opinionBy Funke Aboyade
Funke Aboyade asked Chair, Human Dignity Trust, Tim Otty QC
The Human Dignity Trust is a Human Rights Organisation whose avowed aim is to 'have the right of all people to a sexual identity, and therefore their human dignity, respected equally.
According to it, 'Those countries which criminalise sexual identity are undermining human dignity, a core concept in human rights law'. 'Our only remit' their website explains, 'is to test the legality of laws which criminalise private consensual sexual activity between adults of the same sex, wherever those laws exist in the world'.
Last week, this writer reached out to the Chair of the Trust, Tim Otty QC. She had a barrage of questions for him. Is theirs a do gooder Western body seeking to impose its ultra liberal views on conservative countries with deep cultural and social mores like Nigeria? Why should same sex marriages not be outlawed? Given that 80% of the Commonwealth have laws criminalizing homosexuality is it possible that they have got it right, and the
Trust has got it wrong? Did the Trust intend to challenge this latest legislation? If so how, given that if the bill is also passed by the House of Representatives it becomes law and their actions could well become illegal in Nigeria? Is there any significant difference or is it only by degrees, between countries imposing the death penalty or seeking to impose the death penalty for such conduct and countries imposing jail terms or fines?
How does the Trust balance the right to dignity and other human rights of persons whose conduct is criminalised with the right of society to maintain its mores of social conduct and moral fibre? Are LGBT issues really human rights issues? Or are they simply alternative lifestyle issues as some argue?
Due to press time constraints, coupled with the pressure of work (he was preparing for a court hearing the following day) we agreed he could make a series of points, by way of general response.
'First the focus of the Human Dignity Trust is a narrow one. We are not a campaigning organisation and our sole remit is to bring or facilitate constitutional or international litigation designed to uphold constitutional and international law by challenging the criminalisation of homosexuality' the
Queen's Counsel began.
'We, as a Trust, will only ever work in partnership with local lawyers and organisations. That is as true in Nigeria as it is anywhere. Constitutional litigation will always be at its most effective where it is driven by, and responds, to local concerns', he explained.
'Secondly decriminalising homosexuality is not about an attempt to impose Western values. It is about upholding universal human rights. Legislation which purports to criminalise private homosexual conduct between adults is itself unlawful in international law.
That is the case whether the penalty is one of fine or imprisonment or where it is even more severe. This has been recognised by Courts as diverse as the Delhi High Court, the European Court of Human Rights, the Fiji High Court, the Nepal Supreme Court, the South African Constitutional Court and the United States Supreme Court. It has also been stated unequivocally by the United
Nations Human Rights Committee. 'The international nature of the issue, and the unanimity that the view I have just expressed commands among the most respected jurists in the world is reflected in our own board of patrons. These include a former Secretary General of the Commonwealth and former Chief Justices, Supreme Court Justices, Attorneys General and other senior eminent jurists from Australia, Barbados, Costa Rica, Guyana, India, South Africa and the United Kingdom. We have also had a strong letter of support for the Trust from the United Nations High Commissioner for Human Rights.
'Thirdly, the consequences of criminalisation can be devastating both for individuals and for society. Even where laws are not enforced they can bring misery, creating an underclass of individuals deemed criminal by virtue of no more than one aspect of their identity. They can lead to severe, inhumane punishments and can foster extremism and intolerance. And they can give rise to very grave public health issues by making the fight against HIV far more complex.
'Fourthly and finally, it is worth emphasising that the prevalence of legislation criminalizing homosexuality in the Commonwealth is not properly characterised as the majority having "got it right". It is instead a legacy of British Colonial rule. In almost all countries where criminalisation remains this is as result of the introduction of British criminal law by the British in the 19th century. Criminalisation does not exist in those countries which were previously subject to Dutch or French influence.
'Furthermore, criminalisation in the Commonwealth is impossible to reconcile with the protection for the rights to dignity, privacy and equality which all Commonwealth Constitutions contain. It is impossible to reconcile with the Commonwealth's core values, which include the rule of law and opportunity for all. And it is impossible to reconcile with the fact that all Commonwealth countries are signatories to the International Covenant on Civil and Political Rights'.
The issue of criminalising same sex unions and relationships came up extensively during the last Commonwealth Lawyers Association Annua Conference in India earlier this year.