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Cultural discourse in Africa and the promise of human rights based on non-normative sexuality and/or gender expression: exploring the intersections, challenges and opportunities

Monica Mbaru, Monica Tabengwa and Kim Vance

Culture is generally understood to mean the ways that societies conduct and express themselves in time and space. Cultural literacy is created through the understanding of different factors such as history, language, rituals, traditions, music and art, and dress code of different groups. Culture is not static but is constantly influenced by shifting environment, and socioeconomic and political conditions. It has different manifestations, which are influenced by race, ethnicity, age, class and – for the purposes of this chapter – sexual orientation and gender identity (SOGI).

Same-sex sexuality and gender diversity have existed in African cultures for centuries. It is promising that many books and articles have begun to document this reality. For example, Ugandan academic and human rights activist Dr Sylvia Tamale discusses a practice among the Shangani of Southern Africa where men married other men, noting that this was part of their culture and everyday life known as ngochani [male wife].¹ Other examples she cites include woman-to-woman marriages among the Kisii in Kenya, among the Igbo in Nigeria, and the Nuer in Sudan.

There is also proof in many African languages that sexual and gender diversity has been known to exist in various African cultures, even if that language strongly suggests social disapproval or stigma. Nevertheless, some gay rights activists in recent years have adopted them to describe themselves with a touch of pride. They say the mere fact that such words exist in African languages is proof that people like them have always been known in traditional culture (Gays and Lesbians of Zimbabwe, 2008).

It is also promising that almost all African constitutions have a bill of rights that defines fundamental human rights as universal. However, none of them, with the exception of South Africa, mention SOGI as a protected ground for non-discrimination. Nevertheless, even as South Africa is about to mark the 20th anniversary of the world’s first constitution to include specific wording which will protect people from discrimination on the grounds of sexual orientation, the reality on the streets for lesbian, gay, bisexual, transgender (LGBT) people differs from what the legal framework would suggest. Human rights abuses on the basis of SOGI occur daily, including reported cases of lesbian, bisexual and transgender women being murdered, raped and subjected to violence. Furthermore, in the regional and international arena, South Africa has failed to demonstrate consistent and reliable leadership in human rights for LGBT persons.

The absence of specificity in constitutional frameworks has been deliberately used by powerful religious and traditional fundamentalists to generate and perpetuate a cultural discourse that non-normative gender expressions or sexualities are ‘foreign’. For instance, organisations working on LGBT rights in these countries have been denied registration on the grounds that they will be promoting an illegal activity that is considered to be ‘un-African’ and against African culture and tradition (Tamale, 2014).

It is no wonder then, as many reports have suggested, that sexuality and gender have become a cultural and religious battleground in Africa, being fought at the national, regional and international level. This is a common thread that emerges in the Human Rights Watch (HRW) report (2009), ‘Together, apart: organizing around sexual orientation and gender identity worldwide’:

Culture – a supposedly monolithic realm of civilizational values – becomes the zone where political rhetoric and religious intolerance combine. Sexual or gender nonconformity is painted as ‘un-African’, its agents symbolically – and actually – expelled from the community. (p. 11)

Same-sex sexual acts are outlawed in some 32 African countries (Carroll and Mendos, 2017), and the majority of these countries have maintained laws inherited from their colonial histories. Many legal scholars and authors have traced the legacy of the current criminal sanctions in many African countries to their colonial roots. Despite the fact that England and Wales decriminalised most consensual homosexual conduct in 1967, this came too late for most of Britain’s colonies, many of which won independence in the 1950s and 1960s. Therefore, they won these victories with colonial sodomy laws still in place (Gupta, 2008).

Despite this colonial history and the desire of many African nations to shed these legacies, many leaders invoke the values contained in these outdated and discriminatory laws as ‘traditionally African’:

Yet the wealth of data that is available clearly demonstrates that the homophobia of such African presidents as Moi (Kenya), Mugabe (Zimbabwe) and Nujoma (Namibia) who maintain that ‘homosexuality is a western perversion, alien to Africans’, is not based on African culture and history. In fact, homophobia is an idea introduced by missionaries and colonial administrators (Kendall 1999; Wieringa 2002) and copied by post-colonial leaders. (Morgan and Wieringa, 2005, p. 281)

While positive aspects of diverse cultural and historical backgrounds could contribute to the promotion and protection of human rights and human dignity, culture and traditions comprise a mixed set of views and practices that are often used to legitimise human rights violations. Africa is vast and diverse, composed of many different societies and cultures. And yet, in more recent years, African religious and traditional fundamentalists have come together to defend a shared goal, even building the most unlikely alliances. For example, Christian and Islamic fundamentalists, and traditionalists have formed unions to defend nationalism, religion and so-called traditional values. They see the claim of human rights to universalism, women’s reproductive freedom and SOGI rights as a direct attack on the traditional values, cultures and religious beliefs of the majority of the people: ‘Fundamentalisms weave together elements from religion, nationalism, and other ideologies and traditions to invent a cultural authenticity that is fixed, unalterable, and monolithic – but threatened by the supposedly corrosive influences of human rights’ (HRW, 2009, p. 3).

The protection of traditional values and culture has become a rallying cry in almost all human rights discourses among African states, from national dialogues and parliaments, to the African Commission on Human and Peoples’ Rights (ACHPR). Within international spaces, such as the United Nations (UN), African states commonly share and maintain a group position. Even though the common ‘values of humankind’ are underpinned in national, regional and international human rights law, cultural practices and traditional values that are inconsistent with human rights are frequently invoked to justify human rights violations. This chapter will discuss examples of where the actions of these political bodies contribute to a cultural dialogue in which LGBT Africans are relegated to a social class that operates outside of what it means to be ‘African’ (and in some cases, ‘human’), and therefore deems them ineligible for the protections of international, regional and national institutions.

Alliances with other civil society movements to fight this culture war have not been easy. Although these alliances have been particularly effective in regions such as Latin America, in Africa, even among the mainstream women’s movement, there has been some hesitation, if not outright hostility. For example, when South Africa hosted the 2008 Association for Women’s Rights in Development (AWID) conference, a panel hosted by the Coalition of African Lesbians (CAL) became the site of a religious and cultural battle, even among feminist allies.

Also, in Latin America, as opposed to Africa, religious forces have not generally aligned themselves with secular, cultural nationalism to create a complex dynamic of cultural authenticity. Secular groups in Latin America that claim to advance cultural rights and the preservation of tradition do not necessarily align themselves with religious forces like the Catholic Church, for example, to attempt to create a monolithic ideology of what it means to be an authentic ‘Latin American’. These practices are more common in Africa, where alliances attempt to promote authenticity of what it means to be ‘African’. Anyone outside of that scheme, therefore, gets labelled as ‘un-African’. This difference in reality may mean that some of the best practices utilised by civil society in Latin America have limited applicability in Africa.

