The following article by Fikile Vilakazi and Sibongile Ndashe, was originally published in Pambazuka News, November 2010.
The article is a response to the decision by the African Commission on Human and People’s Rights to deny observer status to the Coalition of African Lesbians [CAL] – a decision which the authors claimed would ..” if not challenged and reconsidered, will legitimise ongoing state and non-state violence against LGBTI people in Africa.’. And of course this has come to pass with the passage of the Nigerian and Ugandan extended criminalization of LGBTI people and the subsequent violence against gays and those perceived to be gay.
The decision of the African Commission on Human and Peoples’ Rights to deny observer status to the Coalition of African Lesbians (CAL) comes at a time when the struggle for visibility, tolerance and acceptance of the fact that lesbian, gay, bisexual, transgender and intersex (LGBTI) people exist is beginning to gain momentum.
Exactly four years after LGBTI rights activists and groups started organising and advocating for rights at the Commission, the 48th session underscored the point that African civil society that works with the regional human rights mechanism will not countenance a decision by the Commission when such decision is inconsistent with the value espoused in the African Charter on Human and Peoples’ Rights.
The unfounded allegation that sexual orientation was a fringe issue meant for eccentric individuals was resoundingly dispelled. If this was not on the Commission’s agenda, this session helped to decisively make it a human rights issue.
At the session, no less than 18 organisations who have observer status used the public session of the Commission to remind the Commission that the protection and promotion of human and peoples’ rights was their twin mandate and that their obligation was simply to protect and promote rights.
The two national human rights institutions who made statements, Burkina Faso and Kenya, mentioned the obligation of the Commission with regards protecting human rights. Burkina Faso urged the Commission to produce guidelines that assist member states in the protection of people whose rights have been violated because of their real or perceived sexual orientation.
At last, the South African government representative articulated South Africa’s position and commitment to the protection of all people, regardless of their sexual orientation. South Africa is the only government that could legitimately object to CAL’s application and they had been lamentably remiss in past sessions when other governments, notably Uganda, objected to CAL’s observer status. The only government to applaud the Commission for its stance was Zimbabwe, which thanked the Commission for the bold step of refusing to grant observer status to CAL.
The decision of the Commission is troubling at a number of levels. Many questions remain unanswered. It is patently homophobic. It dehumanises lesbians in reasoning that CAL does not seek to protect or promote rights in the charter. What if that divests members of CAL of their rights, all of them, that are guaranteed under the charter? If there was ever a legally unsound decision this has to be it. You are a lesbian = all your rights under the charter do not exist?
The Commission has worked hard to build solid jurisprudence on the importance of the right to equality before the law, equal protection of the law, inhuman and degrading treatment and dignity and this jurisprudence was either ignored, or worse, discarded by the Commission. What does the Commission stand to gain for undermining its own jurisprudence and working methods?
The decision of the Commission reverberated throughout the continent and all over the world. In this special edition there is a collection of statements from a variety of civil society formations, selected statements made by NGO’s at the Commission and other reactions from individuals all decrying the unfairness and gross injury inflicted by the African Commission on Human and Peoples’ Rights.
There was a time when the chair of the Commission decided to let NGO’s know that when something has already been said it does not have to be repeated. It depends: if the person you are talking to did not hear you, did not listen or did not understand then you may need to keep on saying it again and again. Human rights belong to all human beings by virtue of being human!
CAL remains outraged by the decision of the African Commission on Human and Peoples’ Rights not to grant observer status to the Coalition. CAL is extremely angered by the fact that this decision, if not challenged and reconsidered, will legitimise ongoing state and non-state violence against LGBTI people in Africa.
There is already an ongoing trend from various African states to tighten laws that criminalise homosexuality on the continent. Instead of condemning such acts, the African Commission appears to be condoning them through such an arbitrary decision. We commend civil society organisations in Africa and internationally that have taken a bold step to condemn such an arbitrary decision and call on the African Commission to reconsider and grant CAL observer status before the 49th Ordinary Session.
Human rights activists and organisations are requested to continue writing to the African Commission on Human and Peoples’ Rights asking them to reconsider their decision. Send your letter to Dr Mary Maboreke of the African Commission secretariat by email to email@example.com cc firstname.lastname@example.org