Sep 5, 2019

Safeguarding The Human Rights Of Sexual Minorities In Africa | Adewara Adebola

"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?

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.

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.

 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. 

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.

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.

adewara adebola f.

Gani Fawehinmi Students Chambers

Faculty of Law

University of Lagos

[1] Same Sex Marriage (Prohibition) Act,2014
[2] 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.
[4] 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)
[6] Communication 941/2000, UNHR Committee (12 August 2003) UN Doc CCPR/C/78/D/941/2000 (2003)