The aim of this meeting is to facilitate a conversation between a broad range of stakeholders particularly social movements. By convening this meeting aim to establish where our interventions are needed. The focus of this meeting is about clarifying our role on broadening access to legal representation for cases dealing with violations of sexual rights and sexual orientation, gender identity and expression in particular. We also aim to facilitate a conversation about litigation and social movements with the view to empower social movements to design and adopt litigation strategies which are sensitive to and appropriate for the varied and complex contexts where the violations are taking place.
REGIONAL CONSULTATIVE MEETING ON STRATEGIC LITIGATION IN AFRICA FOR THE ADVANCEMENT OF SOGIE
The Initiative for Strategic Litigation in Africa (ISLA) is a feminist and Pan-African organisation that uses the rule of law, African domestic and regional courts, and international human rights bodies, to advance women’s human rights and sexual rights. It is an Africa-based and Africa-run strategic litigation initiative with a regional focus and expertise on women’s human rights and sexual rights. The idea of ISLA is based on the belief that by focusing on policy and law reform, and not solely the outcome of individual cases, strategic litigation is an immensely strong tool for creating social change. ISLA’s innovation is to use litigation strategies which are rooted in and respond to the context of the various countries and spaces where we work. At the core of our strategy is the belief that the rights based agenda remains the most effective and compelling framework that we can use to protect rights. Ultimately, we hope to hold states accountable and to and to develop jurisprudence in an incremental fashion that makes linkages to the various ways that sexual rights are violated.
We use a broader gender and sexuality framework in order to work across movements and to respond to the categorisation of certain rights as “special rights” or “gay rights”. Our view is that under the more expansive umbrella of “sexual rights”, there is room at the domestic and regional levels to incrementally obtain greater recognition of rights. This approach will allow local courts, and African human rights mechanisms to highlight the linkages between “everyday” issues such as freedom of association, consent and privacy in ways that are gradual, and thus less likely to generate virulent opposition. It is within this framing that we locate our on sexual orientation, gender identity and expression.
With this in mind, ISLA has organised a regional consultative meeting on developing a sustainable framework for building positive coalitions, and utilising African human rights mechanisms to realise sexual rights. The meeting will be held in Johannesburg, South Africa from the 6th – 8th of July 2015.
BACKGROUND & RATIONALE
The past years have revealed important lessons for advancing rights based on sexual orientation and gender identity and expression (SOGIE), and for strengthening the ability of lawyers and social movements to work collectively towards the recognition of these rights. This greater awareness, against a backdrop of key regional and international developments, provides an opportune juncture for the work of ISLA. The upcoming consultative meeting was conceptualised in this context.
Rethinking the narrow focus on decriminalisation: The theme of the July ISLA meeting encompasses a more expansive and nuanced approach than the one previously endorsed by the 2009 meeting on Sexual Orientation and Gender Identity Legal Strategy Meeting held in Cape Town. The 2009 gathering brought together African lawyers who worked on lesbian, gay, bisexual, transgendered and intersex (LGBTI) rights litigation, African LGBTI activists and international human rights groups and donors. It centred on a narrower theme of decriminalisation of laws that criminalised consensual same-sex sex, which was viewed as a pre-requisite for social and legal change for people whose rights are violated on the basis of SOGIE. This thinking – in line with that of LGBTI movements in other parts of the world – envisioned that successful constitutional challenges to sodomy laws would subsequently be followed or accompanied by recognition under anti-discrimination laws, and legal sanctioning of same-sex relationships.
Over the years, there has been a shift away from prioritising decriminalisation, a method that significantly curtailed the development of jurisprudence on the continent. Examples of unsuccessful decriminalisation attempts in Malawi, Zimbabwe and Botswana on the continent and more recently, developments in Singapore and India further demonstrate that a narrow focus on decriminalisation or direct constitutional challenges aimed at decriminalisation cannot be relied upon too heavily. In those countries, the higher courts rejected constitutional challenges to sodomy laws declaring that these matters should be left to parliament.
Hostile social, legal and political climate: In attempting to move forward, African civil society organisers and legal practitioners have had to operate within an intolerant socio-political environment. To solidify support amongst constituents and protect “traditional” African values, political leaders have committed to creating more repressive and comprehensive legislative frameworks targeting sexual minorities. Nigeria and Uganda gained particular notoriety in this regard after the enactment of manifestly harsh homophobic laws in 2014. Both laws criminalised same-sex unions and acts of supporting or promoting homosexuality, and imposed excessively harsh penalties. In Malawi sexual acts between women were criminalised in 2011. Further, the Malawi Marriage, Divorce and Family Relations Act signed into law in April of this year, contains several problematic and highly discriminatory provisions directly targeting non-heterosexual, transgendered and intersex persons and relationships.
This retrogression has fostered a climate of “[h]omophobic and transphobic violence which constitutes a form of gender-based violence driven by a desire to punish those seen as defying gender norms.” Moreover, LGBTI individuals and groups are routinely harassed, arrested, publicly outed and shamed, and denied legal status. This has inhibited groups’ abilities to organize and take action on behalf of their members.
