THE AFRICA N HUMA N RIGHT S SYSTE M

523 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=9855&LangID=E

524 http://www.hrw.org/news/2011/11/01/joint-memorandum-government-nigeria-same-gender-marriage-prohibition-bill-2011-viola

525 This was skilfully used by the Malawian organization CEDEP. See reference to interview with Gift Trapence, Chapter Tw.

Namibian leaders seem to have moved away from the hardline rhetoric of a decade or so ago. Botswana and Mozambique have, as noted elsewhere in this study, adopted employment law that protects against discrimination based on sexual orientation. Botswana has supported hardline positions at the UNGA that go against this domestic trend, whereas Mozambique has abstained at the UNGA. There may be possibilities of activists succeeding in bringing the international stances of these states into line with the progressive trends seen in national policy Burkina Faso abstained on the 2011 Human Rights Council resolution rather than voting against it.

It was not possible to speak to an official of the country’s foreign ministry during the mission. Zambia’s hardline stance at home ran counter to its abstention at the Human Rights Council in 2011. Sierra Leone’s support for the 2011 statement has so far not been matched by votes on resolutions. Angola voted to include LGBTI in the 2010 – 2011 UNGA resolution on extrajudicial executions.

6 . 1 6 . 2WORK OF C HART ER B ASED MEC HAN I S MS / SPEC I AL PROC EDURES

The Special Rapporteur on the situation of human rights defenders, and on the promotion and protection of the right to freedom of opinion and expression also criticized the AHB.⁵²³ Note interventions by UN Special Representatives in regard to the Nigerian Same Gender Marriage Bill. ⁵²⁴

6 . 1 6 . 3T HE UN I VERSAL PERI O DI C REVI EW

References are made above to the UPR recommendations to Kenya in regard to decriminalization and national responses. Zambia likewise rejected UPR recommendations in this area. While it is unlikely that recommendations will bring change, the processes themselves can provide space for dialogue and advocacy.⁵²⁵

6.17THE AFRICA N HUMA N RIGHT S SYSTE M

The African Charter on Human and People’s Rights prohibits contains and expansive and open ended guarantee of equality and non-discrimination in the enjoyment of

526 See Murray and Viljoen, 2007, op cit.

527 Selected examples include Kenya (2010), Art. 31, Uganda (1995) Article 27. Malawi (1995) Article 21, Zambia, (1996), Article 11, Senegal, Article 13, Burkina Faso Article 6. Nigeria, Article 37, South Africa, Article 14, Zimbabwe, Article 57.

Zimbabwe is of particular importance, as this provision restores a right of privacy that was removed from the constitution by Constitutional Amendment no. 14 of 1995. See Human Rights and Zimbabwe’s Draft Constitution, Matyszak, March 2013, http://www.hrforumzim.org/wp-content/uploads/2013/03/HUMAN-RIGHTS-AND-THE-DRAFT-CONSOLIDATEDfinal-edit-for-posting.pdf

528 The possibility of complaints between states is also present, but unused in practice.

529 See generally Murray and Viljoen, Towards Non-Discrimination on the Basis of Sexual Orientation: The Normative Basis and Procedural Possibilities before the African Commission on Human and Peoples' Rights and the African Union, Human Rights Quarterly, Volume 29, Number 1, February 2007, pp. 86-111

530 Communication 245/2002, Zimbabwe Human Rights NGO Forum v Zimbabwe, Decided at the 39th ordinary session, May 2006, 21st Activity Report

531 IGLHRC, cited in Murray and Viljoen, 2007.

the rights guaranteed by the Charter. The Charter mentions the right of every individual to take part in the cultural life of his community (Article 17.2) and the duty of the state to promote and protect morals and traditional values recognized by the community (Article 17.3). The charter seems to see tradition and human rights as being consistent with one another, speaking in the preamble of the importance traditionally attached to human rights and freedoms in Africa. It has been noted that the African Charter lacks a specific mention of the right to privacy. Nevertheless, this may arguably be inferred from other rights, as well as from more recent developments in the African human rights system.⁵²⁶ Perusal of African constitutions gives support to general acceptance of a right to privacy.⁵²⁷

As with the UN human rights system, the African system offers a number of ways in which rights issues typically are raised: i) Individual complaints ii) the examination of state reports and iii) the work of special procedures, principally thematic rapporteurs.⁵²⁸ In addition, there are the possibilities of resolutions by the African Commission and of making statements by organizations having observer status before the Commission. Outside the framework of the Commission itself, the NGO forum

As previously mentioned, there have as yet been no decisions by the African Commission on Human and Peoples’ Rights or the African Court of Justice and Human Rights that deal with the issue of criminalization of same sex relations, or of SOGI issues more generally. ⁵²⁹ One decision of the ACHPR does contain a mention of sexual orientation as a prohibited ground of discrimination under the Charter.⁵³⁰ The statement is however at best an obiter dictum. It may have been included without full consideration by the Commission. The procedure for handling of complaints by the Commission is less than fully satisfactory. In 2000, IGLHRC generally advised against use of the complaint procedure under the Charter because of the risk of poorly prepared cases leading to bad precedents that would be difficult to change. ⁵³¹ The examination of state reports that members of the African Commission have shown a degree of openness towards consideration of the rights of LGBTI persons.

The Commission is typically composed of a mix of progressive and conservative

532 Murray and Viljoen, 2007, op cit.

533 http://www.achpr.org/mechanisms/hiv-aids/

534Sibongile Ndashe, Feminist Africa, 15, Seeking the protection of LGBTI rights at the African Commission on Human

and Peoples’ Rights, http://agi.ac.za/sites/agi.ac.za/files/2_case_study_sibongile_ndashe.pdf, accessed 29.5.2013

members. All members of the Commission can ask questions of the country delegations that appear before them to present and defend state reports.

