ANALYSIS Dr Ayodele Sogunro & Sohela Surajpal 24 June 2022
In 2014, the African Commission on Human and People’s Rights adopted Resolution 275, 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’.[1] This move, undertaken within a political climate on the continent that is predominantly hostile to LGBTIQ+ persons, was an extraordinary affirmation of the humanity and dignity of sexual and gender minorities. Unfortunately, even in the aftermath of Resolution 275, LGBTIQ+ persons in Africa continue to face discrimination and violence, often sanctioned by states. This article interrogates Resolution 275’s contribution to the realisation of the rights of LGBTIQ+ people across the continent and asks what more must be done to create an Africa in which LGBTIQ+ people enjoy full realisation of their rights. We begin by briefly describing the existing legal framework for the rights of sexual and gender minorities in the African human rights system, with particular focus on Resolution 275. Next, we illustrate the context and lived realities of LGBTIQ+ persons in Africa. Finally, we elaborate upon opportunities, limitations and alternatives for advancing LGBTIQ+ rights in Africa.
Rights framework and Resolution 275
The African human rights system is principally governed by the provisions of the African Charter on Human and Peoples’ Rights (African Charter). The African Commission on Human and Peoples’ Rights (African Commission) is the body tasked with interpreting and monitoring the implementation of the African Charter. The African Charter does not explicitly establish protections for sexual and gender minorities. However, its general provisions affirm the freedom, equality and dignity of all African peoples and the African Commission confirmed in the 2012 decision of Zimbabwe Human Rights NGO Forum v Zimbabwe that the Charter’s non-discrimination clause aims ‘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.’
In 2014, the African Commission took a step further. At its 55th Ordinary Session, the African Commission announced that it had adopted Resolution 275. The result of extensive advocacy by civil society organisations working on LGBTIQ+ rights in Africa, Resolution 275 seeks to clarify the application of the African Charter in the context of violence against persons based on their real or imputed sexual orientation or gender identity. The Resolution strongly condemns the increase of violence against persons on the basis of real or imputed sexual orientation or gender identity and highlights State obligations to combat all such acts of violence through effective legislation, investigations, prosecutions and reparation.
While the African Commission’s position on the rights of sexual and gender minorities has seemingly been hesitant in the years since, the adoption of Resolution 275 remains a landmark moment in LGBTIQ+ rights advocacy in Africa.[2]
LGBTIQ+ lived realities in the aftermath of Resolution 275
It is important to note that legal and social context differs drastically among African states. However, while some African states such as South Africa, Seychelles, and Angola have made significant progress in protecting LGBTIQ+ persons and promoting their rights, it remains generally unsafe for the majority of Africans to publicly identify as same-sex attracted or gender diverse.
In particular, sexual and gender minorities in Africa face the criminalisation of consensual same-sex conduct and diverse gender expression, discriminatory laws and lack of legal protection from unfair discrimination on the grounds of sexual orientation or gender identity. LGBTIQ+ people are subjected to arbitrary arrest and detention, blackmail and extortion, and violence from State and non-State actors in the form of murder, physical assault, kidnaping, rape, and sexual assault, with little to no accountability for perpetrators. Finally, human rights defenders who attempt to advocate for the rights of sexual and gender minorities find themselves targeted by hate crimes, social exclusion or stigma. In some States, such human rights advocacy is even legally prohibited.
Opportunities for Resolution 275 and the African human rights system
Resolution 275 remains an overwhelmingly positive development for a number of reasons. First, the Resolution affirms the rights and dignity of LGBTIQ+ people at the highest regional level and has emboldened activists at a regional and domestic level. Second, Resolution 275 provides civil society activists with a benchmark of rights explicitly guaranteed to LGBTIQ+ persons in law. In many African States, domestic law makes no provision for such rights. Resolution 275 is thus a useful lobbying and litigation tool in contexts where no analogous domestic protections exist. Finally, Resolution 275 has given the African human rights system an internal imperative to protect LGBTIQ+ rights. In the years since Resolution 275, the African Commission and associated bodies have adopted a range of resolutions, guidelines and concluding observations to State reports which similarly recognise the vulnerability and need to protect sexual and gender minorities. Resolution 275 is, therefore, a first and necessary step that has enabled further progress at the African human rights system level.
