So this essay, from one of the people involved in drafting the yogyakarta principles, is many moons old.

But it’s still significant…..I just read it a few days ago and I’m reposting for all your learning pleasure.

In my opinion, any body who believes they’re committed to the struggle for afrikan liberation, and by extension for (global) human rights, should critically examine our values and the experiences of all the oppressed.

It’s sad, but I’ve met too many supposed revolutionaries who’ll reason in solidarity with me on many things afrikan….but when it comes to HOMOSEXUALITY (gawdess, how I dislike that term!) then they’ll grip their BIBLE, and/or wax ‘traditional’ on principles that can’t be said to be indigenous or anywhere close to progressive (let alone revolutionary)…

In my (wanna-be) revolushunary opinion, I think the biggest achilles heel in public discourse on queer identity in Africa, and of most African homophobes, is their contradictory position….the most oft heard lines are…

it’s un-african & it’s unholy…

Now anyone who’s studied indigenous afrikan cultures and socio-political systems in depth wil tell you that our ancestors did formulate different conceptions of gender and sex/uality.

That is why about the only thing I’ll agree on with homophobes is that lesbian and homosexual are western terms….they absolutely are…not only that but modern terms constructed within and for particular contexts…

what we do have are identities like saganas, wandarwads, sangomas, jigele keton, m’uzonj’ame katumua, ’yan daudu, mudoko dak, sagoda, ashtime, mugawe, kiziri, agyale, eshenga, omututa, chibanda….and many more identities and institutionalized forms of wo/man to wo/man marriage all over Ifrika….one cannot reasonably call any of these identities lesbian or homosexual…maybe “lesbian-like” or “homosexual-like” as what they do share is a focus on same sex desire….and that is what homophobes in Africa like to purport isn’t really there….and if it is, it’s wrong and western….

I say hogwash to all that, if you think it doesn’t exist, then as little as I know, I can show you hundreds of identities to attest otherwise…..and thousands, probably millions, of Afrikans who’re living TODAY and being discriminated against and marginalised by our oppressive laws and leaders.

But what really gets my goat is when folks use the BIBLE….for real???!!!

I have very little patience left for Christian fundamentalists (or muslim or rasta conservatives for that matter)….the irony of an Afrikan brothas or sista talking to me about the rising menace of these homosexuals….the inherently sinful character of people having consensual sex…just coz the bible told dem so…..

ARE YOU FOR REAL? Take your fucking imported bible, that was one of the major tools by which OUR INDIGENOUS CULTURES AND KNOWLEDGE SYSTEMS were obliterated and subverted, take your fucking composite religion that’s distorted teachings whose roots are ultimately from Africa…..take that bible and SHOVE IT!

(to be more liberal though….keep your religion to yourself….and separate it from the state….and I’ll practice my religion and n0t insist on reminding you that you’re brainwashed and need to know, I mean really, KNOW THINE SELF…and your ‘true’ culture)

Now, I try to be all liberal usually, and stick to, religion is a personal belief….but seriously, it’s seriously at odds with my growing belief that Christianity is probably the most harmful and destructive religion in the world….it’s sad how entrenched it is in Afrikan communities……I’m interested in reclaiming asiis, ngai, enkai, were, koko mwezi, mami wota, idemile…..i’m much more interested in reclaiming indigenous afrikan cultures…..and in unlearning all the values that were instilled in me, in the predominantly Christian environments I was raised in….

but that’s just me, who I feel triply sorry for are the queer/trans christians..I’ve met many of those too…I was one of those at some point, (then I became a queer muslim, then a queer rasta….what now you ask? well the only intuitive/logical place for me…AFRIKAN INDIGENIST)….and I emptahise with their struggle to reconcile their spirituality with their sexuality and be accepted within their religion…..

But before I get into non-points…here’s the essay that Lawrence Mute put out on that subject…..

