceived or real sexual orientation and/or gender identity; we can infer that the decision of this institution has nothing to do with formal issues or with an objective assessment of the contribution that the Coalition of African Lesbians might offer to this forum on the specific issue of human rights violations of women on the grounds of their sexual orientation and/or gender identity. It is rather a decision based on personal, and therefore subjective and partial, values of the individual commissioners that goes beyond their mandate as established by the charter or, even worse, a political judgment based on what is considered controversial by the majority of the signatory parties.

The degree of maturity of a society with regard to the respect for the dignity in all of its components is measured by the way the society treats its minorities and those individuals that are most exposed to abuses and violations by the hand of the majority. The commission has decided to give up on its commitments and to embrace the majoritarian rule on an issue just because it is considered controversial. Today it is about women on the grounds of their sexual orientation; tomorrow may be about a religious or ethnic minority, or any other controversial group or issue. The decision of the commission creates a serious vulnus that undermines the credibility of this institution in the continent and before the international community and will not be reparable if it does not reconsider the issue.

I thank you madam chair.

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African Commission rejecting LGBTI rights?

International Service for Human Rights

2010-11-19

http://pambazuka.org/en/category/comment/68894

International Service for Human Rights (ISHR) statement to the 48th session of the African Commission for Human and Peoples’ Rights (Banjul, 10 November 2010)

The cooperation of human rights defenders is indispensable to the working, development and effectiveness of human rights mechanisms. In our work to encourage effective engagement by human rights defenders with such mechanisms, and work to make the mechanisms more responsive to the demands of civil society, the International Service of Human Rights (ISHR) has noted with great concern the phenomenon of increasing reprisals against those cooperating with the human rights mechanisms at both international and regional level.

At the level of the United Nations, we have seen reprisals against human rights defenders manifested through threats, intimidation, sexual harassment and fatal attacks aimed at deterring human rights defenders from providing country-specific information. As the regional human rights systems increasingly develop their direct contact with human rights defenders and other rights holders, it is imperative and urgent that monitoring and reporting mechanisms are put in place to effectively address reprisals against those who cooperate with regional human rights bodies and their special procedures.

The Inter-American Human Rights System is already making frequent use of its precautionary and provisional protection measures issued throughout the year to demand state protection for individual human rights defenders, particularly those subject to reprisals for submitting cases to the Inter-American Commission or for collaborating with its special rapporteurs.

As African human rights defenders’ critical engagement with the African Commission is growing, both at its regular sessions and with its rapporteurs, their exposure to reprisals is increasing. This needs to be acted upon by the African Commission in order to protect human rights defenders and safeguard the important NGO (non-governmental) cooperation already achieved. Incidents of reprisals will not only violate defenders' basic rights but will also jeopardise the indispensable NGO support currently enjoyed by the commission. An attack against an individual cooperating with the commission should be considered an attack against the commission itself. Preventative, monitoring and reporting measures should therefore be designed to curb this phenomenon.

The International Service respectfully suggests that the commission consider establishing, through a resolution at this session, a joint African Commission – NGO forum working group with a mandate to analyse the risks of reprisals against defenders and propose concrete measures to be discussed and adopted at the 49th session of the ACHPR (African Commission for Human and Peoples’ Rights). Such measures should consider and build upon mechanisms in place at the UN and in the Inter-American systems. They should both press states to prevent reprisals and hold states accountable for violations against human rights defenders cooperating with the African Commission.

In regard to civil society cooperation, we recall the African Commission's long-standing practice of granting observer status to NGOs to support its mandate to protect and promote human rights in Africa, including to organisations whose work includes defending rights associated with sexual orientation and gender identity. As such an organisation we are greatly concerned at the denial of observer status to the Coalition of African Lesbians (CAL). We are concerned that this decision will be interpreted as a rejection by the commission of the rights of lesbian, gay, bisexual, transgender and intersex people. It will be seen as a failure of the commission to be unequivocal and constant in reaffirming the indivisibility, interdependence and universality of human rights. Given the particular level and nature of risks, threats and constraints faced by LGBTI (lesbian, gay, bisexual, transgender and intersex) human rights defenders, we are greatly concerned at the risk of elevated stigmatisation of those working on LGBTI rights through this decision. We respectfully request the commission to reconsider its decision in regard to CAL – an organisation whose mandate, objectives and activities are consonant with the fundamental principles and objectives of the African charter.

