The African Union must protect queer people’s rights

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June is Pride Month, which is dedicated to uplifting lesbian, gay, bisexual, transgender, queer and intersex voices, the celebration of LGBTQ+ culture and the support of their rights. It is a significant month for promoting self-affirmation, dignity, equality and increased visibility of LGBTQ+ people but a reminder that many in various parts of the world continue to face oppression, human rights abuses, violence, exclusion and other social, economic and political unjust treatment.

One of those parts of the world is the African continent. Of the 66 countries that criminalise same-sex relations, 32 are in Africa. The continent has a poor reputation when it comes to the violation of the rights of LGBTQ+ people. Political, religious and traditional leaders’ create systems that exclude sexual and gender minorities because of the idea that homosexuality is “un-African”, despite research and historical accounts detailing homosexual behaviour in pre-colonial African societies.

There is no objective multilateral institution on the continent that is actively lobbying countries to prioritise human rights protection laws and policies, especially with regard to LGBTQ+ people. 

That the African Union is silent about the violation of the human rights of the LGBTQ+ community is shocking, given that under international human rights law, everyone is protected against discrimination based on their sexual orientation, gender identity and/or expression and sex characteristics. Authorities in many African countries have signed international treaties that commit them to protect human rights, yet they continue to implement and introduce legislation that singles out and discriminates against individuals on the basis of their sexual orientation or gender identity and expression.

For example, leaders in Ghana, Uganda, Nigeria and Tanzania have, in recent years, initiated vocal attacks against LGBTQ+ people. Cameroon enforces section 347 of its penal code, which punishes “sexual relations between persons of the same sex” with up to five years in prison. 

At least 27 people were arrested in Cameroon in the first quarter of 2021, and in the same period this year at least 11 victims of mob violence were detained for alleged consensual same-sex conduct and gender nonconformity. In May 2021, two transgender women received prison sentences of five years each under the law that forbids same-sex relations. 

In North Africa, Tunisian security forces target activists working on issues related to sexual orientation and gender identity at protests, through arbitrary arrest, physical assault and threats. Egypt continues to arrest, detain and torture LGBTQ+ people, as noted in a joint statement delivered in March 2021 on behalf of 32 countries at the United Nations Human Rights Council condemning Egypt’s human rights record.

Not all is doom and gloom on the African continent. Legal opposition and challenges to the oppressive laws by civil society groups and activists are increasing. For example, in 2019, Kenya’s high court upheld that the country’s sodomy laws were not discriminatory because the laws applied to everyone, regardless of sexual orientation. Activists have appealed the decision, but no court date has been set. In Mauritius, three cases are challenging the constitutionality of a law that punishes consensual same-sex conduct with up to five years in prison on the basis that the Mauritius’s Equal Opportunities Act protects against discrimination based on sexual orientation, including in employment, education and accommodation.

Another recent milestone comes from Botswana in which the court of appeal upheld a lower court decision to decriminalise consensual same-sex conduct. The court found that the penal code provisions outlawing “carnal knowledge of any person against the order of nature” were unconstitutional because they violate the right to privacy, liberty, security and equal protection under the law, and the right to freedom from discrimination. Judges in the Botswana high court had, in 2019, said that these archaic laws belong “in the museum or the archives”. 

Angola’s new penal code, revised from 1886, came into effect in January 2021 and no longer criminalises same-sex conduct. The law has a non-discrimination provision that includes sexual orientation as a protected ground. All former Portuguese colonies in Africa have now decriminalised same-sex conduct. Cape Verde is a member of the United Nations LGBTI Core Group, a network of states seeking to advance the rights of LGBTQ+ people in the UN. In 2020, Gabon abandoned its brief experiment with criminalising same-sex conduct when its parliament reversed a 2019 law that had criminalised same-sex conduct for the first time. 

Despite this, there is still a long way to go to ensure human rights protection and non-discrimination of LGBTQ+ people in Africa. Multilateral institutions like the AU ought to play an active role. The AU and its frameworks for human rights are critical in ensuring that human rights are consistent for individuals on the continent, in different countries and cultures with different political regimes and histories.

The AU should create effective human rights mechanisms for human rights protection and standard-setting and reporting across the continent. It should play an active role in monitoring and denouncing human rights violations, including those directed at LGBTQ+ people. 

The AU human rights instrument available is the African Charter on Human and Peoples’ Rights. This charter means nothing if it is not protecting African people, regardless of their identity. The charter itself condemns discrimination on the basis of sex or any other markers of identity and guarantees freedoms for all African people.

The biggest setback is the lack of independence of the African Commission on Human and Peoples’ Rights (ACHPR). To give effect to intersectional and intergenerational diverse views to these kinds of charters, member states have to allow the ACHPR to create a platform where every human rights issue can be openly debated, instead of only those that are politically tolerated. The ACHPR is mandated to promote and protect human rights in Africa. In practice, however, its autonomy is subject to question. The Executive Council decision of July 2018 maintains that “the functional independence that the ACHPR enjoys is of functional nature and cannot be interpreted as independence from the same organs that created the body”. Yet the independence of the ACHPR is crucial to its functioning and efficiency. 

The ACHPR is not a progressive institution. It used sexual or gender identity as the reason it rejected applications for observer status from three NGOs. It said that “sexual orientation” was not an “expressly recognised right” in the African Charter on Human and Peoples’ Rights. It also said that protecting and promoting sexual and gender minority rights was “contrary to the virtues of African values”. The decision casts a shadow over the commission’s commitment to advancing the rights of all Africans. It also seriously erodes its independence from AU states.

The ACHPR should be the primary human rights watchdog in Africa. But the commission is also shaky when it comes to the debate about rights. It is well accepted that there is no distinct “right to sexual orientation”, as such, under human rights law. Sexual orientation is innate to every human being. We all have one, whatever it may be. 

The charter to which the commission refers to justify its rejection contains a provision, article 2, setting out an open-ended list of non-discrimination grounds. Nothing prevents “sexual orientation” from being read into this list. The commission’s own practice also contradicts its argument. There are numerous grounds for non-discrimination that the commission has recognised. Take disability. It is not included in article 2. Yet the commission has tacitly accepted that “disability” is a ground on which discrimination is not allowed. The same applies to “age”.

The commission itself has adopted the position that sexual orientation and gender identity are grounds on which discrimination under the African Charter cannot be tolerated. Resolution 275, adopted at the African Commission’s 55th Ordinary Session, in 2014, specifically condemns “systematic attacks by state and non-state actors” against people because of their imputed or real sexual orientation or gender identity. But their conduct is highly confusing because their positioning is not clear.

The AU should ensure the protection of rights of LGBTQ+ people in Africa in relation to non-discrimination, education, employment or economic inclusion, health, free movement, asylum, hate speech, hate crime, enlargement and foreign policy. It should support progress in all African countries in all these policy areas, to improve the social acceptance and treatment of LGBTQ+ people in Africa by pushing for the enforcement of appropriate legal and policy frameworks, monitoring progression and condemning any human rights abuses experienced by LGBTQ+ people.

Karabo Mokgonyana is legal and development practitioner and programme director for the Sesi Fellowship and Skill Hub.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.