Summary
Many lesbian, gay, bisexual, and transgender (LGBT) people in Africa lead lives of fear, paralyzed by stigma. When singled out for harassment, violence, or other abuse—still an everyday occurrence for many—they also fear going to the authorities for assistance, and often for good reason: they have long experienced harassment and sadistic treatment by police and dismissive attitudes among judges and prosecutors. Despite token reforms in states like South Africa, new cases of such mistreatment continue to emerge.

While the predicament faced by LGBT people in Africa is similar to that faced by the gay community in many other countries, stringent norms for “masculinity” and “femininity” are particularly ingrained in both African society and the state itself. The endurance of such norms perpetuates inequality and promote violence in many cases. In the national landscape of inequality, those professing to be part of the LGBT movement have particular vulnerabilities, and have specific difficulties in finding protection from the state. Women who are attracted to other women, for example, and who violate rigid gender roles defining what a “woman” should be, transgress against the “father’s way”: deeply ingrained cultural and social definitions of womanhood. Lesbians, transgender men, and women who have sex with other women are frequently subjected to violence, rape, psychological abuse, and confinement and stigmatization. Abuses may happen on the street or in the home, at the hands of strangers or family members. Survivors find little practical hope of government protection, because of social prejudice and silence.

The protection of the rights of sexual minorities in many countries in Africa is a controversial issue. It is not unusual to find newspaper reports on gross violations suffered by this minority group. Gays and lesbians are victims of violence, sometimes resulting in death. Sexual minorities in Africa are often confronted with government actions such as those of the Nigerian Government that recently submitted to the Parliament a Bill to make provisions for the prohibition of relationships between persons of the same sex, celebration of marriage, registration of gay clubs and societies and publicity of same-sex sexual relationships. On the other hand, on the same continent, the South African Constitutional Court recently held that the denial of legal recognition for same-sex marriages was unconstitutional. The violence stems from prejudice, and so does the state’s inaction. The African Commission on Human and Peoples’ Rights (the African Commission or Commission), Africa’s premier human rights organisation, is equally divided. It is no secret that in the past some members of the African Commission would not entertain discussions of the issue. With the composition of the Commission changing within the last few year’s, attitudes seem to have changed. The need for addressing prejudice is urgent.

Statement of the Problem and Rationale for the Paper
It is no secret that gays, lesbians, bisexuals and transgenders in Africa suffer serious discrimination, gender-based violence and abuse. It is a fact that homophobic violence, a grave problem for many gays, lesbians and transgender men and women in Africa, goes underreported or even unreported because of both a culture of silence and the failure of officials and society to acknowledge its existence and gravity. And this extends beyond specific issues of sexual orientation and gender identity. It is also the case that lesbian, gay, bisexual, and transgender people still live under the shadow of criminal penalties for homosexual conduct, as they do not trust the police and the criminal justice system. Such violence has followed visibility. Lesbian, gay, bisexual, and transgender people’s greater exposure has led to greater danger not only for themselves but for many ordinary people who may sympathise with them.

No protection for sexual minorities has yet been explicitly accorded by the African Charter. Neither has there been a decision by the African Commission pertaining to sexual minorities. In other words, the jurisprudence of the African Commission is silent on the issue. It is ironic that such deafening silence exists in the midst of gross violation of human rights, perpetuated especially on the domestic level, on the basis of sexual orientation. The picture should not be unremittingly bleak. Understanding the difficulties facing these groups entails understanding the disturbing situation of violence based on one’s sexual orientation.

This paper attempts to deal with an issue the African Commission has been refusing to address. Homophobic violation, discrimination based on one’s sexual orientation and gender are human rights issues – which the African Charter and the African Commission must address. By integrating the legal and moral issues associated with gay rights, this introductory section sets the subsequent discussion in an understandable social and ethical context, prior to re-posing and refining them. It sets the conceptual framework, discusses the scope of the existing literature, clarifies key concepts and identifies the major issues that run throughout the paper. In this way, there is an attempt to connect the role of the African Commission to the literature of the discipline in which the concept of rights is embedded. This paper will attempt to address this issue and provide some legal avenues in which the African Commission can approach the problem, by analysis of analogue practices and legal provisions that already exist in the African Charter and other international and regional law regimes on human rights.

