Abstract
The principle of equality and non-discrimination has enlightened the human rights world as marginalised groups such as minority ethnic communities, gender and sexual minorities have a seat at the table to equally demand and enjoy their rights. This advancement has brought out the importance of inclusivity and the acknowledgement of diversity among the human species and within society. Several human rights frameworks, policies, advocacy strategies, among others, elevate the position of women across the globe, and in Africa to be specific. However, women who identify within the minority spectrum in aspects of sexual orientation, gender identity and expression are still facing multiple discrimination resulting in violence and limited access to justice as dominant heteronormative notions reign supreme in African states. Purposive interpretation of laws to include persons that were once neglected or left out have been critical to raising the human rights standards. Is it time to evaluate if the definition and/or perception of woman as applied and understood in law and society is inclusive of all that encompasses what a woman is and can be? Are there margins within the marginalised? The chapter deduces that the discourse on diversity and inclusion is taking roots and is significant for the expansion and adoption of a more inclusive purposive interpretation of laws. The patriarchal effect that has limited current outlook on woman’s rights must be debunked and that laws are living documents that should reflect current social dynamics and realities.
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- 1.
The Vienna Declaration (1993); cemented the place of women within the human rights framework. The linkage between women’s rights and human rights was made and this expanded the discussion and integration of women’s rights issues to the mainstream advocacy front. The slogan ‘women’s rights and human rights’ resulted in the fusion and inclusion of women issues in many international human rights instruments.
- 2.
Laura Reanda, ‘Human Rights and Women’s Rights: The United Nations Approach’, 3 Human Rights Quarterly (1981): 12.
- 3.
Ibid.
- 4.
Convention on the Elimination of All Forms of Discrimination Against Women, https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx.
- 5.
Reanda, supra 2.
- 6.
Protocol to the African Charter on Human and Peoples’ Rights of Women in Africa (Maputo Protocol).
- 7.
42 African states have thus far ratified the Maputo Protocol.
- 8.
Womxn in this paper is a term that encapsulates women whose sexual orientation, gender identity and expression does not conform to society’s upheld perception of ‘woman’.
- 9.
Lynn Kathleen Pasterny, ‘The Subject of Women’s Rights An Investigation of CEDAW’s (Straight) Construction of Family-Related Human Rights’ (Unpublished Master’s Thesis, Lund University), http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=5467368&fileOId=5467372.
- 10.
Maputo Protocol, Article 1(k); Ashwanee Budoo ‘The Maputo Protocol and Inclusivity’ in Centre for Sexualities AIDS and Gender and Others ‘TransMaputo: Conversations on the African human rights of Persons of Female Gender’ (2018).
- 11.
Tegan Colleen Snyman ‘The protection of African transgender women’s rights to dignity, life and health through a teleological reading of the Maputo Protocol’ (2019).
- 12.
Amnesty International UK, ‘Mapping Anti-Gay Laws in Africa’ 2018.
- 13.
Michel Foucault, ‘The History of Sexuality: An Introduction’, (1978) https://suplaney.files.wordpress.com/2010/09/foucault-the-history-of-sexuality-volume-1.pdf.
- 14.
Ibid.
- 15.
Sylvia Tamale, ‘Researching and Theorizing Sexualities in Africa’, in African Sexualities, a Reader edited by Sylvia Tamale (2011).
- 16.
Crenshaw, Kimberly, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Anti-discrimination Doctrine, Feminist Theory, and Anti-racist Policies’, 4 University of Chicago Legal Forum, (1989).
- 17.
Alison Stone, ‘Essentialism and Anti-Essentialism in Feminist Philosophy’, Journal of Moral Foundation (2004), https://www.researchgate.net/publication/233628032_Essentialism_and_Anti-Essentialism_in_Feminist_Philosophy.
- 18.
Judy Butler, ‘Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory’, 40 Theatre Journal (1988): 523.
- 19.
Human Dignity Trust, ‘Breaking the Silence: Criminalisation of Lesbian and Bisexual Women and its Impacts’ (2016).
- 20.
In Botswana, the case of Kanane v The State the court was seen to make the penal code provision gender neutral as they argued that it was discriminatory in terms of gender as it explicitly mentioned relations between men.
- 21.
Ashley Currier &Therese M. George, ‘Lesbian’/Female Same-Sex Sexualities in Africa’, 21 Journal of Lesbian Studies (2017): 133–150.
- 22.
Ibid.
- 23.
In Kenya for instance, police blackmail and extortion has been a major source of intimidation and source of violation of the rights of LGBTIQ person, KHRC ‘The Outlawed Amongst Us’ (2011).