On the 18th of December, 2008, a Statement on Human Rights, Sexual Orientation
and Gender Identity with the backing of 66 states including six African countries, was read at the General Assembly. The statement reaffirmed “the principle of the universality of human rights amongst other things. But a counter-statement arguing against the statement supported by 60 states including a multitude of African countries.

In this essay that shows the discrepancy between universal human rights and their selective application, Lawrence M. Mute asks: Why did the whole of Anglophone Africa decline to support the Statement? Why did such little empathy flow from many discriminated groups to LGBTI communities? Why would many a group discriminated on grounds of race, disability or gender still find it rational to perpetuate discrimination on homosexuals or lesbians?

Africa’s hyprocrisy on human rights, sexual orientation and gender identity

Lawrence M. Mute

During the month when the World celebrated the 60th anniversary of the Universal Declaration on Human Rights, an extremely rare, indeed one-time event, was witnessed at the United Nations General Assembly. On the 18th of December, 2008, a Statement on Human Rights, Sexual Orientation and Gender Identity [1] with the backing of 66 states including six African countries [2], was read at the General Assembly.

The Statement drew its message exclusively from human rights normative frameworks such as the International Bill of Rights and interpretive statements from Treaty Body Committees. Among other things, it:

– Reaffirmed “the principle of the universality of human rights, … that everyone is entitled to the enjoyment of human rights without distinction of any kind, … (and) the principle of non-discrimination which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity”;

– Raised concerns about: “violations of human rights and fundamental freedoms based on sexual orientation or gender identity … (and) that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine
the integrity and dignity of those subjected to these abuses”;

– Condemned “human rights violations based on sexual orientation or gender identity wherever they occur…And;

– Urged “states to take all the necessary measures … to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention …, to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice … (and) to ensure adequate protection of human rights defenders, and remove obstacles which prevent them from carrying out their work on
issues of human rights and sexual orientation and gender identity [3].”

The symbolic and actual importance of this Statement was dramatised by the reading of a counter-statement arguing against the Statement on Human Rights, Sexual Orientation and Gender Identity, supported by 60 states including a multitude of African countries. The counter-statement was based on classic stereotyping, prejudice and disinformation most often articulated by homophobes and transphobes. It, among other things, stated that:
protection of sexual orientation could lead to the social normalisation and possibly the legalisation of deplorable acts such as paedophilia and incest.
It charged that the Statement was an attempt to create « ‘new rights’ or ‘new standards’ by misinterpreting the Universal Declaration and International Treaties to include such notions that were never articulated nor agreed by the general membership [4].

A High Level Side Event on Human Rights, Sexual Orientation and Gender Identity [5] to commemorate the Statement’s reading was addressed, among others, by Rama Yade, France’s Secretary of State for Human Rights; Maxime Verhagen, Minister of Foreign Affairs of the Netherlands; Sunil Pant, an MP from Nepal; Michael O’flaherty, Raporteur of the Yogyakarta Principles on the Application of International Human Rights in Relation to Sexual orientation and Gender Identity and member of the Human Rights Committee; Navanethen Pillay, the UN High Commissioner for Human Rights; and Lawrence Mute, a Commissioner with the Kenya National Commission on Human Rights. The Event sought both to celebrate as well as reflect on the way forward for ensuring the rights of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) communities around the World.

But, back to the Statement itself, where one is bound to query why countries and mainstream civil society organizations which espouse human rights as universal, indivisible and interdependent still fail to acknowledge the unacceptability that fellow human beings should be killed, violated, discriminated or excluded from society simply because of their sexual orientation or gender identity. \

In particular, why did the whole of Anglophone Africa decline to support the Statement? Why did such little empathy flow from many discriminated groups to LGBTI communities? Why would many a group discriminated on grounds of race, disability or gender still find it rational to perpetuate discrimination on homosexuals or lesbians?
Was it that human rights are guaranteed to some and not to others?

