“To deny people their human rights is to
challenge their very humanity” – Nelson
Mandela
The human rights
of sexual minorities in Africa have occupied both the national and
international media in recent years, with more calls for their elimination than
their recognition.
This resistance against sexual minority rights is preceded
by some key events that occurred in certain African countries like the signing
into law in Uganda of the Anti-Homosexuality
Act,2014[i]; the reports of
murder and ‘corrective rape’ against lesbians in South Africa; the ‘anti-gay marriage bill’ in Nigeria[1]
and so much more. These events and the intense hatred and homophobia on which
they ride, compel one to consider the rhetorical question: what are human rights? Are sexual minority rights, human rights? What
does it mean to be human, and who decides who is a human worthy of rights and
who is not?
of sexual minorities in Africa have occupied both the national and
international media in recent years, with more calls for their elimination than
their recognition.
This resistance against sexual minority rights is preceded
by some key events that occurred in certain African countries like the signing
into law in Uganda of the Anti-Homosexuality
Act,2014[i]; the reports of
murder and ‘corrective rape’ against lesbians in South Africa; the ‘anti-gay marriage bill’ in Nigeria[1]
and so much more. These events and the intense hatred and homophobia on which
they ride, compel one to consider the rhetorical question: what are human rights? Are sexual minority rights, human rights? What
does it mean to be human, and who decides who is a human worthy of rights and
who is not?
Sexual minorities
are referred to as a group whose sexual identity, orientation or practices
differ from the majority of the surrounding society (primarily used to refer to
Lesbians, Gay, Bisexuals, Transgender, Intersexual (LGBTI) persons, including gender queers)[2].
In Africa, the most common retort in opposing homosexuality is that it is
“un-African” and against
religious values. However, neither of these claims is made from a view that is
informed about what homosexuality is or to the appreciation of human dignity as
a core and universal component of international human rights and states’
obligations under the several human rights instruments they have ratified.
are referred to as a group whose sexual identity, orientation or practices
differ from the majority of the surrounding society (primarily used to refer to
Lesbians, Gay, Bisexuals, Transgender, Intersexual (LGBTI) persons, including gender queers)[2].
In Africa, the most common retort in opposing homosexuality is that it is
“un-African” and against
religious values. However, neither of these claims is made from a view that is
informed about what homosexuality is or to the appreciation of human dignity as
a core and universal component of international human rights and states’
obligations under the several human rights instruments they have ratified.
Almost all African
countries are parties to these instruments, which prohibit discrimination on
the basis of sex and other status and oblige state parties to ensure the equal
treatment and protection of everyone under the law[3].
However, the stark contrast between the aspirational, lofty language of
international human rights treaties and the domestic laws for their signatories
is truly astounding. To note an example of this disparity, Nigeria signed the ICCPR, pledging that its own “laws shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination“.
But in 2014, Nigeria passed a legislation that makes it a crime for two people
of the same sex to marry, kiss, hold hands or even form associations which violates
the rights of LGBTI persons to freedom of expression, association, assembly,
privacy and family life. Even in nations like South Africa, where both
international treaties and domestic laws protect the rights of sexual
minorities, violent hate crimes and other forms of discrimination still occur
with shocking regularity.
countries are parties to these instruments, which prohibit discrimination on
the basis of sex and other status and oblige state parties to ensure the equal
treatment and protection of everyone under the law[3].
However, the stark contrast between the aspirational, lofty language of
international human rights treaties and the domestic laws for their signatories
is truly astounding. To note an example of this disparity, Nigeria signed the ICCPR, pledging that its own “laws shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination“.
But in 2014, Nigeria passed a legislation that makes it a crime for two people
of the same sex to marry, kiss, hold hands or even form associations which violates
the rights of LGBTI persons to freedom of expression, association, assembly,
privacy and family life. Even in nations like South Africa, where both
international treaties and domestic laws protect the rights of sexual
minorities, violent hate crimes and other forms of discrimination still occur
with shocking regularity.
A
number of international treaties indirectly address this right and some UN case laws has explicitly
incorporated sexual orientation as a protected status. Article 2 and Article 26
of the ICCPR provides for the right
to equality and freedom from discrimination on any grounds such as “… race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.” The African Charter
also contains the rights to non-discrimination on the basis of sex, equal
protection of everyone under the law, the right of “everyone” to
respect their “integrity, dignity and inviolability”[4].
