African Charter and Sexual Rights
The question of rights for sexual minorities in Africa is beginning to gain ground at the African Union (AU). In 1981, the OAU adopted one of its most important documents, the ACHPR, in Nairobi, Kenya. In 2000 the AU replaced the OAU. This transformation, however, did not affect the existence of the African Charter. The African Charter on Human and Peoples’ Rights was adopted on 27 June 1981 and entered into force on 21 October 1986.
The Charter is rightly viewed as the pivotal human rights document of the African Union. The regulatory framework established by the Charter is the African Commission on Human and Peoples’ Rights, later complemented with an African Human Rights Court. The Charter stipulates that ‘freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspiration of the African people,’ connoting the cornerstone of its philosophy of human rights.
In a bid to stamp an air of collective brotherhood and equality the Preamble of the Charter clearly emphasises its non-discrimination and commitment to the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, zionism and to dismantle aggressive foreign military bases and all forms of discrimination, particularly those based on race, ethnic group, colour, sex, language, religion or political opinion.
The ACHPR’s non-discrimination philosophy proclaims that ‘every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.’
The equality principle of all human beings before the law is restated by the ACHPR. The ACHPR, like other international treaties, recognises such political and social rights as right to life, right to dignity of the human person, right to liberty, right to freedom of religion, and right to freedom of association and assembly, in addition to robust provision for social and economic rights.
Notably, ‘the rights-holders under the African Charter are ‘everyone’, ‘every human being’ and every individual’. The aforementioned rights are available and accessible to all human beings without any discrimination, sexual minorities inclusive.
Viljoen further reiterates earlier assertions that no international or regional human rights treaty categorically protects the rights of sexual minorities; the African Charter is no exception. However, the non-discrimination provision of article 2, which mentions sex as a ground of non-discrimination, arguably provides a form of refuge for sexual minorities. More so as the phrase ‘other status’ has been judicially interpreted to accommodate sexual orientation.
Human rights debates on the sensitive question of human sexual orientation will continue to generate controversy within the human right movement, particularly the African continent where members of the LGBT community are subjected to various degrees of rights violation chiefly because of their sexuality. Viljoen attributes the sweeping wave of homophobia in the continent essentially to religious dogmas and political opportunism of African leaders.
The African Charter, which is the principal document of the AU encompassing human rights, has as its enforcement organs the African Court on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights. Article 63(3) of the ACHPR provides for the establishment of the African Commission, empowering it with both a protective and promotional mandate.
The African Court was established to play a complementary role to the protective mandate of the African Commission. The African Court which seemingly has more judicial powers than the African Commission has been ratified by 30 states, including Nigeria. The African Court Protocol provides for three access routes to the African Court, namely: through the African Commission on behalf of individual complainants, through a member state and through African NGOs.
Availability of direct access to NGOs is only guaranteed when such NGOs are granted an observer status before the African Commission. For NGOs and individuals’ direct application to the Court, a member state must have made a declaration accommodating the jurisdiction of the African Court to entertain individual applications. As it currently stands, only 7 countries have made such declaration, excluding Nigeria.
The African Commission and the African Court have not yet decided any case relating to sexual orientation. The raging debate on sexual orientation and rights of sexual minorities has not really been given adequate attention at the level of the African Commission. The closest the Commission came in tackling the question of rights of sexual minorities was in the case of Curzon v Zimbabwe, where the complainant asked the Commission to consider the legal status of homosexuals in Zimbabwe, the criminalisation of sexual conduct between men, and statements made by senior political figures against such practices.
This unique opportunity to subject the anti-homosexuality laws operative in most African states to the test of judicial scrutiny before the Commission was not utilised as the complainant withdrew the case. The AU and its judicial mechanism (ie the African Commission and the African Court) have been described as offering ‘good starting points for dialogue about LGBT rights. Some scholars have, however, suggested that inasmuch as the African Commission has the potential to enhance dialogue on rights for LGBTs, it is advisable not to opt for litigation yet.
Prospective litigants are urged to thread on the side of caution to avoid a negative situation where the African Commission gives a judgment unfavourable to the sexual minorities cause. Abadir Ibrahim points out that the International Gay and Lesbian Human Rights Commission has even cautioned prospective litigants from bringing homosexual rights cases before the African Commission.
The Commission’s attitude to sexual minorities’ issues was made manifest in its refusal to grant observer status to Coalition of African Lesbians (CAL) in 2010. The Commission in its report at the Executive Council in Uganda noted the following:
The ACHPR decided, after a vote, not to grant observer status to the Coalition of African Lesbian (CAL), South Africa, whose application had been pending before it. The reason being that, the activities of the said organization do not promote and protect any of the rights enshrined in the African Charter.
The fierce rejection of CAL’s application was hinged on the highly discredited ground that homosexuality is alien to African culture. In fact, one of the Commissioners, Bitaye, who was the first to comment on CAL’s application, questioned the value of same-sex relationships to the society as it does not allow procreation. Commissioner Atoki expressed the view that there was no provision that applied to LGBTI people in the ACHPR.
