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The Rights of Lesbian, Gay, Bisexual, Transgender and Intersex Persons in Africa

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The Rights of Lesbian, Gay, Bisexual, Transgender and Intersex Persons in Africa GETTING TO RIGHTS THE RIGHTS OF LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PERSONS IN AFRICA GETTING TO RIGHTS THE RIGHTS OF LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PERSONS IN AFRICA Author: Fergus Kerrigan This study was commissioned and financed by the Danish Ministry of Foreign Affairs. The Ministry is not responsible for the content of the study. Thanks go especially to my colleague at the Danish Institute, Mr. Ulrik Spliid, who provided insights throughout the process, commented on several drafts and organized and jointly conducted the mission to South Africa. In Burkina Faso, M. Cyrille Compaore facilitated the mission and provided knowledge and insight from more than a decade of research, teaching and activism on HIV / AIDS. In Kenya, Mr David Kuria Mbote made extremely valuable contributions in terms of knowledge, insights and contacts. Dr. Lillian Tibatemwa Ekirikubinza provided legal knowledge and comments on an early draft. Suggested citation: Kerrigan, Getting To Rights: The Human Rights of Lesbian, Gay, Bisexual, Transgenderand Intersex Persons in Africa, Danish Institute for ©Human 2013 Rights,The Danish 2013. Institute for Human Rights Denmark’s National Human Rights Institution Wilders Plads 8K DK - 1403 København K Phone +45 3269 8888 www.humanrights.dk This publication, or parts of it, may be reproduced if author and source are quoted. At DIHR we aim to make our publications as accessible as possible. We use large font size, short (hyphen-free) lines, left-aligned text and strong contrast for maximum legibility. We are seeking to increase the number of accessible pdfs on our website, as well as to provide easy-to-read summaries for selected publications. SIDE HOVE CONTENTS ABBREVIATIONS 8 INTRODUCTION 10 EXECUTIVE SUMMARY 11 1 HUMAN RIGHTS AND SOCIAL & BIOLOGICAL PERSPECTIVES ON SEXUALITY 20 1.1 Sexual orientation and gender identity 21 1.2 “Essentialist” approaches: biological evidence in brain anatomy and functioning 22 1.3 Social constructionist approaches 24 1.3.1 “Naturalness” 26 1.3.2 Western biases in terminology, and their consequences 27 1.4 Nurture, social environment and sexual behaviour 30 1.4.1 Effects of growing up in an LGBTI positive environment 30 1.4.2 the fear of Cycles of child sexual abuse 32 1.4.3 Research on transgender issues and populations 33 2 AFRICAN SOCIAL AND CULTURAL DIMENSIONS 35 2.1 the family and the construction of identity 35 2.2 Social sanctions 36 2.3 Changing social contexts 37 2.4 Fertility 38 2.5 Situational bisexuality 39 2.5.1 Histories of Same sex relations 40 2.5.2 Situational same-sex behaviour and hierarchical social relationships 40 2.5.3 Alternative gender identities 42 2.6 Contemporary attitudes 42 2.7 Homophobia and transphobia 43 2.7.1 Honour, shame and the fear of loss of status 44 2.7.2 Disgust 46 2.7.3 Ignorance 47 2.8 The alleged “recruitment” of children 47 2.8.1 Fear of “promotion” of homosexuality 48 2.9 Behaviour and identity, private and public spheres 50 2.9.1 Sexuality, the private sphere and the uses of deniability 50 2.9.2 The importance of symbols and resistance to sexuality into the public sphere 51 2.9.3 Threats to the moral universe 51 2.9.4 Northern public debates and same-sex marriage 52 2.9.5 African custom 53 2.10 Media: views of key interlocutors on visibility and public sensitization 55 2.10.1 Government officials 55 2.10.2 Journalists 55 2.10.3 LGBTI activists 56 2.10.4 A film director 56 2.10.5 Health and HIV / AIDS workers 57 2.10.6 The business sector 58 3 THE RELIGIOUS SPHERE 60 3.1 Christianity 60 3.1.1 Catholicism 61 3.1.2 Evangelicalism 61 3.2 The Christian Churches since independence: A snapshot 63 3.2 Biblical condemnation of homosexuality? 64 3.3 Anglicanism 65 3.3.1 Scriptural literalism and the debate on homosexuality within African Anglicanism 66 3.3.2 Lessons learned from the Anglican split? 68 3.3.3 Proponents and sources of a more accepting view of LGBTI within anglicanism 68 3.3.4 Anglican position on criminalization / decriminalization 70 3.4 Catholicism 70 3.4.1 CATHOLIC DOCTRINAL VIEW 71 3.4.2 Catholic View on criminalization 72 3.5 Other churches 74 3.6 CASE STUDY: RELIGIOUS GROUPS AND THE AHB IN UGANDA 74 3.6.1 African and US Evangelicals 76 3.7 The Churches and dangerous rhetoric 79 3.8 Islam 79 3.8.1 Liberal and progressive interpreters 80 3.9 Conclusions: Positions on criminalization and possible ways forward 82 3.9.1 Religion and the Secular State 83 3.9.2 Protection of the family 84 4 POLITICS 85 4.1 First tendency: moderate political realism 85 4.2 Second tendency: political mobilization of homophobia 86 SIDE HOVE 4.3 Third tendency: the politicization of religion 88 4.3.1 Religion, purity and national identity 89 4.4 Fourth tendency: weak or opportunistic liberal commitment 91 4.5 Fifth tendency: genuine commitment? 