Nevertheless, not all public and political discourses on LGBT rights at the international, regional and national levels are monolithic. The visibility of African scholars, activists and human rights defenders has greatly contributed to dispelling the perception that non-normative gender expression and/or same-sex behaviour is ‘un-African’. Powerful religious and state actors have also contributed positively to the discussion and taken concrete action that will broaden the discourse and affect the daily lives of African LGBT citizens. This chapter will also highlight some of those progressive measures at all levels.

The UN framework

The promotion and protection of universally recognised human rights constitutes one of the fundamental pillars of the UN’s work. International standards have been affirmed by UN member states in carefully negotiated instruments such as the Universal Declaration of Human Rights, the Millennium Declaration and the World Summit Outcome. Additional instruments and a number of resolutions and declarations recognise the following key principles:

• while cultural, traditional and regional specificities must be borne in mind, states have an obligation to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems (UN General Assembly (UNGA), 1993).²

• tradition and culture may not be invoked to violate human rights nor to limit their scope (UN Human Rights Council (UNHRC), 2009).³

• states have a positive obligation to work towards the elimination of harmful traditional or cultural beliefs, values, stereotypes or practices that are inconsistent with human rights (UNGA, 1993).⁴

Inserting undefined concepts of ‘tradition’ into this framework risks upsetting the careful balance found in existing instruments and subordinating the universality of human rights to cultural relativism. Following are some recent examples of activity at the UN level on concepts of tradition and culture in relation to SOGI. These examples are not meant to be exhaustive, but rather to provide readers with a flavour of the activity and discourse happening in some UN spaces, with a focus on the African region.

Developments at the Human Rights Council (HRC)

The HRC, located in Geneva, is ‘responsible for promoting universal respect of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner’.⁵ This body has made some significant progress on SOGI issues in recent years.

In June 2011, South Africa tabled a resolution at the HRC that expressed ‘grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity’.⁶ This historic resolution was the first passed in the HRC explicitly on these issues. Only one African country (Mauritius), out of the 13 who were at that time council members, supported it (South Africa was not a voting member then).⁷

Despite a well-articulated – though unsuccessful – process outlined by South Africa for follow-up to the 2011 SOGI resolution, it was another three years before this resolution came before the council again.⁸ This time, the leadership had shifted to Latin America. Another successful vote took place, which garnered more support than in 2011 and from a wider diversity of regions. Unfortunately, only one voting member from Africa (out of a possible 12) supported it. This time South Africa, which now had council membership, used their vote to back it. Disappointingly, however, they were able to leverage a weakening of the resolution’s proposed language before the vote.

Two years later in September 2016, the HRC appointed Professor Vitit Muntarbhorn as the first UN independent expert on SOGI. This followed the successful adoption of the HRC’s Resolution 32/2 in June of 2016.⁹

The fight for the establishment of the independent expert on SOGI was uniquely difficult, spanning over five key votes in 2016. South Africa had a key vote on this resolution and regressed in its position from sponsoring the SOGI resolution in 2011 and voting in favour of the next resolution in 2014, to abstaining on the vote at the HRC in 2016.

Other African states such as Botswana, Namibia and Ghana also abstained, but these can be viewed more positively because none of these countries has a domestic constitutional or policy framework that is unequivocally supportive of SOGI issues. It was interesting to note that in spite of not having a specific constitutional provision on SOGI, all three countries referenced the framework of universal human rights as constitutionally prohibiting discrimination. Ghana went one step further and also referenced the 2014 resolution at the ACHPR.¹⁰

At around the same time as these explicit gains were being made around SOGI, new initiatives on ‘traditional values’ and ‘protection of the family’ were also gaining traction within the HRC − despite massive criticism from a range of countries, civil society representatives, and critical input from UN special rapporteurs and other human rights mandate holders and treaty bodies. The goal of the states proposing and supporting these initiatives was clearly to establish new norms of international law that would undermine the principle of universality of human rights and result in a misleading interpretation of human rights norms.

In 2012, during the HRC’s vote on a resolution on so-called ‘traditional values’, 25 states voted in favour, 15 against, while 7 abstained. Russia, who led this initiative, gathered substantial support, including from many African countries. Significantly, these initiatives fail to acknowledge the positive obligation of states to eliminate traditional attitudes, values and practices that are inconsistent with human rights, as required by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa in 2003 (from here on referred to as African Women’s Protocol).

In June 2014, despite the efforts of civil society and supportive states, the Human Rights Council also adopted a harmful resolution on ‘protection of the family’.¹¹ Led by Egypt, the resolution failed to acknowledge violations that occur within family structures, and did not include agreed language on diverse family forms. During the voting stage the council shamefully voted to censor a discussion on whether to include this language.¹² As recently as 2017, this resolution still failed to recognise that various forms of family exist and also stated that ‘the family plays a crucial role in the preservation of cultural identity, traditions, morals, heritage and the values system of society’ (para. 11), without recognising that families can perpetuate discriminatory and harmful values and traditions.¹³

Developments at the General Assembly (GA)

The GA, located in New York, is the UN’s main deliberative, policymaking and representative organ. Comprising all 193 UN members, it provides a unique forum for multilateral discussion of the full spectrum of international issues covered by the UN Charter, including human rights.

In 2008, signifying a powerful victory for the principles of the Universal Declaration of Human Rights, 66 nations at the UNGA supported a groundbreaking statement confirming that international human rights protections include SOGI. It was the first time that a statement condemning rights abuses against LGBT people had been presented to the GA. It drew unprecedented support from five continents, including six African nations (ARC International, 2008). To many human rights advocates, this statement signified a hopeful shift in UN politics, specifically within the African group.

Nevertheless, two years later, in 2010, the GA was in the spotlight because of a crucial resolution on extrajudicial executions and other unlawful killings (from here on referred to as EJE resolution). Since 2003, this resolution had urged states ‘to investigate promptly and thoroughly all killings, including . . . all killings committed for any discriminatory reason, including sexual orientation’ (p. 2).¹⁴ It was the first UN resolution ever to include an explicit reference to sexual orientation.

However, later that year on behalf of the African group, Benin sponsored an amendment to delete the reference to sexual orientation in this resolution. Shockingly, this amendment passed. Disappointingly, not one African nation voted to maintain the reference, not even the handful of African states that had signed on to the joint statement at the general assembly in 2008.

This reversal sparked a huge outcry around the world from governments and civil society. The Associated Press commented that ‘the battle underscores the divide between U.N. members with their diverse religious and cultural sensibilities on gay rights issues and sparked something of a culture war at the international body’ (2010).

On 21 December 2010, the UNGA voted 93–55 to reintroduce the sexual orientation language into the EJE resolution, marking a gain of 23 states in favour. Several swing states indicated a change from their votes a month earlier. One, South Africa, stated that they were ‘guided by our Constitution that guarantees the right to life’ and that ‘no killing of human beings can be justified whatsoever’ (International Gay and Lesbian Human Rights Commission (IGLHRC), 2010).

Although several countries claimed a lack of definition of sexual orientation in international law as a reason for their opposition, countries such as Rwanda firmly rejected this as follows:

Take my word, a human group need not be legally defined to be the victim of executions and massacres as those that target their members have [already] previously defined [them]. Rwanda has also had this bitter experience sixteen years ago. It is for this that the Delegation of Rwanda will vote for this amendment and calls on other delegations to do likewise. (ibid.)

