TRES/011/4/12: Resolution on the Human Rights on the Basis of Sexual Orientation and Gender Identity in Africa
We, participants at the Forum on the Participation of NGOs in the 51st Ordinary Session of the African Commission on Human and Peoples’ Rights and 25th African Human Rights Book Fair held in Banjul, The Gambia from 14-16 April 2012
Recalling “the inherent dignity of and the equal and inalienable rights of all members of the human family” and that “All human beings are born free and equal in dignity and rights” and that all human rights are universal, interdependent, indivisible, and interrelated;
Affirming that “human beings of all sexual orientation and gender identity are entitled to the full enjoyment of all human rights” as established in the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity and as recently highlighted by the UN Secretary General;
Gravely concerned that instances of harassment, discrimination, persecution, violence and murder on the basis of real or perceived sexual orientation and gender identity are increasing across Africa;
Condemning the increasing clampdown on freedom of association and assembly of people on the basis of real or perceived sexual orientation or gender identity throughout the continent, with recent government closures of human rights workshops in Uganda, Sudan and Cameroon;
Alarmed by the increased instances of police targeting and arresting of people on the basis of their real or perceived sexual orientation or gender identity, including in Cameroon, Burundi, Ethiopia and The Gambia;
Concerned that 36 African countries criminalize consensual same-sex conduct between adults;
Deeply concerned that an increasing number of countries have recently introduced bills to criminalize, further criminalize and worsen the penalties for, homosexuality, including Nigeria, Liberia and Uganda;
Recalling that laws that criminalize consensual same-sex conduct between adults violate the right to non-discrimination, the right to equality before the law, the right to privacy, the right to freedom of expression, association and assembly, the right to be free from torture and other cruel, inhuman or degrading treatment, and the right to liberty and security of the person under international human rights law;
Gravely concerned at police impunity in countries where hate violence, including rape and murder, motivated by homophobia, against people on the basis of real or perceived sexual orientation or gender identity is at an all-time high, such as in South Africa;
Noting that laws that criminalize consensual same-sex conduct between adults impede access to HIV prevention, treatment and care, thereby increasing the incidences of new infections of and negative impact of HIV/AIDS throughout the continent, and thereby violating the right to the highest attainable standard of health.
Acknowledging the first ever UN panel on sexual orientation and gender identity which took place in March 2012, at which the UN Human Rights Commissioner presented her report on discrimination and violence on the basis of sexual orientation and gender identity, which confirmed that the rights on the basis of sexual orientation and gender identity are firmly grounded in international human rights law;
Acknowledging the efforts of South Africa, Rwanda and Mauritius in working towards the protection of human rights for all, including on the basis of sexual orientation and gender identity;
Recalling that the African Charter on Human and Peoples’ Rights (African Charter) affirms the right to non-discrimination under Article 2; the right to equal protection of the law under Article 3; the right to life and integrity of the person under Article 4; the right to be free from arbitrary arrest and detention under Article 6; the right to freedom of association under Article 10; the right to the highest attainable standard of health under Article 16; and refers throughout to the rights of ‘every individual’;
Recalling the mandate of the African Commission to protect and promote the human rights of all persons, and acknowledging that it is uniquely placed to be able to reverse the trend of criminalization and persecution on the basis of sexual orientation and gender identity in Africa through showing regional leadership, and asserting that no matter what people’s religious, cultural or personal opinions are about homosexuality, African governments have a responsibility to respect, protect and fulfill the human rights of all persons.
Hereby call on the African Commission for Human and Peoples’ Rights to pass a resolution:
- Condemning persecution on the basis of sexual orientation and gender identity by governments across Africa.
- Calling on States to end impunity of state and non-state actors on violence against people on the basis of sexual orientation and gender identity.
- Unequivocally stating that laws that criminalize consensual same-sex conduct between adults violate the non-discrimination and equality provisions of the African Charter on Human and Peoples Rights.
- Asserting that cultural and religious rights can peacefully coexist with the rights to non-discrimination and equality.
- Emphasizing that governments across Africa have a responsibility to respect, protect and fulfill the human rights of all persons, no matter what their sexual orientation or gender identity.
- Calling on states to cease arbitrary arrests and imprisonment of individuals on the basis of sexual orientation and gender identity.
- Calling on states to repeal laws that criminalize consensual same-sex conduct between adults, and amend other laws that are implemented with the purpose of persecuting individuals and communities based on their sexual orientation and gender identity, such as laws against indecency, cross-dressing, impersonation, and debauchery, among others.
- Calling on states with anti-homosexuality bills pending to withdraw such bills with immediate effect.
- Committing the African Commission to develop principles and standards on the prevention of persecution, discrimination and violence against people on the basis of sexual orientation and gender identity by state and non-state actors alike. Such principles and standards should be based on the African Charter, the African Commission’s jurisprudence, and the standards elaborated by the UN human rights bodies and experts.
- Committing the African Commission to developing a rigorous and effective investigation, documentation and reporting mechanism for human rights abuses on the basis of real or perceived sexual orientation or gender identity. This should include mandating the Special Rapporteur on Human Rights Defenders, the Special Rapporteur on the Rights of Women and the Special Rapporteur on the Freedom of Expression, and the Working Group for the Protection of the Rights of People Living With HIV, and Those at Risk, Vulnerable to and Affected by HIV to coordinate a Special Committee to investigate, document and report on these violations in order to develop appropriate responses and interventions.
Done in Banjul – 16th April, 2012
