25 April 2012

Africa: Constitution Guarantees Equality Without Distinction to All Kenyans, Says Human Rights Defender

"We are writing in respect of the continued human rights violations against LGBTI persons in Kenya, despite the new constitutional dispensation, which guarantees equality and non-discrimination to all Kenyans without distinction of any kind," said the Executive Director of the Kenya Human Rights Commission (KHRC), Mr. Atsango Chesoni. He made this statement at the African Commission on Human and People's Right (ACHPR), on behalf of the human rights conditions of lesbians, gays, bisexuals, transgenders and intersex persons in Kenya.

He said KHRC has through its engagements with the community of the Kenyan Lesbian,Gay, Bisexual, Transgender and Intersex persons (LGBTI) documented cases of targeted violence, homophobic hate crimes, hate speech by political and religious elite, blackmail and extortion, illegal detentions by the police as well as denial of essential services such as housing, health and education by providers.

He opined that they wish to draw the attention of the Human Rights Commission to International legal instruments, including the International Covenant on Civil and Political Rights (ICCPR), 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, he added, affirmed in the 1994 case of Toonen v. Australia that gender identity or sexual orientation are not grounds for discrimination.

He said the African Charter in a similar spirit requires the promotion of, respect for and reinforcement of 'mutual respect and tolerance' He added that 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. It was the holding of the ACHPR in Legal Resources Foundation v. Zambia, that 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," said the Executive Director of the Kenya Human Rights Commission.

On the Kenya Human Rights Commission, he said it 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. He said the KHRC has observer status with the African Commission on Human and Peoples' Rights (ACHPR).

Mr. Chesoni further said the KHRC has always worked with marginalized groups to enable them to articulate, defend and realise their civil, political, economic, social and cultural rights, adding that one such group is that of sexual minorities, comprising lesbian, gay, bisexual, transgcnder and intersex (LGBTI) persons.

"Commissioners it is the ACHPR that has been entrusted by the African Charter with developing normative obligations in respect of human rights to be upheld both by member states and African Union (AU) institutions," said Chesoni.

The KHRC Executive Director noted that continued criminalization of homosexuality in at least 38 member states of this Commission, and the introduction of stiffer penalties for sodomy in at least 3 member states of this Commission, are factors that are not only sanctioning impunity in the violation of human rights of LGBTI persons in Africa, but also forcing innocent gays, lesbians, transgender and intersex persons in Kenya and Africa at large to live in inhumane and degrading conditions with imminent fears of homophobic attacks.

"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, protect ion and defense of human rights" he said. Mr. Chesoni further noted that they are concern that Kenya and more than 38 African Countries continue to criminalize homosexual conduct despite being parties to major international human rights covenants whose treaty bodies have called for decriminalization in order to redress the continued discrimination on LGBTI persons.

He said by not entering reservation to the articles relating to non-discrimination and procedural rights, by continuing the criminalize homosexuality essentially, Kenya and more than 38 member state of this commission are in continual breach of international obligations.

"We appreciate that the ACHPR is desirous not to go against public opinion concerning decriminalization; we note that although this commission is there to uphold and abide by state sovereignty of member states, it is also there to lead," he said.

The human rights defender said there is a need to engage in constructive dialogue in order to take the African people into a new direction of mutual respect for diversity and universal application of human rights, he said. He added that by not doing so, there is the real possibility that public opinion and domestic legislation may never change. Human rights belong to all people and should not be enjoyed subject to certain conditions.

He said they would encourage the ACHPR to endeavor to expand its body of knowledge on the lived effects of criminalization by many LGB Africans and appreciate the extent of human rights violations experienced by LGBTJ people in Africa including those that are becoming refugees and fleeing their countries of origin on account of persecution for being LGBTI We ask the ACHPR to provide leadership in the protection and promotion of the human rights of sexual minorities in Africa, starting by issuing an advisory to all member states to decriminalize homosexuality and repeal all laws that perpetuate discrimination on the basis of gender identity and sexual orientation.

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