We set out to determine the extent to which human rights, and especially gay rights, can be perceived as a form of Western cultural imperialism, in the light of recent debates over the rights of homosexuals in several African countries. Our point of departure was the debate between advocates of universal human rights law and cultural relativists; a debate surrounding the question whether it is possible and expedient to formulate a set of universally binding human rights or if such would neglect to consider global cultural diversity.
Human rights have in general become an incorporated part in most countries, as the respect and promotion of such is increasingly seen as a precondition for a state to be perceived as legitimate. The rights of sexual minorities have in general been assigned a lower priority or to a great extent ignored. Recently, however, gay rights have become a more frequently debated subject internationally, as stricter laws criminalizing homosexual practices have been implemented in several countries, especially within the African continent.
We built our analysis on the theoretical framework surrounding international human rights law, cultural relativism, cultural imperialism, and homosexuality. Our object of analysis was mainly the ACHPR, supplemented by the UDHR and ECHR. Based on the rhetoric of these covenants, we set out to examine the grounds for rights concerning sexual orientation, somewhat expecting the Western originating covenants to be more explicit in their inclusion of sexual orientation as a human right. However, this was not confirmed by simply reading the documents, as none of them mention sexual orientation directly. Nevertheless, they can all be interpreted to apply to homosexuals. The UDHR states that everyone is entitled to the rights expressed within the charter “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” (Article 2 UDHR, 1948). Both the ECHR and ACHPR contain almost identical formulations to that of UDHR in their articles concerning the entitlement of rights (ECHR Article 14 and ACHPR Article 2). As stated in the analysis, supporting grounds for the inclusion of sexual orientation can be found in the term ‘sex’ and especially also in the term ‘other status’. This notion has been supported by the ECtHR, who established that sexual orientation is included in ‘other status’ under its Article 14.
In general, all three covenants are remarkably similar in content and formulation. However, we found differences in the usage and implementation of the different documents, which was specified in the examples included in our analysis section. For example, we found that the ECtHR is more likely to interpret the ECHR to benefit sexual minorities in specific cases involving discrimination on the basis of sexual orientation. Whereas the ACtHPR is more likely to interpret the ACHPR as to exclude sexual minorities from enjoying these rights as such practices are perceived as ‘unAfrican’. The fact that the ACHPR is somewhat inspired by Western charters on human rights, such as the ECHR and the American Convention on Human Rights, supports the notion of Western influence. It therefore, to some extent, also supports the notion of cultural imperialism as it builds on Western originated formulations of human rights. On the other hand, the fact that the charters are alike could also imply support for universal human rights, as it might simply serve as an implication that these regions all perceive the same rights as essential. Nevertheless, gay rights as a human right is a rather controversial matter which, so far, has a higher probability of being supported in the West.
South Africa remains an exception to this, due to its political reform in the 1990s. It is hence essential to emphasize the size and disparity of the African continent when making conclusions on this matter, as situations differ vastly throughout the continent. Still, many African countries face the same social, economic, and political issues and share somewhat similar histories, and a general notion of African unity prevails. Therefore, we have maintained a more general perspective throughout this project.
Previously, the conditions for sexual minorities were unfavorable in Europe as well and including sexual orientation in the context of non-discrimination is a relatively new tendency. Based on the process concerning rights of LGBT people as seen in Europe, it could be anticipated that a similar development might take place in the African region. This assumption is supported by the fact that current conditions for sexual minorities in Africa somewhat resemble the previous situation in Europe. Also, the ACHPR was not adopted until 1981 - more than 30 years after both the UDHR and the ECHR. Thus, in the context of human rights, the African countries might simply be further behind in the process and might take on such changes when demanded by its citizens.
In sum, human rights and especially gay rights can, to some extent, be seen as a form of Western cultural imperialism in the sense that the notion of universal human rights fails to consider differing cultural values; a view in overall accordance with the perspective of cultural relativists. Furthermore, Western notions of human rights are, to some extent, attempted coercively implemented, for example by withdrawing or redirecting economic support in African countries where these rights are not upheld. On the contrary, human rights are not simply a Western tendency and approaches to protect people and their rights have been implemented worldwide. The ACHPR is, for example, unique in its focus on collective rights and inclusion of traditional African values, further supporting that human rights are not simply Western. Nonetheless, the principle of universally binding human rights is, to some extent, dominated by Western values and can therefore be perceived as a form of cultural imperialism.
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