Emerging regional and international human rights standards on the need to combat violence based on SOGIE: In light of this negative trend of violence and persecution, regional and international human rights bodies have voiced concerns. Monumentally, in 2014 the African Commission on Human and People’s Rights (ACHPR) passed a Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity. In 2011 and 2014, the UN Human Rights Council (UNHRC) passed landmark resolutions on Human rights, sexual orientation and gender identity, aimed at denouncing and eradicating violence and discrimination on these bases. The pioneering 2011 resolution was co-introduced by South Africa. Although no African country apart from South Africa supported the 2011 and 2014 resolutions, some, including Central African Republic, Rwanda and Seychelles, signed an earlier UNHCR Joint Statement on Ending Acts of Violence and Related Human Rights Violations Based On Sexual Orientation and Gender Identity.
Emerging domestic jurisprudence on freedom of association: On the continent, before domestic courts and at the ACHPR, there is also a growing momentum around the right to freedom of association. Despite political actors’ efforts to suppress activism aimed at advancing sexual orientation and gender identity (SOGIE), there is discernible progress in the courts as advocates increasingly employ the law in novel ways outside of direct decriminalisation. This represents an incremental approach. In Kenya two recent rulings permitted the National Gay and Lesbian Human Rights Commission (NGLHRC) and Transgender Education and Advocacy to register under the Non-Governmental Organizations Coordination Board Act. In Botswana, a 2014 High Court ruling also allowed LEGABIBO (Lesbians, Gays and Bisexuals of Botswana) to become registered and lobby for legislative reforms. Significantly, in April of this year, the ACHPR granted the Coalition of African Lesbians (CAL) observer status; the culmination of a seven-year long concerted push by a collective of organisations, of which ISLA was part. These changes mark remarkable progress from the time the ACHPR refused CAL’s application for observer status on the basis that the organisation did not work to protect rights that were guaranteed under the African Charter. In 2010, a Lesotho LGBTI organisation, Matrix, was registered only after agreeing to a condition that the organisation will not encourage or promote the crime of sodomy.
- GOALS AND OBJECTIVES OF THE MEETING
The July meeting is designed as part consultative and part capacity strengthening: The July meeting has two central objectives which are pillars of ISLA’s work:
- Incorporating strategic litigation as an advocacy tool: an expanded role for social movements and
- Considering litigation before the regional human rights systems: What are the first steps?
Incorporating strategic litigation as an advocacy tool: an expanded role for social movements: With a goal of incrementally building rights, and minimising the harmful effects of laws, ISLA believes that a partnership between legal experts and social movements is critical. Although lawyers possess invaluable expertise, the role of activists is equally important. Operating at a grassroots level, they have key knowledge of how discrimination is meted out, and whom it affects. Moreover, movements can foster more sustainable shifts than isolated policies are able to. Nonetheless, the sexual rights movement is a nascent movement, in varying stages of activism across the different countries. Members often have little to no legal expertise, or are wary of litigating. Lawyers working on cases may also have limited expertise.
Most of the cases that have been litigated, on the continent, have been led by individuals who are either leaders of social movements or individuals litigating in their own names. other cases that have been initiated and later abandoned by various individuals who sought legal recourse when their rights were violated. The complainant and motivation for the case is increasingly becoming a clear determining factor on whether the case will proceed or not. The cases that do proceed are part of a broader advocacy strategy rooted on the need to use the courts to develop standards and to assert rights.
We believe that it is crucial to expand the range of actors who can institute litigation when their rights have been violated. In order to do this we are of the view that various countries need to begin the conversation about the role that litigation can play and how it can be incorporated to the broader advocacy strategy and to develop litigation plans for the countries. This also relates to the timeliness of litigation, other complementary strategies, the role of various actors and consideration to be taken into account and e information required in order to make decisions about whether to litigate or not to litigate.
Considering litigation before the regional human rights systems: what are the first steps?: For quite some time we also considered litigation before the African human rights system was not feasible. The risk of losing and establishing bad precedents was too high. Oftentimes we had to respond to attempts of others to challenge anti-sodomy laws before the system. The significant regional and international developments detailed in this note have opened up an enabling framework for commencing strategic litigation on sexual rights issues before the African human rights systems. The issues of protection from violence and freedom of association appear to be ripe for development and litigation. The pronouncements by human rights bodies that violence on the basis of SOGIE cannot be condoned can serve as a foundation for litigation that places a positive obligation on states to protect sexual minorities from violence. The enumerated judicial successes in regards to freedom of association, and related rights such as privacy, signal a positive trajectory. Overall, the litigation of “everyday” matters will have a stronger resonance amongst partner organisations, and therefore facilitate the acceptance of litigation as part of a broader advocacy strategy for social change.
To date, the African Commission and African Court have not decided a communication relating to sexual rights. However, given recent positive shifts, the Commission can be a powerful mechanism for setting standards on sexual rights and holding states accountable even if such decisions conflict with the rigid policies of the member states. Following the adoption of the Resolution, the landscape has changed. A litigation strategy before the African system is an opportunity that we are keen to pursue. As a first step, from April 2015, ISLA and partners commenced training during the NGO forum that focuses on the communication procedure of the African Commission on Human and Peoples’ Rights.
