Protecting the human rights of sexual minorities in contemporary Africa

Sylvie Namwase, Adrian Jjuuko

Description

This collection of essays, Protecting the human rights of sexual minorities in contemporary Africa, contains papers that were first presented at a colloquium on sexual minority rights in Africa, which took place at the Centre for Human Rights, University of Pretoria, in December 2014. This event was made possible with the generous support of the Government of the Kingdom of Norway, through its Embassy in South Africa. These papers were subsequently peer-reviewed and reworked. Viewing homosexuality through a legal and rights-based prism, this volume brings together fourteen essays focusing on various aspects of homosexuality, covering a wide rage of countries from across the continent. The situation in nine countries (Botswana, Cameroon, Kenya, Mauritius, Mozambique, Nigeria, South Africa, Uganda and Zimbabwe) is reviewed; while other contributions are more regional in their perspective. This makes this publication one of the most comprehensive collections of African voices on this topic. For too long African voices have been silent on the fledgling discourse on sexual minorities. This volume seeks to amend this shortcoming.The editors and authors and contributors are not only African, but also, with a few exceptions, graduates of the Centre’s Master’s programme in Human Rights and Democratisation in Africa. The publisher is an African-based publisher, the Pretoria University Law Press (PULP), based at the Centre for Human Rights.About the editors:Sylvie Namwase is a doctoral candidate at the Centre on Human Rights in Conflict at the University of East London, United Kingdom. Her doctoral project is entitled ‘The use of excessive force against demonstrators: Law enforcement versus crimes against humanity.’ She obtained her Bachelors Degree of Laws (2008) at Makerere University, Uganda and completed her LLM in Human Rights and Democratisation in Africa in 2011 at the Centre for Human Rights, University of Pretoria, South Africa. There, she was a member of a clinical group that researched the rights of sexual minorities in Africa.BAdrian Jjuuko is a Ugandan human rights lawyer and advocate. He is the Executive Director of Human Rights Awareness and Promotion Forum (HRAPF), a human rights NGO providing legal aid services to LGBTI, sex workers and other marginalised groups in Uganda. Adrian played a leading role in coordinating the legal efforts to challenge the Anti-Homosexuality Act, 2014 in Uganda’s Constitutional Court and at the East African Court of Justice. He holds an LLM in Human Rights and Democratisation in Africa from the University of Pretoria and is a researcher and an author with research interests in the rights of sexual minorities, health and reproductive rights, and children’s rights. He is currently a doctoral candidate at the Centre for Human Rights, University of Pretoria.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique
• Sexuality
• Sexualité
• sexualité
• Sexualité

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2017
• Nombre de lectures: 2
• EAN13: 9781920538606
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Protecting the human rights of SEXUAL MINORITIES in contemporary Africa

Sylvie Namwase & Adrian Jjuuko (editors)

2017

Protecting the human rights of sexual minorities in contemporary Africa

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-60-6

© 2017

PART I: 1

PART II:

2

PART III: 3

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TABLE OF CONTENTS

Acknowledgments Preface Abbreviations and acronyms Contributors List of laws List of cases

INTRODUCTION

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Sexual minorities’ rights in Africa: What does it mean to be human; and who gets to decide?2 Sylvie Namwase, Adrian Jjuuko and Ivy Nyarango

REGULATION OF SEXUAL ORIENTATION IN PRE-COLONIAL AFRICA

A triple heritage of sexuality? Regulation of sexual orientation in Africa in historical perspective John Osogo Ambani

COUNTRY CONTEXTS

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Culture versus homosexuality: Can a right ‘from’ culture be claimed in Ugandan courts?52 Sylvie Namwase

Decriminalisation of homosexuality in Kenya: The prospects and challenges79 Seth Muchuma Wekesa

Somewhere over the rainbow: The continued struggle for the realisation of lesbian and gay rights in South Africa109 Ella Scheepers and Ishtar Lakhani

