A Plea to the African Group at the 71st Session of the UN General Assembly

Resolution 32/2 adopted by the Human Rights Council on 30th June 2016 was a huge victory for gay, lesbian, bisexual and transgender people. It called on the protection against violence and discrimination based on sexual orientation and gender identity. It stressed the need to maintain joint ownership of the international human rights agenda and to consider human rights issues in an objective and non-confrontational manner. It also undertook to support a broad and balanced agenda, and to strengthen the mechanisms addressing issues of importance including fighting racism, racial discrimination, xenophobia and related intolerance in all their forms. It reiterated the importance of respective regional, cultural and religious value systems as well as particularities in considering human rights issues.

This resolution deplored the use of external pressure and coercive measures against States particularly developing countries, including through the use and threat of use of economic sanctions and the application of conditionality to official development assistance, with the aim of influencing the relevant domestic debates and decision-making processes at the national level. It underlined that it should be implemented while ensuring respect for the sovereign right of each country as well as its national laws, development priorities, the various religious and ethical values and cultural backgrounds of its people, and should also be in full conformity with universally recognized international human rights.

This resolution then made history by, for the first time ever, creating the mandate of an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. The resolution was however heavily contested with Saudi Arabia requesting a no-action motion saying that motion was a last attempt to make co-sponsors understand the consequences of this deeply divisive proposal that failed to recognize cultural differences.  They said that the draft was contrary to international human rights law and would disregard the universality of human rights. Nigeria supported the no-action motion saying that the draft was divisive and was concerned that the lack of definitions of sexual orientation and gender identity and the attached human rights and fundamental freedoms carried certain responsibility for States. They said that the controversial views of those issues could not be imposed by some Member States and that the adoption of the resolution would ensure that the attention on sexual orientation and gender identity issues as seen by the Western States would take root in the United Nations, without taking into account the views of a large number of States.

A myriad of amendments that would have weakened the resolution were tabled most of which were rejected by The Council and those that were accepted, actually increased the scope of the resolution. This resolution not only faced opposition from within the Human Rights Council, but also from a section of civil society who were concerned, understandably so, that the creation of a mandate on sexual orientation and gender identity would undermine the intersectionalities of struggle that exist within our society. This matter was heavily debated and I do not believe that there will ever be a consensus on it, as with most civil rights issues. The resolution passed with 23 states voting in favor, 18 (including Kenya) voting against and 6 abstentions (most notable of the abstentions being South Africa, a State that was previously seen as a beacon of hope for LGBT people what with it having constitutional protection everyone regardless of their sexual orientation and/or gender identity).

The reason why I give such a detailed background on Resolution 32/2 is because this historic resolution is under threat. I realize “threat” may be a rather strong word but that is essentially what the African Group is doing. The African Group has proposed a resolution that seeks to “…defer consideration of and action on Human Rights Council resolution 32/2…on protection against violence and discrimination based on sexual orientation and gender identity in order to allow time for further consultations to determine the legal basis upon which the mandate of the special procedure established therein will be defined.”

Speaking on behalf of the African Group, the Permanent Representative to the United Nations for Botswana expressed deep concern over attempts to introduce and impose new notions and concepts that were not internationally agreed upon, particularly in areas where there was no legal foundation in any international human rights instruments. The African Group was even more disturbed at attempts to focus on certain persons on the grounds of their sexual interests and behaviors, while ignoring that other types of intolerance and discrimination regrettably still existed. While deploring all forms of stereotyping, exclusion, stigmatization, prejudice, intolerance, discrimination, hate speech and violence, the African Group stated that adoption of resolution 32/2 would be at the detriment of issues of paramount importance, such as the right to development. The African Group also believes that notions of sexual orientation and gender identity should not be linked to existing international human rights instruments. They then called for the suspension of the appointed Independent Expert’s activities, pending the determination of clarity on the issue.

While a call for deferment of consideration of and action on the resolution may not technically be a no-action motion, it effectively does exactly what a no-action motion would do. The resolution by the African Group as drafted does not give a time period for the deferment and what it does is indefinitely defer any action on resolution 32/2. One of the mandates of the Independent Expert is to address the multiple, intersecting and aggravated forms of violence and discrimination faced by persons on the basis of their sexual orientation and gender identity. Look at the hundreds of LGBT people who have died in violent attacks all over the world including in Cameroon, Kenya and South Africa. Some of these violent attacks go unreported because of the stigma that comes with being LGBT.

Sexual orientation and gender identity are not new notions. They may be recent terms but people have had different sexual orientations and gender identities the world over, including in Africa since time immemorial. We have contributed to the society’s development, we are your brothers and sisters, mothers and fathers, we are your friends and neighbors and we cannot change who we are. Yet we constantly face violence and threats of violence due to the fact that we are of a sexual orientation or gender identity that is different. The intolerance and discrimination that we face is just as real as any other intolerance and discrimination that exists in our society. We face those too. Resolution 32/2 as I mentioned earlier supports the strengthening of mechanisms that address these intolerance and discrimination.