We are keen to get more input on developing a sensible and inclusive approach to litigating before the regional human rights systems. We would like the meeting to help us think through the following:
- What should be the first cases before the African Human Rights systems?
- What is safe and what is what is not safe? Both in terms of establishing good precedents and avoiding domestic (or regional) backlash?
- How do we communicate better about litigation and what is the support that is required?
- Regional litigation should be accompanied by a regional advocacy strategy: how would we define a holistic approach supporting litigation? (i.e. media strategies, advocacy at domestic and regional level etc.)? What is the holistic approach to support litigation?
- What is the potential for working across movements by working with groups focusing on sexual and reproductive health and rights to begin to develop standards?
 The incremental approach, which considers the “everyday” manner in which rights are violated, is evident in other areas. In Uganda, building upon the successful 2008 Victor Mukasa case. Victor Juliet Mukasa and Another v Attorney General (2008) AHRLR 248 (UgHC 2008). The High Court of Uganda ruled that the illegal search and seizure, and unlawful arrest of Victor Mukasa and his companion based on suspected homosexuality, was an affront to their constitutional rights and a contravention of Uganda’s international obligations. The court focused on questions of human dignity, the right to privacy and the right to be free from torture, cruel or inhuman and degrading punishment – as opposed to concerning itself with questions of the legality of homosexuality.
The 2010 High Court decision Jacqueline Kasha & Others v Rolling Stone Ltd and Another established that, irrespective of sexual orientation, the “outing” of the applicants in Rolling Stone magazine, and the magazine’s calls to “hang” the identified homosexuals, violated their inherent rights to privacy, dignity and protection from inhuman treatment.
 This workshop was convened by Global Rights, the Kenyan Section of the International Commission of Jurists (ICJ-Kenya), International Gay and Lesbian Human Rights Commission and Interights.
 For an analysis of this pattern, see Yuval Merin, Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States (2002) at 326.
 BBC News, Activists Condemn Singapore Court Gay Ruling, 30 October 2014, http://www.bbc.com/news/world-asia-29828979; Suresh Kumar Koushal and another v. NAZ Foundation and others, Civil Appeal No.10972 of 2013
 In August 2014 the Uganda Constitutional Court struck down the law on the basis of a technicality. Members of parliament are persisting and have drawn up a new bill modeled on the annulled law. See http://www.theguardian.com/world/2015/jan/06/-sp-gay-ugandans-face-new-threat-from-anti-homosexuality-law.
 For Uganda see supra note 4 and Human Rights Watch commentary at: http://www.hrw.org/news/2014/02/24/uganda-law-rolls-back-basic-rights. For Nigeria see: New York Times article – http://www.nytimes.com/2014/02/09/world/africa/nigeria-uses-law-and-whip-to-sanitize-gays.html?_r=0.
 See the The International Gay and Lesbian Human Rights Commission’s commentary at: http://iglhrc.org/content/serious-concerns-raised-over-discriminatory-malawi-law-targeting-lgbti-people.
 African Men for Sexual Health and Rights and Coalition of African Lesbians Violence based on perceived or real sexual orientation and gender Identity in Africa (October 2013) at 11.
 Supra at 26.
 United Nations Human Rights Council Resolution on Human rights, sexual orientation and gender identity (adopted 17 June 2011) – A/HRC/RES/17/19; United Nations Human Rights Council Resolution on Human rights, sexual orientation and gender identity (adopted 26 September 2014) – A/HRC/RES/27/32. In 2010 the UN Special Rapporteur on the situation of human rights defenders also issued a report detailing the persecution of advocates working on women’s rights, and gender and LGBTI issues; and emphasizing the state’s duty to create a climate in which fundamental rights and freedoms are protected. See UN Human Rights Council, Report of the special rapporteur on the situation of Human Rights Defenders, Margaret Sekaggya, 20 December 2010, A/HRC/16/44.
 See United Nations Human Rights Council Resolutions, supra note 9.
 United States State Department Joint Statement on the Rights of LGBT Persons at the Human Rights Council (March 2011) http://www.state.gov/r/pa/prs/ps/2011/03/158847.htm.
Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others  eKLR; and Republic v Non-Governmental Organizations Co-ordination Board & another ex-parte Transgender Education and Advocacy & 3 others  eKLR.
 cite – http://www.amsher.org/wp-content/uploads/2015/04/CAL-Statement-on-Observer-Status-.pdf
 See African Men for Sexual Health and Rights and Coalition report supra note 7 at 4: “A communication submitted against Zimbabwe in 1995 was withdrawn…. in 2000 before decision was given on admissibility”. Courson v Zimbabwe (2000) AHRLR 335 (ACHPR 1995)
 Sibongile Ndashe, Seeking the protection of LGBTI1 rights at the African Commission on Human and Peoples’ Rights, Feminist Africa Issue 15. 2011: Legal Voice: Special Issue at 32.