As the authors concluded in their recent SRHM paper, Regional legal and policy instruments to address LGBT exclusion in Africaregional policy documents such as the “African Charter” offer African countries that do not protect LGBT rights the basis for drafting domestic legislation as a first step to protect all.
The following is from the coverage of the SRHM paper at The Conversation, The star of Zimbabwe and MyZA.
“Questions about sexual orientation and gender identity and expression have continued to divide opinion around the world. This is mainly due to legal, cultural and religious beliefs and interpretations.
In Africa, colonial legacy laws have been implemented to prohibit and criminalize same-sex relationships, behaviors and expressions. These laws provide penalties for same-sex relationships ranging from 10 years to life in prison and death penalty.
Some countries, incl Uganda, Nigeria and Togohave passed these kinds of punitive laws. Others, such as South Africa, have revised their constitutions allow homosexuality.
Mainstream public sentiment remains largely anti-gay and overshadows constitutionally guaranteed rights in Africa. This accounts for many cases of political harassment, killing and ill-treatment of people who identify or are suspected of being lesbian, gay, bisexual or transgender (LGBT), among other varieties of sexual and gender minorities.
However, African governments have signed regional commitments and agreements to guarantee human rights and the inclusion of all people. One of the most important legal instruments is the “African Charter”, which was adopted in 1981 and ratified by all African countries except Sudan. The Charter grants rights to all without exception, with Article 2 stating that
everyone is entitled to the rights and freedoms recognized and guaranteed in the Charter without any discrimination.
In Article 4, the Charter states that
every person must have the right to respect for his life and the integrity of his person. No one can be arbitrarily deprived of this right.
As we came up with ours recent paperregional policy documents like this offer African countries that do not protect LGBT rights the basis for drafting domestic legislation as a first step to protect all.
Ambitious ambitions
The African Commission on Human and Peoples’ Rights is charged with ensuring that African Union member states protect the rights of all. The Commission has several instruments at its disposal aimed at ensuring that this happens. The frameworks include key terms such as “all” and “everyone”, among others, and reflect the commitment to “leaving no one behind” as advocated in the thematic programs for sustainable development.
Some of the contexts in which this principle is enshrined include: Agenda 2063: the Africa we want; the African Charter on Human and Peoples’ Rights; the Post-2015 Common African Post-2015 Development Agenda; and the African Charter for Democracy.
Even in the face of conservatism, these frameworks set ambitious aspirations for inclusion that, if read with the liberal intentions of the drafters, highlight the rights of LGBT members of society. They lay the foundations for rational social action and progress because they support inclusion in economic opportunity, justice, equality, non-discrimination and freedom from arbitrary and unfair treatment. Hence, they envision that all members of society should enjoy this wide range of freedoms.
Despite the broad and liberal tones of these media, they fail to clearly and explicitly mention or recognize LGBT people as a minority group deserving of protection. The non-mention of LGBT people, unlike women, girls, the disabled, people living with HIV, youth, etc., leaves ample room for the discrimination of this group and their continued mistreatment.
But national governments must step forward. Those who do not protect LGBT rights must put these guarantees into their domestic laws. They must also demonstrate a commitment to interpret existing supportive regional instruments in broad and sweeping terms. A narrow interpretation of regional policy documents runs the risk of excluding LGBT communities because they are not explicitly named in the frameworks.
Practical changes
State policies, laws and public attitudes have subjected LGBT people to exclusion, discrimination and fear. They are daily targets of threats. they face sexual harassment and are persecuted and prosecuted. They are also denied sexual and reproductive health care and rarely protected by state laws and security mechanisms.
In some African countries, many legal guarantees sought by LGBT individuals and groups have been adjudicated on the basis of the African Charter. These include the case of the Attorney General of Botswana v. Thuto Rammoge and 19 others. The Supreme Court of Botswana in 2019 ruled that private consensual sex between same-sex adults is no longer a crime.
Another case came before the Court of Appeal in Kenya in 2018. The court ruled against forced anal exams for homosexuals, citing Article 5 of the Charter.
There have also been favorable decisions for LGBT people using the African Charter in Zimbabwe and Namibia.
These decisions also provide the basis for countries to develop and implement policies and programs that protect LGBT people.
The AU must also strengthen the committee’s monitoring mechanisms.”
