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 Incorporating Gay Rights into Human Rights: Moving

LGBT rights in Africa
Incorporating Gay Rights into Human Rights: Moving from Localism to Universalism
16/01/2007
Kenya
Africa
 
On 14 November 2006 South Africa became the first African nation to legalise same-sex marriage.

Meanwhile, the idea of same-sex marriage and the rights of gays and lesbians was demonized by politicians, church leaders, teachers and a majority of the ordinary citizens in South Africa. This demonisation spread further into the continent as the news spread. The media focused on the legalization process, how it came about and the struggles that members of the gay and lesbian community faced over the years. A cross-section of the media focused on the moral erosion of the piece of legislation and the thinning of society’s norms with the passing of the law in South Africa. Lodging itself as one of Africa’s most liberal states, South Africa had proven to the rest of the continent that it had embraced the idea of equality for all and from all fronts.

The South African constitution explicitly prohibits discrimination on the basis of sexual orientation. The “gay rights clause” in the constitution was the first of its kind in the world that put the rights of gay men and lesbians on an equal platform with the rights of the heterosexual members of the society. The origins of the gay rights clause in South Africa was from the realization that there needed to be social justice and that all forms of discrimination ought to be eradicated. The impact of the clause was seen when there were more South Africans “coming out of the closet” and enjoying the freedoms and the rights that the constitution conferred upon them. The inclusion of the clause in the constitution was also the basis for legal action against actors deemed to be unfair.

In 1998 a Pretoria court ruled that a lesbian police captain was entitled to register her partner of 11 years on her medical scheme. Another landmark case was witnessed in 2001 when a Pretoria High Court judge ruled that the Child Care Act and the Guardianship Act, which hindered a lesbian couple from a joint adoption of their two children, was unconstitutional. The ruling stated that the piece of legislation ought to be amended to include same-sex life partners. A Constitutional Court ruled in 1999 that the inclusion of anti-sodomy laws in various pieces of the legislation was unconstitutional and that it was a violation of equality as it infringed on individuals’ right to privacy.

It became evident then that there was a strong legal; framework set up by those fighting for the equal rights of gay men and women in the eyes of the law. Consequently, South Africa was seen as embracing the idea that gay rights are not special rights in themselves, but are logically human rights.

But this is the story of just one African nation, at the backdrop of many others that do not share the same ideals. Throughout most of Africa, there are reported and unreported cases of homophobia, with an impact so great that lives have been lost and hope destroyed. There is an atmosphere of intolerance, perpetuated by leaders in most cases, and the basic principles of human rights are discounted with the cry of homosexuals being “worse than dogs” and there being “no place for such people” in certain countries. These sentiments have been repeated and fortified by a cross-section of leaders throughout Africa over the years, leading to the demoralization of homosexuals and the outright vetoing of gays and lesbians from the security that is offered to so many other people considered “normal” under the law.

Statements such as “We don’t believe they (gay men and lesbians) have any rights at all…it cannot be right for human rights groups to dehumanize us to the status of beasts” made by Robert Mugabe, president of Zimbabwe, in 1995 paint the picture of the kind of abuse gay men and lesbians face from some of their leaders. Others have followed suit over the years, including: Sam Nujoma of Namibia, Daniel arap Moi, former president of Kenya and Uganda’s Yoweri Museveni among others. In 1999, President Yoweri Museveni declared that he had ordered the police to detain and charge any homosexuals that they came across. This was an ultimate show of the defiant nature some leaders exhibit in regards to the denial of a group of people the protection that they deserve under the law, and an outright denial of basic human right principles that ought to be enjoyed equally by all people.

As the homophobic remarks were splashed on the headlines and repeated over and over, the attitude by the public that gay men and lesbians did not deserve any rights equal to their heterosexual counterparts, was further reinforced. The end result was, and still is in many countries, violence against homosexuals and further closeting of gay men and lesbians. Police harassment has been reported, murders of gay activists and the outright persecution of people believed to be associated with gay activists have been evident.

In countries like Kenya, Uganda, Cameroon, Ethiopia and Ghana, among others, there are laws against homosexuality. On the premise of these anti-gay laws, widespread assault is manifested and often carried out by the police. On 11 October 2006, a United Nations agency urged the government of Cameroon to repeal its laws that criminalize homosexuality following the detention of 11 men on the basis of their presumed sexuality. The men were arrested at a night club that is frequented by many gay men in the capital, Yaoundé. The men were detained for a period close to a year. 9 of the men were found guilty under the country’s penal code and sentenced to 10 months in prison. One of the convicted men died of AIDS-related complications while in prison.

The UN noted that such laws that criminalize homosexuality violate international laws that seek to protect individuals’ rights to privacy and to protect individuals from discrimination. The UN declared that sodomy laws are inconsistent with countries' obligations to protect the right of non-discrimination under the International Covenant on Civil and Political Rights. As noted earlier, this stance was taken by the South African legislature following a recommendation by a Constitutional Court in 1999. (...)

(to read more see attached word document above)