|Stephane Tchakam, Charge de Communication Pan Africa ILGA|
Ms Laureta Vivian Lamptey, Ghana's new Commissioner at the Commission for Human Rights and Administrative Justice (CHRAJ), assumed office last week after being sworn in by President John Evans Atta Mills. In an interview with Peace FM, Ms Lamptey voiced two common views that slow down progress for LGBTI human rights: African values and majority views pose a justification for discrimination against LGBTI persons.
In the following selection from Ms Lamptey's remarks, she states that homosexuality is viewed as unAfrican in Ghana and "we should be wherever our country should be." She seems to believe that full human rights for LGBTI persons can only be granted when Ghanaian society is ready.
There was a question about the debate being about bigger rights like same sex marriage. I said that I don’t think that the country is ready for that at all. I think we are far from that. That even the countries where they recognize civil unions or even formal marriages, they did not get there overnight. It developed, their communities developed and gay activists lobbied and there came a point when the society was ready to give those categories of people those rights. They didn’t have them and that is how rights and law develop, they develop to meet the needs of the society. Society says that we think this is a good thing, we think this is not a good thing but we are a tolerant society and we want to allow these people these rights. So I said that I don’t think we are there. I think we are far from there. I was not giving you a view of whether we should or shouldn’t be, I was talking about my view of what is. I don’t think as a society we are ready to give homosexuals, lesbians…the whole category of people any of those kinds of rights. I think we have religious, moral, traditional, many, many barriers to that. And I don’t think we have to simply copy the Western world on everything because someone can say this is where you should be in terms of rights of individuals. I think we should be wherever our country should be and no two countries are the same. So that in terms of the additional rights.
Related to the point above, Ms Lamptey seems to believe that the Ghanian majority have the right to ultimately decide on the rights of sexual minorities.
But if as a society, because of this debate, we feel that homosexuality should not be a criminal offense, then it should be debated so that in recognition of that fact that homosexuals do engage in these acts, that can be considered captured by the law...I was saying that if as a society, you open up the debate, because it is already begun, and the mass view is that it should not be a crime, then you move any hit of it off the law books.
Here is a full transcription of Ms Lamptey's remarks. You can listen to them at Peace FM.
A Response from Pambazuka
After The African Commission on Human and People’s Rights (ACHPR) refused to award observer status to the Coalition of African Lesbians (CAL) at its 48th Ordinary session in Gambia last November (See 11/26/2010 post), Pambazuka published a paper they had submitted to the commissioners to help find them find a way forward on LGBTI human rights. The paper addressed the views of Ms Lamptey and others in Africa's human rights community.
3.2.1) ‘AFRICAN VALUE SYSTEM’ AND ‘AFRICAN FAMILY VALUES’
At first glance, one may gain the impression that the charter’s emphasis on ‘values of African civilisation’ and the family as ‘custodian of morals and traditional values recognised by the community’ may pose a justification for laws discriminating against gays and lesbians, such as the criminalisation of consensual same-sex acts or same-sex marriage. African leaders, such as presidents Mugabe, Nujoma and Museveni, Ugandan ethics minister Nsaba Butoro, and former South African deputy president Jacob Zuma have all expressed their disdain for a gay and lesbian life-style on the basis of that it is ‘unAfrican’.
A factual enquiry casts a shadow over the veracity of these generalisations. Homosexual practices between consenting adults are not alien to traditional African societies and there is no doubt that homosexuality is practised in Africa – by Africans – today. One of the main reasons for the inclusion of sexual orientation as a ground for non-discrimination in the South African Constitution is the realisation among members of the African National Congress (ANC) that some of its leadership, such as Simon Nkoli, a co-defendant in the anti-apartheid ‘Delmas Trial’, were homosexual.
