In order to conduct a thorough analysis of the ACHPR we find it relevant to include other covenants written on the subject of human rights. Therefore, we have chosen to include the ECHR and the UDHR as points of reference and comparison in order to outline similarities and differences, and to examine whether these points support the notion of a universally valid set of human rights or rather imply a level of cultural imperialism. As the UDHR was introduced previously, in chapter 3.1.1, only the ECHR will be presented in the following part.
The ECHR was adopted in 1950 by the members of the Council of Europe and was inspired by the UDHR, proclaimed just two years earlier. The aim of the Council of Europe is expressed herein as being “the achievement of a greater unity between its members” which is to be pursued by protecting and promoting fundamental rights and freedoms (ECHR, 1950: 5). The ECHR, originally named the Convention for the Protection of Human Rights and Fundamental Freedoms, “aims at securing the universal and effective recognition and observance of the Rights therein declared” (ECHR, 1950: 5). Supplementary sections have been added to the ECHR on several following occasions concerning for example education, property rights, abolition of the death penalty, treatment of immigrants, prohibition of discrimination, etc.
Article 14 of the ECHR expresses that all human beings should be able to enjoy the rights presented in this convention without any discrimination on the grounds of “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: 12). Protocol 12, introduced in 2000, expanded on the subject of non-discrimination, as it added Article 1 titled ‘General prohibition of discrimination’. The first paragraph hereof states that “The enjoyment of any right set forth by law 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”. The second part states “No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1”. This supplementary article emphasizes non-discrimination of any right set forth by law, in extension to its original Article 14, which only mentioned the rights set forth in the ECHR.
Articles of the ECHR of particular relevance to LGBT people are the following: Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”, Article 8: “Everyone has the right to respect for his private and family life, his home and correspondence”, Article 10: “Everyone has the right to freedom of expression. The right shall include freedom to hold opinion and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”, and the above-mentioned Article 14 (ECHR, 1950).
Before beginning the actual analysis section, we willinclude a brief outline of how the terms equality and non-discrimination can be understood. This will be done in order to create a basis for using these principles for further analysis and to convey our perception of sexual discrimination. Based on the described theories, we will examine the extent to which human rights, and especially gay rights, can be seen as a Western imposed phenomenon. In order to do so, the ACHPR, the ECHR, and the UDHR will be included respectively. Our main focus of analysis will be the ACHPR, as the point of departure of this project is the African region due to recent legislative actions in various African countries on the topic of homosexuality. The ECHR and UDHR will be compared to the ACHPR in order to outline differences and similarities and to determine whether the universality of human rights is a form of cultural imperialism. We have divided the analysis section into the following subchapters: Defining Sexual Discrimination, Interpreting the Legal Framework for Non-Discrimination of Homosexuals, Peoples’ Rights, and Justifying Discrimination in order to achieve coherence.
5.1 Defining Sexual Discrimination
Equality and non-discrimination are central principles of international human rights law. Peter Westen (1990) has concluded that “without moral standards, equality remains meaningless” (Westen in Matshekga, 2003: 116), emphasizing the importance of moral values when understanding and discussing philosophical terms, such as equality. In this context, non-discrimination is used to cover what the principle of equality lacks and the two principles are thus closely interrelated. They function best together, as the principle of non-discrimination also has some shortcomings, for example the fact that there is no existing overall definition of discrimination and how it should be understood in terms of international human rights law. The Convention on the Elimination of All Forms of Racial Discrimination (1965) outlined the following definition of racial discrimination in its first article:
“Any distinction, exclusion, restriction or preference based on race, colour, descent, or national or social origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life” (Matshekga, 2003: 116).
By way of comparison, the ECHR defines discrimination as any distinction that cannot be impartially and reasonably justified, is without a legitimate purpose, or is sought implemented through disproportionate means to that of the aim. Although other covenants present different definitions on the matter, there exists a general perception within the context of international human rights law that all fundamental rights and freedoms set forth in these texts should be granted equally to all human beings, regardless of personal attributes such as race, gender, ethnicity, etc. (Matshekga, 2003: 117).
Based on the above formulations, we believe that discrimination based on sexuality should be understood as being: any distinction, exclusion, restriction or preference based on gender, sexual orientation or perceived sexual orientation with the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.