First class Constitution, second class citizen: Exploring the adoption of the third-gender category in South Africa128 Busisiwe Deyi

The suppression of sexual minority rights: A case study of Zimbabwe151 Esau Mandipa

A psycho-legal reflection on issues surrounding the LGBTI community in Mauritius159 Roopanand Amar Mahadew and Darsheenee Singh Raumnauth

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9

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The legal status of sexual minorities in Mozambique Emerson Lopes

The status of LGBTI rights in Botswana and its implications for social justice Lame Charmaine Olebile

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Human rights and the criminalisation of same-sex relationships in Nigeria: A critique of the Same-Sex Marriage (Prohibition) Act203 Victor Oluwasina Ayeni

Protecting same-sex rights in Nigeria: Case note on Teriah Joseph Ebah v Federal Government of Nigeria 238 Azubike Chinwuba Onuora-Oguno

The status of sexual minority rights in Cameroon Michel Togue

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PART IV: THE AFRICAN HUMAN RIGHTS SYSTEM 14 The protection and promotion of LGBTI rights in the African regional human rights system: Opportunities and challenges260 Adrian Jjuuko

Bibliography

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301

ACKNOWLEDGMENTS

Our sincere appreciation goes to all who helped to put this book together, in particular to our mentors and advisors at Makerere University’s Faculty of Law and the Centre for Human Rights at the University of Pretoria who aided with reviewing some of the articles: Dr Rose Nakayi, Dr Kabumba Busingye, Dr Adem Kassie and Dr Stella Nyanzi, we appreciate the time you made for us! We wish to especially thank Mrs Monica Twesime Kirya who helped to shape the final output of the book and Prof Magnus Killander who aided in its initial stages.

Special thanks also go to Ms Ivy Nyarango who contributed to shaping the concept of the book and to Ms Joaninne Nanyange who helped to proofread the final manuscript as well as the many anonymous peer reviewers.

Gratitude also goes to the Norwegian Government, through its Embassy in Pretoria, South Africa, for supporting the colloquium and this publication. Thanks also go to Ford Foundation for their contribution and Prof Sylvia Tamale who opened up this door for us, we are eternally grateful for this rare opportunity.

Special thanks also go to Prof Frans Viljoen and the Centre for Human Rights at the University of Pretoria for organising a colloquium on sexual minorities’ rights in Africa where the various authors were able to share their work and build further on their ideas. Prof Viljoen supported and encouraged us to go through with this work, and we are honoured to have him write the preface to this book.

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PREFACE

This collection of essays contains papers that have first been presented at a colloquium on sexual minority rights in Africa, which took place at the Centre for Human Rights, Pretoria, in December 2014. This event was made possible with the generous support of the Government of the Kingdom of Norway, through its Embassy in South Africa. These papers were subsequently peer-reviewed and reworked. The target audiences of this edited volume are scholars and students, as well as practitioners, government officials and all other role players who may have an impact on the rights of sexual minorities in Africa. Writing the preface of this publication is a distinct privilege and makes me particularly proud. First, its thematic focus is on homosexuality in Africa. This has long been a neglected topic. (See, however, DP Amory ‘Homosexuality’ in Africa: Issues and debates (1997) 25Issue: A Journal of Opinion5). Despite some recent developments (see eg S Tamale (ed)African sexualities: A reader (Pambazuka Press, 2011), and S Tamale and J Bennett (eds)Research in gender and sexualities in African contexts2016), African (CODESRIA, scholarship and academia (outside South Africa) have largely neglected this as an area for research, writing and teaching. In this volume, fourteen essays focus on aspects of homosexuality, covering a wide rage of countries from across the continent. Second, the disciplinary prism through which this topic is viewed is the legal. Its engagement is with law and rights. Issues of sexual orientation and gender identity in Africa have mostly inspired anthropologists and historians, in the early phases of engagement on the issue, and later on, sociologists, scholars of religious studies and other social scientists. With the rise of HIV incidence across the continent, and insights into the vulnerability to infection of particularly men having sex with men, public health perspectives were increasingly being brought to bear into this thematic domain (see eg M EpprechtHeterosexual Africa?: The history of an idea from the age of exploration to the age of AIDS (Ohio University Press, 2008)). However, celebrating a legal lens does not seek to invite or support a narrow legalistic or law-dominated discourse, but aims to at least include it as part of the conversation. Doing so adds dimensions of obligation and accountability.

