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Joint Statement: African Commission 68th Ordinary Session Item 3

Observer Status Number: 436

Thank you Honourable Chair.

Honourable commissioners, your excellencies: representatives of African States, esteemed colleagues. All protocols observed.

The AIDS & Rights Alliance for Southern Africa makes this statement in collaboration with the Coalition of African Lesbians.

This year’s African Union theme provides a key opportunity to reflect on the importance of cultural rights as a lever for development in Africa, and as a means of ensuring that women, LGBTQ+ people and other marginalised groups can access the full spectrum of their human rights.

Cultural essentialism poses an existential threat to work to engender a culture of human rights in Africa. Culture and heritage continue to be thought of as static and unchanging, as opposed to dynamic and responsive to the needs of different social actors.  All too often, in the quest to preserve and restore cultural traditions, which were permanently altered by colonialism and ongoing neocolonialism(s) states impose a cultural and moral homogeneity on all its citizens that does not reflect the diverse history of our continent and the people that live in it.  Restricting the full access of sexual and reproductive rights is counter to the historic cultural diversity that has now been warped by colonialism. Furthermore, this static understanding is at odds with international standards with a former Special Rapporteur on Cultural Rights reminding us that ‘cultural heritage is to be understood as resources enabling the cultural identification and development processes of individuals and communities which they… wish to transmit to future generations.’ What do African member states wish to transmit about the rights of women and of LGBTQ+ people?

More than 15 years after the Maputo Protocol entered into force, and a year after the deadline for the universal ratification went unmet, the minimum reproductive rights of women under article 14 are insufficiently implemented and still subject to reservation and debate. By  willfully refusing to do better,  African member states are actively perpetuating a dominant culture premised on the disposability of women and women’s lives. When States refuse to undertake necessary legislative reform under the guise of a homogenous “culture”, what they communicate is that only collectivist patriarchal approaches to culture, that obscure internal power dynamics, are valid. They are transmitting that women’s individual cultural rights do not matter. 

Women across Africa have the right “to contribute to the creation of culture, including through the contestation of dominant norms and values within the communities they belong to” and they have a right to not be hampered in these efforts by the paternalistic gatekeeping of State parties. We call on all States to ratify the Maputo protocol without reservations, and for all States to withdraw their reservations particularly with regards to article 14.

When States use their role as custodians of tradition under the African Charter to scapegoat LGBTQ+ people for socioeconomic ills, and to entrench a culture of exclusion, violence, and homophobia – the consequences are felt in the wanton loss of life and in discrimination experienced by members of the LGBTQ+. We would like to draw the commission’s attention to the ongoing refugee crisis in Kakuma and Dadaab and the failure by the Kenyan State and the United Nations Refugee Agency (UNHCR) to fulfil the essence of their mandate of ensuring the wellbeing, safety and protection of refugees. Their inaction led to attacks at Kakuma camp on the 15th of March 2021 resulting in LGBTQ+ refugees sustaining various injuries, including burns as fellow camp residents set their lodgings on fire. One of the LGBTQ+ refugees in Kakuma Camp Block 13, Chriton ‘Trinidad’ Atuhwera, died as a result of injuries sustained.

We call on the African Commission to join us in continuing to urge the United Nations High Commissioner for Refugees (UNHCR) to urgently respond to the safety concerns of the LGBTQ+ victims in Kakuma and to provide adequate care for those who are in hospital in a timeous and sensitive manner. Their mandate to protect and assist refugees without favour and/ or discrimination should be a point for UNHCR’s recommitment to safeguarding the rights of the LGBTQ+ refugees in Kakuma. 

Thank-you chair.