In order to conduct our analysis the following chapter will present the topics of homosexuality in Africa, the AU, the ACHPR, and the ECHR.
4.1 Homosexuality in Africa
Having touched upon the notion of homosexuality, this section will explain the history of the term in Africa, as well as make a general description of attitudes towards homosexuality throughout the African continent.
Opposed to arguments made by African politicians, homosexuality actually has a long history within the African continent. However, it has been claimed to be 'un-African' and it has been suggested that the West has had a great impact on this part of African history. In recent times Western organized groups opposing discrimination of homosexuals have been established. Therefore, it has been argued that both gay self-identification as well as gay activism does not stem from Africa but originated elsewhere (Lembembe, 2012; Divani, 2011). The colonial history of Africa shows that it was not necessarily homosexuality, but rather anti-homosexual laws which were brought to the continent by the West. In spite of these beliefs that homosexuality as well as anti-homosexual legislation derives from the West, it appears that homosexuality has always existed on the African continent (Lembembe, 2012). Research by historians as well as anthropologists reveal that same-sex relations took place in Africa prior to colonization (Divani, 2011). Throughout history sexuality has been something that people have experimented with, and it has never been confirmed that this kind of behavior has been tied to specific geographical areas (Evaristo, 2014).
Africa is often perceived as a continent dominated by a homophobic position. This has attracted international criticism from advocates of human rights. Among others, UN Secretary General, Ban Ki-moon, has made statements arguing that homosexuals are entitled to the same rights as everyone else. He has stated: “lesbian, gay, bisexual and transgender people are entitled to the same rights as everyone else. They too are born free and equal. I stand shoulder-to-shoulder with them in their struggle for human rights" (UNFE, 2014a). Nevertheless, legislations criminalizing homosexuality are a widespread phenomenon within the African continent. One example is Nigeria that in January 2014 passed legislation prohibiting and criminalizing same-sex marriage joining a wide range of other African countries with similar laws (IGLHRC, 2014). Another example of legislation concerning homosexuality is seen in Uganda. Ugandan president Museveni has stated that homosexuals are 'mercenaries' and 'prostitutes' as he recently signed an anti-gay bill which states that homosexuals can be jailed for long terms. Acts of homosexual nature were already illegal before the adoption of the new anti-homosexuality bill, however the new bill from 2014 ensures that homosexuals can be punished with imprisonment for life (Aljazeera, 2014).
President of Zimbabwe, Robert Mugabe, has argued that homosexuality is not a part of African culture; rather it has been imported into the country by foreign cultures. This belief is backed by other Zimbabwean politicians, who argue that homosexuality is alien to the culture of the country. Similarly, Ugandan Member of Parliament David Bahati has expressed his clear support of anti-homosexuality by being the main advocate for the Ugandan anti-homosexuality bill and by expressing that homosexuality is 'un-African' and not in accordance with African values (Divani, 2011).
As mentioned in the introduction, 76 countries around the world have criminalized same-sex relationships. On the other hand, almost 40 countries have legalized same-sex relationships. Further, a wide range of countries have made legislations against discrimination of LGBTs (UNFE, 2014b). All in all, out of the 54 African countries, 38 have laws criminalizing sexual acts between same-sex partners (ILGA, 2014). However, not all African countries have laws criminalizing homosexuality and South Africa remains the only country separating itself from others by legislating against discrimination based on sexual orientation and arguing in favor of civil rights (Johnson, 2013).
The purpose of the ensuing section is to introduce our main focus of analysis throughout this project, the ACHPR. In order to do so, a brief presentation of the AU and its aspirations is also relevant and will therefore be the starting point of this chapter.
The AU was established in 1999 “with a view, inter alia, to accelerating the process of integration in the continent, to enable it play its rightful role in the global economy while addressing multifaceted social, economic and political problems compounded as they are by certain negative aspects of globalization” (AU, 2014a). The Union took over from its predecessor the Organization of African Unity (OAU), whose main objectives had been to "rid the continent of the remaining vestiges of colonization and apartheid; to promote unity and solidarity among African states; to coordinate and intensify cooperation for development; to safeguard the sovereignty and territorial integrity of Member States; and to promote international cooperation within the framework of the United Nations" (AU, 2014a). The AU's overall vision is that of "an integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in global arena" (AU, 2014b). Currently, all 54 African states are members, making the AU the most wide-ranging political institution in the region and thus the most important (Johnson, 2013: 256).
4.3 The African Charter on Human and Peoples’ Rights
The ACHPR was adopted in 1981 and came into force in 1986. It was unanimously ratified by all member states of the AU, which holds the overall political authority of this charter (Murray & Viljoen, 2007: 87-89). Today, the newly established Republic of South Sudan (2011) remains the only member state of AU to be a non-signatory of the ACHPR (Johnson, 2013: 256). The ACHPR was inspired by several other bills and conventions, particularly the American Convention on Human Rights and the ECHR (Murray & Viljoen, 2007: 87-89). It is enforced by the African Commission on Human and Peoples’ Rights (ACmHPR), which is an institution of eleven member states with a monitoring function. The eleven commissioners are well represented both in terms of geography and gender, as five hereof are women. The Commission gathers twice a year in meetings generally open to the public where state reports are received, suggestions from NGOs are presented and general recommendations to all states are formulated. The structure of the Commission has thus been categorized as remarkably democratic, due to its transparency and openness toward for example NGOs. Meetings within the African Commission allow member states to be critical of each other and highlight the different interpretations of the points set forth in the ACHPR around the continent. In order to serve as a tool of enforcement, the African Court on Human and Peoples’ Rights (ACtHPR) was introduced in 2004. Since then 26 states have acknowledged the ACtHPR and thus its ability to handle complaints of human rights abuses (Johnson, 2013: 256-257). Prior to meetings in the Commission is the so-called NGO Forum, which is open to all NGOs. These forums usually gather a large number of both African and international organizations who discuss central themes and possible resolutions to such, which are then conclusively presented to the Commission in order for it to discuss it in its own forum (Murray & Viljoen, 2007: 110). Even though the ACmHPR in theory is open to direct complaints from other actors than states, such as NGOs assigned ‘observer status’, achieving this status can be a difficult task in itself, especially when affiliated with LGBT rights. In 2010, for example, the Commission voted against assigning observer status to the South African NGO Coalition of African Lesbians and justified this refusal by stating that “the activities of the said Organisation do not promote and protect any of the rights enshrined in the African Charter” (ACmHPR, 2010: 8).