Lawrence M. Mute
9 January 2009
opinion
On the 18th of December, 2008, a Statement on Human Rights, Sexual Orientation and Gender Identity with the backing of 66 states including six African countries, was read at the General Assembly. The statement reaffirmed "the principle of the universality of human rights amongst other things. But a counter-statement arguing against the statement supported by 60 states including a multitude of African countries.
In this essay that shows the discrepancy between universal human rights and their selective application, Lawrence M. Mute asks: Why did the whole of Anglophone Africa decline to support the Statement? Why did such little empathy flow from many discriminated groups to LGBTI communities? Why would many a group discriminated on grounds of race, disability or gender still find it rational to perpetuate discrimination on homosexuals or lesbians?
During the month when the World celebrated the 60th anniversary of the Universal Declaration on Human Rights, an extremely rare, indeed one-time event, was witnessed at the United Nations General Assembly. On the 18th of December, 2008, a Statement on Human Rights, Sexual Orientation and Gender Identity [1] with the backing of 66 states including six African countries [2], was read at the General Assembly.
The Statement drew its message exclusively from human rights normative frameworks such as the International Bill of Rights and interpretive statements from Treaty Body Committees. Among other things, it:
- Reaffirmed "the principle of the universality of human rights, ... that everyone is entitled to the enjoyment of human rights without distinction of any kind, ... (and) the principle of non-discrimination which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity";
- Raised concerns about: "violations of human rights and fundamental freedoms based on sexual orientation or gender identity ... (and) that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine the integrity and dignity of those subjected to these abuses";
- Condemned "human rights violations based on sexual orientation or gender identity wherever they occur...And;
- Urged "states to take all the necessary measures ... to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention ..., to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice ... (and) to ensure adequate protection of human rights defenders, and remove obstacles which prevent them from carrying out their work on issues of human rights and sexual orientation and gender identity [3]."
The symbolic and actual importance of this Statement was dramatised by the reading of a counter-statement arguing against the Statement on Human Rights, Sexual Orientation and Gender Identity, supported by 60 states including a multitude of African countries. The counter-statement was based on classic stereotyping, prejudice and disinformation most often articulated by homophobes and transphobes. It, among other things, stated that: protection of sexual orientation could lead to the social normalisation and possibly the legalisation of deplorable acts such as paedophilia and incest. It charged that the Statement was an attempt to create « 'new rights' or 'new standards' by misinterpreting the Universal Declaration and International Treaties to include such notions that were never articulated nor agreed by the general membership [4].
A High Level Side Event on Human Rights, Sexual Orientation and Gender Identity [5] to commemorate the Statement's reading was addressed, among others, by Rama Yade, France's Secretary of State for Human Rights; Maxime Verhagen, Minister of Foreign Affairs of the Netherlands; Sunil Pant, an MP from Nepal; Michael O'flaherty, Raporteur of the Yogyakarta Principles on the Application of International Human Rights in Relation to Sexual orientation and Gender Identity and member of the Human Rights Committee; Navanethen Pillay, the UN High Commissioner for Human Rights; and Lawrence Mute, a Commissioner with the Kenya National Commission on Human Rights. The Event sought both to celebrate as well as reflect on the way forward for ensuring the rights of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) communities around the World.
But, back to the Statement itself, where one is bound to query why countries and mainstream civil society organizations which espouse human rights as universal, indivisible and interdependent still fail to acknowledge the unacceptability that fellow human beings should be killed, violated, discriminated or excluded from society simply because of their sexual orientation or gender identity. In particular, why did the whole of Anglophone Africa decline to support the Statement? Why did such little empathy flow from many discriminated groups to LGBTI communities? Why would many a group discriminated on grounds of race, disability or gender still find it rational to perpetuate discrimination on homosexuals or lesbians? Was it that human rights are guaranteed to some and not to others?
States, as enjoined by the United Nations Charter and the plethora of Human Rights Treaties to which they are party, are the ultimate bastions for ensuring respect, protection and fulfillment of the rights of all individuals and communities, regardless of their sexual orientation or gender identity. Article 2 of the African charter on Human and Peoples' Rights replicates anti-discrimination injunctions in other Human Rights Conventions when it requires 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, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status [6]. (Emphasis added) The Committee on Economic, Social and Cultural Rights has interpreted the phrase "other status" in Article 2.2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to include the ground of sexual orientation [7]. Then again, the Human Rights Committee has interpreted the word "sex" in Article 2.1 of the International Covenant on Civil and Political Rights (ICCPR) , in Toonen v. Australia [8], as: "to be taken as including sexual orientation".
So, why did so many African countries prefer to sign a counter-statement purveying homophobia and transphobia rather than support a cogent anti-discrimination and anti-violence position? In my address to the High Level Side Event, I noted that the discourse for ensuring that the rights of LGBTI communities are respected, protected and fulfilled has over the years been framed as a decidedly Northern/developed countries agenda, with minor exceptions at the legal if definitely not the popular level in developing jurisdictions such as South Africa. IN my assessment, five dynamics continue to dictate the manner in which developing countries in Africa and perhaps other regions interact with the rights of LGBTI communities.
First, is the dynamic of criminalization under which sodomy laws were nearly a century ago legislated into colonial Africa to criminalise homosexual and related acts. By the time that Africa's colonizers began to expunge sodomy legislation from their statute books (through processes such as the 1956 Wolfenden Committee in the United Kingdom) [9], sodomy laws in Africa had become entrenched in a value ethic of their own sheathed in culture and religion under which homosexuality was touted as "un-African" and "unholy" [10]. This is the basis upon which sodomy laws today remain on the statute books of countries such as Kenya, Uganda and Tanzania as "offenses against morality" [11], and are being legislated most recently in countries such as Burundi [12].
Second, is the dynamic of discrimination and violation. The legal plight of LGBTI people is not determined as such by sodomy laws, for these laws tend to be difficult or inconvenient to prosecute successfully. Far more pressing is the discrimination or the violation of LGBTI peoples' rights to life, liberty, education, health or employment on account of their sexuality. A lesbian person in East Africa today fears to be "outed" because her homophobic employer may then engineer dismissal, in clear violation of the ICESCR as well as a host of other international, regional and national laws. "Outing" might also incite groups on the fringes of some cultural or religious traditions to hurt or kill such lesbian person in breach, among other norms, of the ICCPR.
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