Unfortunately in 2014, four years after that compelling speech, Rwanda could not be counted on to support the addition of gender identity to this same resolution. During that landmark vote for the trans community, only two African countries supported the expanded language of SOGI, South Africa and Mauritius.

More recently (2016), the African Group led an unprecedented initiative in the GA’s 71st session, which attempted to challenge the independent expert mandate on SOGI, established by the HRC earlier in the year. In what is generally perceived as a procedural formality, the GA usually endorses the HRC report. During this GA session, Botswana, who abstained on the vote on the independent expert at the HRC, led the charge on behalf of the African Group to disrupt this formality. The reason for the African position was not phrased in terms of ‘African values’ or sensitivities but mainly in procedural terms.

Of major significance was South Africa’s shift in position in just a matter of months. In the HRC, not only did South Africa abstain but also delivered a statement expressing its opposition to the initiative to establish an independent expert. Months later in the GA, South Africa supported the appointment of the independent expert, and its statement was perhaps one of the most important and powerful to be delivered in the GA’s Third Committee. Rwanda, Cabo Verde and Seychelles also joined South Africa in dissenting from the African Group’s efforts to derail the mandate of the independent expert on SOGI.

UN Economic and Social Council (ECOSOC) accreditation

LGBT groups began seeking official consultative status with the UN in 1993. Official consultative status is granted by the UN ECOSOC, after reviewing recommendations from its subsidiary body – the Committee on Non-Governmental Organizations (NGOs). This status enables groups to deliver oral and written statements, and attend and organise events, on UN premises.

At the time of writing, no African LGBT groups have UN ECOSOC accreditation. In 2006, Gays and Lesbians of Zimbabwe (GALZ) applied for status but ultimately did not pursue their application. Concerns about igniting African opposition within the ECOSOC were part of the decision to withdraw the GALZ application, especially as it was early days in a campaign encouraging LGBT NGOs to seek accreditation.

The NGO Committee, in particular, has been a fierce battleground for LGBT groups. It wasn’t until 2008 that an LGBT group achieved accreditation without deferral and initial rejection by the NGO Committee, often led by or at least with the support of the committee’s African members. Both the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) and OutRight Action International have been granted ECOSOC status and, although based in Europe and the United States, these accredited LGBT organisations both have regional offices in Africa.

The African framework

The legal systems of sub-Saharan African states only exceptionally provide for specific protection of sexual minorities. The South African Constitution of 1996, which guarantees non-discrimination on the basis of sexual orientation, has set the tone for far-reaching legal reforms in that country. More recently, Benin, Madagascar, Mauritius and Mozambique have also adopted laws providing explicit protection on the basis of sexual orientation. Besides any specific form of protection, sexual minorities remain entitled to all constitutional rights and are able to invoke the protection of the law. A majority of states still criminalise consensual same-sex activities between adults based on criminal codes inherited from colonial times.

The African Charter on Human and Peoples’ Rights (usually referred to as the African Charter)¹⁵ is the treaty responsible for promotion and protection of human rights and freedoms in Africa. It provides rights defenders with values that can be used to advance efforts to strengthen the HRC. Significantly, the African Charter was ratified by 53 of the 54 members of the African Union (AU) – South Sudan being the exception. This almost universal ratification by AU member states makes the Charter an important tool for the development of human rights values and protection mechanisms. In particular, it has provided a clear opportunity for NGOs and rights defenders working on minority rights to engage and organise.

Article 28 is the bedrock of the Charter’s commitment to respect for diversity. It states: ‘Every individual shall have the duty to respect and consider his fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance’.

It is important to be mindful that tradition and culture, and other social and value systems, have frequently been organised to restrict human rights, especially women’s sexual and reproductive health rights – in particular, female genital cutting and marital rape. In these circumstances, claims for cultural diversity often challenge the very idea of human rights by asserting the privilege of culture or national sovereignty over recognition of each person as human. We must therefore be willing to engage in critical discussions around cultural diversity without allowing such discussions to detract from our overarching commitment to universal human rights for all.

The African Union

The African Charter draws inspiration from international law on human rights, particularly from the provisions of African instruments on human and peoples’ rights, the UN Charter, the Organization of African Unity Charter, the Universal Declaration of Human Rights and other instruments adopted by UN and African countries. This is in addition to drawing from the provisions of instruments adopted within the UN’s specialised agencies of which the parties to the present Charter are members.

Under the AU’s political arm, the Strategic Plan 2009–12 gives the African Union Commission (AUC) a mandate

to achieve good governance, democracy, human rights, and rights-based approaches to development, including social, economic, cultural and environmental rights. In this regard, based on existing institutions and organs, the Commission will promote and facilitate the establishment of appropriate architecture for the promotion of good governance. (para. 97)

In 2011, the AUC was developing a human rights strategy for Africa, which aimed to provide a basis for the collective reflection on shared values – the third pillar of the AUC Strategic Plan 2009–12. It was seen as a progressive document with its focus on good governance, democracy, respect for human rights, accountability and transparency. However, the human rights strategy has remained a draft, and the AUC 2014–17 plan, adopted in June 2013 at the AU 50-year celebrations, deliberately seems to move away from the previous focus to ‘economic growth’. There is an intentional silence on human rights, and the current plan is focused on Agenda 2063,¹⁶ which channels the AUC’s energy into institutional strengthening/growth and human rights framed as ‘aspirations’ under the third pillar of this new agenda.

LGBT human rights advocates must understand this context and the need to engage the AU in this initiative of developing a strategy for Africa. An analysis of the construction of rights in the area of sexuality for African women demonstrates the value-laden nature of what pass as ‘rights’. Most of what is portrayed as ‘culture’ in contemporary Africa is largely a product of constructions and (re)interpretations of universally recognised principles.

The African Charter on Human and Peoples’ Rights

The African Charter differs from the regional human rights instruments that precede it (for example, its European and American counterparts) as it is highly inspired by African traditions and values (Mutua, 1992). African culture is normatively associated with women as both its custodian and conduit. Article 18.2 of the Charter maintains that ‘the State shall have the duty to assist the family which is the custodian of morals and traditional values recognised by the community’ (Organisation of African Unity, 1981).

These provisions, assisted by patriarchal morals and traditional values, have been used to justify and sanction repressive structures such as women’s oppression. When ‘rights’ and ‘culture’ are constructed as conflicting parallel systems, the points of contact between gender, rights and culture become extremely foggy. Culture should not be used to negate human rights for women, diverse African peoples, or on any grounds.

In Zimbabwe Human Rights NGO Forum v. Zimbabwe,¹⁷ the ACHPR observed:

Together with equality before the law and equal protection of the law, the principle of non-discrimination provided under Article 2 of the Charter provides the foundation for the enjoyment of all human rights . . . The aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation (2006, para. 169).