The argument that decriminalising same-sex relationships would be destructive to African ‘family values’ makes several unjustified assumptions. First, it ignores the fact that LGBT have long been part of African civilisations and families and have yet to cause a collapse in the well-being of the family; Second, it denies that LGBT Africans play important roles in upholding the best and most important values of African cultural life and make important contributions, both financially and morally to their families; and finally, it refuses to acknowledge that African LGBT are often heads-of-households and in need of the kinds of protections the development of the African Charter was meant to afford. Indeed, the African Commission has interpreted the notion of ‘family’ in a broad sense, calling on states to take measures ‘to abolish such customs, ancient laws and practices as may affect the freedom of choice of a spouse’ and has recognised that contact with one’s family is essential for an individual’s dignity.
Even if it were to be accepted that same-sex intercourse is inimical to traditional African values, the question must be posed as to whether criminalising is ‘necessary’ to further these values. Responding to the argument during the Toonen case that the restriction of privacy rights caused by such penal laws is ‘reasonable’ in order to uphold the morals of society, the Human Rights Committee remarks that ‘all laws criminalising homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether sections 122 and 123 should not also be repealed’. In light of the fact that these laws have not been implemented for a decade, they could not be regarded as ‘essential to the protection of morals in Tasmania’. Similarly, in many African states these laws are rarely enforced.
The question is not whether ‘homosexuality’, as such, is an acceptable value, but rather whether tolerance for diversity and minorities has value in a particular society. Clearly, in multi-lingual, multi-ethnic and multi-religious states, which predominate in Africa, the tolerant accommodation of divergence and of minorities should be of paramount importance to the African Commission. In line with this approach, the existence of sexual minorities should be accepted as just another layer of diversity in African societies, further highlighting the need to ensure tolerance for diversity by way of the African Charter.
3.2.2) MAJORITY MORALITY
Linked to the argument based on (African) morality is the contention that discrimination against sexual minorities (for example, by refusing the registration of LGBT organisations or through the existence of sodomy laws) reflects the moral views of the majority. Although scant evidence exists about public opinion, it may be assumed that this contention is correct.
Although the views of the majority have some relevance, the African Commission has made it clear that the charter’s interpretation cannot be conclusively defined with reference to the views of the majority, even as it is reflected by parliament, acting on their behalf. In Legal Resources Foundation v Zambia, the African Commission held that justification of limitations cannot be derived solely from popular will: ‘Justification … cannot be derived solely from popular will, as this cannot be used to limit the responsibilities of states parties in terms of the Charter.’
This approach is in line with that of domestic courts in Africa. In a case before the South African Constitutional Court, National Coalition for Gay and Lesbian Equality v Minister of Justice, Sachs J expressed the view that the Constitutional Court does not ‘banish concepts of right and wrong’. As a ‘document founded on deep political morality’, the constitution does not ‘debar the state from enforcing morality’. Issues such as (de)criminalising are therefore determined with reference to diversity, central to the spirit and values of the constitution, and not by simply relying on societal prejudices. In terms of the values of the constitution, those members of society who disagree with homosexual conduct are also ‘tolerated’ in their freedom to condemn and criticise.
In the Toonen case, the Human Rights Committee rejected the argument that moral issues are exclusively a matter of domestic concern, because ‘this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy’. These arguments are all the more pertinent in Africa, where domestic law often denies the rights of gays and lesbians, as has been illustrated above. Indeed, the absence of domestic protection increases the need to extend the charter’s protective shield to include sexual minorities. If members of these groups cannot turn to the African Charter for protection, they will be reduced to a sub-human existence.
Backing Down on LGBTI Human Rights
Prior to Ms Laureta Vivian Lamptey's appointment, CHRAJ took some courageous stands for LGBTI human rights. One year ago when human rights lawyer Nana Oye Lithur was not appointed to The African Commission on Human and People’s Rights (ACHPR) because of her support for LGBTI human rights, CHRAJ came to her defence. Ms Anna Bossman, who recently resigned from CHRAJ, stated at that time:
It was unfortunate that the AU Commission failed to appoint her to the African Commission on Human and People's Rights (ACHPR) charged with the task of promoting human rights and justice across the Continent, based on her purported statement on homosexuals' rights...If the report is true then it's unfortunate and civil society organisations, media and opinion leaders must speak against the action.