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ACHPR should lead on all human rights

L. Muthoni Wanyeki

2010-11-19

http://pambazuka.org/en/category/comment/68895

Valley Arcade, Gitanga Road
P.O. Box 41079 00100
Nairobi. GPO Kenya.
Tel: 254 20 3874998, 3876065
254 20 3005673, 3874999
Cell: 0733 629034, 0722 264497
Fax: 254 20 3874997
Email: admin@khrc.or.ke
www.khrc.or.ke

1 November 2010

The chairperson and vice chairperson
The African Commission on Human and Peoples’ Rights (ACHPR)

Dear chairperson and vice chairperson,

Re: The rejection of the application for observer status of the Coalition of African Lesbians (CAL)

The Kenya Human Rights Commission (KHRC) is a national, non-governmental organisation founded in 1992 that monitors human rights violations in Kenya and is involved in advocacy and civic action towards the enjoyment of all human rights by all Kenyans. The KHRC has observer status with the African Commission on Human and Peoples’ Rights (ACHPR).

The KHRC has always worked with disadvantaged groups to enable them to articulate, defend and realise their civil, political, economic, social and cultural rights. One such group is that of sexual minorities, comprising lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.

We are writing in respect of the recent decision of the ACHPR to deny observer status to the Coalition of African Lesbians (CAL). The CAL has informed us their application for observer status was rejected without reason, despite their application meeting all conditions stipulated in the African charter for the granting of observer status. In light of the lack of reason, we are further advised by the CAL that your decision was discriminatory, a violation of equality rights and could be deemed an expression of homophobia.

We wish to draw your attention to international legal instruments, including the International Covenant on Civil and Political Rights (lCCPR), all of which, like the African charter, enshrine rights aimed at protecting equality. The United Nations Human Rights Committee, which authoritatively interprets the ICCPR, to which most African states are parties, affirmed in the 1994 case of Toonen v. Australia[1] that gender identity or sexual orientation are not grounds for discrimination.

The African charter prohibits discrimination in a similar way. The African charter further requires the promotion of, respect for and reinforcement of ‘mutual respect and tolerance’. Articles 2 and 3 of the African charter also enshrine equality and non-discrimination ‘without distinction of any kind’, including on the grounds of sex. As the ACHPR emphasised in Legal Resources Foundation v. Zambia, ‘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 within legally established institutions.’

Such case law from the ACHPR provides guidance on the normative obligation in respect of equality and non-discrimination to be upheld both by member states and African Union (AU) institutions such as the ACHPR. This normative obligation was, however, apparently not respected in relation to CAL's application for observer status with the ACHPR.

We have been encouraged by the jurisprudence emanating from the ACHPR in protecting human rights enshrined in international law and advancing universalism in the application, protection and defence of human rights. We encourage the ACHPR to expand its body of knowledge, appreciate the extent of human rights violations experienced by LGBTI people in Africa and support organisations like the CAL that seek redress for the same. We ask the ACHPR to provide leadership in the protection and promotion of the human rights of sexual minorities in Africa, starting by granting observer status to the CAL.

Sincerely,

L. Muthoni Wanyeki
Executive director

Cc: Fikile Vilakazi, CAL

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NOTE

[1] United Nations Human Rights Committee, Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C//50/D/488/1992 (1994)

'Repeal laws criminalising homosexuality on the Africa continent'

Legal Defence and Assistance Project (LEDAP) statement to the African Commission on Human and Peoples’ Rights, November 2010

2010-11-22

http://pambazuka.org/en/category/comment/68950

LEDAP, in collaboration with the Coalition of African Lesbians (CAL), would like to address the Special Rapporteur on Prisons and Conditions of Detention in Africa regarding the human rights situation of African people who are arrested and detained based on sexual orientation, gender identity and expression.

In the last six months we have had four reported cases of detentions of LGBTI people based on their work protecting and promoting rights based on sexual orientation and gender identity. These include two cases in Rwanda, four cases in Uganda, two in Mombasa, two in Zimbabwe, a group of more than 10 in South Africa and two people in Sudan.

These numbers exclude a number of similar cases not reported due to fear of stigmatisation, prejudice and secondary victimisation. These arbitrary detentions and arrests occur with support from state parties due to draconian laws criminalising homosexuality in most African states.

Once in detention, LGBTI human rights defenders experience secondary victimisation by police and security forces, homophobic ill treatment, extortion, blackmail, sexual violence, harassment and intimidation. This is happening in a context where there is no legal and human rights remedy to fall back on due to homophobic laws entrenched in these countries. In cases where alternative legal remedies exist, LGBTI human right defenders cannot afford them due to the situation of unemployment and poverty they find themselves in.

Given this context, we see the rejection of CAL’s application for observer status as a tool that if not reconsidered will legitimise and re-enforce ongoing violence by state and non-state actors in national jurisdictions.

