COMMENT Godfrey Dalitso Kangaude LLD 10 June 2022
The January 2022 demonstrations in Kenya [1] sparked by discriminatory statements a government official made about LGBTIQ+ students contributed to the visibility of children as subjects of sexual orientation, gender identity and gender expression (SOGIE) rights. In most African communities, sexuality is taboo; LGBTIQ+ is branded ‘un-African’. The effect on the rights of the child tends to be invisible because, in the first place, children are not perceived as sexual. The term ‘LGBTIQ+ children’ is inconceivable.
In a “Guide on Adolescence” [2] published in 2021, the Kenyan Ministry of Health explains that as adolescents mature they would experience “attractions to the opposite sex (emphasis supplied).”[3] Despite the claim that the guidance is rights-based, and that “Adolescents have rights like any other Kenyan”[4] the guide ensures that children of a non-heterosexual orientation are not recognised. Kenya is thus a shining example of how, despite ratifying the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), African countries exclude LGBTIQ+ children from enjoying their full rights.
A crucial duty of treaty monitoring bodies is to facilitate strengthening rights protections; the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) monitors the implementation of the ACRWC, and the Committee on the Rights of the Child (CRC) the UNCRC. This article takes the treaty monitoring bodies to task about LGBTIQ+ children.
How to protect diversity in a heteronormative frame?
In General Comment No.20 [5], the CRC reminded States parties (countries that signed the treaty) of their obligation to create environments in which adolescents could “explore their emerging identities, beliefs, sexualities and opportunities, balance risk and safety, build capacity for making free, informed and positive decisions and life choices, and successfully navigate the transition into adulthood.” [6] Emerging identities and sexualities include the diversity of identities that LGBTIQ+ encapsulates. Apart from the general guidance to States parties, the CRC has addressed LGBTIQ+ in concluding observations (country-specific guidance). For instance, in the Concluding Observations to Guinea [7] the CRC asked the government of Guinea to address discrimination, especially against marginalised and disadvantaged children including “lesbian, gay, bisexual, transgender and intersex children.” [8]
On the other hand, the ACERWC has evaded the subject of LGBTIQ+. Although, one would be tempted to read its General Comment on Article 31 [9] between the lines, where the ACERWC encourages States parties to teach children to “avoid xenophobic, discriminatory and disrespectful attitudes and practices in all settings, as they detract from the moral well-being of society.”[10] The ACERWC does not explicitly mention phobias relating to SOGIE, but it could be argued that it is within the spirit of the General Comment to protect all children including LGBTIQ+ children from discrimination and disrespectful attitudes and practices.
The ACERWC missed a great opportunity to engage LGBTIQ+ in General Comment No 7 on Article 27 of the ACRWC [11] on sexual exploitation. Despite the ACERWC being aware that children of non-heteronormative and non-binary SOGIE face discrimination and marginalisation including (sexual) abuse, the ACERWC avoided mentioning the plight of these children. In the General Comment, the ACERWC makes a list of children it considers to be most vulnerable to violations related to sexuality, but surprisingly omits LGBTIQ+ children [12].
Sexuality is not a choice!
It would appear that the ACERWC is comfortable articulating the rights of children in armed conflict [13] but is unable to defend children caught in the crossfire of ideological wars about SOGIE. When adults declare LGBTIQ+ as un-African, they encourage children to hate and loathe themselves and others, when their gender and sexualities emerge as non-heterosexual and non-binary.
African treaty monitoring bodies are comprised of independent experts. This independence and expertise should be reflected in the manner in which they discharge their protective and promotional mandates, especially for children. Therefore, the situation of LGBTIQ+ children in Africa is a litmus test.
African leaders expeditiously adopted the CRC and the ACRWC because children are vulnerable and need protection and support. A child whose emerging sexuality is non-normative or non-heterosexual should be protected as equally as one who emerges heterosexual. That is the whole point of human rights; the protection of difference.
Godfrey Dalitso Kangaude LLD is a human rights lawyer pursuing postdoctoral research within the Critical Studies in Sexualities and Reproduction at Rhodes University in South Africa. His research focuses on human rights and the law relating to gender and sexuality, and their intersections with social and cultural norms.
FOOTNOTES
[1] Victoria Amunga ‘Kenyan LGBT Students Protest Suggestion they be Banned from Boarding Schools’ (VOA, 13 January 2022) < https://www.voanews.com/a/kenyan-lgbt-students-protest-suggestion-they-be-banned-from-boarding-schools/6395390.html > accessed 26 May 2022
[2] Ministry of Health, DRMH (Kenya) Understanding Adolescence: A Guide for Adolescents (Ministry of Health 2021) < https://drive.google.com/file/d/1dEDU12wwSbbRseSnuRT1S9yd72UN8foz/view > accessed 26 May 2022
[3] As above p 9
[4] As above p 1
[5] Committee on the Rights of the Child, General Comment 20: The Implementation of the Rights of the Child During Adolescence UN Doc CRC/C/GC/20 (December 6, 2016) < https://www.refworld.org/docid/589dad3d4.html > accessed 26 May 2022
[6] As above para 16
[7] Committee on the Rights of the Child, Concluding Observations on the Combined Third to Sixth Periodic Reports of Guinea, CRC/C/GIN/CO/3-6 (February 28, 2019) < https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2FC%2FGIN%2FCO%2F3-6 > accessed 26 May 2022
[8] As above para 17
[9] African Committee of Experts on the Rights and Welfare of the Child, General Comment on Article 31 of the African Charter on the Rights and Welfare of the Child on “The Responsibilities of the Child” (27) < https://www.acerwc.africa/wp-content/uploads/2018/04/Website_version_GC_Booklet_General_Comment_ACERWC_ART31_2018.pdf > accessed 26 May 2022
[10] As above para 78
[11] African Committee of Experts on the Rights and Welfare of the Child, General Comment No 7 on Article 27 of the ACRWC “Sexual Exploitation” (July 2021)< https://www.acerwc.africa/wp-content/uploads/2021/09/General-Comment-on-Article-27-of-the-ACRWC_English-1.pdf> accessed 26 May 2022
[12] As above para 40
[13] African Committee of Experts on the Rights and Welfare of the Child, General Comment on Article 22 of the ACRWC: “Children in Armed Conflict”(September 2020) < https://www.acerwc.africa/wp-content/uploads/2020/10/General-Comment-on-Article-22-of-the-ACRWC_English_Web_version_final-1.pdf> accessed 26 May 2022
