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.