Africa region: Human rights advocates call on authorities to support the work of NGOs advancing the human rights of LGBTQI+ people in East and Southern Africa
On 11 April 2023, the International Commission of Jurists (ICJ) convened an online panel of five human rights advocates from East and Southern Africa to discuss the obstacles preventing organizations working to advance the human rights of lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) people in their countries from registering to operate. The webinar unpacked the advocacy and legal strategies that can, and indeed have been successfully used in some contexts, to challenge discriminatory laws and policies.
While courts in several African countries, such as Zambia and Zimbabwe, have affirmed the human rights of LGBTQI+ individuals generally – including their right to freedom of expression – in several countries on the African continent, State authorities have refused civil society organizations (CSOs) working to advance the human rights of LGBTQI+ people permission to register as legal entities and operate legally. The consequences have been far-reaching, including some CSOs not being able to open and operate bank accounts or employ staff members. As a result, the right to freedom association of both employees and members of the concerned CSOs has been violated, along with the right to equality before the law and equal protection of the law without discrimination. When people have been discriminated against on the grounds of their real or imputed sexual orientation, gender identity or expression or on other discriminatory grounds prohibited under international law, such as race or gender, the rule of law is also undermined.
The webinar panelists outlined some of the major obstacles that advocates for the human rights of LGBTQI+ people face when trying to legally register their organizations and operate, including serious backlash from community and religious groups; administrative red tape; a lack of explicit domestic laws prohibiting discrimination on the basis of sexual orientation or gender identity; and criminal laws that target and perpetuate discriminate against LGBTQI+ individuals. Describing the Eswatini context, where there is currently a pending legal challenge to the denial of registration of Eswatini Sexual and Gender Minorities, Legal Advisor with the Eswatini Commission on Human Rights and Public Administration Phumlani Dlamini said:
“Most of our politics and also our way of life is so embedded in culture, so to speak, even in terms of our governance system. I would say that there are traditional barriers, which are informed by our culture, and also there are the religious barriers….I’d have to say that one other one other impediment is the fact that our law does not prohibit in any way any discrimination against the [LGBTQI+] community.”
The Commission has written a report entitled “LGBTIQ’s Non-Profit-Making Association (ESGM): Complaint (Refusal of Registration by Registrar of Companies)” assessing ESGM’s complaint against the Registrar of Companies. The report outlines these issues in greater detail.
Eric Gitari, the Former Executive Director of the National Gay and Lesbian Human Rights Commission (NGLHRC), Bradley Fortuin, Programme Officer at the Southern Africa Litigation Centre (SALC) and Eric Sambisa, Executive Director of the Nyasa Rainbow Alliance (NRA), all highlighted the importance of using a wide range of advocacy strategies, alongside strategic litigation, to challenge discriminatory laws and discriminatory attitudes. They cited examples from the successes of of the LEGABIBO case in Botswana in which the Court of Appeal upheld the High Court’s decision to overturn the Minister of Home Affairs’ refusal to register LEGABIBO; the NRA’s registration case in Malawi pending before the Courts and; most recently, the NGLHRC’s victory in the Kenyan Supreme Court which upheld the right to freedom of association of the organization’s members and directed that it be allowed to register as a non-governmental organization with the words ‘gay’ and ‘lesbian’ in its title. These ongoing strategic advocacy efforts have been carried out in tandem with community engagements, human rights trainings and collaborations with partners.
“At times going to court isn’t the only route that one can take and, in some instances, it can be the last resort. I think as organizations, communities, we should at least try to explore other avenues, such as going to Parliament to propose bills that can enable LGBTQI+ organizations to register, using human rights mechanisms such as the UPR processes…One of the things that also worked was partnerships. We saw that partnerships are very crucial, especially with the media, with CSOs and with the church,” explained Bradley Fortuin of SALC.
The webinar panelists further emphasized the important role played by CSOs and human rights defenders in advancing the human rights of LGBTQI+ people, and called on governments and international organizations to support them to ensure they can operate freely and safely. This is particularly critical to challenge restrictive civic spaces and amid the introduction of measures that further erode the human rights of LGBTQI+ people. The most recent example of a backlash against the human rights of LGBTQI+ individuals is the recently introduced and yet to be enforced Anti-Homosexuality Act in Uganda. With respect to this draconian piece of legislation, Adrian Jjuuko, the Executive Director of Human Rights Awareness and Promotion Forum, pointed out that if passed into law, it will have a deeply negative impact on the work of many human rights organizations in the country.
“There appears to be a growing backlash against the human rights of LGBTIQ+ individuals in multiple countries in the African continent, particularly in East Africa. It is truly unconscionable that we are facing such bigotry, prejudice and discrimination now in 2023. ICJ will continue to support these advocates and work collaboratively with partners to ensure that the LGBTQI+ rights advocates are protected and that they are able to continue their critical work of ensuring equality and dignity for all.” Kaajal Ramjathan-Keogh, ICJ Africa Director added.
Watch a recording of the discussion:
More information:[Animated Video] Realizing the rights of LGBT+ persons in Africa. [Yogyakarta Principles] The Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity
Mulesa Lumina, Legal and Communications Associate Officer (Africa Regional Programme), e: email@example.com
Kaajal Ramjathan-Keogh, Director (Africa Regional Programme), e: firstname.lastname@example.orgWeb stories