Two Steps Forward, One Step Back for LGBTI Rights in Africa

An asylum seeker from Uganda covers his head with a paper bag in order to protect his identity. (Photo: Jessica Rinaldi, Reuters)

Today, the Ugandan Constitutional Court struck down that country’s Anti-Homosexuality Act, which had been signed into law in February of this year. And earlier this summer, the African Commission on Human and Peoples’ Rights, Africa’s regional human rights body, issued a landmark resolution calling on its member states to respect and protect the human rights of sexual minorities. Meanwhile, however, as friends and family of Cameroonian human rights defender Eric Ohena Lembembe recently gathered to mark the one-year anniversary of his brutal murder, the police investigation remains at a standstill.

Ugandan Anti-Homosexuality Act Struck down on procedural grounds
Uganda’s new Anti-Homosexuality Act imposed harsh penalties for “homosexuality” and “aggravated homosexuality,” and even criminalized “aiding and abetting homosexuality” and promoting homosexuality. A Ugandan LGBTI (lesbian, gay, bisexual, transgender, and intersex) rights group has alleged in ongoing proceedings in U.S. court that American Scott Lively played a central role in lobbying for the legislation.

Ten petitioners, including academics, journalists, human rights groups, activists, and members of parliament from the ruling and opposition parties, challenged the law on several grounds, arguing that it violates the privacy and dignity rights enshrined in the Ugandan Constitution, as well as the right to be free from discrimination and cruel, inhuman, and degrading treatment. They also argued a procedural point, contending the act was adopted unlawfully because parliament lacked a quorum when it voted on the bill.

The Court considered the procedural argument first, and agreed with the petitioners. The five-judge panel ruled that the speaker of parliament acted unlawfully in allowing the bill to come up for a vote, because there were at least three objections that not enough members of parliament were present. “The speaker was obliged to ensure that there was a quorum,” the court ruled. “We come to the conclusion that she acted illegally.” The vote was unlawful, the court concluded, and therefore the act is null and void.

Because the court ruled on procedural grounds, rather than on the merits, the court’s decision does not bar parliament from adopting an identical law in the future. And homosexuality remains a criminal act in Uganda, as it was before the new law was signed. The Ugandan government is considering whether to appeal the decision of the Constitutional Court to the Ugandan Supreme Court.

The Advocates and partners mobilize in wake of Cameroonian activist’s murder
Eric Ohena LembembeUganda is not the only country in Africa where laws, the justice system, and societal homophobia endanger LGBTI people and human rights defenders who work on their behalf. In advance of the African Commission’s 54th Ordinary session in October 2013, The Advocates for Human Rights and its partner organizations, Le Reseau des Defenseurs des Droits Humains en Afrique Centrale (REDHAC), Cameroonian Foundation for AIDS (CAMFAIDS), and L’Association pour la Defense des Droits des Homosexuels (ADEFHO), submitted a report to the African Commission detailing rights violations based on sexual orientation and gender identity (SOGI) in Cameroon.

The report came on the heels of the brutal torture and murder of Cameroonian human rights defender Eric Ohena Lembembe, executive director of CAMFAIDS. Just weeks before his murder, as the report noted, Lembembe had spoken out about the dangers facing human rights defenders in Cameroon working on behalf of LGBTI people:

“There is no doubt: Anti-gay thugs are targeting those who support equal rights on the basis of sexual orientation and gender identity. Unfortunately, a climate of hatred and bigotry in Cameroon, which extends to high levels in government, reassures homophobes that they can get away with these crimes.”

Before the African Commission session, REDHAC and CAMFAIDS also participated in an NGO forum that culminated in an oral presentation to the African Commission and the NGO forum’s adoption of a resolution on violence and human rights violations based on imputed or actual sexual orientation and gender identity. The African Commission’s history-making resolution mirrors the resolution adopted by the NGO forum.

Coalition condemns Cameroonian authorities’ lackluster response to Lembembe’s murder, calls for thorough and fair investigation
The Observatory for the Protection of Human Rights Defenders, along with CAMFAIDS, ADEFHO, REDHAC, Alternatives Cameroon, and MDHC, recently denounced the dysfunctional justice system in the case of Lembembe’s murder. One year after the murder, the investigating judge has summoned only Lembembe’s family members. Authorities never took any photographs or fingerprints at the scene of the crime. The medical certificate indicating the nature of the death does not mention the burns and other obvious injuries visible on Lembembe’s body. In what seems to be an attempt at intimidation, several of Lembembe’s friends and family members were placed in police custody early in the investigation.

Coalition members fear that the attitude of the police and judiciary authorities in the investigation reflects those institutions’ disregard for the respect and protection of LGBTI people’s human rights in Cameroon. “The Cameroonian authorities’ inertia in this case is all the more worrying that it might reinforce the sentiment of impunity of the authors of the crimes and persecutions against LGBTI people, and feed the stigma and discrimination against these people and the defenders of their rights,” added Michel Togue, a Cameroonian lawyer and Legal Advisor for CAMFAIDS.

The coalition renewed its call for Cameroonian authorities to conduct an independent, effective, rigorous, impartial, and transparent investigation in order to identify the perpetrators, bring them before an independent, competent, and impartial court in accordance with international and regional human rights protection instruments, and to apply criminal, civil, and/or administrative sanctions as provided for by the law.