The African Women’s Protocol was adopted on 11 July 2003 in Maputo, Mozambique, and entered into force on 25 November 2005.¹⁸ The protocol provides a continental legal framework for addressing gender inequality and the underlying aspects of society’s arrangement that perpetuates women’s subordination and contributes to their marginalisation and their occupation of the lower strata in all spheres of life. It requires states to ‘eradicate elements in traditional and cultural beliefs, practices and stereotypes which legitimise and exacerbate the persistence and tolerance of violence against women’ (ACHPR, 2005, Article 4d).¹⁹

Recent developments at the African Union Summit and the African Commission

The AU Summit brings together the Union’s highest organs. It’s a meeting of heads of states and governments that is preceded by the executive council meeting with permanent AU representatives. The executive council implements AU decisions in conjunction with the permanent ministers who work closely with the AUC.

The AU’s 15th Assembly, held in Kampala in July 2010, reaffirmed its commitment ‘to the universal values and principles of Rule of Law, Democracy and Human Rights’, but in the same breath went on to negate that same principle by making a decision based on a resolution submitted by the Egyptian government, which

strongly rejects 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, taking into account that such attempts constitute an expression of disregard for the universality of human rights.²⁰

Suspiciously, this decision came very soon after the African Commission’s 47th session, which had deferred their decision on the application by the Coalition of Africa Lesbians (CAL) for observer status. The AU Summit’s decision was therefore instrumental at the ACHPR’s subsequent session, where CAL’s application was rejected.

The Coalition had applied for this status in 2008, and exactly four years after LGBT rights activists and groups started organising and advocating for rights at the AUC, was denied it at the 48th ordinary session in September 2010. Many of the concerns raised were related to ‘family and African values’, and the argument that same-sex sexual conduct contradicts what the African Charter has inspired. At the ACHPR session – responding on why the CAL application was rejected – the AUC said that ‘CAL objectives do not promote the rights enshrined under the African Charter’ (para. 33),²¹ a position that negates the very principles that all human rights are interdependent, interrelated and universal. In light of this decision, the outcome of the next AU summit on ‘shared values’ will be most telling. What are these ‘shared values’, and why separate people on the basis of their SOGI? The comments of one commissioner (in closing remarks during the 48th ordinary session) demonstrate the uphill battle for LGBT NGOs at the ACHPR (2014):

Their human rights activism around various human rights themes within the framework of the African Charter, taking into account positive aspects of African values and traditions has been highly impressive. The challenge for human rights activists and NGOs on these issues is to maintain the momentum of human rights activism in order to create, foster and nurture a culture of observance of human rights, a climate of legality and infusion of human rights and traditional African and moral values into their human rights advocacy.²²

The refusal of CAL’s application for observer status seemed to bolster the advocacy efforts of NGOs and human rights defenders working on the rights of LGBT persons who believed that the ACHPR was the ideal space to advocate for the equal protection and promotion of the human rights of LGBT persons in Africa. However, as the visibility and presence of LGBT NGOs and activists at each ACHPR session increased, a change in approach was in order. While the ACHPR remained engaged in the inclusion of reports on human rights violations (including murder, rape, sexual and physical assault), acts of persecution, imprisonment, displacement and discrimination aimed at individuals based on their actual or perceived SOGI were becoming increasingly common – thereby warranting more urgent attention.

The use of ACHPR mechanisms such as African peer review, through the submission of shadow reports, became a possible avenue for raising these immediate concerns. The availability of alternative reports highlighting human rights violations based on SOGI resulted in the ACHPR being able to issue concluding observations to countries under review to promote and protect the rights of LGBT persons equally without discrimination. For example, an alternative report on human rights violations (Heartland Alliance, 2014) submitted by a consortium of Liberian NGOs at the ACHPR’s 55th session in Luanda, Angola, prompted commissioners to question the Liberian government concerning their intention to introduce a new law and sanctions against same-sex conduct.

In addition to providing shadow reports, NGOs attending the sessions presented draft resolutions for adoption by the ACHPR. These usually asked the ACHPR to condemn all forms of violence and discrimination against persons because of their SOGI. The ACHPR regularly rejected the resolutions. The engagement at the ACHPR continued, and with each session more reports highlighting the violence, discrimination and persecution of people based on their SOGI were submitted.

The increased visibility and sustained engagement of human rights defenders at the sessions finally bore positive results in 2014 when, at its 55th session in Luanda, the ACHPR adopted 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.²³ The resolution is a significant success for all civil society organisations and activists working at the ACHPR sessions, as well as for all LGBT communities who are continuously subjected to violence, discrimination and persecution based on SOGI. It condemned, inter alia, ‘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’, and urged member states ‘to end all acts of violence and abuse, whether committed by state or non-state actors’ (para. 1).

This was a significant outcome coming from a human rights body whose members still maintain laws that criminalise same-sex conduct. Moreover, it demonstrates the ACHPR’s final acknowledgement that the reports of continuing violence and human rights violations against LGBT persons deserve attention, and that member states have a responsibility to protect LGBT persons equally.

Encouraged by the success of Resolution 275, CAL reapplied for observer status, and this was presented at the ACHPR’s 56th session, in April 2015. Observer status was finally granted, recognising CAL’s right to appear before the ACHPR and make statements on any of the issues within its mandate. This was a historic development, because being acknowledged by the regional human rights body means that violations against LGBT persons will remain on the ACHPR’s agenda and that LGBT organisations and activists can legitimately engage in this space.

National frameworks and judicial pronouncements: impact of litigation

Legal recognition of same-sex relations in the majority of African countries has remained a mirage, in part because sodomy laws, which were largely inherited from colonial laws, remain in the statute books. Such laws prevent LGBT persons from enjoying rights on an equal basis, despite the legal changes that have realised new constitutions²⁴ and laws. Where concerns are raised about the rights of persons on the ground of SOGI, there is resistance to and failure in applying laws equally and without discrimination.

National parliaments have also passed laws to further marginalise sexual minorities by failing to ensure the protection and respect of their fundamental rights. The executive branches of many of these governments have failed to promote and protect the rights of all in situations where state and non-state actors have perpetrated abuses and human rights violations. Public pronouncements by heads of state and presidents from the Africa region have not helped the pursuit of justice when they contain derogatory statements which do not promote the equal protection of all citizens, and when they condemn same-sex relations.²⁵ In these circumstances, only judicial authority has asserted the equality of rights to all and the need to promote constitutional morality.

The enforcement of rights through courts has now removed the debate on same-sex relations from parliaments, where elected leaders have stifled rights, and governments’ executive branches have failed to secure rights guaranteed under the constitutions. Courts are emerging as the sole authority where individual rights and group rights can be effectively enforced. This has not always been easy to do, although efforts so far have borne fruit. There is need to ensure that gains made in courts are not just realised on paper but can be enforced by the governments’ executive branches, and that parliaments can amend legislation that criminalises same-sex relations. Taking the lead from Ugandan Members of Parliament (MPs) who passed the anti-homosexuality law, Kenyan MPs formed a parliamentary caucus to agitate for a constitutional amendment of Article 45(2) of the Constitution on the right to family, and proposed in parliament that ‘homosexuality is threatening the family union, which is envisaged in Article 45(2) of the Constitution, which provides for the right to form families by persons of the opposite sex’ (Wafula, 2014).²⁶

A summary follows of cases that have successfully gone through court and affirmed the protection of all persons irrespective of their gender identity and association.

