Sexuality Rights Organising at the ACHPR

As recently as 2015 Commissioner Bechir Khalfallah from Algeria, in a public session at the African Commission on human and peoples’ rights (ACHPR) – the foremost regional body built to protect and promote human rights on the continent stated the following about homosexuality:

“It is imported. It’s a new virus that only dates a few years, to divide Africans! To deter them from the real issues that they face!”

Participants in the public gallery, coming from a wide range of African countries representing a wide range of human rights causes, applauded. 

Earlier this year Botswana’s Gaborone High Court moved to remove the penal code from their constutuition effectively decriminalising same-sex relations in Botswana. Along with Angola that decriminialised same-sex relations earlier this year, this signaled a definite shift in sexuality based organising and activism in the sub-region. 

In May 2019 Kenyan courts refused to decriminalise same-sex relations stating a lack of evidence showing human rights abuses suffered by LGBTI persons as a result of the constitution. 

In October 2019, several news outlets reported plans by the Ugandan government to introduce legislation that would make homosexuality punishable by death.  

The struggle for the promotion and protection of sexuality based rights is a complex and intricate process. Gains have been made, but progress is being actively challenged and even eroded on a continent and indeed a world that is becoming increasingly more fundamentalist, oppressive and violent – and even spaces built necessarily for the promotion and protection of human rights are sadly no different. 

The African Commission on Human and Peoples’ Rights (ACHPR) is a regional human rights body charged with the protection and promotion of human rights on the continent. NGOs apply for Observer Status to be able to attend ACHPR sessions and engage with Commissioners – reporting on human rights violations in their countries and doing the work of holding their governments accountable. 

The Coalition of African Lesbians (CAL), a feminist, activist and pan Africanist network committed to advancing freedom, justice and bodily autonomy for all women on the African continent, embarked on a 7 year journey to be able to advance and give voice to women’s and sexuality rights at the ACHPR. Victory was short lived when in 2018, the ACHPR, mandated by the Executive Council of the African Union, effectively withdrew CALs Observer Status citing that CALs work did not speak to African Values as enshrined in the African Charter – the document underpinning the work of the ACHPR. 

The advancements of women’s and sexuality rights on the continent and indeed in spaces such as the ACHPR continues to be an uphill battle especially when the language of African and family values and Africanness are evoked to alienate, marginalise, malign, and demonise identities seen as deviant – Lesbian, Bisexual, Queer, sex workers, women seeking seeking abortion – women and people who do not conform to what many, including bodies built for the protection of human rights for all, feel are traditional notions of womanhood. 

The fight for the recognition of sexuality rights and legitimate rights is further complicated by the interference of African States in a human rights mechanisms that is meant to be independent. For example, the interferance of the Executive Council of the African Union in the operations and decisions made by the ACHPR, such as the mandate to withdraw the observer status of the only organisation exclusively representing the voices and experiences of Lesbian, Bisexual and Queer women on the continent, enables States to escape accountability and continue to enact repressive and violent laws. One of the many rights being curtailed and denied by such interference is the freedom of assembly and association. In Nigeria, for example, the Same Sex Prohibition Act goes beyond restricting consensual same sex sexual activity and directly impacts, polices and criminalises the ways in which people organising around sexuality and LGBT rights are able to organise, source and receive funding and form partnerships. 

Organisations and collectives have, however, developed strategies to mitigate backlash in-country as well as at regional human rights bodies. Organisations and collectives working on sexuality and LGBT rights are analysing the legal, social, political and economic ramifications of regional and in-country contexts and linking a number of social justice issues to directly challenge oppression and violence and hold States and human rights bodies accountable. The success of these strategies hinges on a number of things including societies that are aware of and understand the interconnectedness of violence and oppression; the wellness and wellbeing of human rights defenders and organisations and the ability to directly challenge institutions of power without the fear of reprisals. 

“Whenever we speak against our countries, whenever we go against the status quo –  what happens? People disappear, organisations get shut down, they get raided, people get arrested. We know this. We have seen this.”  – CAL

The struggle for all people to be able to freely exercise their right to bodily autonomy is happening at multiple levels of society and therefore requires multiple levels of interventions from multiple actors. Institutions of oppression, like the nation state, are actively fighting against and creating counter strategies to curtail equality and equity and we can no longer afford, as activists or citizens, to see our struggles as separate.

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