Legal Status of Homosexuality in Africa
In Africa, homosexuality is illegal for gay men in 29 countries and for lesbian women in 20 countries. The legal status in many ways mirrors the widespread homophobia on the continent, documented so clearly by statements made by, for example some of Africa’s State Managers. South Africa stands apart when it comes to the legal status of gays and lesbians in Africa, and stands in comparison with Western European countries. Not only is homosexuality legal and visible, but there exists a national legislation which bans discrimination on the basis of sexual orientation. Gay and lesbian office bearers are not unheard of. Annual gay pride parades are arranged, with substantial participation. In Zimbabwe, President Mugabe has claimed that homosexuality is not an African phenomenon but rather a Western decadency. Homosexuality is illegal in Zimbabwe, and some individuals have been prosecuted and convicted for their sexual orientation. In Namibia, the legal situation is even more confusing. In April 1999, Namibia’s Deputy Home Affairs Minister, Jeremiah Nambinga, sought to criminalize gay sex because he believed it is evil. In Uganda, homosexuality is illegal and persecuted.

In February 2009, the Burundian Senate voted overwhelmingly to reject a November 2008 decision by the National Assembly to criminalize same-sex relations. In Nigeria a proposed legislation called the “Same Gender Marriage (Prohibition) Bill”, the successor to failed legislation proposed by the then minister of justice in 2006, which would have punished with imprisonment not only “the registration of gay clubs, societies and organizations, sustenance, procession or meetings,” but any “public show of same sex amorous relationship directly or indirectly in public and in private.” That bill was widely condemned by human rights organizations within and outside Nigeria, and never came to a final vote in the National Assembly. The present bill appears to have a more limited purpose, but in fact perpetuates the same potential for serious human rights abuses. The Nigerian Government, like President Robert Mugabe argued that those kind of relations are unnatural and un-African. In Ghana, Botswana, The Gambia, Kenya, Lesotho, Malawi, Mauritius, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania and Zambia all have laws criminalising same sex marriage or relationships.

In most of Sub-Saharan Africa, homosexuality is still not a matter of public discussion, and the legal status of homosexuality does not state much about the status of homosexuals. In Mediterranean Africa, on the other hand, there are outspoken policies towards homosexuality, mostly founded in the Shari’a law. Homosexuality thus is forbidden in most north African countries, as it is in most Middle East countries.

It is thus not difficult to find a reason why a paper like this should be in front of the African Commission. This study intends to highlight the factors that have brought the continent to this point and give an analysis of the challenges and prospects faced in the protection of the rights of sexual minorities.

Review of the Relevant Literature
The subject of sexual minorities has evoked a considerable amount of comment in academic literature. A number of books and articles have been written on the subject. In spite of this, it is not easy to find extensive literature that addresses the precise issues raised by this paper. Specifically, there is little that addresses sexual minorities in the African context, especially as the Commission has shied away from addressing it. Donnelly (2003) focuses largely on the issue of discrimination sexual minorities’ face in international law. Eric Heinzein (1995), like Donnelly, while discussing discrimination based on sexual orientation approaches this subject from an international law perspective. Daniel Ottosson’s (2004) article ‘State-Sponsored Homophobia: A World Survey of Laws Prohibiting Same-Sex Activity Between Consenting’ also looks at the issue from the point of international law. James Mastshekga’s (2003) article is a discussion about the problem of protecting gay rights and an attempt to provide some guidelines on how the African Charter should respond to the protection and promotion of rights to equality and non-discrimination in the case of sexual minorities. Cameron (1993) in ‘Sexual Orientation and the Constitution: a Test case for Human Rights’ is more country specific, though with occasional reference to the African Charter.

A number of other articles on the subject have focused preponderantly on the issue of discrimination within the context of American and European constitutions, but also in the context of the South African Constitution which has banned discrimination on grounds of sexual orientiation. The work of Scott Long (2003), ‘Before the Law: Criminalizing Sexual Conduct in Colonial and Post-Colonial Southern African Societies’, is an ambitious yet intimate analysis of sexual minorities in southern Africa. All these works do not however address the specific issues of denial of recognition of the rights of sexual minorities under the African human rights system, which is the subject of consideration in this paper. Wintemute’s (1995) work is of that mould even though it is a case study of sexual minorities’ rights within the US Constitution, the European Convention on the Protection of Human Rights and Fundamental Freedoms and the Canada Charter.

Brief Origins of Sodomy Laws
More than 80 countries around the world criminalize consensual homosexual conduct between adult men, and often between adult women. These laws invade privacy and create inequality. They relegate people to an inferior status because of how they look or who they love. They degrade people’s dignity by declaring their most intimate feelings “unnatural” or illegal. They can be used to discredit enemies and destroy careers and lives. They promote violence and give it impunity. They hand police and others the power to arrest, blackmail, and abuse. They drive people underground to live in invisibility and fear. More than half those countries have these laws because they were once British colonies.

Colonial legislators and jurists introduced such laws, with no debates or “cultural consultations,” to support colonial control. Until 1861 homosexuality was an offence punishable by death in England. In fact, the possibility of imprisonment for homosexual acts was not lifted until as recently as 1967. The British first introduced punitive laws in India, under Section 377 of the Indian Penal Code. That provision, almost 150 years old, punishes “carnal intercourse against the order of nature with any man, woman or animal” with imprisonment up to life. The law, understood to criminalize consensual homosexual conduct, allows the state to invade the lives and intimacies of millions of adult Indians. They believed laws could inculcate European morality in resistant masses. They brought in the legislation, in fact, because they thought “native” cultures did not punish “perverse” sex enough. The colonized needed compulsory re-education in sexual mores. Imperial rulers held that, as long as they sweltered through the promiscuous proximities of settler societies, “native” viciousness and “white” virtue had to be segregated: the latter praised and protected, the former policed and kept subjected.

Section 377 was, and is, a model law in more ways than one. It was a colonial attempt to set standards of behaviour, both to reform the colonized and to protect the colonizers against moral lapses. It was also the first colonial “sodomy law” integrated into a penal code—and it became a model anti-sodomy law for countries far beyond India, Malaysia, and Uganda. Its influence stretched across Asia, the Pacific Islands, and Africa, almost everywhere the British imperial flag flew.

Methodology and Objectives
Researching a topic as politically and legally controversial as gay rights in Africa raises serious methodological problems, not least the fact that those in authority who may be influential in bringing about changes are not willing to engage the subject. There is also no protection for gays and lesbians unambiguously accorded by the African Charter, nor has there been a decision by the African Commission pertaining to gays and lesbians. In other words, the jurisprudence of the African system of human rights is completely silent on that issue.

The objective of this paper, therefore, is to suggest possible legal protection and recognition of gays and lesbians under the African human rights system.

Affording Protection to LGBT under the African Charter
As far as legal protection and the exercise of human rights are concerned, apart from South Africa, gays and lesbians in Africa have not been privileged with any recognition. This, as has been discussed supra, is supported by the fact that constitutions and laws of almost all African states do not provide protection to members of this group. Cameron (1993) argues that one explanation for this is found in the theory of normative heterosexual paradigm. Sexual minorities are often viewed by many communities in Africa as deviant in that their sexual orientation differs from the norm. This attracts prejudice and opprobrium in a way that is similar to the way in which race and gender characteristics were (in official policy and public discourse) treated in the past.

But, the idea of human rights rests on the assumption that all human beings have certain basic rights simply because they are human. The Universal Declaration of Human Rights states that ‘all human beings are born free and equal in dignity and rights’ and recognises equal treatment for everyone. The African Charter on Human and Peoples’ Rights states in its preamble that freedom, equality, justices and dignity are essential objectives for the achievement of the legitimate aspiration of the African people. Does this not imply that sexual minorities by virtue of their status as human beings are entitled to the same enjoyment?