Notions of sexual orientation and gender identity are linked to International Human Rights Instruments. There is a legal foundation for the mandate of Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. As Arvind Narrain says in his blog post about South Africa, The principle of universality of rights and the principle of non-discrimination on any status are enshrined in the Universal Declaration of Human Rights, and the ICCPR. Further the Human Rights Council under OP2 of GA resolution 60/251 has the responsibility for “promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.” We should not face violence or discrimination not because we are gay, lesbian, bisexual or transgender, but because we are human beings, and any measure taken to address this violence and discrimination should not be opposed but supported in every way.

This is therefore a plea to the Africa Group. While you propose to defer action on resolution 32/2, hundreds of LGBT Africans are facing violence, discrimination and even death on the grounds of their sexual orientation and gender identity. While you call for the suspension of the appointed Independent Expert’s activities, hundreds of citizens in your countries are being beaten in the streets, face mental anguish due to stigma and are even facing corrective rape. Resolution 32/2 respects the sovereign right of each country as well as its national laws, development priorities, the various religious and ethical values and cultural backgrounds of its people. It is rooted, in its entirety, under International Human Rights Instruments. Your proposed resolution not only ignores the lived reality of LGBT citizens of your countries but also undermines the mandate of the Human Rights Council. Please don’t let your citizens down.

Anthony Oluoch

I am a lawyer, a brother, a son, a friend, a neighbor, a confidant, a student of life and I am Kenyan. Became a human rights activist so suddenly sometimes I ask myself if this really is something I wanted. But I have come to embrace it. I have come to realize that I like what I do. That on some level, what I do makes life easier for someone and hopefully, eventually, for myself…Probably the best way to describe me is in the words of Winston Churchill, I am a riddle wrapped in a mystery inside an enigma.

10 thoughts on “A Plea to the African Group at the 71st Session of the UN General Assembly

  • November 8, 2016 at 4:53 am

    …when the road of restistence feels lonely…know that you are followed and supported in your efforts…aluta continua Anthony!

    • November 11, 2016 at 3:39 am

      I mean, guys, there are no objective criteria in international law defining discrimination based on SOGI. Is not allowing to men to marry or banning surrogacy discrimination? Most countries would disagree, and most cultures would too. For that reason, the UN membership must define the legal basis of the new IE’s mandate otherwise it will be entirely subjective, or worse defined by the liberal ideology of the western countries that will fund the work of our Thai colleague. This challenge by the AG is needed in order to ensure the integrity of the HR systems and the HRC as an important mechanism in the system. Period. Don’t make this into some anti-LGBT initiative. It’s not. It’s a rejection of the new colonization of the west. No question about it.

      • November 11, 2016 at 10:59 am

        Hey TCH, I’ll respond to your comment in two parts;

        1. Is there a legal basis in international law?

        Well, the legal basis is exactly the same as the legal basis on which all three SOGI resolutions adopted by the Human Rights Council were founded. The principles of universality and non-discrimination enshrined in the UDHR, and the council’s responsibility, under OP2 of the GA resolution 60/251 for “promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.” The legal basis underpinning the rights of LGBT persons to be protected from violence and discrimination are also fully articulated in the two reports A/HRC/19/41 and A/HRC/29/23 that the HRC requested of the UN High Commissioner for Human Rights. The reports of the OHCHR make clear that SOGI has been referenced in general comments and concluding observations by a range of treaty bodies established under CEDAW, CAT, CRC, ICCPR, ICESR. The notion of sexual orientation has been explicitly read into the non-discrimination provision in the ICCPR by the Human Rights Committee in Toonen v Australia as early as 1992.

        2. Is it a colonial imposition?

        Resolution 32/2 was sponsored by the Latin American countries and supported by Asian countries including Vietnam, Mongolia and Korea. There is support across civil society in particular from Africa, Latin America and Asia. On a more global level, one of the remarkable activist efforts was a joint letter, signed by 628 NGOs from 151 countries, asking their governments to ‘move beyond one-off initiatives and piecemeal measures’ and urgently address the ‘protection gap’. The joint letter called upon ‘the Human Rights Council to address this gap through the creation of an Independent Expert to address discrimination and violence against persons based on sexual orientation and gender identity.’. The geographical diversity and breadth of the signatories was vast and not centered in the west.

      • November 18, 2016 at 10:19 am

        22 African countries have already decriminalised same-sex sexual acts voluntarily without external pressure. It is not colonisation. That’s the excuse used by people to downplay violation of human rights just like mass pull out of ICC. How was it not colonisation when there were similar initiatives for anti-FGM laws, laws protecting people with albinism. FGM and hunting people with albinism were part of some tribes’ cultures but times change.

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