The ACHPR places a great emphasis on traditional values of community, family, and peoples’ rights. This is, for example, reflected in the Charter’s name, where the emphasis is not simply on individual human rights, but also on the collectively shared peoples’ rights, i.e. people in plural. This tendency is a unique feature of the ACHPR and is one of its main points of difference from the UDHR and ECHR. Article 19 states: “All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another” (ACHPR, 1981: 6). The ACHPR’s focus on peoples’ rights has been explained on the basis of demands set out by socialist states such as Ethiopia and Mozambique who emphasize the importance of joint or collective rights. It has, however, also been seen as an indication of the region prioritizing African social values over Western ideas of individualism, and thus to some extent rejecting the Western notion of human rights (Johnson, 2013: 276).
The inclusion of the word ‘peoples’ has been widely discussed, especially in terms of how it should be interpreted. On the one hand, it has been argued as constituting a supporting mechanism for the sovereignty of the state – an interpretation which is supported by the notion that safeguarding political and economic self-determination indisputably remains a central concern of the ACHPR. On the other hand, it has also been argued that this formulation could be interpreted as guaranteeing the rights of people whose interests are not in compliance with the state. This is a valuable notion as it recognizes the post-colonial situation in Africa where the unity of people often transcends national boundaries as it builds on shared cultural, linguistic, and ethnic ties over that of state affiliation (Johnson, 2013: 277).
Article 22(1) of the ACHPR states: “All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind” and (2): “States shall have the duty, individually or collectively, to ensure the exercise of the right to development” (ACHPR, 1981: 7). Addressing the right of social and cultural development, including a regard for identity, could be seen as a favorable point in the interpretation of rights of sexual minorities, as it could be interpreted as space for personal development without state interference and thus expressing grounds for non-discrimination based on sexual identity. Johnson (2013) argues that a central question surrounding this notion is whether homosexuals can be understood as being assigned the status of ‘a people’ in order to be directly addressed in Article 22. In this context, the ECHR serves as a useful object of comparison or inspiration, as it has shown its ability to adapt gradually to the more recent demands of homosexual rights. This has for example been achieved by the recognition of homosexuality as being an individual personal trait shared by a group of people, which subsequently has resulted in the ECHR viewing homosexuals as a minority group to be protected from discrimination. In a trial from 2003, L and V v. Austria, the ECtHR concluded that the Austrian state’s verdict that had criminalized homosexual practices conflicted with Article 14 (prohibition of discrimination) combined with Article 8 (the right to respect for private and family life) of the ECHR. Furthermore, the verdict stated that homosexuals are a minority group equal to those based on ‘race, origin or colour’ and thus differential treatment or negative attitudes toward homosexuals cannot be justified (ECHR, 2003).
Three main points that are often presented within the AU framework as valid reasons to dismiss non-discrimination of people on the basis of their sexuality are African values, majority morality, and prevention of HIV. Many African leaders have expressed that homosexuality is 'un-African'. In the light of African history, however, the validity of such claims becomes questionable, as same-sex relationships between consenting adults were a somewhat common feature of traditional African societies, as mentioned in chapter 4.1. Moreover, legal limitations to such practices did not exist in pre-colonial Africa, but were more likely brought to the continent by British colonialism. Regardless of whether same-sex relationships are perceived as being in accordance with African values or not, one could argue that the issue could be seen in terms of non-discrimination, equality, and tolerance for diversity, and in this sense criminalizing homosexuality might neither be necessary nor beneficial. Increasing global interdependence has generally meant a growing call for acceptance and understanding of diversity, and such qualities are not less called for within the African continent, which is dominated by multi-cultural states (Murray & Viljoen, 2007: 93-94).
The second point, majority morality, refers in this context to the assumption that laws against homosexuality are in accordance with the overall public opinion. Factual support for this assumption is difficult to come by, but it might still be a conceivable contention. It is, however, outlined in the ACHPR that although public opinion should be considered of some relevance, the African Commission cannot base its conclusions exclusively on the views of the majority. During a trial in Zambia, the Legal Resources Foundation v. Zambia, the African Commission stated that “justification . . . cannot be derived solely from popular will, as such cannot be used to limit the responsibilities of States Parties in terms of the Charter” (ACmHPR, 2001). In South Africa such issues are dealt with in terms of diversity and do not simply rely on societal perceptions or preconceptions. Likewise, in overall accordance with the values of the South African Constitution, those who do not condone same-sex relationships are tolerated as well, and their freedom to disapprove and judge is upheld (Murray & Viljoen, 2007: 96).
The last point mentioned in the context of justifying criminalization of homosexuals is that such laws help prevent further transmission of HIV within the continent. The African continent is the region with the highest number of HIV infected people, as the World Health Organization (WHO) estimates that 25 million are currently living with HIV in Sub-Saharan Africa. The total number of people living with the disease amounts to 35 million worldwide and around 95% of new infections occur in low- and middle-income countries (WHO, 2013: 4,12). Moreover, it is estimated that homosexual men are 13 times more likely to be living with HIV than the general population, worldwide. Especially in Sub-Saharan Africa, this remains a problem and, for example, in Johannesburg, South Africa, 50% of men who have sex with men are living with HIV. Regionally this is a common tendency, as research shows that in most African countries the HIV prevalence among men who have sex with men is higher than that among the general population. As homosexual relationships are highly stigmatized within this region, many men who participate in same-sex practices also have sexual relations with women, further increasing the risk of the disease spreading (WHO, 2011: 26-27). The argument of protecting public health through laws on sodomy is, however, contradicted by the notion that criminalizing homosexual practices does not prevent such practices from taking place, rather it forces people within this minority to hide their sexuality, ultimately leading to higher risks of infection due to insufficient public education in the area and fear of consulting a doctor. In this sense, homosexuals are excluded from strategies implemented in order to prevent HIV from spreading, such as educational approaches and easy access to prevention, despite their, to some extent, increased biological exposure to becoming infected (Murray & Viljoen, 2007: 96-98). The AU addresses the issue in the Abuja Declaration with the following statement:
“We are aware that stigma, silence, denial and discrimination against people living with HIV/AIDS . . . increase the impact of the epidemic and constitute a major barrier to an effective response to it. We recognize the importance of greater involvement of People Living with HIV/AIDS” (AU, 2001 Abuja Declaration §12).
There is, however, no particular mention of sexual minorities or educational programs for such throughout the Abuja Declaration, rather the emphasis is placed on the biological vulnerability of women and girls to HIV infection and also their “subordinate position to men” (AU, 2001 Abuja Declaration §7). Recognizing same-sex relationships, particularly between men, would in this sense be a progressive approach for the AU in preventing HIV to spread further.
On the topic of improving the rights of homosexuals on the African continent, the ACHPR is in general not perceived as an advantageous instrument in doing so. The International Gay and Lesbian Human Rights Commission (ILGHRC) has for example warned against filing complaints to the African Commission on issues concerning sexual orientation or gender identification and the violation of such, as this might result in the Commission endorsing the opposite assessment than the claim intended, concluding that homosexuality is noncompliant with ‘African values’. According to Murray and Viljoen (2007), human rights advocates should rather take a more patient approach of lobbying the African Commission where possible and seek to prepare the commissioners for future proposals on the subject of sexuality in order to increase chances of a positive response (p. 106).