Homosexuality and the African Charter on Human and Peoples' Rights: What Can Be Learned from the History of the European Convention on Human Rights?
| Date | 01 June 2013 |
| Published date | 01 June 2013 |
| DOI | http://doi.org/10.1111/j.1467-6478.2013.00622.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 2, JUNE 2013
ISSN: 0263-323X, pp. 249±79
Homosexuality and the African Charter on Human and
Peoples' Rights: What Can Be Learned from the History of
the European Convention on Human Rights?
Paul Johnson*
Despite differences between the European Convention on Human
Rights (ECHR) and the African Charter on Human and Peoples'
Rights (ACHPR) in terms of the substantive rights guaranteed and
machineries to enforce them, both instruments have been foundational
in the establishment of organizations that share a common history of
rejecting human rights complaints from homosexuals. Although the
contemporary jurisprudence of the European Court of Human Rights
(ECtHR) on homosexuality may contrast sharply with that of the
African Court on Human and Peoples' Rights (ACtHPR) and the
African Commission on Human and Peoples' Rights (ACmHPR) ±
because the ACtHPR and ACmHPR have never upheld a complaint
relating to sexual orientation ± the early history of the ECtHR and the
former European Commission on Human Rights (ECmHR) mirrors the
current African stance. This article explores what those seeking to
develop gay and lesbian rights in Africa might usefully learn from the
historical evolution of similar rights under the ECHR.
INTRODUCTION
To many observers within and outside of it, Africa appears as a continent
homogenized by homophobia. As Desmond Tutu remarked of the rise in
anti-gay sentiment expressed in legal, social, and cultural practices across
many African states: `a wave of hate is spreading across my beloved
249
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Department of Sociology, University of York, Heslington, York YO10 5DD,
England
paul.johnson@york.ac.uk
I am very grateful for the supportive, challenging, and critical comments of four
anonymous referees, as well as the administrative and editorial support of Carol Black
and Philip Thomas.
continent'.
1
Although the discrimination of homosexuals in Africa has
attracted criticism from high-profile human rights advocates ± not least, in
January 2012, from Ban Ki-moon, the United National Secretary General,
who advised an African Union summit to confront and address sexual
orientation discrimination
2
± this has not stemmed the development of anti-
gay law in a number of states. For example, in 2011 the Senate of Nigeria
joined several other African states in introducing legislation prohibiting and
criminalizing marriage between same-sex partners
3
and since 2009 Uganda
has continued to consider making `aggravated homosexuality' a capital
offence.
4
Thirty-six African states continue to criminalize same-sex sexual
acts
5
and impose penalties that include fines, imprisonment, internment at
labour camps, and death.
6
South Africa is atypical in the continent because,
although some other African states do not explicitly criminalize homosexual
sexual acts, it is the only state to have legislated against discrimination on
the grounds of sexual orientation in respect of a wide range of civil rights
(including marriage). The legal landscape of Africa has led human rights
defenders to describe it as `the continent with the worst laws on the books
when it comes to homosexuality and other sexual minorities'.
7
Within this context the potential to develop pan-African human rights for
homosexuals in a similar way to those recently achieved in Council of
Europe states under the European Convention on Human Rights
8
(ECHR)
may appear unlikely. Yet, despite some differences in terms of the
substantive rights they guarantee and the machineries they create to enforce
them, the African Charter on Human and Peoples' Rights
9
(ACHPR) ± the
250
1 D. Tutu, `In Africa, A Step Backwards On Human Rights' Washington Post, 12
March 2010.
2 `Africa Union: Ban Ki-moon Urges Respect for Gay Rights' BBC News, 29 January
2012, at .
3 A Bill for An Act to Prohibit Marriage Between Persons of Same Gender,
Solemnization of Same and for Other Matters Related Therewith, Parliament of
Nigeria, SB.05/C895, 2011.
4 The Anti Homosexuality Bill (Bill no. 18), Bills Supplement no. 13, Uganda
Gazette no. 47, vol. CII, 25 September 2009.
5 Male and female homosexual acts are criminalized in Algeria, Angola, Botswana,
Burundi, Cameroon, Comoros, Egypt, Eritrea, Ethiopia, Gambia, Guinea, Liberia,
Libya, Mauritania, Morocco, Mozambique, Nigeria, Sa
Äo Tome and Principe,
Senegal, Somalia, Sudan, Tanzania, Togo, Tunisia, and Uganda. Male homosexual
acts are criminalized in Ghana, Kenya, Lesotho, Malawi, Mauritius, Namibia,
Seychelles, Sierra Leone, Swaziland, Zambia, and Zimbabwe.
6 Homosexual acts are punishable by death in Mauritania, Sudan, the 12 northern
states of Nigeria, and in the southern regions of Somalia.
7 Rev R.J. Macaulay and L.R.M. Baumann, `Africa' in State-Sponsored Homophobia:
A World Survey of Laws Criminalizing Same-Sex Sexual Acts Between Consenting
Adults, eds. E. Bruce-Jones and L. Paoli Itaborahy (2011) 18±19.
8
Convention for the Protection of Human Rights and Fundamental Freedoms, CETS 005.
9 African [Banjul] Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3
rev. 5, 21 I.L.M. 58.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
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