Luis Edgar Francisco Huamusse (2005) argues that the primary duty created by the African Charter is the obligation placed on the Member States to recognize and give effect to the rights in the Charter, and this broad obligation is considered to have four components, namely, to respect, to protect, to promote and to fulfil the rights recognized in the Charter. The Charter does not explicitly make reference to the duty of Member States to recognize and give effect to the rights of sexual minorities and like most other international human rights treaties it is in fact silent on the issue of sexual orientation. The Charter makes explicit reference to equality in no less than five different provisions.

The wording of Article 2 of the African Charter provides that: “Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion …” Huamusse (2005) argues that this provision mirrors the content of Article 2 of the ICCPR and, as a result, the interpretation given to that Article by the Human Rights Committee in Toonen v Australia, dealing with same-sex relationships should carry substantive weight when the African Commission has to interpret the African Charter’s version of Article 2. In addition the HRC held that the reference to “sex” in Article 26 is to be taken as including sexual orientation.

If the African Commission interprets Article 2 of the African Charter’ in light of international human rights jurisprudence as required by Articles 60 and 61 of the Charter, it is submitted that the African Commission is likely to follow the approach, if not explicitly, then implicitly, that all rights in the Charter may be limited if the limitation is justifiable in terms of international practice. In interpreting the African Charter, the Commission is required under Articles 60 and 61 to consider international human rights instruments. This is because all rights in the Charter may be limited if the limitation is justifiable in terms of international practice. Article 2 of the African Charter suggests that it is applicable to sexual minorities since it guarantees for “every individual the right to enjoy the rights and freedoms recognised in the Charter ‘without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political…other status”. Although sexual orientation is not enumerated in the list of prohibited grounds of non-discrimination, that should not inhibit the application of the article to sexual minorities.

It can be argued, as Murray and Viljoen (2007) do, that ‘sex’ as the factor already explicitly provided for by Article 2 should be understood to include ‘sexual orientation’. This interpretation, Murray and Viljoen (2007) say, is supported by the fact that there is no record of any rejection of inclusion of sexual orientation as a grounds for non-discrimination during the drafting process of the African Charter. The HRC in Toonen v Australia also clarifies that the meaning of ‘sex’ in the listed grounds of non-discrimination under the Article 2 of the ICCPR includes sexual orientation.

Regarding the scope of Article 2, Christoff Heyns (2002) argues that the grounds on which discrimination is prohibited in Article 2 of the African Charter and is not exhaustive. He further argues that “discrimination of any kind is prohibited, and the listed grounds only serve merely as examples of the kinds of discriminations that are envisaged.” The open-ended nature of the list is reinforced by the words ‘other status’ at the end of the article. The following grounds are, for example, not explicitly listed: gender, age, disability and sexual orientation. Murray and Viljoen (2007) also support this argument and suggest that there is no limit to the amount of categories that might be added to the existing list. They also argue that this means that ‘sexual orientation’ should be included as grounds on which ‘distinction’ could not be tolerated.

Huamusse (2005) argues that the text of Article 2 of the African Charter suggests two avenues that can be used in regard to protection against non-discrimination of sexual minorities, namely ‘other status’ and ‘sex’. Sexual orientation is a prima facie case of ‘other status’ by which individuals are singled out for odious discrimination. With the inclusion of sexual orientation under the general rubric of ‘other status’, the idea is to emphasise that the grounds enumerated in the article are illustrative and not exhaustive. He argues that in line with the Toonen decision, a radical strategy of interpretative incorporation can also be taken by reading “sex” in Article 2 to include sexual orientation. This reading, he said, is reasonable because the African Charter does not provide a closed list of all the grounds of discrimination. Huamusse (2005) further argues that it would be impossible to expect the framers of the African Charter to include all grounds of discrimination. To this end, the framers of the African Charter decided to add ‘other status’ which, in my view, encompasses the rights of sexual minorities. It should be stressed that discrimination on the grounds of sexual orientation and denial to the right of equal benefits of the law is prohibited by Articles 2 and 3 of the African Charter. Article 2 read with Article 3 are in line with articles 60 and 61 of the Charter. The thrust of these provisions is to prohibit discrimination on the grounds of sexual orientation or any other kind of discrimination. It should further be noted that discrimination is not sanctioned by the international jurisprudence of human rights law and the far-reaching General Comment of the Committee on Economic, Social and Cultural Rights, which considers that Article 2 (2) of the Covenant that provides grounds of non-discrimination including sexual orientation.