- 24.
Ibid.
- 25.
Adrienne Rich, ‘Compulsory Heterosexuality and Lesbian Existence’, 5 Women: Sex and Sexuality (1980): 32, http://transasdocorpo.org.br/wp-content/uploads/2017/01/Compulsory-heterosexuality-and-lesbian-existence-2.pdf.
- 26.
Ibid.
- 27.
ACPHR, ‘Report of the Study on the Situation of Women Human Rights Defenders in Africa’, http://www.achpr.org/files/special-mechanisms/human-rights-defenders/report_of_the_study_on_the_situation_of_women_human_rights_defenders_in_africa.pdf.
- 28.
Federico Godoy, ‘Mr & Ms X: The Rights of Transgender Persons Globally’, International Bar Association (2014): 5.
- 29.
Mawethu Nkosana Nkolomba, ‘A Case For Trans and Non-Binary Bodies’ Inclusion in Gender-Based Violence Reporting’ Huffington Post (2017), https://www.huffingtonpost.co.za/mawethu-nkosana-nkolomba/a-case-for-trans-and-non-binary-bodies-inclusion-in-gender-based-violence-reporting_a_23234880/.
- 30.
Ibid.
- 31.
‘Women and Sexual Minorities Denied a Seat at the Table by the African Commission on Human and Peoples’ Rights’, https://www.cal.org.za/2018/08/17/women-and-sexual-minorities-denied-a-seat-at-the-table-by-the-african-commission-on-human-and-peoples-rights/.
- 32.
William de Hann ‘Violence as an Essentially Contested Concept’, https://pdfs.semanticscholar.org/8fc4/96aded0ce49602c36174fb34424c9e38af50.pdf.
- 33.
Ibid.
- 34.
Ibid.
- 35.
Report prepared by Coalition of African Lesbians in collaboration with other women’s organisation ‘Criminal Injustice: Violence Against Women in South Africa’ (2010).
- 36.
T. Misi, ‘Not Crossing the Line: Masculinities and Homophobic Violence in South Africa’, Agenda: Empowering Women for Gender Equity (2009): 50–54; M. Armisen ‘Between Us: The complexities of Lesbians, Bisexual and Queer Women’s Organizing in Francophone Sub-Saharan Africa, Case Studies, Cameroon and Togo’ (2013) Queer African Youth Networking.
- 37.
HIVOS, ‘Responding to the Safety and Security Needs of LGBTI Communities and Organisations: A Situational Analysis of Malawi, South Africa, Zambia and Zimbabwe’ (2013): 11.
- 38.
L Arudi et al., ‘Research on the Lived Realities of Lesbian, Bisexual and Queer Women in Kenya’ (2016); Human Rights Watch, ‘The Issue is Violence: Attacks on LGBT People on Kenya’s Coast’ (2015).
- 39.
Independent Advisory Group on Country Information ‘Country Policy and Information Note Uganda: Sexual orientation and gender identity’ (2017).
- 40.
Ibid.
- 41.
Michel Foucault, ‘The History of Sexuality: An Introduction’ (1978), https://suplaney.files.wordpress.com/2010/09/foucault-the-history-of-sexuality-volume-1.pdf.
- 42.
Constitutive Act of the African Union, https://au.int/sites/default/files/pages/32020-file-constitutiveact_en.pdf
- 43.
Department of Foreign Affairs, Republic of South Africa ‘Transition from the OAU to the African Union’ (2002), https://www1.essex.ac.uk/armedcon/story_id/000528.pdf.
- 44.
Preamble of the Constitutive Act of the AU.
- 45.
Articles 1–29.
- 46.
Articles 30–51.
- 47.
Solomon A Dersso ‘The jurisprudence of the African Commission (o)n Human and Peoples’ Rights with respect to peoples’ rights’ African Human Rights Journal (2006), according to him the term peoples’ within the African Charter has five interpretations; (1) A people that were once ‘subject to colonial rule’, (2) The number of people occupying a state or territory (Article 23(2)(b), (3) The people occupying and found in Africa, this can be found within the Preamble of the African Charter, (4) The definition can also be interpreted to mean the different ethnic or communal groups that are found within a particular territory, http://www.ahrlj.up.ac.za/dersso-s-a; Richard N. Kiwanuka ‘The Meaning of ‘People’ in the African Charter on Human and Peoples’ Rights’, American Journal of International Law (1988).
- 48.
African Charter of Human and Peoples’ Rights, Articles 2–17.