Kenya

In 2014, a local transgender organisation filed a petition at the High Court of Kenya for judicial review against the Kenya Non-Governmental Organisation Coordination Board (NGO Board) because the latter had refused to register the proposed organisation since applicants did not have the same names on their identity documents as in the application.²⁷ One of those affected was Audrey Mbugua, who identified as a transgender person, and had a different name on her identity card. The court held that the NGO Board’s consideration of the applicants’ gender was irrelevant and directed it to register the organisation. Riding on this success, the same Audrey Mbugua, a transgender activist, successfully had the gender marker removed from her academic certificates.²⁸

These were landmark decisions from the High Court of Kenya, based on constitutional protections that guarantee rights and freedoms to all citizens. In these two cases it had recognised the need to protect minority rights, as the violation of individual rights had a negative impact on constitutional rights guaranteed under the constitution.

Learning from the Botswana case (discussed later), a similar case was filed in Kenya.²⁹ Here, Eric Gitari tried to register an NGO, the National Gay and Lesbian Human Rights Commission, with the NGO Board, but his application was rejected. He sought protection of his rights to register his organisation as a ‘person’ protected in Article 36 of the Constitution who had a right to freedom of association. The NGO Board contested the petition on the grounds that allowing registration of the organisation would promote criminalised conduct of ‘homosexual intercourse’, contrary to the penal code. The court allowed registration holding: ‘We hereby declare that the words “Every person” in Article 36 of the Constitution includes all persons living within the republic of Kenya despite their sexual orientation’.³⁰

Uganda

In the case of Kasha Jacqueline, David Kato Kisule and Onziema Patience v. Rolling Stone Ltd and Giles Muhame, the High Court of Uganda held that ‘Section 145 of the Penal Code Act [does not] render every person who is gay a criminal under that section of the Penal Code Act. The scope of Section 145 is narrower than gayism generally. One has to commit an act prohibited under Section 145 in order to be regarded as a criminal’.³¹

However, the small gains the Kasha case made were not translated in a subsequent freedom of association case in 2012 that challenged the actions of the ethics and integrity minister when he broke up a workshop that had been organised to discuss LGBT issues.³² The High Court in Uganda held that the minister’s actions were justified, as holding such a workshop amounted to a criminal offence. In its view, discussing LGBT issues amounted to inciting the offence provided for under Section 145 of the Penal Code Act, which defines ‘unnatural offences’. An appeal against this decision is still pending.

Then on 1 August 2014 the Constitutional Court annulled the Anti-Homosexuality Act (AHA) on the grounds that it had been passed without following constitutional requirements for the Parliamentary Rules of Procedure on quorum. Unfortunately, the court did not go into the merits of the case (which challenged the constitutionality of the AHA) after making a finding on the technical issue of parliament’s non-compliance with procedures.

A further challenge to the enactment of the AHA, was filed before the East Africa Court of Justice (EACJ) by the Human Rights Awareness and Promotion Forum (HRAPF),³³ on the grounds that the act violated the principles that partner states are enjoined to follow under the Treaty for the Establishment of the East African Court of Justice.³⁴

As a subregional court, the EACJ has a limited mandate, but has interpreted its role in addressing democratic and matters of rule of law to include the protection of human rights, having interpreted the link between economic development, business and human rights. Citizens resident in East Africa are yet to exploit the full potential of this court.

Botswana

In December 1994, an adult male citizen of Botswana, Utjiwa Kanane, was charged with engaging in unnatural acts and indecent practices between males. A constitutional challenge against the penal code provision criminalising sexual conduct between male persons was launched in his defence on the basis that the law was not only discriminatory on the basis of gender, but that it violated Kanane’s fundamental rights and freedoms.³⁵

The High Court, in denying the application, held that the ‘provisions of the Botswana Constitution that protect rights to privacy, association, and freedom of expression could be curtailed by legislation enacted to support “public morality”’ (ibid.).

The applicant appealed this decision and the Court of Appeal rightfully found that the Botswana Constitution did not prevent people identifying as gay, lesbian or any other form of sexual orientation, nor did it stop them from associating with each other ‘within the confines of and subject to the law’ (ibid.). However, the court also stated that the time had not yet arrived to decriminalise homosexual practices between consenting adults in private. This decision purported to be in the public interest, which it said ‘must always be a factor in the court’s consideration of legislation’ (ibid.).³⁶

In 1998, the Botswana government had an opportunity to make things right by decriminalising same-sex sexual conduct when revising provisions for sexual offences in the penal code. However, political and religious forces intervened. Politicians in Botswana defended the laws in the belief that homosexuality represents the antithesis of the Botswana culture and also reflects Western influence. Religious leaders in the country are also opposed to same-sex sexual conduct. Leading the religious opposition is the Evangelical Fellowship of Botswana, a coalition of evangelical churches, which launched a ‘crusade’ against homosexuality, calling ‘all Christians and all morally upright persons within the four corners of Botswana to reject, resist, denounce, expose, demolish and totally frustrate any effort by whoever to infiltrate such foreign cultures of moral decay and shame into our respectable, blessed, and peaceful country’ (HRW and IGLHRC, 2003).

As a result of these political and religious influences, Botswana has not only retained the criminalisation of same-sex sexual acts between men but, in 1998, expanded its laws to criminalise sexual conduct between women.

Notwithstanding the criminal laws against same-sex conduct in Botswana, LGBT individuals and organisations have gained publicity and operated without interference from the government and the general community. This is largely attributable to Botswana society’s inherent belief in the principle of botho, also popularly known as ubuntu. Botho is a Setswana word referring to a popular cultural principle, ‘Motho ke motho ka batho’ which – loosely translated − means ‘I am because we are’. Its importance is emphasised by its inclusion as part of Botswana Vision (2016), a national development concept encapsulating the country’s aspirations, and serving as a guiding framework for national development programmes and policies. The document describes the concept thus:

Botho defines a process for earning respect by first giving it, and to gain empowerment by empowering others. It encourages people to applaud rather than resent those who succeed. It disapproves of anti-social, disgraceful, inhuman and criminal behaviour, and encourages social justice for all. It means above all things to base your thoughts, actions and expectations for human interaction on the principles of Love, Respect and Empathy.

This cultural practice of the botho principle has played a hand in shaping the discourse on the universality of human rights, especially those of LGBT persons. There are divergent views on decriminalising same-sex conduct, but the country is mostly agreed that nobody deserves to be discriminated against, subjected to violence, or have their basic rights violated. In 2010, the government of Botswana amended the Employment Act to include ‘sexual orientation’ as a ground for non-discrimination in employment. This directly acknowledged the vulnerability of LGBT people in terms of employment discrimination.

