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

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.

ICJ Facebook Live on “Lives and Laws” to commemorate Transgender Day of Remembrance 2020 

ICJ Facebook Live on “Lives and Laws” to commemorate Transgender Day of Remembrance 2020 

On 18 November 2020, the ICJ hosted a Facebook Live with four transgender human rights activists from Asia and Africa. It highlighted the stark reality between progressive laws and violent lived realities of transgender people.

The 20th November 2020 marks the Transgender Day of Remembrance (TDOR), the day when transgender and gender diverse people who have lost their lives to hate crime, transphobia and targeted violence are remembered, commemorated and memorialized.

The discussions focused on their individual experiences of Transgender Day of Remembrance in their local contexts, the impact of COVID-19 on transgender communities and whether laws are enough to protect and enforce the human rights of transgender and gender diverse people.

The renowned panelists were from four different countries, Amar Alfikar from Indonesia, Liberty Matthyse from South Africa, Tshepo Ricki Kgositau-Kanza from Botswana and Vyjayanti Vasanta Mogli from India. The panel was moderated by the ICJ Africa Regional Director, Kaajal Ramjathan-Keogh.

The panel aimed to provide quick glimpses into different regional contexts and a platform for transgender human rights activists’ voices on the meaning of Transgender Day of Remembrance and the varied and devastating impacts of COVID-19 on transgender people.

The speakers discussed the meaning that they individually ascribe to Transgender Day of Remembrance. A common theme running across the conversations was that it is not enough to highlight issues and concerns of the transgender community only on this day. Instead, these discussions should be part of daily conversations about the human rights of transgender people at the local and international level.

Liberty Matthyse discussed the importance of remembering the transgender persons who have lost their lives over the past years, and added:

“South Africa generally is known as a country which has become quite friendly to LGBTI people more broadly and this, of course, stands in stark contradiction to the lived realities of people on the ground as we navigate a society that is excessively violent towards transgender persons and gay people more broadly.”

Amar Alfikar describes his work as “Queering Faiths in Indonesia”. This informs his understanding of what Transgender Day of Remembrance means in his country and he believes that:

“Religion should be a source of humanity and justice. It should be a space where people are safe, not the opposite. When the community and society do not accept queer people, religion should start giving the message, shifting the way of thinking and the way of narrating, to be more accepting, to be more embracing.”

It was clear from the discussions that a lot of the issues that have become prominent during the COVID-19 pandemic, have not arisen due to the pandemic. In fact, the COVID-19 pandemic has had the effect of a magnifying glass, amplifying existing challenges in the way that transgender communities are treated and driven to margins of society. Speaking about the intersectionality of transgender human rights, Vyjayanti Vasanta Mogli said:

“I don’t think LGBT rights or transgender rights exist in isolation, they are part of a larger gamut of climate change, racial equality, gender equality, the elimination of plastics, and all of that.”

The panelists had different opinions on whether it is enough to rely on the law for the recognition and protection of the human rights of transgender individuals.

The common denominator, however, was that the laws as they stand have a long way to go before fully giving effect to the right of equality before the law and equal protection of the law without discrimination of transgender people.

Tshepo Ricki Kgositau-Kanza, who was a litigant in a landmark case in Botswana in which the judiciary upheld the right of transgender persons to have their gender marker changed on national identity documents, explained the challenges with policies which, on their face, seem uniform:

“Uniform policies… are very violent experiences for transgender persons in a Botswana context where the uniform application of laws and policies is binary and arbitrarily assigned based on one’s sex marker on one’s identity document which reflects them either as male or female. Anybody in between or outside of that kind of dichotomy is often rendered invisible and vulnerable to a system that can easily abuse them.”

This conversation can be viewed  here.

Contact

Tanveer Jeewa, Communications Officer, African Regional Programme, e: tanveer.jeewa(a)icj.org

 

 

Botswana: ICJ welcomes High Court judgment striking down law criminalizing consensual same-sex sexual relations

Botswana: ICJ welcomes High Court judgment striking down law criminalizing consensual same-sex sexual relations

The ICJ today applauded the 11 June judgment of the Botswana High Court striking down criminal law provisions criminalizing same-sex relations.