In Rencontre Africaine pour la Defense des Droits de l’Homme v Zambia, a case brought before the Commission by a Senegalese NGO on behalf of 517 West Africans who were expelled from Zambia on grounds of being in the country illegally, the Commission held that Article 2 imposes an obligation on the contracting states to secure the rights protected in the Charter to all persons within their jurisdiction (emphasis provided). In Union Interafricaine des Droits de l’Homme et al v Angola the Commission emphasised that Article 2 requires states to ensure that persons living within their territories enjoy the rights guaranteed in the Charter. According to James Matshekga the two decisions indicate that the Commissioners’ understanding of the meaning and content of Article 2 is that firstly the article applies to all human beings. Secondly, the right to equality and non-discrimination is an autonomous but dependent right that can only be violated in conjunction with another article in the Charter. Lastly, Article 2 is confined to the enjoyment of the rights guaranteed in the Charter. In essence, this means that the Commission interprets Article 2 of the African Charter similar to Article 14 of the European Convention on Human Rights.

Another line of argument pursued by Huamusse is that the protection of sexual minorities in the United Nations and the European system of human rights dealing with challenges to ‘sodomy’ laws was granted on the basis of a broad understanding of the right to privacy. The ICCPR and European Convention provides for such rights. The African Charter does not contain an explicit right protecting the right to privacy and does not make any reference to the issue of sexual orientation. According to Murray and Viljoen, in their expansive interpretation of the rights in the African Charter, it is possible to argue that the African Charter ‘implies’ the right to privacy. Such an argument may be defended with reference to the approach that the African Commission adopted in the SERAC case, which found that existing Charter provisions ‘implied’ the existence of the right to food and shelter. It may, in a similar vein, be contended that the right to privacy flows from the cumulative effect of the right to respect to life and integrity of the person, the right to respect of the dignity inherent in a human being and to the freedom and security of a person. This could be based on the fact that persons regard their sexual and emotional attraction to a person of the same sex as integral to their sexual identity or personality, and from this would follow that an encroachment of that aspect of their person would constitute a violation to their integrity as persons and to their ‘inherent human dignity’. Respect for integrity and dignity requires that state parties to the African Charter stop interfering with the most intimate domain of sexual attraction, thus implying the right to privacy.

It can be argued that the general right to equality and non-discrimination provided for in Article 2 and supplemented by Article 3 of the African Charter provides a guarantee for sexual minorities of both equality before the law and equal protection of the law, by providing that “every individual shall be equal before the law and shall be entitled to equal protection of the law”. Article 3 ensures that when distinguishing between people or groups of people the law does not have regard to any status, such as, for example: race, religion, or the sexual orientation of the parties unless there are relevant considerations such as collective security, morality and common interests. Article 27(2) of the African Charter plays the role of a general limitation clause in respect of all rights, and some of the provisions in the Charter contain internal limitations. Under the heading ‘Duties’, Article 27(2) provides:

The rights and freedom of each individual shall be exercised with due regards to the rights of others, collective security, morality and common interest.