Limitations and alternatives
There are a number of limitations to Resolution 275 and the African human rights system’s current approach to the rights of sexual and gender minorities. First, Resolution 275 remains grossly under-implemented. States must urgently adopt all necessary measures necessary to ensure that the rights and obligations set forth in Resolution 275 are guaranteed in fact and in law. States and civil society must also take steps to disseminate the resolution and provide practical guidelines on its implementation to the general public and relevant office bearers. States must ensure that those office bearers responsible for preventing violence, punishing perpetrators and supporting and protecting victims receive effective, and appropriate training on their obligations in terms of Resolution 275.
Second, Resolution 275’s scope is unduly limited in scope to protection from physical violence. LGBTIQ+ people in Africa face a host of other rights violations. LGBTIQ+ people are often more likely than their peers to be homeless, unemployed, or imprisoned. They have worse health outcomes and often flee their countries of origin as refugees. An accurate and intersectional approach requires recognising that all rights are LGBTIQ+ rights. Such an approach must be premised on the cornerstone of inherent human dignity – a right possessed by all people and the right from which all other rights spring forth. The African Commission and civil society groups must infuse their commentary, jurisprudence and activism with recognition of this reality.
Third, the African human rights system remains unacceptably hostile to sexual and gender minorities. In 2018, four years after adopting Resolution 275, the African Commission bowed to political pressure from the African Union’s Executive Council and revoked the observer status of the Coalition of African Lesbians on the grounds that it did not ascribe to “African values”. This lack of ideological inconsistency signals to states that LGBTIQ+ rights are optional and to civil society and vulnerable minorities that the African human rights system is not absolute on the enforcement of their rights. The African Commission must adopt a consistent, rights-based position.
Finally, the African human rights system suffers from the perennial problem of international and regional law – it is unenforceable at a domestic level. Binding norms are treated by States as mere suggestions. Even if the African Commission took bold and decisive action to affirm the rights of LGBTIQ+ people, it is likely that the vast majority of African states would continue to simply refuse to recognise the rights and dignity of sexual and gender minorities. This is untenable. This attitude, based on the classical theory of international law that state sovereignty is the keystone of the international order, is inadequate for the protection of human rights. States have shown that they cannot always be trusted to protect the lives and dignity of individuals in their jurisdiction. The full protection of sexual and gender minorities – as well as other minority groups – requires the evolution of a new model of international law, for instance a supranational rather than intergovernmental approach to human rights implementation.[3]
Conclusion
Resolution 275’s promise of a life free from violence and persecution remains unattainable to the vast majority of LGBTIQ+ Africans. Greater implementation, expanded rights protection and an intersectional approach, increased consistency by the African Commission and a fundamental restructuring of the international law system are necessary if sexual and gender minorities in Africa are to one day fully realise their rights to freedom, equality and dignity.
[1] ACHPR/Res.275(LV)2014, https://www.achpr.org/sessions/resolutions?id=322 accessed 21 June 2022.
[2] For further reading see F Viljoen ‘Minority sexual orientation as a challenge to the harmonised interpretation of international human rights law’ in CM Buckley, A Donald & P Leach (eds) Towards convergence in international human rights law: Approaches of regional and international systems (2017) and S Namwase & A Jjuuko Protecting the human rights of sexual minorities in contemporary Africa (2017).
[3] Eyal Benvenisti ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 AJIL 295; and Babatunde Fagbayibo ‘Looking Back, Thinking Forward: Understanding the Feasibility of Normative Supranationalism in the African Union’ (2013) 20 SAJIA 411 provide insights on this argument.
