The African Union and the question of lesbian, gay, bisexual and transgender (LGBT) rights

At the Nouakchott Summit, the African Union (AU) Executive Council gave a deadline of 31 December 2018 for the African Commission on Human and Peoples’ Rights (ACHPR) to withdraw the observer status it had granted the Coalition of African Lesbians (CAL). The council has maintained this decision since 2015, when the ACHPR first granted observer status to CAL, after initial reluctance. The decision revives the debate around homosexuality in Africa, where it is frequently perceived as both a taboo and an import from the West. While the Executive Council decision reflects the dominant stance among AU member states, the decision promotes a selective view of politically approved rights, thereby jeopardising the efficiency of the African human rights body.

At the upcoming annual meeting between the Peace and Security Council (PSC) and the ACHPR on 16 August 2018, the ACHPR’s independence regarding human rights issues will be central to the consultation.

Since 2008, when CAL first applied for observer status at the ACHPR, the ACHPR has faced a difficult decision. It could either choose to recognise CAL, knowing it would face a backlash from member states, or decline the application and face criticism for its selective stance on the protection of human rights.

Although the ACHPR is supposed to be independent, the AU can temporarily suspend its activities by withholding funding

The ACHPR delayed the decision on CAL’s status until 2010 and then declined CAL’s application, saying it did not ‘promote and protect any of the rights enshrined in the African Charter’. The decision was taken despite the fact that CAL met the criteria for observer status, which enables an accredited non-governmental organisation (NGO) to raise issues relating to human rights during the proceedings of the ACHPR. Thus far over 500 NGOs have been granted observer status, some of which raise issues of human rights violations against homosexuals, as CAL intends to do.

The rejection of CAL’s application sparked criticism from African and international human rights bodies such as the South African-based Centre for Human Rights (CHR).

Member states have to allow the ACHPR to create a platform where every human rights issue can be openly debated

In 2014 CAL reapplied and actively lobbied to be accredited. The ACHPR, which has nine commissioners, approved its observer status in 2015, with five votes in favour, three against and one abstention. The move pitted it against member states of the AU.

The ACHPR at odds with AU member states

Joint retreats between the AU Permanent Representative Committee (PRC) and the ACHPR have also been tense as a result of this issue. At the June retreat, PRC members – who also make up the PSC – were unhappy about the ACHPR’s failure to act on the Executive Council’s 2015 decision. The Executive Council had set a deadline of 31 December 2018 to withdraw CAL’s observer status, in line with the PRC’s recommendation following the June meeting.

It is unclear whether the ACHPR will succumb to the pressure or not. Although the ACHPR is supposed to be independent, the AU can temporarily suspend its activities by withholding funding.

In the July 2018 decision, the Executive Council, in line with the PRC’s recommendation, also asked the ACHPR to ‘revise the criteria for granting and withdrawing observer status for Non-Governmental Organizations (NGOs), which should be in line with the already existing criteria on the accreditation of NGOs to the AU, taking into accountAfrican values and traditions’.

The future of gay rights in Africa

By referring to African values and traditions, the council appears to emphasise the thinking that homosexuality is an import that goes against African traditions.

The ACHPR is mandated to promote and protect human rights in Africa. In practice, however, its autonomy is subject to question

Although homophobia is a phenomenon that occurs globally, the idea that homosexuality is ‘un-African’ persists, despite research and historical accounts detailing homosexual behaviour in certain pre-colonial and traditional African societies.

In terms of timing, some experts argue that if any success on gay rights is to be achieved, it may be premature to push for decisions at the AU level.

Besides South Africa, where homosexuality is legal, most African states are either against it or choose not to recognise it. A report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association shows that, as at May 2017, 32 out of 54 countries in Africa criminalise homosexual practices. That is nearly half of the 71 countries that criminalise homosexuality worldwide.

In Africa, the penalties are often even more severe at the community level than the harsh penalties imposed by state governments. In Nigeria, Uganda and Zimbabwe, for instance, there have been heinous attacks against homosexuals. Such attacks also occur in countries like South Africa where homosexuality is not criminalised.

Politicians in Zimbabwe and Uganda have also cashed in on popular homophobic sentiments to secure political points. This makes it difficult to win political battles in support of homosexual rights. It also highlights the imperative for advocacy and the need to protect the rights of individuals facing human rights violations owing to sexual orientation.

Need to affirm ACHPR’s independence

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 limits of the African human rights body are evident in how member states default on implementing its decisions. AU member states through the Executive Council have also warned the ACHPR to ensure both confidentiality and due diligence with concerned states on any allegations raised, before including them in its activity reports to the Executive Council. This reflects the unease among member states over ACHPR reports that are critical of governments.

This unease is also reflected in the fact that AU member states have covered little of the ACHPR budget, thereby making it highly dependent on external donors. The ACHPR complains that the limited funds affect its responsibility to promote and protect human rights on the continent.

While it is important to enhance trust and cooperation between the ACHPR and member states, African states have to take a step back from attempts to control the commission by allowing it to be a platform for robust engagement on all issues relating to human rights.

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