African Commission’s landmark resolution condemns anti-LGBTI violence on the continent, calls for end to impunity
The African Commission’s resolution is particularly timely in light of the breakdown in the investigation into Lembembe’s murder. The Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity  unequivocally confirms that violence and human rights abuses directed at individuals based on their actual or perceived sexual orientation or gender identity breach the African Charter on Human and Peoples’ Rights. This is the Commission’s first official resolution on the issue of LGBTI human rights.

The Commission expresses alarm at the ongoing violence, abuse, and discrimination against sexual minorities by state and non-state actors as well as the failure of law enforcement to investigate and prosecute the perpetrators. The Commission directs state parties to the African Charter to comply with their obligations to protect all Africans from human rights abuses and violence and urges them to enact and enforce laws to prohibit and punish violence directed at the LGBTI community and its defenders.

Laws and public attitudes in many African countries reflect and foster widespread discrimination based on sexual orientation and gender identity
The African Commission is responsible for setting the human rights standards to be observed by states that have ratified the African Charter on Human and Peoples’ Rights; essentially every African country except South Sudan and Morocco. A significant number of those states outlaw same-sex activity, and African governments continue to enact new repressive legislation, such as the Anti-Homosexuality Act that the Ugandan Constitutional Court struck down today.

In January, the president of Nigeria signed a law that mandates a 14-year prison sentence for anyone entering a same-sex union and a 10-year term for anyone “who supports the registration, operation and sustenance of gay clubs, societies, organizations, processions or meetings.” “Supporters” would include health centers providing treatment and counseling for AIDS and other health concerns as well as civil society organizations and human rights defenders. The potential impact on HIV transmission and treatment alone is tremendous, yet public opinion appears to favor these laws.

According to research conducted by the Pew Research Center, more than 90 percent of the population in Uganda, Nigeria, Ghana, Kenya, and Senegal consider same sex activity “unacceptable,” according to The Global Divide on Homosexuality. Over the past year, reports of mob violence, murder, rape, assault, arbitrary arrests, and detention have increased.

African Commission on Human and People's RightsAfrican Commission Resolution is groundbreaking step toward tolerance
In this context, the resolution is especially meaningful and groundbreaking. Taking a firm stand against the widespread intolerance of non-conforming sexual minorities, the Commission has articulated a legal basis for the protection against discrimination on the basis of actual or perceived sexual orientation or gender identity and advised its member states that their commitments to universal equality under the African Charter require them to respect the human rights of sexual minorities.

The resolution states:

The African Commission on Human and Peoples’ Rights (the African Commission), meeting at its 55th Ordinary Session held in Luanda, Angola, from 28 April to 12 May 2014:

Recalling that Article 2 of the African Charter on Human and Peoples’ Rights (the African Charter) prohibits discrimination of the individual on the basis of distinctions of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status;

Further recalling that Article 3 of the African Charter entitles every individual to equal protection of the law;

Noting that Articles 4 and 5 of the African Charter entitle every individual to respect of their life and the integrity of their person, and prohibit torture and other cruel, inhuman and degrading treatment or punishment;

Alarmed that acts of violence, discrimination and other human rights violations continue to be committed on individuals in many parts of Africa because of their actual or imputed sexual orientation or gender identity;

Noting that such violence includes ‘corrective’ rape, physical assaults, torture, murder, arbitrary arrests, detentions, extra-judicial killings and executions forced disappearances, extortion and blackmail;

Further alarmed at the incidence of violence and human rights violations and abuses by State and non-State actors targeting human rights defenders and civil society organisations working on issues of sexual orientation or gender identity in Africa;

Specifically condemns the situation of systematic attacks by State and non-state actors against persons on the basis of their imputed or real sexual orientation or gender identity;

Deeply disturbed by the failure of law enforcement agencies to diligently investigate and prosecute perpetrators of violence and other human rights violations targeting persons on the basis of their imputed or real sexual orientation or gender identity;

  1. Condemns the increasing incidence of violence and other human rights violations, including murder, rape, assault, arbitrary imprisonment and other forms of persecution of persons on the basis of their imputed or real sexual orientation or gender identity;
  2. Specifically condemns the situation of systematic attacks by State and non-state actors against persons on the basis of their imputed or real sexual orientation or gender identity;
  3. Calls on State Parties to ensure that human rights defenders work in an enabling environment that is free of stigma, reprisals or criminal prosecution as a result of their human rights protection activities, including the rights of sexual minorities; and
  4. Strongly urges States to end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims.

Adopted at the 55th Ordinary Session of the African Commission on Human and Peoples’ Rights in Luanda, Angola, 28 April to
12 May 2014.

Julie Shelton
Julie Shelton

By Julie Shelton and Amy Bergquist. Guest-blogger Julie Shelton was the team leader on The Advocates for Human Rights’ trip to Cameroon in February 2013. The team conducted a pro bono needs assessment with over 35 Cameroonian organizations that work to promote human rights and rule of law. Shelton led the project to draft the shadow report to the African Commission on LGBTI rights in Cameroon. She was honored for her volunteer work on June 25 at The Advocates’ Human Rights Awards Dinner.

More from The Advocates Post on LGBTI rights in Africa:

Moving Forward: Four Steps and Six Strategies for Promoting LGBTI Rights Around the World

Recent Anti-LGBTI Laws Violate Human Rights

African Commission to Consider Violence Perpetrated Because of Sexual Orientation, Gender Identity

“Look at the details of Eric Ohena Lembembe’s life and you will understand why he died.”

Top photo: Jessica Rinaldi, Reuters

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