Rightly, the Court considered that, notwithstanding the fact that the provisions at issues on their face criminalized consensual anal penetration, irrespective of the gender of those involved, the law did in fact target and disproportionately affect same-sex relations.

The judgment follows shortly after the Kenyan High Court refused to invalidate an almost identical criminal provision in judgment handed down on 24 May.

“The Botswana High Court’s judgment reaffirms the universality of the rights to be free from discrimination, dignity, privacy and equality, and directly rebuts the often-made false claim that homosexuality is ‘un-African’,” said ICJ Africa Director Arnold Tsunga.

“The ICJ commends the Court, and encourages all African states to repeal archaic criminal provisions criminalizing same-sex sexual intercourse often introduced into their legal systems by colonial powers,” he added.

In a decision referencing international human rights law and standards, and citing a growing wave of global jurisprudence on the unconstitutionality of the criminalization of consensual same-sex relations, identity and expression, the Court concluded that sections 164(a); 164(c), 165 and 167 of the Botswana Penal Code violated the rights to dignity, liberty and equality of homosexual men.

Letsweletse Motshidiemang, a 24 year-old university student who identifies as homosexual, and is currently in a relationship with a man, brought the case before the Court. Advocacy organization “Lesbians, Gays and Bisexuals Of Botswana” (LEGABIBO) was admitted as amicus curiae, and supported Motshidiemang’s case.

Despite partial legislative recognition of the need to protect people’s rights, regardless of sexual orientation, and comments made by Botswana President Mokgweetsi Masisi late last year that, “there are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected”, the Attorney General (AG) had opposed Motshidiemang’s challenge, describing the case as “cry babies”.

In a fitting rebuke of this position, the Court indicated that the AG had not produced a “scintilla or iota of justification” for its defense of the offending provisions and, instead relied on “bare assertion and/or speculations” about public morality.

Given the substantial evidence presented to the Court by the applicant and amicus curiae about the harmful effects of continued criminalization of same-sex relations, the Court observed that it “perpetuates stigma and shame against homosexuals and renders them recluse and outcasts”, finding that “there is no victim in consensual same sex intercourse inter se adults”.

Concluding that such discrimination against lesbian, gay, bisexual and transgender (LGBT) persons violates sexual autonomy and their “right to choose a sexual partner” the Court found that the provisions go “to the core of [homosexual persons’] worth as a human being[s] and “pollutes compassion” in Botswanan society.

“The judgment is a victory for LGBT persons in Botswana whose consistent advocacy ground firmly in human rights should be applauded. This judgment should catalyze further action from the Botswana authorities to ensure the full enjoyment of all human rights by LGBT persons in Botswana,” said Tsunga.

Contact:

Arnold Tsunga, ICJ Africa Director, t: +63 77 728 3249 ; e: arnold.tsunga(a)icj.org

Timothy Fish Hodgson, ICJ Legal Adviser, t: +27828719905 ; e: timothy.hodgson(a)icj.org

 

Botswana: arrangement among judges and executive brings hope for restoration of judicial functioning

Botswana: arrangement among judges and executive brings hope for restoration of judicial functioning

The ICJ expressed its hope today that an arrangement reached between four judges of the High Court and Botswanan President Ian Khama along with Chief Justice Dibotelo would serve to restore the effective functioning of the High Court and its critical role in the administration of justice.

The settlement resulted in Justices Key Dingake, Modiri Letsididi, Ranier Busang and Mercy Garekwe withdrawing a petition and letter they had written complaining about what they considered to be a range of deficiencies in the justice system, as well as a failure of leadership in judicial administration.

The President and executive, for its part, discontinued pursing allegations of misconduct and bringing the name of the judiciary into disrepute against the judges and disestablished the impeachment tribunal that had been set up to try them.

The ICJ had previously expressed its concern about the process of the impeachment of the judges and the impact of the impeachment proceedings on judicial independence and impartiality in Botswana.

The ICJ was also concerned that impeachment proceedings would not accord with the principles of the right to fair trial.

“This settlement paves the way for the four judges to resume their normal duties,” said Arnold Tsunga Director of the ICJ.

