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Sexual Minority Rights Articles

The politics of Homosexuality in Africa
Ben Anderson

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Two steps back for Human Rights: A critique of the Kanane Case
Mboki Mbakiso CHILISA, Attorney of the High Court of Botswana

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Beyond the enforcement principle: Sodomy laws, social norms, and social panoptics

In this article, Ryan Goodman examines the sodomy laws the social consequences of criminal laws against homosexuality in South Africa before the Interim Constitution (1994) and the Final Constitution (1996) provide non-discrimination on the basis of sexual orientation. The article examines the impact that these laws have on individual identity, social relations and conceptions of public space, the costs and benefits of these comparing with other criminal which do not target an individual’s identity.

International human rights law and the criminalisation of same-sex sexual conduct

This article highlights the current state of international law on the criminalisation of same-sex conduct between consenting adults. It analyses and explains the legal sources of the prohibition on the criminalisation of same-sex sexual conduct which are mainly based on the ‘public morality’ and religious views. It also shows how criminalising sexual activity between same sex partners violates international human rights law for failure to take into account universality of human rights, the right to privacy and the right to non-discrimination and equality enshrined in international and regional instruments.

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Irrational accommodation: Conscience, religion and same-sex marriages in South Africa (SALJ)

In this article, Elsje Bonthuys, discusses the Civil Union Act of South Africa which was  initiated by the department of Home Affairs  and which addresses homophobia, threats and violence against lesbian and gay activists. The author explains that objection to this legislation came from various religious organizations and that even within religious groups, there were differences opinions on the recognition of same-sex relationships. Also, members of Parliament were divided on whether to vote for or against the legislation. In spite of the opposition, the Civil Union Act has been adopted and became law on 30 November 2006. The Civil Union Act has accommodated religious and non-religious objections to conducting same-sex marriage.

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Jurisprudential annotations of the Yogyakarta principles

This publication explains the Yogyakarta Principles and provide annotations with additional information about the international human rights instruments and jurisprudence upon which each principle is based. The annotations are a useful guide to the legal framework underpinning each Principle.
(November 2007.) These annotations were undertaken at the University of Nottingham Human Rights Law Centre, under the direction of Professor Michael O’Flaherty. The principal researcher was Gwyneth Williams LLM.

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Nowhere to turn: Blackmail and extortion of LGBT people in Sub-saharan Africa

This report by the International Gay and Lesbian Human Rights Commission documents and explores the phenomenon of blackmail and extortion facing LGBT people in Sub-saharan Africa particularly in Cameroon, Ghana, Nigeria, Zimbabwe and Malawi and its effect on the lives of LGBT people. The report looks at contexts where laws against same-sex activity vary in their scope and severity, where histories of French and British colonialism persistently shape legal systems, where religious or customary laws are recognized alongside state laws and where LGBT groups are and are not visible and active in combating blackmail and extortion. It explores the extent of the blackmail and extortion and suggests steps that may be taken to hold perpetrators accountable and bring deliver justice to the victims.

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Right to redress and state accountability: Responding to violence against sexual minorities in Africa

This article has been written by Coalition of African Lesbians, an African NGO  working towards the equality of lesbians. CAL states that LGBTI rights are human rights and calls upon African governments to repeal legislation criminalizing same-sex conduct and take all measures to ensure protection of sexual minorities.
CAL also cites the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity arguing that failure to protect sexual minorities violates international human rights law.

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Sexual Orientation and the law

This article examines legal problems faced by gay men and lesbians as well as the interaction between gay men and lesbians and the criminal justice system from an American legal perspective. It discusses sexual orientation discrimination in private and public employment and the First Amendment issues posed by gay and lesbian students and teachers in public schools and universities. It also explores the rights of gay and lesbian parents to custody and visitation of their children as well as the ability of gay men and lesbian women to become adoptive or foster parents and the legal difficulties associated with having children of their own. It also examines  a variety of other contexts in which gay men and lesbians face discrimination including immigration, insurance and incorporation of gay right organisations and also discusses legislation enacted by some cities and states to prevent sexual orientation discrimination.

State sponsored homophobia

This article by Daniel Ottoson (a report of International Lesbian and Gay Association) consists of a world survey of laws prohibiting same sex activity between consenting adults. It covers 86 states which still criminalise consensual same sex acts among adults thereby institutionally promoting a culture of hatred. Among the states surveyed, seven have legal provisions with the death penalty as punishment for same sex conduct. The publication is intended to raise awareness of the reality this situation the extent of which remains unknown to many.

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The same-sex marriage complex in South Africa: Some conceptual, gendered and rights-based interpretations

This article discusses same-sex marriage in South Africa as well as discrimination and persecution against same-sex partners based on religin and culture. It argues for tolerance based on the right to equality before the law and recognition of difference, diversity and inclusivity. 

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Towards non-discrimination on the basis of sexual orientation: The normative basis and procedural possibilities before the African Commission on Human and Peoples’ Rights and the African Union

This article by Prof. Rachel Murray and Prof. Frans Viljoen recognizes that even though there has been innovative jurisprudence on a wide range of rights under the African Charter on Human and Peoples’ Rights, the rights of gays and lesbians are still largely not vindicated and violations continue un-hindered. The article outlines how the African Charter regards sexual minority rights and puts forth proposals as to how organizations and persons working in the area of sexual minority rights can make use of the mechanisms available through the African Commission.

  • Link to this article (HeinOnline)
    29 Hum. Rts. Q. 86 (2007)
    Towards a Non-Discrimination on the Basis of Sexual Orientation: The Normative Basis and Procedural Possibilities before the African Commission on Human and Peoples' Rights and the African Union; Murray, Rachel; Viljoen, Frans

Uganda: Anti-homosexuality Bill is inherently discriminatory and threatens broader human rights

This publication by Amnesty International analyses Uganda’s anti-homosexuality Bill (2009) and highlights specific serious concerns that the Bill raises. The paper argues that if passed the Bill would insitutionalise discrimination against those who are, or are thought to be, gay, lesbian or transgender and would reinforce the existing prohibition against consensual sex between individuals of the same sex contrary to international norms. It posits that the Bill would lead to violations of the human rights to freedom of expression, freedom of thought, conscience and religion, freedom of peaceful assembly, freedom of association, liberty and security of the person, privacy, the highest attainable standard of health, and life. The paper analyses certain provisions of the Bill in light of Uganda’s international, regional and domestic human rights obligations.

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