5.2 Interpreting the Legal Framework for Non-Discrimination of Homosexuals
None of the existing legal documents addressing human rights, presented in this project, directly mention sexual orientation, leaving the issue to be a matter of interpretation, to a great extent. The ACHPR does not mention sexuality either, and South Africa remains the only African state that addresses protection from discrimination on the grounds of sexual orientation. This is stated directly in article 9(3) of the Bill of Rights within the South African Constitution: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth” (Constitution of the Republic of South Africa Act, No. 108 of 1996). This Constitution was established in the aftermath of the abolition of apartheid, in an era of national reconciliation in South Africa, influencing the great emphasis on equal human rights. It is also worth noting the time and thus the cultural context of when the ACHPR was composed, in the late 1970s, which might serve as an indicator as to why sexuality is not included as an explicit right. Another reason could be the above-mentioned notion that the ACHPR was built on or inspired by several other covenants that were drafted even earlier, and do not mention discrimination on the basis of sexual orientation either.
As mentioned previously, a critical approach toward the practices of other member countries is a common feature of meetings within the AU. South Africa, for example, was questioned on their attitude of non-discrimination on the grounds of sexuality in connection with their 2005 state report, and how it relates to the ACHPR. The ACHPR generally places a great emphasis on traditional family values, which for example is expressed in Article 18 that states: “[t]he family shall be the natural unit and basis of society”(ACHPR, 1986). In this sense, values of traditional family life are one of the notions perceived as conflicting with same-sex relationships. South Africa replied that the principle of non-discrimination does not deviate from the vision of the ACHPR and held that it is the state’s responsibility to protect the rights of all its people in a manner determined on the national level in accordance with the South African Constitution (African Commission’s 38th Session in Murray & Viljoen, 2007: 102-103).
During the presentation of Cameroon’s state report before the AU in 2006, the country’s legal treatment of homosexuals was the topic of debate. Especially a particular incident, where nine men were arrested after supposedly having participated in same-sex activities and subsequently detained for almost a year, was a subject of concern. Several commissioners expressed concern for this episode due to information provided by NGOs prior to the meeting. Among the critical concerns were: the observation that criminalizing sodomy might be incompatible with Article 2 of the ACHPR, the notion whether the extensive medical examinations that were performed on suspected homosexuals violate Article 5, and one considering the overall Cameroonian lack of tolerance based on its peoples’ sexuality. Article 2 addresses the right to freedom from any kind of discrimination and Article 5 concerns prohibition of degrading, cruel and inhuman treatment of people (ACHPR, 1981). The government of Cameroon replied that their legal approaches were in overall compliance with public morality, as the majority remains uninterested in a greater tolerance toward LGBT people. This claim is backed by ILGA, according to whom West Africa has been somewhat characterized by detaining people suspected for same-sex behavior based on charges of sodomy. ILGA further implies that young people have been thrown out of educational institutions on the basis of suspicions of homosexuality. Moreover, Mr. Amadou Ali, Cameroonian Minister of Justice, has stated that detaining people on the basis of suspicions of same-sex behavior is carried out in order to ensure “that positive African cultural values are preserved” and continues to establish that “homosexuality is not a value accepted in the African society” (ILGA, 2006). According to ILGA, the public attitude towards homosexuals is harsh, and people in same-sex relationships often keep it a secret. Moreover, the government argued that a population’s morality and values on the domestic level are superior to the interference of international conventions and therefore Cameroon’s laws cannot be perceived as conflicting with them (Murray & Viljoen, 2007: 101-104).
The UN Human Rights Committee and the European Court of Human Rights (ECtHR) have outlined two institutions that seek to provide particular protection for homosexuals - namely the ICCPR and the ECHR. These two texts include the right to privacy, which is not a point present in the ACHPR. The reason as to why this point was excluded from the ACHPR is, however, not believed to be related to sexual orientation, as none of the preparatory work included any mention of sexual orientation and therefore not the dismissal of it either. Support for protection of privacy can be interpreted in other rights expressed in the ACHPR, for example Article 5 and 6 concerning the right of "respect of the dignity inherent in a human being" and to "liberty and security of his person" (ACHPR, 1981). Supposing that a person's sexual orientation is associated with one's personality, imposing or advocating limitations to people's sexual attractions would in this sense violate their personal integrity and human dignity, along with their personal liberty as well. In order to respect these rights, the state should not interfere in private matters like this, also implying support for the right to privacy (Murray & Viljoen, 2007: 89). It may, however, be obsolete to perform extensive interpretations searching for grounds supporting the notion of privacy, as one could argue that criminalizing consensual sex between adults of the same sex violates the rights concerning respect for human dignity, integrity, freedom, and security.