We urge the Special Rapporteur on Prisons and Conditions of Detention in Africa to investigate, document and report these issues to the Commission and for responsible governments to put mechanisms in place to address this situation. We further call on the Commission to encourage governments to repeal laws criminalising homosexuality on the Africa continent.

LEDAP and CAL commit to work with the Special Rapporteur on Prisons and Conditions of Detention in Africa to ensure that this mandate is carried out effectively.

Lastly, madam chairperson, we appeal to the Commission to reconsider its decision and grant CAL’s application for observer status at this 48th ordinary session.

I thank you.

Granting CAL observer status a priority for ‘human rights community’

Letter of support from the Masimanyane Women’s Support Centre

2010-11-22

http://pambazuka.org/en/category/comment/68952

Dear Mary,

Greetings from South Africa. It has been a long, long time since we last spoke or met. I trust that you are well.

Mary, I am writing to you regarding the application of the Coalition of African Lesbians (CAL), who applied for observer status at the African Commission on Human and Peoples’ Rights (ACHPR).

CAL is a network of organisations who are committed to addressing the human rights of lesbians on the African continent. They are striving for the visibility and equality of lesbians using the human rights framework and all its provisions.
We have seen a significant rise in the abuse of lesbians across our continent and as human rights advocates are deeply disturbed by these violations.

We believe that CAL has made this application for observer status to the ACHPR in order to provide that body with much needed information about the human rights violations that threaten the lives of lesbians across the African continent and to enable the ACHPR to insist on state accountability with respect to all its citizens, including lesbians.

We find it reprehensible that CAL's application was rejected, considering that they meet all the criteria set out for groups to obtain observer status and that they represent a minority group whose vulnerability to human rights abuse is well documented.

I would like to urge you, Mary, to assist CAL to obtain observer status at the ACHPR and to consider this a priority of the human rights community on our continent.

I trust that you will give this your urgent attention. I remember the amazing work you did to bring the world's attention to the human rights abuses in your own country.

With kind regards,
Dr. Lesley Ann Foster
Masimanyane Women's Support Centre
35 St Marks Road
Southernwood
East London 5201

P.O. Box 565
East London 5200
South Africa.
Telephone: +27 (0) 43 7439169
Fax: : +27 (0) 43 7439176
Email : maswsc@iafrica.com
Website : www.masimanyane.org.za

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Raising human rights concerns to African Commission

Amnesty International

2010-11-19

http://pambazuka.org/en/category/comment/68889

The chairperson,
African Commission on Human and Peoples' Rights
48th Ordinary Session
Banjul
Gambia

10 November 2010

Oral statement by Amnesty International
Item 4: Human rights situation in Africa

Chairperson, honourable commissioners,

Amnesty International welcomes this opportunity to address the African Commission on Human and Peoples’ Rights (African Commission) on the state of the situation of human rights in Africa.

On the death penalty, Amnesty International is concerned with the increase of death sentences passed since the beginning of the year in West Africa. In total, at least 64 death sentences were handed down in eight countries, including in countries were capital sentences were rare. Amnesty International has recorded, for example, 11 death sentences in Liberia, 13 in Gambia and 16 in Mauritania since the beginning of 2010. Retentionist countries have obligations to ensure that the death penalty is imposed only for the most serious crimes, to respect prohibitions under international law regarding its use and to fully respect all safeguards guaranteeing the protection of the rights of those facing the death penalty.

In Equatorial Guinea, former military officers Jose Abeso Nsue, Manuel Ndong Anseme, border guard Jacinto Micha Obiang and Alipio Ndong Asumu, a civilian, were executed on 21 August 2010 within an hour of being sentenced to death by a military court. They had been convicted of an attack against the head of state and government, treason and terrorism, in relation to an alleged attack on the presidential palace in February 2009. In prison they were held incommunicado and tortured and their trial did not meet international standards of fairness. The speed of their execution deprived them of their right to appeal to a higher court and of their right to seek clemency, in accordance with international law and the country's own law.

Amnesty International is also concerned that several states in Nigeria announced in April their intention to execute death row inmates to ease overcrowding. In Gambia, the scope of the death penalty was extended to drug-related crimes. Amnesty International welcomes the steps taken by the governments of Benin and Mali to abolish the death penalty but is concerned that the draft bill for abolition adopted by the Malian government in 2007 has not yet been examined by Parliament three years later.

Amnesty International accordingly calls on the African Commission to:

- Urge African Union member states which still use the death penalty to establish an immediate moratorium on executions as a first step towards abolishing the death penalty
- Urge African Union member states that are yet to do so to ratify the International Covenant on Civil and Political Rights and/or its Second Optional Protocol aiming at the abolition of the death penalty.