Commissioners often rely on NGO submissions to provide them with information as the basis for the questions they pose. IGLHRC and other organizations have assisted national LGBTI NGOs to prepare and present submissions to the Commission in advance of the hearing of national reports. Thus, members of the Commission have questioned Cameroon on its detention and prosecution of LGBTI persons and Nigeria and Uganda on their legislative proposals.⁵³²

Experts and NGO representatives said that the African Commission on Human and People’s Rights can neither be characterized as clearly closed or clearly open to consideration of SOGI issues. Issues relating to the lack of full independence of the political structures of the AU mean that the ACHPR may have to exercise a certain self-censorship on this and other very controversial issues. On the positive side, the Commission has questioned states such as Cameroon on its prosecution and detention of LGBTI persons, though there is no follow up mechanism in relation to any recommendations that might be made.

6 . 1 7 . 1RAPPORT EURS AN D S P EC I AL MEC HAN I SMS

The Special Mechanisms of the African Commission are also a worthwhile avenue to explore. It is not possible to describe the work of the various mechanisms in detail here, but the Commission’s Committee on the Rights of Persons Living with HIV / AIDS⁵³³, and its rapporteurs on Freedom of Expression and Access to Information, on Prison Conditions and Conditions of Detention, on Human Rights Defenders, and on the Rights of Women could be of particular relevance to the issues described herein.

In a number of areas, there is potential for greater cooperation between rapporteurs of the African system and those of the UN system.

6 . 1 7 . 2C I VI L SOC I ET Y PART I C I PAT I ON

Since 2006, a number of African CSOs working to protect and promote the rights of LGBTI persons have succeeded in opening up a space to voice their concerns at the Commission and to gain support from them from civil society more widely, as well as from a number of Commissioners.⁵³⁴ Their strategies have included the presentation of alternative reports, lobbying of Commissioners and active participation in the NGO forum.

The denial by the ACHPR of observer status to the Coalition of African Lesbians (CAL) in 2010 was seen by civil society activists as a severe disappointment and an indication of where the lines are drawn. The explicit inclusion of the “lesbian” label

535 28th Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), para. 33.

536 Notes on interview with Amsher, Johannesburg, 5.2.2013.

537 48^th Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR), para. 41.

538 Decision on the Promotion of Cooperation, Dialogue and Respect For Diversity in the Field of Human Rights Doc.

Assembly/Au/17(Xv) Add.9

was reportedly seen as a bridge too far for some of the Commissioners, which refused registration. No reasons were provided to CAL, but an ACHPR activity report to the AU claimed that CAL “do not promote and protect any of the rights enshrined in the African Charter”.⁵³⁵ This wording gives cause for concern as it could be interpreted as meaning that the Commission does not consider the Charter to protect the rights of sexual minorities. On the other hand, too much should not be read into a formulation in an activity report that does not have the status of a decision of the Commission as such. The rejection of registration of organizations declaring an LGBTI identity is similar to the case in Burkina Faso.

Despite this setback, the CAL and other CSOs working with the rights of LGBTI continue to see the ACHPR as a worthwhile forum for activism and presence. The NGO forum has matured in its own attitude to SOGI issues, though opposition still remains among some.⁵³⁶ In a sign of the increasing support, eighteen organizations made statements to the Commission criticizing the denial of observer status to CAL.

The critics included not only NGOs, but the Kenyan National Commission for Human Rights.⁵³⁷

Observers at sessions of the ACHPR have sometimes noted that members of the Commission lack knowledge of SOGI issues and display a genuine interest in knowing more about this subject. Like many other persons in policymaking positions, they could benefit from the chance to learn more. This can take place both in a relatively confidential, non-threatening environment through seminars and visits, or through more public events organized by NGOs in countries that are less hostile to this issue, possibly in connection with Commission sessions. The Centre for Human Rights at the University of Pretoria also produced a background paper on SOGI for use by the African Commission, but unfortunately it was not discussed by the Commission. A possibility that is so-far unexplored is to expose key persons in the African system to developments within the Inter-American Human Rights System, which has made very significant progress on this issue in recent years. There is greater similarity between the conditions of work of these systems than there is between the African and European ones.

This handling of this issue by the ACHPR must also be seen in the light of decisions at the AU political level. The issue of SOGI in international law was raised by Egypt in a resolution adopted at the 2010 Kampala Summit of AU leaders. The Assembly stated its rejection of “any attempt to undermine the international human rights system by seeking to impose concepts or notions pertaining to social matters, including private individual conduct, that fall outside the internationally agreed human rights legal framework”.⁵³⁸

539 See inter alia Murray and Viljoen, 2007, op cit.

540 http://www.bbc.co.uk/news/uk-15511081

541 http://www.pinknews.co.uk/2011/10/19/australian-foreign-minister-to-call-on-commonwealth-to-repeal-anti-gay-laws/

542http://www.humanrightsinitiative.org/index.php?option=com_content&view=article&id=780:lgbtrights&catid=43:lond on-office&Itemid=579

543 16th Commonwealth Law Conference, Hong Kong, 8 April 2009, Homosexual Law Reform: An Ongoing Blind Spot of The Commonwealth of Nations, The Hon. Michael Kirby Ac Cmg

Given the political constraints on the Commission and its lack of full independence as a human rights body⁵³⁹, it cannot be expected that dramatic change will come from any such exposure, but it may contribute to increasing the space for moderates and developing thinking.