Statement on the Situation of Human Rights Violations and Abuses Based on Sexual Orientation and Gender Identity in Africa

Delivered by

  • International Commission of Jurist – Kenya

In collaboration with

  • African Decade for Persons with Disabilities
  • Coalition of African Lesbians
  • Global Rights
  • International Gay and Lesbian Human Rights Commission
  • Interrights
  • Nigeria Humanist Movement

Honorable Chairperson of the African Commission on Human and Peoples’ Rights, Honorable members of the Commission, distinguished members of the delegation of the member states, distinguished colleagues of the civil society, ladies and gentlemen,

The African Commission on Human and peoples’ rights;

Reaffirming the purposes and principles of the African Charter on Human and peoples’ Rights,

Recalling that States are under the obligation to protect all human rights and fundamental freedoms of all persons,

Acknowledging the important contribution of measures at all levels against discrimination, equality, rule of law and democratic processes, consistent with international law, in particular international human rights law and for the functioning of democratic institutions, the maintenance of peace and security and thereby to the full enjoyment of human rights, as well as the need to continue this fight, including through international cooperation and the strengthening of the role of the African Union institutions and specialized bodies in this respect,

Recognizing that the respect for human rights, democracy and the rule of law are interrelated and mutually reinforcing,

NOTE THE FOLLOIWING:

As the world progresses towards sustainable development and the African Union (AU) Charter on Human and Peoples’ Rights emphasize the protection of Peoples’ rights we note with concern retrogressive practices in some AU Member states where fundamental human rights are being violated against persons due to their sexual orientation and gender identity, particularly the right to life, assembly, association, expression, privacy, and non-discrimination, which violations are against the principles enshrined under the various international treaties and reiterated under the African Charter on Human and Peoples’ Rights.

We are deeply concerned by the deploring situation and occurrence of violations of human rights and fundamental freedoms in the context of sexual orientation and gender identity in;

BURUNDI: In the past years Burundian law-makers have been engaged in drafting a new criminal code for the country that abolished death penalty, and introduced criminal provisions against torture, genocide, war crimes and crimes against humanity.

Regrettably, in November 2008, the National Assembly of Burundi amended the code by criminalizing, in article 566, sexual conducts among consenting adults of the same sex.

While we welcome the previously mentioned provisions, we deplore the decision of criminalizing homosexuality.

The decision of the Assembly was reversed in February 2009, when the Senate rejected the amendment with 36 votes against and 7 in favor.

As a consequence of the strong insistence of the executive, the provision of article 566 was reaffirmed by the Assembly and submitted for consideration to the joint committee of Parliament which expressed its favorable opinion opening the door for the final promulgation by the President.

The decision of the Burundian Parliament is questionable on procedure used and, substantively, constitutes a violation of international human rights law. According to the Burundian constitution only organic laws should be subjected, in case of conflict of opinion between the Assembly and the Senate, to the examination of a joint committee. The criminal code is not an organic law. The procedure adopted to approve the law is therefore unconstitutional, and shows a questionable use of procedures to pass legislation at the convenience of the executive.

Substantively, the provision that the Burundi law-makers are trying to introduce violates human rights law, and particularly the principle of non discrimination as provided for in Article 2 and 26 of the International Covenant of Civil and Political Rights, and as established by the Human Rights Committee in 1994 in Toonen v. Australia. Article 2 of the African Charter on Human and Peoples’ Rights also prohibits discrimination on the grounds of “any status”.

criminalization of same sex conduct among consenting adults infringes on the Constitution of Burundi, that establishes the right to non discrimination in article 17, the right to privacy in article 28 and, more importantly, article 19 of the Constitution, that grants constitutional status to all the rights established by the international instruments to which Burundi is party.

NIGERIA: since 2006 there has been increase in the number of arbitrary arrests, media attacks, physical assaults and other forms violations against individuals and communities on the basis of their sexual orientation and gender identity or their engagement in advocacy for the protection of human rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.

In the northern part of Nigeria reports of arbitrary arrests, unlawful detentions, assaults and intimidations targeted against LGBTI persons have been documented by activists and NGOs. In the southern part of the country media attacks have rendered all activism and work around the fight for human rights of LGBTI persons almost impossible, by stirring violence and intimidation against LGBTI individuals and their allies. This situation has rendered LGBTI individuals homeless and being disowned by their siblings due to the stigma generated by the media.

SOUTH AFRICA: in South Africa, the constitution provides for non-discrimination on the basis of one’s sexual orientation and gender identity, however LGBTI individuals are not specifically protected and this situation allows for continued state and non-state sponsored violence and discrimination against activists and human rights defenders. A year ago, as the people of South African celebrated Freedom Day, on the 27th of April 2008, a black lesbian woman was gang raped and brutally stabbed to death in Tornado township of Kwa-Thema in South Africa due to her sexual orientation and gender identity. The perpetrators in that case have not been brought to justice to date.

Similar cases of sexual assault, rape, violence assault and murder have been reported in other townships and rural areas including Soweto and Khayelitsha over the past 4 years. In addition, black gay men have also been targeted and subjected to hate and gender based violence. The South African state in this situation consistently fails in its duty to invoke the constitutional provisions to equality and protection for all under the law. This is a violation Article 3 of the African Charter on Human and Peoples’ Rights, which guarantees the right to equality before the law. It is also a violation of Article 4, which guarantees the right to life and the integrity of the person. also Article 6 which protecting the right to the security of the person.

SENEGAL: On December 22, police officers in the SICAP Mbao neighborhood of Dakar raided an apartment and arrested 9 men all members of an organization providing HIV prevention services to men who have sex with men (MSM). They were taken to the SICAP Mbao police station and were later charged and sentenced to eight years in jail for engaging in acts against the order of nature and for being members of criminal organisation. This was largely due to their gender identify and sexual orientation.

Although the men appealed their sentence, which was overruled, the ensuing consequences of the arrests are still unfolding.

One such consequence is the impact of the scourge of HIV within the LGBT community which has been established to be over 19 times more vulnerable to HIV infection rates than the general population. In Senegal where the general seroprevalence has been evaluated to 1%, the seroprevalence among men who have sex with men has been evaluated at 21.5%.

KENYA: the recent attacks of LGBT activists along the streets without police investigations has created fear, intimidation and a source of concern to LGBT activists and human rights defenders.

The failure of the state to protect its citizen’s right to a secure and peaceful environment is a violation of their most fundamental rights and any acts by third parties or non-state actors that create fear, intimidation and other psychological anxiety are acts on torture for which the state should be held responsible. We hold Kenya’s inaction for failing to stop abuses within homes, and at community levels as a gross abdication of state responsibility to the citizens and her obligations under the African Charter on Human and Peoples’ Rights as well as under international human rights conventions where Kenya is a state party.

UGANDA: in December 2008, Uganda celebrated a major judicial decision that proclaimed the rights of all persons irrespective of their sexual orientation and gender identity. However this has been reversed by recent events that now challenge the bold judicial action and threaten to reverse gains made by Uganda in meeting its international obligations under international human rights treaties.

Since March 2009 there have been spirited campaigns against people’s sexual orientation and gender identity that have threatened fundamental rights to life, security of the person, privacy and human dignity, equality and freedom from discrimination that are core to the principles of Uganda’s Constitution. People have been subjected to public ridicule, humiliation and forced into hiding. the state failure to bring to justice public inciters through state sponsored and private media, offer personal security and guarantee individual safely due to perception that one’s sexual orientation and gender identity is a criminal in Uganda has exposed many people resident in Uganda to gross violation of their rights.

Constitutional rights are due to all and should be respected by all irrespective on one’s sexual orientation or gender identity. These acts of commission or omission by the Ugandan government challenge the principles of equal protection of the law and justice for all as guaranteed under Uganda’s Constitution.

RECOMMENDATIONS

We are concerned about these hostilities and call upon all Member state to the African Charter on Human and Peoples’ Rights to protect and defend all persons within their borders particularly those persons being persecuted, harassed, and prosecuted for their sexual orientation or gender identity.

Call upon the African Commission on Human and Peoples’ Rights to work with member state to facilitate and conduct fact finding missions and engage with the Special Rapporteurs (SR) (especially SR on Women rights, freedom of expression, human rights defenders, and prison and conditions of detention in Africa) to ensure all fundamental rights and entitlements as enshrined under the African Charter and promoted, respected and protected

Call upon AU member State to note the devastating effects of criminalizing ones sexual orientation and gender identity, as such measures result in torture, arbitrary detention, and unfair trials preventing accountability and the danger of such ‘measures’ becoming permanent features of law and practice in many states.

We call upon all African Union Member States to respect peoples’ freedoms as they have undertaken to do under the African Charter on Human and Peoples’ Rights.

Signed
Monica Mbaru
13th May 2009
Banjul, The Gambia.