In Somalia, Amnesty International is concerned at the widespread violations of international humanitarian law and human rights law, including war crimes, and the dire humanitarian situation that civilians face in southern and central Somalia. Civilians are at high risk of being killed and injured in indiscriminate attacks by all parties to the internal armed conflict, and as a result of a situation of generalised violence and collapse of the rule of law. In addition, certain categories of persons also face targeted attacks, including unlawful killings, torture and other ill treatment, abductions, death threats and harassment. In areas where there is currently no fighting, civilians bear the brunt of arbitrary and repressive rules, violating their human rights, enforced by armed Islamist groups. Conflict and associated human rights abuses continue to cause massive displacement in Somalia. According to UNHCR (Office of the United Nations High Commissioner for Refugees), over 200,000 civilians were estimated to have fled their homes in Somalia between January and early September 2010, some 1.4 million are currently displaced within the country and 68,000 have been registered as newly arrived refugees in neighbouring countries in 2010. Given the difficulties of access to southern and central Somalia by independent observers, Amnesty International relies on information provided by local sources to document the situation, as well as accounts from Somali refugees who flee Somalia. Amnesty International interviewed hundreds of Somali refugees who had recently fled their country in March and June 2010 in Kenya.

Amnesty International accordingly calls on the African Commission to:

- Demand that grave abuses committed against civilians by all parties to the conflict are investigated and mapped by an independent and impartial Commission of Inquiry, or similar mechanism, which could also recommend the way forward to for accountability in Somalia
- Call for the setting-up an independent mechanism to investigate all allegations of violations of international humanitarian and human rights law by personnel of the African Union Mission in Somalia (AMISOM), including allegations of indiscriminate or disproportionate attacks, such as mortar firing or shelling in densely populated areas in Mogadishu
- Call on all AU member states to ensure that all Somalis fleeing conflict and persecution in southern and central Somalia are able to access refuge and protection on their soil and not to send back any Somali to south central Somalia, in line with the OAU refugee convention and the Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Somalia, updated by the UN High Commissioner for Refugees in May 2010.
- Call on AU member states to find ways to provide durable solutions for Somali civil society activists, including easily accessible asylum procedures, resettlement and support to continue their work in light of the peculiar risk that this group of Somalis face.

Amnesty International would like to express its concerns over the situation of human rights in Sudan in the lead-up to the referendum on self-determination of south Sudan, scheduled to take place on 9 January 2011.

Restrictions on freedom of expression, including censorship and the arrests of journalists have significantly increased in the north of Sudan over the past two weeks, with the arrest and incommunicado detention of at least 11 activists and journalists by the National Intelligence and Security Service (NISS). Newspapers continue to be closed down.

Amnesty International is particularly concerned over the powers granted to law enforcement agencies, such as the NISS, which continue to commit human rights violations, including arbitrary arrests and detention, torture and other forms of ill-treatment. Upholding the right to freedom of expression remains vital during the referendum and in any future transition Sudan faces.

Amnesty International asks the African Commission to:

- Request the Sudanese authorities to immediately stop the arbitrary arrests and detentions, torture and other ill treatment, particularly by the NISS, and to ensure that those responsible for human rights violations are held accountable in the lead-up to, during and following the referendum
- Urge the Government of Unity and the Government of Southern Sudan to remove all restrictions on freedom of expression, association and peaceful assembly and to allow journalists and activists to peacefully continue their work and express their opinions.

Amnesty International would also like to express its profound concern at the recent decision of the African Commission to deny observer status to the Coalition of African Lesbians (CAL), a non-governmental human rights organization (NGO) whose member groups come from 11 countries on the continent. The African Commission denied the coalition's application without explanation in an unprecedented summary decision dated 20 May 2010 and sent to CAL on 25 October 2010.

The African Commission's resolution on observer status notes ‘the need to strengthen [the Commission's] co-operation and partnership with NGOs working the field of human rights’ and recalls a resolution that notes ‘the contribution made by African NGOs to the promotion and protection of human rights in Africa’. Consistent with these values, the African Commission should seek the participation of the broadest possible range of African human rights organisations.

The African Commission's decisions should also uphold the principles of fairness and transparency. If the African Commission applies criteria to applications for observer status that are additional to those set out in its resolution, it should make those additional criteria public. Where the African Commission believes that the applicant does not fulfil the established criteria for observer status, it should notify the organisation that it intends to deny observer status, provide reasons for its intent to do so and afford the organisation in question an opportunity to respond to the concerns it has identified.

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Fahamu