When dealing with the limitation clause, the African Commission has applied a proportionality test. The Commission has stated that “the only legitimate reason for limitation to the rights and freedom of the African Charter are to be found in Article 27(2) and that the onus is on the state to provide the justification for limiting rights.” Consequently, it seems that the onus is first on the complainant to show that a protected right had been infringed, and secondly on the respondent (usually a state party to the African Charter) to show that the limitation is justified. The Commission has required limitations to be ‘necessary’ and not just reasonable, that “limitations must be strictly proportionate with and absolutely necessary for the advantages that are to be obtained.” Thus, when limiting the right of sexual minorities, a state has to not only show that it falls within the grounds provided under Article 27(2) but also that it stands the test of reasonableness and necessity as provided by the Commission.

UN Standards
In 1994, the United Nations Human Rights Committee, the authoritative body responsible for interpreting and monitoring compliance with the International Covenant on Civil and Political Rights (ICCPR) held that “sexual orientation” was a status protected from discrimination. The human right to be free from discrimination on the basis of sexual orientation has been affirmed by international human rights systems.

Elimination of Discrimination and Violence
The International Covenant on Civil and Political Rights, to which most African states have acceded, requires a state to “respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” In the 1994 case of Toonen v Australia, the U.N. Human Rights Committee, the authoritative body responsible for interpreting the ICCPR and monitoring States’ compliance with their obligations, held that “sexual orientation” was a status protected from discrimination under the ICCPR’s equality clauses. Specifically, it held that “the reference to ‘sex’ in articles 2, para. 1 and article 26 is to be taken as including sexual orientation.”

The ICCPR also requires states to prohibit and prevent torture and other cruel, inhuman, or degrading treatment or punishment, including by private actors. The ICCPR’s prohibition against torture and cruel, inhuman, or degrading treatment or punishment applies “not only to acts that cause physical pain but also to acts that cause mental suffering to the victims.” As a general principle, states may be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence. The 1993 United Nations Declaration on the Elimination of Violence against Women affirms “that violence against women constitutes a violation of the rights and fundamental freedoms of women.”

Likewise, the Convention on the Elimination of All Forms of Discrimination Against Women (or CEDAW), which similarly most African states have ratified, obligates states in Article 1 to eradicate “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women.” Its Article 5(a) commits states “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” Both articles are violated when people are singled out for unequal treatment because they fail to conform to social or cultural expectations for women and men.

The “Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity,” a set of international legal principles drafted by a distinguished group of human rights experts and released in 2007, affirm the standards of the ICCPR and CEDAW. “Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity…Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms.” They instruct states to amend domestic legislation accordingly, including by targeting public and private acts of discrimination.

Violence and Abuse
Article 1 of the declaration specifically states that “the term ‘violence against women’ means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” The CEDAW Committee recognizes that pervasive sex-based stereotyping perpetuates social prejudices and contributes to gender-based violence. The CEDAW Committee proposes various measures to combat gender-based violence, including instituting effective complaints procedures and remedies for survivors, and providing appropriate medical care and services.

Remedies
Silence is not enough, though. Both the African Commission and African governments must take active steps to overcome both pervasive fear and the continuing patterns of harassment by police and other officials, if gays, lesbians and transgender men are to have meaningful access to legal protections.

Recommendations
The most common refrain from the lesbians, bisexual women, women who have sex with women, and transgender men is simply: ‘acknowledge that we exist.’ As a start the African Commission should acknowledge that sexual minorities do exist in Africa and that they are bearers of rights, albeit based on their sexual orientation or gender identity; that they are being discriminated against and that such discrimination violates the letter and spirit of the African Charter. State authorities should publicly reaffirm that all such people have a right to live free from discrimination and violence and that any acts to the contrary are illegal and will be prosecuted.

• Educate law enforcement and the judiciary about lesbians and transgender Men ensuring that such training is fully integrated into existing training programmes and provided to personnel at all ranks;

• Establish an independent mechanism to monitor and oversee police treatment of female and transgender victims of violence;

• Educate the public;

• Undertake campaigns of awareness-raising directed to the general public as well as to actual and potential perpetrators of violence, in order to combat the prejudices that underlie violence related to sexual orientation and gender identity.