Nevertheless, the African Commission yielded to the pressure from CAL and granted it observer status in April, 2015. The observer status granted to CAL hangs in a precarious balance currently as the AU’s Executive Council has instructed the African Commission to withdraw the observer status of CAL. Amnesty International has also voiced its concern over the decision to withdraw CAL’s observer status, terming the decision as amounting to ‘blatant interference with and disregard for the independence and autonomy of the African Commission’.
The directive of the Executive Council of the AU indeed place CAL’s observer status in a precarious situation. The status quo was however, maintained when CAL and Centre for Human Rights of the law faculty, University of Pretoria approached the African Court, seeking an advisory opinion of the African Court on the best possible way to resolve the impasse.
In its judgment, the African Court declined to give its advisory opinion on the basis that the two NGOs lack the competence to push for the request. The implication of this decision paints a bleak future for NGOs related to sexual minorities’ rights in quest for observer status within AU framework.
The Director of Centre for Human Rights, Frans Vijoen captures this unfavourable decision of the African Court when he pointed out that ‘if the Court’s advisory role is not brought into play, the Executive Council and African Commission remains on a collision course that may seriously erode human rights protection within the AU’, thus further politicising accessibility of prospective homosexual litigants before the AU judicial mechanism.
Ibrahim expresses concern that if a trivial issue such as a mere observer status can generate large scale controversy before the African Commission, then, obviously, the Commission will be very reluctant to push for a more visible agenda for sexual minorities rights.
Paul Johnson expresses fears that neither the African Commission nor state parties will be willing to communicate a complaint relating to sexual orientation to African Commission. Ibrahim suggests that the starting point for legal litigation should be the domestic front. Momentum from the domestic base can then swing sentiments towards decriminalisation. For Ibrahim, the African Commission holds promise, but at this stage it is still problematic a forum to launch gay rights litigations.
 G J Naldi ‘Observations on the rules of the African court on human and peoples’ rights’ (2014) 14 African Human Rights Law Journal 367
 Preamble to ACHPR
 Article 2 ACHPR
 Article 4 ACHPR
 Article 5 ACHPR
 Article 6 ACHPR
 Article 8 ACHPR
 Article 10 & 11 ACHPR
 Article 15 -24 ACHPR
 Ending violence and other human rights violations based on sexual orientation and gender identity: A joint dialogue of the African Commission on Human and Peoples’ Rights, Inter-American Commission on Human Rights and United Nations (2016) 30. This resolution suggest that the all-encompassing provision on right-holders gives adequate room for sexual minorities to claim rights to their sexual orientation and gender identity
S Maguire ‘The human rights of sexual minorities in Africa’ (2004) 35 California Western International Law Journal 1
 AO Enabulele ‘Incompatibility of national law with the African Charter on Human and Peoples’ Rights: Does the African Court on Human and Peoples’ Right have the final say?’ (2016) 16 African Human Rights Law Journal 2
 P Johnson ‘Homosexuality and the African Charter on Human and Peoples’ Rights: What can be learned from the History of the European Convention on Human Rights?’ (2013) 40 Journal of Law and Society 256-257. Johnson describes the protective mandate of the ACmHPR to involve receiving petitions relating to rights violations under the ACHPR and investigating same, communicating its findings and decisions to member state, while its promotional mandate entails holding bi-annual conferences where it receives reported and proposals from member states.
 Communication 136/94, William Curzon v Zimbabwe (2000) AHRLR 335 (ACHRR) (1995) (7th Annual Activity Report)
 A M Ibrahim ‘LGBT rights in Africa and the discursive role of international human rights law’ (2015) 15 African Human Rights Law Journal 272
 African Union Doc ‘28th Activity report of the African Commission on Human and Peoples’ Rights (ACHPR)’ (2010) EX CL/600(XVII) para 33
 S Ndashe ‘Seeking the protection of LGBTI rights at the African Commission on Human and Peoples’ Rights’ (2011) 15 Feminist Africa Legal Voice 31
 Decision on the 38 activity report of the African Commission on Human and Peoples’ Rights, Doc. EX.CL/921 (XXVII). Currently, the CAL observer status before the African Commission is still in effect despite the judgement of the African Court on CAL and the Centre for Human Rights. At the 61st Ordinary Session of the African Commission on Human and Peoples’ Rights held in the Republic of The Gambia from 1-15 November 2017, CAL to this effect submitted a proposal for a panel discussion about the advisory opinion of the African Court. For details see ‘ CAL at the 61st Ordinary Session of the African Commission of Human and Peoples’ Rights and NGO Forum’ available at https//www.cal.org.za (accessed 9 December 2017).
 Amnesty International ‘From rhetoric to action: Seven recommendations to the 27th summit of the African Union’ (2016) 20
 Centre for Human Rights, University of Pretoria ‘African Court rejects Centre for Human Rights and CAL request, leaving political tension within the AU unresolved’ 6 October 2017