States, as enjoined by the United Nations Charter and the plethora of Human Rights Treaties to which they are party, are the ultimate bastions for ensuring respect, protection and fulfillment of the rights of all individuals and communities, regardless of their sexual orientation or gender identity. Article 2 of the African charter on Human and Peoples’ Rights replicates anti-discrimination injunctions in other Human Rights Conventions when it requires that: “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status [6]. (Emphasis added) The Committee on Economic, Social and Cultural Rights has interpreted the phrase “other status” in Article 2.2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to include the ground of sexual orientation [7]. Then again, the Human Rights Committee has interpreted the word “sex” in Article 2.1 of the International Covenant on Civil and Political Rights (ICCPR) , in Toonen v. Australia [8], as: “to be taken as including sexual orientation”.

So, why did so many African countries prefer to sign a counter-statement purveying homophobia and transphobia rather than support a cogent anti-discrimination and anti-violence position? In my address to the High Level Side Event, I noted that the discourse for ensuring that the rights of LGBTI communities are respected, protected and fulfilled has over the years been framed as a decidedly Northern/developed countries agenda, with minor exceptions at the legal if definitely not the popular level in developing jurisdictions such as South Africa. IN my assessment, five dynamics continue to dictate the manner in which developing countries in Africa and perhaps other regions interact with the rights of LGBTI communities.

First, is the dynamic of criminalization under which sodomy laws were nearly a century ago legislated into colonial Africa to criminalise homosexual and related acts. By the time that Africa’s colonizers began to expunge sodomy legislation from their statute books (through processes such as the 1956 Wolfenden Committee in the United Kingdom) [9], sodomy laws in Africa had become entrenched in a value ethic of their own sheathed in culture and religion under which homosexuality was touted as “un-African” and “unholy” [10]. This is the basis upon which sodomy laws today remain on the statute
books of countries such as Kenya, Uganda and Tanzania as “offenses against morality” [11], and are being legislated most recently in countries such as Burundi [12].

Second, is the dynamic of discrimination and violation. The legal plight of LGBTI people is not determined as such by sodomy laws, for these laws tend to be difficult or inconvenient to prosecute successfully. Far more pressing is the discrimination or the violation of LGBTI peoples’ rights to life, liberty, education, health or employment on account of their sexuality. A lesbian person in East Africa today fears to be “outed” because her homophobic employer may then engineer dismissal, in clear violation of the ICESCR as well as a host of other international, regional and national laws. “Outing” might also incite groups on the fringes of some cultural or religious traditions to hurt or kill such lesbian person in breach, among other norms, of the ICCPR.

Third, is the dynamic of political mobilization against LGBTI peoples. African experiences during the last two decades include a procession of heads of states – from President Moi, President Museveni, President Mugabi and President Nujoma – making decidedly homophobic statements equating homosexuality with beastliness and Western-derived baseness, and as a consequence mobilizing popular opprobrium against homosexual people. Our Legislatures have responded either through stony silence and prevarication or rabid rejection of LGBTI issues as policy or legislative concerns. The effect of this, for example, was a proposal in the Draft Constitution of Kenya, 2005, specifically stating that marriage may happen only between a man and a woman.

Fourth, however, is the dynamic of pragmatism which has increasingly informed the administrative actions and responses of our states’ bureaucracies. The HIV/AIDS pandemic has forced administrators in our Ministries of Health to realize that they must craft interventions specific to groups such as men who have sex with men (MSM’s) and commercial sex workers. The plans of our Ministries of Health now include express or implicit strategies on how to ensure that MSM’s conduct of sex is safe.

Fifth, the human rights discourse has finally began to impact the lives of Africa’s LGBTI peoples. The last few years have seen LGBTI communities beginning to “claim” their rights as rights-holders. When the World Social Forum was held in Nairobi in January 2007, the LGBTI communities socialized in the ‘Q-Spot’ tent where they articulated their rights concerns with conviction and courage. In East Africa, one notes the particular courageous activism of organizations like Sexual Minorities Uganda (SMUG) and the Gay and Lesbian Coalition of Kenya (GALCK) [13].

