As briefly mentioned in the introduction, we in this project focus on human rights, especially gay rights, aiming to examine whether these rights can be perceived as a Western phenomenon, taking our point of departure in debates about gay rights on the African continent. We set out to demonstrate the presence or absence of articles protecting the rights of homosexuals, using the African Charter on Human and Peoples’ Rights (ACHPR) as the main object of analysis, including the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR) as contrastive frameworks for our analysis. All with the aim of discussing whether the notion of a universally valid set of human rights can be seen as a form of cultural imperialism.
We chose to focus on the African region due to the recent controversial events of new and stricter legislative approaches within the area of homosexuality and gay rights. As previously mentioned, the African continent accounts for half the countries worldwide with implemented prohibitions on same-sex practices, with penalties ranging widely from fines to capital punishment. The International Lesbian Gay Bisexual Trans and Intersex Association (ILGA) have stated:
“By far, [Africa] is the continent with the worst laws on the books when it comes to homosexuality and other sexual minorities, a phenomenon which is in part rooted in bad colonial-era laws and political situations, religious autonomy, strong negative belief in cultural and family values, and the evil of patriarchy” (ILGA, 2013: 33).
The same report by ILGA also states that conditions for homosexuals are actually deteriorating in several African countries, possibly as a counter-reaction to the globally increased awareness of promoting and respecting rights of LGBT people. Therefore, we find that homosexuality and gay rights within the African continent is a highly relevant topic to discuss. Moreover, when focusing on the possible cultural imperialistic nature of human rights, the African continent is of high relevance as well, due to its long history of external influences, for example European colonialism.
It is essential to note that there are both advantages and disadvantages of choosing a geographical area of this size as our point of focus. Obviously, the African continent includes a wide range of different countries, cultures, and peoples, and the points set forth in this project should not be understood as aiming to diminish these differences. Rather, we set out to reach a more general understanding and, in this context, find it more relevant to include examples from several different countries than to focus on one particular case in detail. In spite of the vast level of difference throughout the continent, both in terms of culture and development, an existing notion of unity prevails, which for example is reflected in the establishment of regional institutions such as the African Union (AU). Even though generalizing can be a flawed approach, it can also be beneficial, to some extent, when aiming to develop a general conclusion on a topic. This will be done by assuming a broad perspective enabling us to include both differences and similarities from across the continent and from the different official covenants on human rights.
We will in this project start out with a theory section in order to establish the tools for analysis. These include: Human rights and the universality hereof, cultural relativism, cultural imperialism, and homosexuality. The section starts out by explaining the notion of human rights which is presented early in the project as it will be an overall focus. Therefore, the purpose of this section is especially to establish our understanding of the term in order to provide a general knowledge on the topic as a basis for conducting a thorough analysis. Our understanding of the term will mainly be based on the description made in the UDHR, as this declaration is acknowledged as the first global expression of rights, supposed to apply equally to all human beings. Further, it is easily accessible and often cited, making it universally known. Next, we move on to discussing the universality of human rights in order to introduce the underlying belief system of the concept of universality along with the main arguments supporting and criticizing this view. The idea of cultural relativism will then be introduced briefly, in order to create a basic understanding of that term, before discussing both principles in contrast to each other. This is relevant to include as the two principles represent somewhat opposing views within the subject of international human rights law and can therefore contribute to a broader perspective and thus a more thorough understanding of the topic. Hereafter, the principles of culture and imperialism will be presented separately in order to create a basis for discussing cultural imperialism. This chapter is of particular importance to our project, as it constitutes a main part of our research question. As a final point in the theory section, we will provide a discussion of homosexuality, as discrimination on the basis of sexual orientation will be a point of focus throughout this project. Many different types of discrimination could fit into the debate on whether human rights can be seen as a form of Western cultural imperialism, however, in order to avoid a too all-encompassing perspective we find that it will be beneficial to focus on a specific discrimination. Further, sexuality has been a dominant subject within struggles of minority rights. Nonetheless, research on the topic is rather new and therefore not as well-represented as research on other types of discrimination (Boyd, 2013: 698). Hence, an examination on the subject of sexuality has the potential to contribute to the field. Also, due to space limitations we find that focusing on one type of discrimination will enable us to conduct our analysis at a more in-depth level.
Following the theory chapter we will incorporate a section called case description. This section will include an introduction to the history of homosexuality in Africa as well as the different covenants on human rights which will be used for discussion in the analysis, as we find it essential to provide a basic knowledge on these topics. This chapter will also serve to give a general description of the attitude towards homosexuality within the African continent. Here, it should, as mentioned above, be emphasized that we do not intend to convey that Africa should or can be seen as one homogenous actor. Still, we wish to include a general history and contemporary position on homosexuality. Further, a brief presentation of the AU and the ACHPR will be given in order to provide a basic understanding of our object of analysis, namely the ACHPR. Finally, the case description will include a presentation of the ECHR before using it as an element in our analysis. As the UDHR has already been touched upon in regard to defining human rights, it will not be included in the case description. However, it will still be used as a supplementary object in our analysis.
The analysis section of this project will start out with a brief discussion and definition of the two terms equality and non-discrimination, as they are central components to the overall discussion and therefore essential to include. This part will also contain a definition of our perception of discrimination based on sexuality. Hereafter, the analysis section will, as mentioned, focus on the ACHPR as the main object of analysis, including the UDHR and ECHR as supplementary objects, contributing to illuminating the contents of the ACHPR by pointing out similarities and differences between these documents. We will examine whether the grounds for non-discrimination are more pronounced in for example the Western declarations than in the African one, which will be done by analyzing relevant articles from all three covenants, predominantly articles addressing the issue of discrimination. Examples from different actual cases of discrimination in different African countries will also be included to exemplify the treatment of sexual minorities in various incidents. Furthermore, the analysis will attempt to explain how such discrimination is often justified within the AU, based on the three main arguments of African values, majority morality and the prevention of HIV. This will be done in order to include arguments from both sides and to attempt to maintain an objective point of view to the extent that is possible. Conclusively, main arguments and findings will be summarized and discussed in order to answer our research question.