Third, the editors and authors and contributors are African. The situation in nine countries (Botswana, Cameroon, Kenya, Mauritius, Mozambique, Nigeria, South Africa, Uganda and Zimbabwe) is reviewed; while other contributions are more regional in their perspective. This makes this publication one of the most comprehensive collections of African voices on this topic. African voices have largely been silent in the fledgling discourse on sexual minorities in Africa, which has been dominated by Western scholars. Early examples of writers who ventured into this terrain are: S O Murray and W Roscoe (eds)Boy-wives and female husbands: Studies of African homosexualities(St. Martin's Press, 1998); and SO Murray and W Roscoe (eds)Islamic homosexualities: Culture, history, and

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literature(New York University Press, 1997). Murray and Roscoe are both Americans, the one an anthropologist and sociologist, the other an author and activist. Another prominent author and scholar is Marc Epprecht, who spent some time in Zimbabwe as teacher and lecturer. This dominance is unfortunate, as it reinforces perceptions and protestations that homosexuality is ‘un-African’. The editors and, for the most part, the authors of this edited volume are also graduates of the Master’s programme in Human Rights and Democratisation in Africa (HRDA), which has been presented by the Centre for Human Rights, University of Pretoria since 2000. Sylvie Namwase completed the HRDA in 2011, and Adrian Jjuuko in 2013. In the ambit of this programme, the Centre in 2010 started to present a one-week short course on the topic of sexual minority rights in Africa. In this short course, Master’s students are joined by other participants, including Judges, government officials, members of national human rights institutions, leaders in civil society and academics, from all over Africa. This course, supported by the Government of Flanders, is now a firm part of the Centre’s annual calendar of activities. The Centre’s work in this domain has subsequently been expanded to the establishment of a Sexual Orientation and Gender Identity and Expression (SOGIE) Unit. In 2016, the Centre instituted scholarships for gay, lesbian, bisexual, transgender and intersex students attending the HRDA programme, supported by the Government of the Kingdom of the Netherlands, through its Embassy in South Africa.

Fourth, this edited volume adds to the growing scholarship of graduates of the Centre’s various programmes, in particular the HRDA, as well as HRDA graduates who subsequently completed doctorates at the Centre and elsewhere. Examples of books brought together by graduates are: CB Murungu and J Biegon (eds)Prosecuting international crimes in Africa (PULP, 2011)and V Ayeni (ed)impact of the African Charter and the The Maputo Protocol in selected African states(PULP, 2016).Appearing in 2016, marking 30 years since the establishment of the Centre in 1986, this book is a worthy addition to a burgeoning line of publications.

Fifth, the publisher is an African-based publisher, the Pretoria University Law Press (PULP). Few works on any topic related to homosexuality have thus far been published in Africa, by African publishers. Most of the relevant publications have been brought to light on foreign shores, and were often difficult to access. Prominent publishing houses have been: St Martin’s Press, New York University Press, Cambridge University Press, University of Minnesota Press, Ohio University Press. As a full-text open access publisher, PULP tries to create greater access, and also endeavours to disseminate printed copies across the continent.

The promise of this publication has been made possible only through the dedication of the editors; the thoughtful contribution of the authors; the support of our donors; and the magnificent one-person PULP team, Lizette Hermann. On this occasion, she was assisted by Abiy Ashenati and Thomas White. Congratulations to all.

Frans Viljoen Director, Centre for Human Rights, University of Pretoria

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ABBREVIATIONSAND ACRONYMS

ACHPR AmCHR ANC ASDSSA AU CAC CAL CAT CEDAW CFRN CGY DSM V TR EACJ EctHR ECOSSOC ECOWAS GALZ HIV/AIDS

HRC ICCPR ICESCR ILGA LEGABIBO LGBTI MDC MMM MSM NCGLE NGOs OAU RENSIDA

SAA SAHRC SADC SOGI SSMPA STIs TCB UNESCO UPR WLSA ZANU-PF ZRP

African Commission on Human and Peoples’ Rights American Convention on Human Rights African National Congress Alteration of Sex Description and Sex Status Act African Union Collectif Arc-en-Ciel Coalition of African Lesbians Convention against Torture Committee on the Elimination of Discrimination Against Women Constitution of the Federal Republic of Nigeria Cameroon Gathering Youth Diagnostic and Statistical Manual Text Revised East African Court of Justice European Court on Human Rights Economic and Social Council Economic Community of West Africa Gays and Lesbians Association of Zimbabwe Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome United Nations Human Rights Committee International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Lesbian and Gay Association Lesbians, Gays, and Bisexuals of Botswana lesbian, gay, bisexual, transgender and intersex Movement for Democratic Change Movement Militant Mauricien men who have sex with men National Coalition for Gay and Lesbian Equality non-governmental organisations Organisation of African Unity Redenacional de Associações de pessoas vivendo com HIV/SIDA em Moçambique Social Assistance Act (South Africa) South African Human Rights Commission Southern Africa Development Cooperation Tribunal Sexual Orientation and Gender Identity Same-Sex Marriage (Prohibition) Act (Nigeria) Sexually Transmitted Infections Traditional Courts Bill (South Africa) United Nations Educational, Scientific and Cultural Organization Universal Periodic Review Women and Law in Southern Africa Zimbabwe African National Union-Patriotic Front Zimbabwe Republic Police

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CONTRIBUTORS

JOHN OSOGO AMBANIan LLD from the University of Pretoria, is a holds Lecturer at the Strathmore Law School, Strathmore University, and is also the editor-in-chief of theStrathmore Law Journal. He holds a Master of Laws degree (LLM) from the University of Pretoria, South Africa, a Bachelor of Laws degree from the University of Nairobi and is an Advocate of the High Court of Kenya. Ambani has researched, taught and consulted widely in human rights law, gender and the law, jurisprudence, and constitutional law.

VICTOR OLUWASINA AYENIis a doctoral candidate at the Centre for Human Rights, University of Pretoria, South Africa. He also earned his LLM degree from the University of Pretoria; and his LLB degree from the Adekunle Ajasin University, Ondo State, Nigeria, where he taught and mentored undergraduate students of law for five years before commencing his doctoral research. He is a recipient of many academic awards and prizes for his outstanding performances at both undergraduate and postgraduate levels. He is a Barrister and Solicitor of the Supreme Court of Nigeria and member of the Nigerian Association of Law Teachers (NALT). He has published many articles in scholarly journals and his primary research interests are: international human rights law, comparative law, human rights law in Africa, comparative constitutional law and implementation of human rights norms and standards at the domestic level.

BUSISIWE NCANE DEYIis a legal research strategist focusing on legal conceptualisation, structuring and data collection in support of public interest litigation. Previously they have worked as legal researcher and administrative clerk for Justice Edwin Cameron of the Constitutional Court of South Africa. Their other professional work has focused on the trans* community. They have worked with various NGOs including Gender DynamiX, as regional coordinator and then as Legal research coordinator, and the Legal Resources Centre. Their primary advocacy work has focused on the identification and formulation of public interest litigation in relation to trans* citizenship and other Constitutional rights. They attained their LLB from the Nelson Mandela Metropolitan University, their LLM from the Centre for Human Rights, University of Pretoria and are currently obtaining their MA in Gender and Law from School of African and Oriental Studies, University of London.

ADRIAN JJUUKO is a Ugandan human rights lawyer and advocate. He is the Executive Director of Human Rights Awareness and Promotion Forum (HRAPF), a human rights NGO providing legal aid services to LGBTI, sex workers and other marginalised groups in Uganda. Adrian played a leading role in coordinating the legal efforts to challenge the Anti-Homosexuality Act, 2014 in Uganda’s Constitutional Court and at the East African Court of Justice. He holds an LLM in Human Rights and Democratisation in Africa from the University of Pretoria and is a researcher and an author with research interests in the rights of sexual minorities, health and reproductive rights, and children’s rights. He is currently a doctoral candidate at the Centre for Human Rights, University of Pretoria.

ISHTAR LAKHANIhas been working as a feminist, activist and trouble-maker in the field of human rights advocacy for over a decade. Currently Ishtar is the

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Advocacy and Human Rights Defence Manager at the Sex Worker Education and Advocacy Taskforce (SWEAT), a South African based organisation that advocates for the human rights of sex workers. She along with the advocacy team fight for the full decriminalisation of sex work as well as work to capacitate sex workers to advocate for their rights and ensure when rights are violated, there is recourse. She attained her undergraduate Bachelors and Honours degree from Rhodes University and her Masters Degree in Anthropology from the University of the Witwatersrand. Her thesis focused on the strategies of female-headed households in Tembisa, Johannesburg in achieving food security.

EMERSON LOPESwas born in Quelimane, Mozambique, in 1987. He obtained his LLB degree from the Eduardo Mondlane University in 2008; and his LLM degree from the University of Pretoria in 2010. He served as a Portuguese Speaking Legal Assistant at the African Commission on Human and Peoples’ Rights. His area of interest is corporate human rights obligations.

ROOPANAND MAHADEW holds an LLB Honours from the University of Mauritius and an LLM from the Centre for Human Rights at the University of Pretoria. He is currently reading for his LLD at the University of Western Cape, Cape Town, writing on the issue of land grabbing in African states and the human rights implications. He is a full time academic at the department of Law at the University of Mauritius. He was a legal intern at the African Committee of Experts on the Rights and Welfare of the Child prior to joining the University. His research interest is in human rights, public international law and environmental law.

ESAU MANDIPAis from the Midlands Province of Zimbabwe. He graduated with a Law degree from the University of Zimbabwe in 2007. He is also a holder of an LLM (Human Rights and Democratisation in Africa) from the University of Pretoria, 2011. Currently, he is a Lecturer at the Faculty of Law, Midlands State University, Zimbabwe where he teaches Disability Rights. He has published on disability rights and has also an interest in the subject matter of sexual minority rights.

SYLVIE NAMWASEis a doctoral candidate at the Centre on Human Rights in Conflict at the University of East London, United Kingdom. Her doctoral project is entitled ‘The use of excessive force against demonstrators: Law enforcement versus crimes against humanity.’She obtained her Bachelors Degree of Laws (2008) at Makerere University, Uganda and completed her LLM in Human Rights and Democratisation in Africa in 2011 at the Centre for Human Rights, University of Pretoria, South Africa. There, she was a member of a clinical group that researched the rights of sexual minorities in Africa.

IVY NYARANGO is currently the Head of Legal Services and Company Secretary at the Nairobi City Water and Sewerage Company (NCWSC). She holds a Masters Degree with Distinction in Human Rights and Democratisation from the Centre for Human Rights, University of Pretoria. She also holds a Bachelor of Laws Degree and a Diploma from the Kenya School of Law. She has a Diploma in International Protection of Human Rights from the Abo Akademie, Finland and she is a member of the Institute of Certified Public Secretaries of Kenya.

LAME CHARMAINE OLEBILEformerly the coordinator of Pan-Africa ILGA, the African chapter of the International Lesbian, Gay, Bisexual, Trans and

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