A more specific commentary must be made regarding the behaviour of South Africa in this matter. It was greatly disappointing that by “abstaining”, South Africa failed to show political and diplomatic leadership when its Constitution [14] as well as its Judiciary (for example its Constitutional Court) [14] have spoken so resoundingly against discrimination on the ground of sexual orientation. South Africa’s credentials as a “non-racist” and “non-sexist” nation had to be found wanting when her politicians and diplomats failed to stand alongside other World leaders in condemnation of homophobia and transphobia; a paradox that totally impeaches the philosophy of equality and non-discrimination. Could it really be that South Africa’s political leadership tolerates the dehumanizing violence so graphically meted out on lesbians in that country? South Africa’s silence at the General Assembly on the 18th of December was compounded when the United Nations High Commissioner for Human Rights, herself a South African, while addressing the Side Event, recollected with warmth South Africa’s firm anti-gay constitutional provisions and past supportive statements from South Africa’s Minister of Health at the 1995 Beijing Women’s Conference.

During the Side Event, Mr Verhagen urged the Human Rights Committee to prepare a new General Comment on Article 2 of the ICCPR covering non-discrimination. Mr O’Flaherty urged states and mainstream human rights organizations to provide the UN’s Treaty Committees and Special Procedures’ holders information with relevance for LGBTI communities. This would enable these human rights mechanisms to ask more searching questions and make more incisive recommendations in the areas of women’s rights, torture, etc, as these relate to LGBTI communities. I warned that as much as we may desire and rhetorise constitutional and legislative reforms including decriminalisation, this would be unlikely to happen in the immediate short term. I hoped that in the medium term our Judiciaries had limitless possibilities of making enlightened decisions to enhance the rights of LGBTI communities [16]. I urged activists to deploy the intersectional approach to leverage the technical and lobbying capacities of all groups which are discriminated on grounds such as race, ethnicity, gender, disability, sexual
orientation or others to work together to combat discrimination. Our experiences thus far have tended to range one discriminated group against the whole society such that such group’s gains or losses have also to be borne singly. I noted that even as we acknowledge that human rights are universal, strategies for the realization of human rights may be localized to particular regions. Northern advocates on the rights of LGBTI communities and backers from the North must not presume that the strategies of their peers from the South must coincide with theirs. It should not be about how rights are realized; it should be that rights do become realised.

In conclusion, African states must acknowledge that there is an irreducible minimum of rights which must apply to LGBTI peoples simply because they do apply to all other human beings in our various jurisdictions. As articulated in the Yogyakarta Principles on the Application of International Human Rights Law in Relation to sexual Orientation and Gender Identity [17], this irreducible minimum of rights that must be protected does not envisage the promulgation of new rights, but rather stresses the imperativeness of ensuring already existent rights, including protection of LGBTI people from discrimination, respect of the right to privacy and ensuring their rights to life, liberty, expression and movement. The Yogyakarta Principles are a critical component in the toolkit of states and advocates as we seek to ensure that the rights of LGBTI communities are realized; and their localization in an African context should happen.

* Commissioner, Kenya National Commission on Human Rights;

email: lmute@knchr.org
* Please send comments to editor@pambazuka.org or comment online at
http://www.pambazuka.org/

Notes:

1. Available at
www.ilga.org/news_results.asp?LanguageID=1&FileID=1211&FileCategory=44&ZoneID=7(accessed
on 24 December 2008).

2. The African states were Cape Verde, Central African Republic, Gabon,
Guinea-Bissau, Mauritius, and Sao Tome and Principe.