However, in spite of this relatively liberal attitude, Botswana’s Penal Code Sections 162–4, which criminalise same-sex conduct, remain intact. Like all other countries where that conduct is criminalised, the right to associate freely and form organisations that advocate for the human rights of LGBT people has been limited or denied. This has the effect of forcing such groups or organisations to work underground, where they are unable to freely and publicly advocate and represent their constituents’ rights. For example, Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo), an organisation representing the rights of LGBT people, has been repeatedly denied the right to register as an association by the Registrar of Societies, which claims it would not be in the public interest.

Opposition to decriminalisation has prompted other approaches generally, and government reluctance to challenge populist views that render other forms of sexuality as ‘un-African’ and against African tradition and values, as well as foreign notions introduced through Western influence. Judicial reluctance to order criminalisation of same-sex conduct as unconstitutional in the Kanane case, and the general politicisation of this issue, forced LeGaBiBo and other rights activists to consider other advocacy tactics.

Figure 10. Demonstration by Rainbow Identity Association and Lesbians, Gays and Bisexuals of Botswana, Gaborone, Botswana, 2013. Photo credit: Botho: LGBT Lives in Botswana, LeGaBiBo and Envisioning Global LGBT Human Rights.

The incremental approach diverts pressure from contentious decriminalisation, and directs focus to other legislation, policies and practices that discriminate on the basis of SOGI. LeGaBiBo adopted the incremental approach and chose not to further challenge penal code provisions criminalising same-sex conduct.

The Registrar of Societies’ rejection of LeGaBiBo’s registration presented a perfect opportunity to test the judiciary again. Strategic litigation proceeded on the basis of ‘violation of the freedom of association’, which is guaranteed by Section 13 of the Constitution of Botswana. The application said that by denying lesbians, gays and bisexuals the right to register their association, the government had denied them the ability to associate amongst themselves and/or with other persons wishing to associate with them.

The LeGaBiBo application was upheld in November 2014, when the court ruled that denial to register violated freedom of association. In distinguishing the issues of the LeGaBiBo application from the Kanane case, the court said of LeGaBiBo’s objectives that ‘carrying out political lobbying for equal rights and decriminalization of same sex relationships is not a crime. Lobbying for legislative reforms is not per se a crime. It is also not a crime to be a homosexual.’³⁷ This was a milestone for LeGaBiBo, an organisation that had existed for over two decades without legal recognition. The state appealed the judgment and, on 16 March 2016, a full bench of the Botswana Court of Appeal upheld the High Court’s decision and ordered the Botswana government to register the organisation as a society in terms of the Societies Act. LeGaBiBo was duly registered on 29 April 2016.³⁸

The above cases demonstrate that the law can be used to assert rights and, in the right environment before the courts, rights can be enforced and guaranteed for all. The incremental gains realised through litigation cannot be over-emphasised but the importance of broader civil society work in the process should not be overlooked. Much of the background work has been done by community members, rights awareness and policy change campaigns working towards the protection of LGBT people’s human rights; they have striven to guarantee and protect the rights to association, registration and enjoyment that already exist under the Constitutions of Botswana, Uganda, Kenya and South Africa.

Once moved by an aggrieved party, such as LGBT individuals seeking rights protection, the judiciary, unlike parliament, has the mandate to interpret and apply rights guaranteed under the constitution. The emerging jurisprudence and pronouncements from the judiciaries are affirmations that well-utilised litigation can realise major protections.

Not all judiciaries are progressive, as noted above; some remain conservative, with an approach to and application of legal technicalities, among other considerations, bordering on conservatism or political propaganda. Recourse to the use of legal procedures, so as not to address the substantive issues at hand is one way of using an ‘avoidance approach’, especially where political or ‘social mood’, ‘traditional values’ and ‘culture’ are used as a means to avoid addressing human rights abuses and violations against LGBT people.

Mozambique

Mozambique was a Portuguese colony; accordingly, it was spared the British colonial legacy of criminalising ‘carnal knowledge against the order of nature’. Instead the law was ambiguous, providing only for ‘practices against nature’, without defining what those practices were. This law could have been interpreted to include same-sex conduct, as in other Southern-African countries that inherited similar provisions from British colonialism, but the laws remained inactive and unenforced, including against LGBT individuals. However, the presence of this provision, even in its ambiguous state, and the overriding social and religiously driven intolerances against same-sex conduct, has meant that LGBT individuals and groups continued to experience discrimination and violation of their rights. Therefore, LGBT activists and rights defenders carried on advocating and lobbying the government to completely repeal these provisions and decriminalise homosexuality. The government responded swiftly by enacting a new Penal Code in December 2014 that did not reference same-sex conduct as an offence, directly or indirectly. This law came into effect on 30 June 2015, effectively decriminalising homosexuality or same-sex conduct in Mozambique.

This decriminalisation was expected, especially as Mozambique is one of few countries in Africa to tolerate same-sex conduct. In fact, it is one of the three countries, including South Africa and Botswana, that provides protection against discrimination based on sexual orientation. Botswana has prohibited employment discrimination on the basis of sexual orientation since 2010³⁹ and Mozambique since 2007.⁴⁰ Section 9 of the South Africa Constitution prohibits all forms of discrimination including on the basis of sexual orientation, in addition, the Employment Equity Act (Sections 5 and 6) also prohibits unfair discrimination on that basis.⁴¹

While promulgation of laws does not eradicate homophobia and social intolerances, it does indicate leadership that adheres to universal human rights and standards of equality for all. Mozambique is providing a good example to its African counterparts that states are responsible for protecting, respecting and fulfilling the human rights of all people equally, without discrimination.

Joachim Chissano, the former president, has spoken out to other African leaders about the continuing discrimination against LGBT persons, encouraging them to decriminalise same-sex conduct. He is one of the few political leaders in Africa to have provided leadership in the development of human rights protections for LGBT persons. In an open letter to African leaders, he wrote: ‘We can no longer afford to discriminate against people on the basis of age, sex, ethnicity, migrant status, sexual orientation and gender identity, or any other basis – we need to unleash the full potential of everyone’ (2014).

Conclusion

The challenge for LGBT human rights defenders in Africa is that human rights are inherently forward-looking and visionary. Tradition, on the other hand, is intrinsically rooted in the past and fixed. Obviously, not all forward-looking initiatives are positive for LGBT communities, and not all traditions are negative for LGBT communities. However, these realities create particular tensions for those who try to engage with both concepts at the same time. All members of marginalised groups know that states often seek to justify human rights violations on the basis that it has ‘always been this way’. These so-called ‘traditional values’ are frequently invoked to justify maintaining the status quo, whereas a human rights-based approach often requires changes in order to ensure compliance with regional and international standards.

Although it is important to challenge assumptions that tradition and culture make only a positive contribution to society, it is also crucial to confront the traditions and culture that are presented on behalf of African societies, where sexuality and gender diversity were, and are, celebrated. Research on African same-sex sexualities and gender identities also needs to demonstrate that many practices claiming to be traditional are in fact of recent origin, and that all African cultures contain diverse or contradictory traditions. Most importantly, it must be emphasised that many traditional values are inconsistent with international human rights.

The appropriate standard in this area was articulated by Navi Pillay from South Africa, the former UN High Commissioner for Human Rights:

If we are all entitled to the full range of human rights and to equal protection of the law then, I believe, it can never be acceptable to deprive certain individuals of their rights, indeed to impose criminal sanctions on those individuals, not because they have inflicted harm on others or pose a threat to the well-being of others, but simply for being who they are, for being born with a particular sexual orientation or gender identity. To do so is deliberately to exclude a whole lot of people from the protection of international human rights law. It is, in short, an affront to the very principles of human rights and non-discrimination. (UN News Centre, 2010)

Africa, of course, is not the only world region rooted in strong traditional values that might pose challenges to the advancement of human rights for LGBT persons. It is important that other regions, especially those in the Global South, who have overcome some of the challenges, demonstrate strong leadership and guidance. A recent example of such leadership was the convening of a joint dialogue of the ACHPR, the Inter-American Commission on Human Rights, and the UN in November 2015. The report noted that:

Key principles relating to the pre-eminence of human rights norms and principles in the interpretation and application of cultural and traditional values were highlighted as relevant in the context of sexual orientation and gender identity . . . [M]oreover, many traditional, cultural and religious values, including in Africa and the Americas, are based on the same principles that underpin human rights, including love, respect for others and for their human dignity. (Centre for Human Rights, University of Pretoria, 2016)

This was not only a South-South dialogue, but also involved UN infrastructure such as the Office of the UN High Commissioner for Human Rights (OHCHR). The increase in leadership that has emerged from UN agencies is partly due to the growing support displayed within UN political arenas. ARC International, which tracks UN voting and support for statements on SOGI, documented a steady increase in support for LGBT issues within the UN, despite setbacks and backlash. Although the African region remains largely opposed to the advancement of human rights based on SOGI, no longer is there an African group that can truthfully purport to represent the entire region on these issues. This is an incredible opportunity, but building upon these small, but historic victories, will require a concerted and ongoing advocacy effort.

Having LGBT African voices speaking at the UN during side events and panels has helped to dispel the arguments that being LGBT is culturally ‘un-African’. LGBT Africans have delivered powerful speeches at high-level UN events in Geneva and New York which, combined with the presence of African LGBT human rights defenders in UN spaces, have had great impact. Indeed, the comments of former Secretary-General Ban Ki-Moon (2010) illustrate this point:

Yesterday evening, I spoke to a Human Rights Day event at the Ford Foundation. It was called ‘Speak Up’, a conversation with human rights defenders. One of my fellow speakers was a young activist from Uganda. Frank Mugisha has been working with a variety of civil society groups to stop legislation that institutionalizes discrimination against gay and lesbian people. With extraordinary eloquence, he appealed to us, the United Nations, for help. He asked us to rally support for the decriminalization of homosexuality everywhere in the world. And that is what we will do. We have been called upon, and we will answer.

The decision to accredit CAL at the African Commission allows LGBT African civil society to fully engage in regional processes. Along with having African LGBT voices speaking and participating in regional and international spaces, it is equally important to support LGBT organisations, groups and individuals in writing shadow reports to help maintain state accountability and ensure that recommendations made by the UN and regional bodies are implemented at the national level. Engaging in documentation and reporting is a crucial component of the functioning of the UN and African regional mechanisms, and its importance cannot be underestimated for advancing a human rights agenda that includes LGBT persons.

Exposing injustices through the courts has brought hope to parts of Africa, especially in stemming state-sponsored homophobia. Through litigation the AHA in Uganda was defeated and declared unconstitutional in 2014. However, NGOs must be careful not to take litigation as an end in itself but rather ensure it is made part of the campaign to generate more visibility and broader systemic change.

Finally, the authors of this chapter believe strongly that respecting the universality of human rights and respect for diversity are not mutually exclusive concepts. In fact, they are mutually reinforcing. A group of UN experts expressed this concept eloquently in their statement for the World Day on Cultural Diversity for Dialogue and Development:

Cultural diversity, however, can only thrive in an environment that safeguards fundamental freedoms and human rights, which are universal, indivisible, interconnected and interdependent. No one may invoke cultural diversity as an excuse to infringe on human rights guaranteed by international law or limit their scope, nor should cultural diversity be taken to support segregation and harmful traditional practices which, in the name of culture, seek to sanctify differences that run counter to the universality, indivisibility and interdependence of human rights. (OHCHR, 2010)

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Documentary film

And Still We Rise (2015) dir. R. Lusimbo and N. Nicol (Uganda and Canada: Sexual Minorities Uganda and Envisioning Global LGBT Human Rights), available at: https://vimeo.com/178217397.

______________

1 Interviewed on 20 Nov. 2014 by Richard Lusimbo, SMUG and Envisioning. An excerpt is included in the documentary And Still We Rise (2015).

2 UNGA, 1993, Vienna Declaration and Programme of Action, A/CONF.157/23, World Conference on Human Rights, 12 Jul., available at: www.refworld.org/docid/3ae6b39ec.html (accessed 12 Dec. 2017). The Vienna Declaration and Programme of Action (VDPA) states: ‘All human rights are universal, indivisible and interdependent and interrelated . . . While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’ (para. 5).

3 UNHRC Resolution 10/23, independent expert in the field of cultural rights, A_HRC_RES_10_23’ 43rd meeting’, 26 Mar. 2009, available at: http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_10_23.pdf (accessed 12 Dec. 2017). It affirms: ‘No one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope’ (para. 4).

4 The VDPA also calls upon states to work towards the elimination of ‘the harmful effects of certain traditional or customary practices, cultural prejudices and religious extremism’ (para. 38).

5 UNHRC, Resolution adopted by the General Assembly [without reference to a Main Committee (A/60/L.48)] 60/251 Human Rights Council, 3 Apr. 2006, available at: www.refworld.org/docid/4537814814.html (accessed 12 Dec. 2017).

6 UNHRC, ‘Human rights, sexual orientation and gender identity’, HRC 17th session, 17 Jun. 2011, available at: www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTUNResolutions.aspx (accessed 24 May 2018).

7 To read about the journey and development of this resolution, please consult ARC International, 17th session of the HRC, available at: http://arc-international.net/global-advocacy/human-rights-council/hrc17/ (accessed 11 Dec. 2017).

8 UNHRC ‘Human rights, sexual orientation and gender identity’, HRC 27th session, 26 Sept. 2014, available at: http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTUNResolutions.aspx (accessed 24 May 2018).

9 HRC, Resolution 32/2, Protection Against Violence and Discrimination based on Sexual Orientation and Gender Identity, 32nd session, Agenda item 3, adopted 30 Jun. 2016, see www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTUNResolutions.aspx (accessed 24 May 2018).

10 ACHPR, Resolution 275: 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, 55th ordinary session in Luanda, Angola, 28 Apr.–12 May 2014, available at: www.achpr.org/sessions/55th/resolutions/275 (accessed 24 Jul. 2017).

11 UNHRC, ‘Protection of the family’, HRC 26th session, 25 Jun. 2014, available at: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/26/L.20/Rev.1 (accessed 24 May 2018).

