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The NIHRC Blog #2

15 May 2017

Our May blog post is written by our Chief Commissioner, Les Allamby.

One of the interesting aspects of being a Chief Commissioner is you never know what invitations to speak will find their way into your ‘inbox’.

In my role as chair of the Commonwealth Forum of National Human Rights Institutions, I spoke to the Oireachtas Association of European Parliamentarians with Africa in Dublin on ‘Being Gay in Africa – the human rights situation’.

In the audience of politicians, human rights defenders, lawyers, academics and NGOs was Independent Senator David Norris whose successful legal challenge to the prohibition of male gay sexual activity in Ireland in 1988 led to its decriminalisation.

A generation on, the situation in Africa states provides a mixed picture of optimism and despair.

In Africa 33 states criminalize same sex activity including in Sudan, 12 northern states in Nigeria and Southern parts of Somalia where the death penalty is applied through codifying arrangements under Sharia law. Elsewhere seven African states have laws targeting freedom of expression related to sexual orientation namely, Algeria, Egypt, Libya, Morocco, Nigeria, Somalia and Tunisia. No African state has hate crimes legislation covering sexual orientation as an aggravated circumstance for violent activity and only one state (South Africa) has a law prohibiting hate speech based on sexual orientation. South Africa is the only state recognising equal marriage and no other state recognises civil partnerships or equivalent arrangements carrying rights and protections.

However, an analysis of laws does not provide a full picture. In Egypt, where same sex relations are not prohibited by criminal law, other legislation has been used to imprison gay men in recent years.

In contrast, in Kenya where same sex relationships between men is a criminal offence, there is a thriving LGBTI NGO movement emboldened enough to successfully challenge a decision of the Attorney General to refuse to register the National Gay and Lesbian Human Rights Commission on constitutional grounds as an abuse of power and contrary to freedom of association.

The closure of civic space to LGBTI organisations has also been successfully resisted in the courts in Botswana, Tunisia and Zambia. Nonetheless the bravery and risks run by individuals who are openly gay in many African States cannot be underestimated.

Within Africa Human Rights Commissions there are examples of important practice. Five NHRIs (Ghana, Malawi, Kenya, South Africa and Uganda) have developed a tool kit to promote international human rights standards informed by local laws, cultural norms and political structures.

The tool kit is part of a wider capacity building and training initiative being undertaken with civil society. In Ghana a direct reporting system has been initiated by the Ghanaian Commission to ‘give discrimination the red card!’. The initiative focussed on key groups, including gay men, female sex workers and people with HIV, encouraging the reporting of discrimination online, in person or by text. Following the initiative a number of issues have been resolved around bullying and inappropriate disclosure of HIV status by medical authorities.

A wider snapshot of the global state of play on LGBTI issues is provided from the brilliant annual ILGA publication ‘State Sponsored Homophobia – a world survey of sexual orientation laws: criminalisation, protection and recognition’.

The Commission hopes to organise a meeting on LGBTI issues at next April’s Commonwealth Heads of Government Meeting in London to both showcase the work of NHRIs and LGBTI organisations, and emphasise how much work still needs to be done.

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