Another argument regarding grounds for the protection of homosexuals within the ACHPR is the assumption that the term ‘sex’ should be understood as to cover sexuality as well. This argument is supported by the notion that the ACHPR predates the discourse containing terms such as gender and sexual orientation and therefore it is not unlikely that ‘sex’ was meant to cover all aspects related to it, including sexuality and gender. On the other hand, the term ‘sex’ might also simply refer to gender. This view will be elaborated further on in this chapter in the context of the ECHR. Another notion is that even though homosexuality might be looked down upon in many African states, it remains rather unthinkable that people would be refused other rights, such as the right to a fair trial, simply on the grounds of their sexual orientation (Murray & Viljoen, 2007: 91). On the contrary, other articles of the ACHPR might serve as limitations to the inclusion and protection of homosexuals. Article 27(2), for example, states that “The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest” (ACHPR, 1981). By including collective morality and common interest, using the points set forth in the ACHPR to protect one’s rights becomes a matter of interpretation again, in general left to the authorities and their understanding of the public’s morality. This can be seen in the arguments put forward above in the case of Cameroon, for example.
Article 2 of the ACHPR can be interpreted to protect the rights of equality and non-discrimination for homosexuals as it states:
“Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status” (ACHPR, 1981).
It can be seen as including homosexuals as it states that ‘every individual’ is entitled to these rights without any distinction. Even though sexual orientation is not explicitly mentioned, the article can still be perceived as applicable to homosexuals. The use of the term ‘other status’ can be interpreted to include sexual minorities and in extension, the notion of ‘sex’ can, as mentioned above, be seen as covering sexual orientation as well. Article 2 requires committed states to ensure that all human beings within the jurisdiction of the state are protected by the rights of the charter (Matshekga, 2003). This notion should, in accordance with the above-mentioned interpretation, be perceived as including homosexuals as well. Article 2 of the ACHPR is somewhat similar to Article 14 of the ECHR, which states:
“The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (ECHR, 1950).
Even though sexual orientation is not addressed directly within this convention, it remains a central issue to the ECtHR, and has been included in subsequent official documents. The ECtHR has in collaboration with the European Union Agency for Fundamental Rights published the Handbook on European Non-Discrimination Law (2010). In 2010 it had been 60 years since the establishment of the ECHR within which Article 14, as stated above, sets out a general prohibition on discrimination. The handbook provides sections on specific protected grounds. Here ‘sex’, ‘sexual orientation’ and ‘other status’ is specified. In the section on ‘sex’, it is stated that it refers to discrimination based on gender and hence not sexual orientation. The section on ‘sexual orientation’ states that cases in this regard often are characterized by an individual being subjected to unfavourable treatment based on their sexual orientation. The handbook states that despite the fact that Article 14 of the ECHR does not mention ‘sexual orientation’ explicitly, the ECtHR has established that it is included in ‘other status’ under Article 14 in various cases (FRA, 2010). An example of a case of such character is the Fretté v. France case, in which a French homosexual man applied for adoption but was rejected by the Paris Social Services Department on the basis of “choice of lifestyle”. The ECtHR decided that Article 14 in conjunction with Article 8 (ensuring the “right to respect for private and family life”) was applicable (ECtHR, 2002). In addition, the ECtHR protects against government interference in people’s sexual orientation in accordance with Article 8 (FRA, 2010).
The above mentioned Article 2 of ACHPR and 14 of ECHR both resemble Article 2 of the UDHR:
“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (UDHR, 1948).
The UDHR remains the first international covenant covering the subject of human rights, and even though sexual orientation is omitted from being directly addressed in here as well, it is arguably still covered by the inclusion of ‘other status’, as is the case with the ECHR and ACHPR. Considering the extensiveness of the organization of UN, implementing a common attitude toward anything is a challenge, and even more so regarding the more controversial subjects such as sexual minority rights. Also, as national sovereignty remains the supreme principle on the global level, most trials are handled at a national or regional level, leaving the UN’s actions to be primarily that of a guiding and observing character. Nonetheless, UN Secretary General Ban Ki-moon in 2010 appealed for the global decriminalization of homosexuality while stressing the importance of respecting human rights. He stated “[l]et there be no confusion: where there is tension between cultural attitudes and universal human rights, universal human rights must carry the day. Personal disapproval, even society’s disapproval, is no excuse to arrest, detain, imprison, harass or torture anyone – ever” (UN, 2010).