12 The resolution was widely viewed by a number of states and NGOs as an initiative to preemptively respond to a potential follow-up SOGI resolution in either the June or September Council session. States like the United Kingdom, member states of the European Union, Chile, Argentina and others voted against the resolution, indicating that the HRC did not recognise diverse family forms or address violations that occur within family units, and therefore failed to uphold human rights principles. Shockingly, Russia called a ‘no-action motion’ in relation to an amendment to insert this type of language, a tool that had been used only twice before in the HRC, and which censors any possible discussion of the issue whatsoever.

13 UNHRC, ‘Protection of the family: role of the family in supporting the protection and promotion of human rights of older persons’, HRC, 35th session, 19 Jun. 2017, available at: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/L.21 (accessed 24 May 2018).

14 Resolution adopted by the General Assembly [on the report of the Third Committee (A/57/566/Add.2 and Corr.1-3)] 57/214. Extrajudicial, summary or arbitrary executions, 25 Feb. 2003, available at: www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/57/214 (accessed 14 Sep. 2017).

15 ACHPR (1981) African Charter on Human and Peoples’ Rights. Adopted 27 Jun. 1981 OAU Doc. CAB/LEG/67/3rev.5211.LM.58 (1982), entered into force 21 Oct. 1986, available at: www.achpr.org/instruments/achpr (accessed 25 Jul. 2017).

16 For more information on Agenda 2063 see African Agenda 2063: African Union documents, available at: www.au.int/en/agenda2063/about (accessed 11 Dec. 2017).

17 ACHPR, Zimbabwe Human Rights NGO Forum v. Zimbabwe, ACHPR39_245, 2 May 2006, available at: www.achpr.org/communications/decision/245.02/ (accessed 25 Jul. 2017).

18 ACHPR, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), 25 Nov. 2005, available at: www.achpr.org/files/instruments/women-protocol/achpr_instr_proto_women_eng.pdf (accessed 25 Jul. 2017).

19 Decision on the ACHPR’s 38th Activity Report, DOC.EX.CL/Dec 887 (XXVII), 25 Nov., Banjul, the Gambia.

20 Decision on the promotion of cooperation, dialogue and respect for diversity in the field of human rights. Doc.Assembly/AU/17(XV) Add.9. Egypt had submitted an agenda item for the Assembly on ‘Promotion of cooperation, dialogue and respect for diversity in the field of human rights’.

21 28th Activity Report of the ACHPR, para. 33, available at: www.achpr.org/files/activity-reports/28/ (accessed 24 May 2018).

22 Statement by Vice-Chairperson Commissioner Malila, 48th ordinary session, Jan. 2014 (Banjul, the Gambia).

23 ACHPR, Resolution 275: 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, 55th ordinary session in Luanda, Angola, 28 Apr.–12 May 2014, available at: www.achpr.org/sessions/55th/resolutions/275 (accessed 24 Jul. 2017).

24 Such as Uganda’s 2006 Constitution, Kenya’s 2010 Constitution, and Zimbabwe’s 2013 Constitution.

25 On 25 Jul. 2015, a statement from a press conference held by US President Barack Obama and Uhuru Kenyatta, the president of Kenya, said: ‘Gay rights is a non-issue in Kenya’ (Essa, 2015). On 24 February 2014, president Museveni of Uganda signed the Anti-Homosexuality Bill into law and on 4 July, referring to countries that had frozen foreign aid to Uganda after the bill had been passed, he stated: ‘It is “unreligious” and “sinful” for other countries to provide aid on the condition that his people are given the freedom to express their sexuality’ (Molloy, 2014).

26 See also: Government statements before the UN Human Rights Committee-Replies from the Government of Kenya to the list of issues (CCPR/C/KEN/Q/3) to be taken up in connection with the consideration of its third periodic report before the HRC (CCPR/C/KEN/3), UN Human Rights Committee, CCPR/C/KEN/Q/3/Add.1, 30 May 2012, para. 116, p. 20.

27 Republic v. Non-Governmental Organization Co-ordination Board and another ex-parte Transgender Education and Advocacy and three others (2014] eKLR. JR misc. appln. 308A of 2013, available at: http://kenyalaw.org/caselaw/cases/view/100341/ (accessed 31 Jul. 2017).

28 Republic v. Kenya National Examinations Council and another ex-parte Audrey Mbugua Ithibu, available at: http://kenyalaw.org/caselaw/cases/view/101979/ (accessed 1 Nov. 2017).

29 Eric Gitari v. Non-Governmental Organisations Co-ordination Board and four others [2015] eKLR. Petition 440 of 2013, available at: http://kenyalaw.org/caselaw/cases/view/108412/ (accessed 31 Jul. 2017).

30 Ibid. para. 29.1.

31 Kasha Jacqueline, David Kato Kisule and Onziema Patience v. Rolling Stone Ltd and Giles Muhame, 2010, p. 9. Miscellaneous Cause no. 163 of 2010, available at: https://www.icj.org/wp-content/uploads/2012/07/Kasha-Jacqueline-David-Kato-Kisule-and-Onziema-Patience-v.-Rolling-Stone-Ltd-and-Giles-Muhame-High-Court-of-Uganda-at-Kampala.pdf (accessed 1 Aug. 2017).

32 Jacqueline Kasha Nabagesera, Frank Mugisha, Julian Pepe Onziema, Geofrey Ogwaro v. attorney general and Rev. Fr. Simon Lokodo, available at: https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2015/06/Judgment.pdf (accessed 24 Oct. 2017).

33 HRAPF v. attorney general of Uganda. In the EACJ at Arusha First Instance Division, ref. no. 6 of 2014, available at: http://eacj.org/wp-content/uploads/2016/09/Ref.-No.6-of-2014.pdf (accessed 1 Aug. 2017).

34 The Treaty for the Establishment of the East African Community (EAC) in arts. 6(d), 7(2) and 8(1)(c) enjoins partner states [Kenya, Uganda, Tanzania, Rwanda and Burundi] to govern their populace according to the principles of good governance, democracy, the rule of law, social justice, and the maintenance of universally accepted standards of human rights, which include, inter alia, provision of equal opportunities and gender equality as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights. The Treaty for the Establishment of the EAC, 1999, available at: www.jus.uio.no/english/services/library/treaties/09/9-05/east_africa_economic.xml#treaty-header1-6 (accessed 1 Aug. 2017).

35 Kanane v. state 1995 BLR 94.

36 For further information, see also Tabengwa and Nicol (2013).

37 Thuto Rammoge and others v. attorney general of Botswana, MAHGB-000 175-13.

38 Attorney general of Botswana v. Thuto Rammoge and others, Court of Appeal Civil Appeal no. CACGB-128-14, available at: www.humandignitytrust.org/pages/LIBRARY?searchTags=The%20Attorney%20General%20of%20Botswana%20and%20Thuto%20Rammoge%20&%2019%20others (accessed 24 May 2018).

39 Botswana Employment Amendment, 2010.

40 Mozambique Labour Law, 2007.

41 The Constitution of the Republic of South Africa, 1996.