The rights here are applicable to everybody without distinction, as the term
devoted to the bearers of these rights are “every human being” and
“every individual”. While the rights of sexual minorities, like those
of everyone else, may be limited, the limitation can only be by a rational
process in line with Article 27 (2)
and in the jurisprudence of the African Commission and the African Court. The United Human Rights Committee (HRC) in Toonen v. Australia[5]
laid the issue to rest when it was held that sex as a ground for
non-discrimination under the ICCPR
includes sexual orientation. The position was further buttressed in the HRC’s decision in Young v. Australia[6]
in which the HRC stated that same
sex partners have the right to receive government benefits in the same way as
heterosexual domestic partners.
number of international treaties indirectly address this right and some UN case laws has explicitly
incorporated sexual orientation as a protected status. Article 2 and Article 26
of the ICCPR provides for the right
to equality and freedom from discrimination on any grounds such as “… race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.” The African Charter
also contains the rights to non-discrimination on the basis of sex, equal
protection of everyone under the law, the right of “everyone” to
respect their “integrity, dignity and inviolability”[4].
The rights here are applicable to everybody without distinction, as the term
devoted to the bearers of these rights are “every human being” and
“every individual”. While the rights of sexual minorities, like those
of everyone else, may be limited, the limitation can only be by a rational
process in line with Article 27 (2)
and in the jurisprudence of the African Commission and the African Court. The United Human Rights Committee (HRC) in Toonen v. Australia[5]
laid the issue to rest when it was held that sex as a ground for
non-discrimination under the ICCPR
includes sexual orientation. The position was further buttressed in the HRC’s decision in Young v. Australia[6]
in which the HRC stated that same
sex partners have the right to receive government benefits in the same way as
heterosexual domestic partners.
While
constitutional protections can hasten the process by which sexual minorities
realize their rights, they are not the only means available to challenge
discriminatory laws. However, with few exceptions, African courts have avoided
criticizing discriminatory practices that implicate religion, custom, family,
or sexuality even when those practices conflict with domestic laws or
international human rights treaty obligations. In extreme instances, African states
violate the right to life of sexual minorities when they impose or allow death
penalty for homosexual conduct. For instance, in Northern Nigeria and Sudan,
where a particular version of Sharia dominates; homosexuality is punishable by death.
constitutional protections can hasten the process by which sexual minorities
realize their rights, they are not the only means available to challenge
discriminatory laws. However, with few exceptions, African courts have avoided
criticizing discriminatory practices that implicate religion, custom, family,
or sexuality even when those practices conflict with domestic laws or
international human rights treaty obligations. In extreme instances, African states
violate the right to life of sexual minorities when they impose or allow death
penalty for homosexual conduct. For instance, in Northern Nigeria and Sudan,
where a particular version of Sharia dominates; homosexuality is punishable by death.
In conclusion, the
mere fact that the LGBTI persons constitute a “miniscule fraction” of our society cannot be a ground to deprive them
of their fundamental human rights because the criterion justifying the
bestowment of these rights is the quality of being human irrespective of one’s
sexual orientation.
mere fact that the LGBTI persons constitute a “miniscule fraction” of our society cannot be a ground to deprive them
of their fundamental human rights because the criterion justifying the
bestowment of these rights is the quality of being human irrespective of one’s
sexual orientation.
adewara adebola f.
Gani
Fawehinmi Students Chambers
Fawehinmi Students Chambers
Faculty
of Law
of Law
University
of Lagos
of Lagos
[1]
Same Sex Marriage (Prohibition) Act,2014
Same Sex Marriage (Prohibition) Act,2014
[2]
See SB Math & SP Seshadri ‘The Invinsible ones: Sexual Minorities” (2013)
See SB Math & SP Seshadri ‘The Invinsible ones: Sexual Minorities” (2013)
[3]
Universal Declaration of Human Rights, Article 2 & 26; The International Convenant
on Civil and Political Rights, Art. 2; the International Covenant on Economic
Socio and Cultural Rights, (ICESER) Article 2.
Universal Declaration of Human Rights, Article 2 & 26; The International Convenant
on Civil and Political Rights, Art. 2; the International Covenant on Economic
Socio and Cultural Rights, (ICESER) Article 2.
[4]
African Charter on Human & Peoples Rights, Articles 2,3,4 &5
African Charter on Human & Peoples Rights, Articles 2,3,4 &5
[5]
Communication 488/1992; UNHR Committee (4 April 1994), UN Doc
CCPR/C/50/D/488/1992 (1994)
Communication 488/1992; UNHR Committee (4 April 1994), UN Doc
CCPR/C/50/D/488/1992 (1994)
[6]
Communication 941/2000, UNHR Committee (12 August 2003) UN Doc
CCPR/C/78/D/941/2000 (2003)
Communication 941/2000, UNHR Committee (12 August 2003) UN Doc
CCPR/C/78/D/941/2000 (2003)