92 4.6 Human rights priorities 92 4.6.1 Responses of African leaders to international pressure for LGBTI rights 93 4.6.2 Threats to impose conditionality 93 4.6.3 Positive and negative effects of international pressure in Uganda 94 4.7 Public criticism 95 4.7.1 US Policy and conditionality in Malawi 95 4.7.2 US Policy and confusion in Liberia 96 4.8 Analysis – the pros and cons of western voices in African social debates 97 4.8.1 some key points for western representatives 98 4.8.2 considerations of timing and strategy 99 4.8.3 Public gestures 100 4.9 Combating political hate speech and promoting tolerance 100 5 LAW, JUSTICE AND THE CRIMINALIZATION OF SAME-SEX RELATIONS 101 5.1 Sin and Crime 101 5.1.1 Legal / philosophical arguments for decriminalization 103 5.2 decriminalization through Legislative processes 104 5.3 Judicial routes to equality / decriminalization – domestic and international 105 5.3.1 The UN Human Rights Committee 107 5.4 Decriminalization through constitutional processes 108 5.5 Executive action and exercise of prosecutorial public interest discretion 110 5.6 Legislative prohibition of “unnatural acts” 111 5.6.1 “Indecency” type provisions 111 5.6.2 Unconstitutionality because of vagueness? 113 5.7 Some immediate effects of criminalization 113 6 THE HUMAN RIGHTS FRAMEWORK AND SYSTEMS 115 6.1 The obligations to respect, protect and fulfil and the Human Rights Based Approach 115 6.1.1 The obligation to respect the rights of LGBTI persons 115 6.1.2 The obligation to protect LGBTI persons: equal protection 116 6.1.3 Special protection 117 6.1.4 The obligation to fulfil 117 6.2 Major human rights issues facing LGBTI persons in Africa 118 6.3 Life, liberty and security of the person and bodily integrity 119 6.3.1 The obligation to respect the right to life and the death penalty 119 6.3.2 The obligation to protect: murder of LGBTI persons and activists 120 6.3.3 Murders of LGBTI generally 121 6.4 Non-lethal violence 121 6.4.1 The role of human rights defenders 121 6.4.2 Gender based violence and LGBTI persons 122 6.4.3 Hate Crimes 124 6.4.4 Mob violence, police protection and impunity 126 6.5 Liberty and security of the person -freedom from arbitrary arrest and detention 127 6.5.1 Targeting of LGBTI human rights defenders by law enforcement 128 6.6 Torture and CIDTP 128 6.7 Blackmail / extortion 129 6.8 Freedoms of expression, association and assembly 130 6.8.1 Freedom of expression 130 6.8.2 Freedom of Association and participation: “nothing for us without us” 131 6.8.3 Freedom of assembly and public events 134 6.8.4 Legal protection against hate speech 136 6.9 Equal treatment and non-discrimination 136 6.10 Right to the highest attainable standard of health and HIV / AIDS 137 6.10.1 Gender aspects of HIV / AIDS 138 6.10.2 MSM and HIV / AIDS 139 6.10.3 Religious and pragmatic approaches - Uganda 141 6.10.4 Beyond Uganda 144 6.10.5 Health services: mainstreaming and / or stand-alone clinics? 144 6.10.6 Beyond HIV /AIDS 144 6.10.7 Rights and research on HIV / AIDS 145 6.11 Rights to education, housing and employment 145 6.12 The right to privacy and to a family life 146 6.13 Rights especially relevant to transgender persons 146 6.14 National Human Rights Institutions (NHRIs) 147 6.15 Other national agencies with specialized mandates, including gender equality institutions 150 6.16 The rights of LGBTI persons and the politics of the UN human rights system 150 6.16.1 Positions taken in the UN on the subject of decriminalization 151 6.16.2 Work of charter based mechanisms / special procedures 153 6.16.3 The Universal Periodic Review 153 SIDE HOVE 6.17 The African Human Rights System 153 6.17.1 Rapporteurs and Special Mechanisms 155 6.17.2 Civil Society Participation 155 6.18 Regional Economic Communities (“RECs”) 157 6.19 The Commonwealth 157 7 ENTRY POINTS IN DEVELOPMENT PROGRAMMING 158 7.1 Strategic and policy frameworks 158 7.2 Beginning the work of mainstreaming LGBTI issues 159 7.3 Civil society based efforts 160 7.3.1 Civil society partnership approaches: channelling donor support through LGBTI specific organizations and networks 161 7.3.2 Generalized public calls for proposals in target countries 162 7.3.3 The importance of participation 162 7.3.4 Offensive and defensive litigation strategies 163 7.3.5 More or less visibility, and kinds of visibility 163 7.3.6 Issues of personal safety and security 165 7.3.7 Alliances, support networks and engagement by mainstream HR organizations 165 7.3.8 Women’s organizations and their support for lesbian, bisexual and transgender persons 166 7.4 Attempts to build regional and sub-regional networks 167 7.4.1 Southern Africa 167 7.4.2 Research 168 ABBREVIATIONS ACHPR African Commission on Human and People’s Rights AG Attorney
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