“The Botswana executive and judicial officials charged with administration of the justice can now focus their attention on addressing the very real challenges facing the justice system in the country,” Tsunga added.

The ICJ reminds the Botswana authorities of their duty to guarantee the independence, impartiality and accountability of the judiciary under international law, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples Rights, treaties to which Botswana is a party.

Contact

Arnold Tsunga, ICJ Regional Director for Africa, t: +27 716405926or +263 777 283 249; e: arnold.tsunga(a)icj.org

Background

The ICJ recalls that the four judges were suspended under section 97 of the Botswana Constitution on allegations of misconduct and bringing the name of the judiciary into disrepute.

The suspension was precipitated by a signed petition directed to the Chief Justice. In the petition the judges objected, among other things, to alleged poor conditions of service, as well as disparaging comments the Chief Justice was said have made about another judge’s ethnicity and defamatory statements related to corruption.

The petition also advocated for the Chief Justice’s impeachment and was copied to all judges of the High Court.

The Chief Justice and the President took issue with the contents and tone of the petition, alleging it to be disrespectful of the Chief Justice and causing disrepute of the judiciary in the eyes of members of the public.

Women profiles: Sanji Monageng

Women profiles: Sanji Monageng

The ICJ continues it’s monthly profile series on women’s rights defenders with an interview with ICJ Commissioner and International Criminal Court Justice Sanji Monageng.

Justice Monageng told the ICJ that her interest in women’s rights began when she went through her own divorce and encountered the injustices that Botswana women suffered. This motivated her to pursue a career in law and align herself with the women’s rights movement that was establishing itself in southern Africa.

She became the Founder and Chief Executive of the Law Society in Botswana, a Magistrate in Botswana and High Court Judge in the Gambia and Swaziland. She was elected a Commissioner of the African Commission on Human and Peoples’ Rights and served as Chair of the Commission. She has been a Judge of the International Criminal Court since 2009 and served as First Vice-President between 2012-2015.

Justice Monageng commented that in Botswana, and elsewhere in southern Africa, women were at a serious disadvantage when it came to access to justice because of cultural, customary and religious restraints as well as economic inequality.

For example, up until only a few years ago women in Botswana were unable to inherit their parent’s property, on the basis of customary law, but a progressive judge was not afraid to challenge this and when this judgement was supported this led to a real change in the lives of women.

Sanji spoke of the importance of a strong civil rights movement and noted how instrumental this had been in Africa in leading the agenda to promote progressive rights protection for women. The African Commission on Human and Peoples’ Rights has a Special Rapporteur on Women and the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (the Maputo Protocol) has been hailed as the best in the world.

At the International Criminal Court (the ICC) there is a coalition of some 2,500 NGOs that work very closely with the court and have been instrumental in driving key aspects of the Court’s work including addressing sexual violence and ensuring victim and women’s participation. ‘Without civil society, without NGOs, and we have witnessed very credible civil society organisations, Sanji says, ‘we cannot move.’

However, Justice Monageng commented that the ICC has not done very well in prosecuting sexual and gender based violence so far but acknowledges that the Court is still young and that progress is being made.

The new Chief Prosecutor, Fatou Bensouda, has undertaken a lot of endeavours to promote this aspect of the Court’s mandate such as creating a policy on sexual violence and gender issues, establishing a dedicated unit to address these crimes and appointing the highly qualified Brigid Inder as her Special Gender Advisor. Sanji commented that it is now evident in the cases she sees as a judge that a lot more attention is being paid to sexual violence.

Justice Monageng suggests that young women interested in defending women’s rights must internalize the importance of human rights. They should start associating themselves with women’s rights organizations even if only in a small way.

Defending women’s rights is difficult work and those that are interested in this must be prepared for criticism, and other unpleasantness but this work needs to be done. ‘The world is upside down and human rights are forgotten in most instances’, Sanji says, so she looks forward to girls joining the women’s rights movement.

Watch the interview:

The series of profiles introducing the work of ICJ Commissioners and Honorary Members on women’s rights was launched on 25 November 2016 to coincide with the International Day to Eliminate Violence against Women and the first day of the 16 Days of Activism Against Gender-Based Violence Campaign.

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