3. Supra footnote 2

4. Available at
www.hurriyet.com.tr/english/domestic/10617078.asp?gid=24(accessed on

24 December 2008).

5. Held at UN Headquarters, New York, between 1:00 and 3:00 pm on 18
December 2008

6. For the approach of the African Commission on Human and Peoples’ Rights
on sexual orientation and gender identity, see Rachel Murray and Frans Viljoen, “Towards Non Discrimination on the Basis of Sexual Orientation: The Normative Basis and Procedural Possibilities before the African Commission on Human and Peoples’ Rights and the African Union”, available at
https://www.up.ac.za/dspace/bitstream/2263/4092/1/Murray_Towards(2007).pdf<https://www.up.ac.za/dspace/bitstream/2263/4092/1/Murray_Towards%282007%29.pdf>

(accessed on 25 December 2008).

7. This is the case, for example, in General Comment Nos 18 of 2005 (on the right to work), 15 of 2002 (on the right to water), and 14 of 2000 (on the right to the highest attainable standard of health).

(See Michael O’Flaherty and John Fisher: Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, Oxford University Press, 2008)

8. Available at: www1.unnedu/humanrights/undocs/html/vws488.htm (accessed on
25 December 2008).

9. This Committee concluded that homosexual behaviour between consenting
adults in private was part of the “realm of private morality which is not the law’s business” and should no longer be criminal”. For relevant analysis, see Philip Dayle with Alok Gubta: “Beyond the Polemics: The Continuing ‘Gay’ Rights Project and the Post-Colonial South”, paper presented at the Experts’ Meeting on Sexual Orientation, Gender Identity and Human Rights, Yogyakarta, 6-9 November 2006.

10. For an erudite discussion on the manner in which colonial Britain forced
its sodomy laws on its colonies and the consequences of that, see: This Alien Legacy: The Origins of (Sodomy) Laws in British Colonialism, Human Rights Watch, 2008, available at
http://www.hrw.org/en/reports/2008/12/17/alien-legacy-0

(accessed on 27 December 2008).

11. Kenya’s Penal Code still stipulates punishments of 14 years for the offense of having carnal knowledge on or by another “against the order of nature”; Tanzania’s sentencing in this regard is 30 years while that of Uganda is life imprisonment (see Sylvia Tamale’s reflections in: This Body: Supporting LGBTI Organising in East Africa, Urgent Action Fund, 2006).

12. See “Burundian Gays Oppose New Anti Homosexual Penal Code”, available at
www.mask.org.za/article.php?cat=burundi&id=2015 (last accessed on 26
December 2008).

13. Even the electronic and print media nowadays carries some programming
content discoursing around the concerns of LGBTI communities. This year, a
private TV station with national reach carried a discussion programme under
its Hatua series where Kenyans expressed diverse views on the legality, morality and rights contexts of concerns of LGBTI communities. Perhaps paradoxically, even the homophobia witnessed within the Anglican Church has engendered public consciousness on the rights of LGBTIs.

14. Section 9(3) of the South African Constitution of 1996.

15. Minister of Home Affairs v. Fourie, 2006 (3) BCLR 355 (CC), which found
the prohibition of gay marriage to be unconstitutional; also, the National
Coalition of Gay and Lesbian Equality v. the Minister of Justice, 1998 (12)
BCLR 1517 (CC)(S.Afr), where the Constitutional Court declared sodomy laws
unconstitutional.

16. Apart from specifically listed grounds for which discrimination is outlawed, East Africa’s anti-discrimination constitutional provisions include the ground of ‘other status’, (in Kenya referred to as “other local connexion”) which progressive judicial interpretation would quite easily read as a basis for excluding discrimination on the grounds of sexual orientation or gender identity (Committee on Economic, Social and Cultural Rights and Committee on Rights of the Child] interpretation); or the ground
of “sex” which could be similarly interpreted (Human Rights Committee)
interpretation). (See Lawrence Mute, “Sexual Rights as Human Rights:
Operationalisation by Stealth”, in Sex Matters, Urgent Action Fund-Africa,
2007). 17. Available at
www.yogyakartaprinciples.org/principles_en.htm(accessed on 25 December
2008).

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