In April 2015, the Coalition of African Lesbians was granted observer status at the African Commission on Human and Peoples’ Rights (ACHPR) – hereinafter referred to as the African Commission, representing a milestone in the pan-African work of CAL. This followed a drawn-out process spanning seven years from our initial application in 2008 and the rejection in October 2010.
At the time, the African Commission stated in its letter of decline that it decided not to grant observer status to the Coalition of African Lesbians because “the activities of the said Organisation do not promote and protect any of the rights enshrined in the African Charter” [on Human and Peoples Rights].
In its long struggle to achieve observer status, CAL built relationships with other feminist and human rights organisations on the continent, which helped to bring visibility around sexual orientation, gender identity and expression to the NGO forum space at the African Commission, and worked strategically on feminist initiatives such as the ‘Raising Feminist Voices at the African Commission’ campaign led by People Opposing Women Abuse (POWA).
CAL commends the efforts of all those in civil society who have worked alongside us, and the African Commission itself, to bring to fruition this decision. Our right to defend human rights and in particular women’s rights, including our right to autonomy over our bodies and lives, as well as our right to organise and express ourselves in private and public spaces, is increasingly being af rmed in policies, legal standards and various institutions.
However, the granting of observer status to CAL was by no means a unanimous decision by the commissioners. Indeed, during the public debate in plenary, one of the commissioners stated that “… these people are an imported virus that will spread across Africa and have no place in this human rights body.”
The vote in favour of CAL’s observer status was close, and has come under threat. At the 25th African Union Summit, during the consideration of the report of the African Commission, the Executive Council of the African Union took the decision to request the Commission “to take into account
the fundamental African values, identity and good traditions, and to withdraw the observer status granted to NGOs who may attempt to impose values contrary to the African values; in this regard, requests the ACHPR to review its criteria for granting observer status to NGOs and to withdraw the observer status granted to the Organisation called CAL, in line with those African Values.”
This request by the Executive Council of the African Union constitutes a challenge to the independence of the African Commission on Human and Peoples’ Rights, which is mandated by the African Charter on Human on People’s Rights with the promotion and protection of human rights, and is the only body within the African Union which is charged with interpreting the Charter.
The work of the African Commission is critical to the advancement and protection of all human rights for all. Its work as a body which is independent from states, and from other AU organs, means that we have an institution that can set human rights standards in Africa and can monitor the implementation of these standards.
Further, the Executive Council has acted beyond the scope of its powers. Its duty is to consider the decisions taken by the African Commission, but is does not have the powers to overturn such decisions and to substitute them with those of the Executive Council.
Thirdly, this decision by the Executive Council is arbitrary. The African Charter on Human and Peoples’ Rights sets out a range of human and peoples’ rights. Over the past 30 years, the African Commission has consistently and deliberately sought to give meaning and content to the various provisions of the African Charter. African values have never been de ned in the African Human Rights Systems to mean that human rights organisations may not receive observer status.
The decision to grant observer status to the Coalition of African Lesbians is an af rmation of the right to freedom of association and the right to be free from discrimination. There is no basis for the suggestion that African values, however de ned, are criteria for granting observer status.
Criteria for granting observer status have been established in a Resolution adopted by the African Commission in 1999. Article 2(a) indicates that the applicant must “[h]ave objectives and activities in consonance with the fundamental principles and objectives enunciated in the OAU Charter and in the African Charter on Human and Peoples’ Rights.” Objectives and principles of the African Union are spelled out in articles 3 and 4 of the Constitutive Act, which mention, among others, unity and solidarity, peace, democratic principles, good governance, human rights, rule of law, good governance, gender equality, but not African values or traditions.
If African values are fundamentally distinct from and incompatible with human rights values to the extent that the AU can override human rights at will, the value of the African Charter on Human and Peoples’ Rights is questionable. Instead of pitching human rights against arbitrary ‘African values’, the AU should be promoting the valuing of human rights as Africans!
Recognising the likelihood that the African Commission would proceed at its November 2015 session to withdraw CAL’s Observer Status and fully implement the decision of the Executive Council, CAL led a request for an Advisory Opinion with the African Court on Human and Peoples’ Rights seeking clari cation with respect to how the word “consider” in article 59(3) of the African Charter on Human and Peoples’ Rights (African Charter) should be interpreted.
CAL then actively participated in this session of the African Commission through presenting on a panel discussion in the main NGO Forum focusing on the independence of the African Commission; moderating a side event on the implementation of ACHPR Resolution 275 on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity; and presenting CAL’s rst oral statement before the African Commission in the public session under Item 4 of the Agenda: Human Rights Situation in Africa.
Regardless of whether our observer status is withdrawn or not, CAL together with our many partners will continue to promote and defend the human rights of lesbian women as well as others discriminated against on the basis of sexual and gender diversity on our continent. Our work will build on the landmark Resolution 275 of the African Commission on the Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity.