Statement to the 77th Ordinary Session of the African Commission on Human and Peoples’ Rights on the Criminalisation of LGBT people

AIDS AND RIGHTS ALLIANCE FOR SOUTHERN AFRICA

 OBSERVER STATUS NO. 436

Honourable Chair, Honourable Commissioners, State delegates, representatives of National Human Rights Institutions, members of civil society organisations and distinguished participants:

The AIDS & Rights Alliance for Southern Africa (ARASA), would like to draw the Commission’s attention to the human rights impact of the criminalisation of Lesbians, Gays, Bisexual and Transgender (LGBT) people. Evidence shows that criminalization drives systematic violations of several rights enshrined in the African Charter, including the right to freedom without distinction of any kind (Article 2), be free from torture or ill-treatment (Article 5), to be free from arbitrary arrest and detention (Article 6), and the right to health (Article 16). Additionally, the criminalisation and its impact on LGBT people violate the principles of non-discrimination, proportionality, and necessity, as laid down in the 2014 Luanda Guidelines.

Despite this, a vast majority of countries in the African region continue to criminalise LGBT people. In Africa, there are 32 countries that still criminalise homosexuality. Of these 30 have ratified the International Covenant on Civil and Political Rights (ICCPR), but only 18 have submitted themselves to the jurisdiction of the UN Human Rights Committee by ratifying the Optional Protocol to the ICCPR. The states where criminalisation is evident have done nothing to protect the rights to life for every citizen, but rather contributed significantly to the violence against LGBT, many who live in desperation, propagated by state actors, through law enforcement. Criminalisation further creates a barrier to access critical health services including HIV prevention and treatment services. Fear of harassment, torture, policing and incarceration drives LGBT people away from life-saving health services, increasing their vulnerability to diseases such as HIV/AIDS, Tuberculosis and other health issues further derailing the countries from achieving the 95/95/95 targets by 2025. The goal of decriminalization is to end the violations, cruelty and injustices towards LGBT people and the attainment of a good state of health for all. It seeks to create a supportive and enabling environment in which LGBT people can freely demand and access health services and support without fear of stigma, discrimination, arrest and detention.

In September this year, during the UN High Level meeting in New York, it was agreed that all partners in the Universal Health Coverage movement, whether government representatives, parliamentarians, academia, civil society or the private sector, must hold countries accountable and ensure that the commitments made on UHC are translated into concrete action that advances UHC at the community, regional, national and global levels. With the criminalization of LGBT people, the reality to achieving Universal Health Coverage remains a far-fetched ambition. However, we acknowledge that there has been notable progress within the region including 5 countries that recently legalised same sex relations, further demonstrating that it is possible and achievable. These include:

• Angola decriminalizing same-sex relationships, after passing a new law that came into effect in February 2021.

• Botswana High Court decriminalized both male and female same-sex relationships in 2019.

• Mozambique In 2015, dropped from its penal code a colonial-era clause outlawing same-sex relationships as “vices against nature”.

• Lesotho In 2010 decriminalizing homosexuality in its entirety amidst the HIV statistics across the country.

• Republic of Seychelles decriminalized “same-sex acts” in May 2016.

The regression in human rights and repeal of progressive judgements related to the rights of key populations remain a grave concern as they threaten the safety of fellow Africans who identify differently.

Since the Anti-homosexuality Act was passed in Uganda, more countries in Southern Africa have shown intolerance of such groups including in Botswana, Malawi and Namibia among others. The new legislations constitutes a further crackdown on LGBT people in a country where same-sex relations were already illegal – punishable by life imprisonment.

We therefore call upon the Commission to support rights of LGBT people and commit to the resolution made during the Ordinary Session held in Luanda, Angola, on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity – ACHPR/Res.275(LV) 2014. Thank you for your attention.