- 49.
Ibid., Article 45.
- 50.
Zimbabwe Human Rights NGO forum v Zimbabwe (2006) AHRLR Paragraph 169.
- 51.
Frans Viljoen ‘An Introduction to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’, Washington and Lee Journal of Civil Rights and Social Justice (2009): 18–31.
- 52.
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa http://www.achpr.org/instruments/women-protocol/
- 53.
The Maputo Protocol came into force after its ratification by 27 states who were also party to the African Charter http://maputoprotocol.com/the-countries-that-have-ratified-it.
- 54.
AU ‘List of countries that have signed, ratified/acceded to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’ (October 16, 2019), https://au.int/sites/default/files/treaties/37077-sl-PROTOCOL%20TO%20THE%20AFRICAN%20CHARTER%20ON%20HUMAN%20AND%20PEOPLE%27S%20RIGHTS%20ON%20THE%20RIGHTS%20OF%20WOMEN%20IN%20AFRICA.pdf.
- 55.
Victor Ayeni, The impact of the African Charter and the Maputo Protocol in Selected African States (2016).
- 56.
African Commission, General Comments on Articles 14(1)(d) and (e) Paragraph 4 and on Articles 14(1) a, (b), (c), and (f) and Articles 14(2) Paragraph 12.
- 57.
Maputo Protocol, Article 1.
- 58.
Ibid., Articles 2, 5, 6, 8, 12, 13, 14, 20, 21, 22, 23 & 26.
- 59.
Alberto Alesina et al., ‘Violence Against Women: A Cross-Cultural Analysis for Africa’ (2016).
- 60.
Maputo Protocol, Article 2(2).
- 61.
Ibid., Article 4(d).
- 62.
Ibid., Article 4(e) & (f).
- 63.
ECW/CCJ/APP/35/17 Aminata Diantou Diane (represented by APDF & IHRDA) v Mali.
- 64.
IHRDA, APDF obtain another favourable judgement against Mali in gender-based violence case before ECOWAS Court, https://www.ihrda.org/2018/05/press-release-ihrda-apdf-obtain-another-favourable-judgment-against-mali-in-gender-based-violence-case-before-ecowas-court/.
- 65.
Maputo Protocol, Article 8.
- 66.
Ibid., Article 8.
- 67.
Center for Human Rights, ‘The Impact of the Protocol on the Rights of Women in Africa on Violence Against Women in Six Selected Southern African Countries: An Advocacy tOol’ (2009); The Lawyer’s Circle, Oxfam, SOAWR and FIDA Kenya ‘Implementing the Protocol on the Rights of Women in Africa: Analysing the Compliance of Kenya’s Legal Framework’ (2014) 50–52.
- 68.
Ibid.
- 69.
African Charter, Article 45(b).
- 70.
Resolution 365 on Developing Guidelines on Combating Sexual Violence and Its Consequences.
- 71.
Yogyakarta Principles.
- 72.
Human Rights Watch ‘Yogyakarta Principles’ a Milestone for Lesbian, Gay, Bisexual, and Transgender Rights, https://www.hrw.org/news/2007/03/26/yogyakarta-principles-milestone-lesbian-gay-bisexual-and-transgender-rights.
- 73.
Yogyakarta Principles, Principle 5, 9, 15 & 16.
- 74.
International Commission of Jurists, ‘Women’s Access to Justice for Gender-Based Violence’ (2016).
- 75.
Ibid.
- 76.
African Court on Human and Peoples’ Rights (African Court), http://www.african-court.org/en/.
- 77.
African Charter, Article 34(6).
- 78.
The Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights was adopted on 10 June 1998 and entered into force on January 25, 2004.
- 79.
Ibid.
- 80.
African Charter, Article 19: Withdrawing Coalition of African Lesbians’ observer status threatens civil society participation’ October 18, 2018, https://www.article19.org/resources/achpr-concern-with-decision-to-withdraw-coalition-of-african-lesbians-observer-status/.
- 81.
R v Soko and Another 359 of 2009, https://malawilii.org/node/7142.
- 82.
C O I & another v Chief Magistrate Ukunda Law Courts & 4 others; In this case forced anal examinations were declared a form of torture and a violation to the right to dignity and privacy.
- 83.
L Price, ‘The Treatment of Homosexuality in the Malawian Justice System: R v Steven Monjeza Soko and Tiwonge Chimbalanga Kachepa’, 10 African Human Rights Journal (2010): 526–530.
- 84.
Mlenga Joe, ‘How Sociology Enriches Human Rights: The Case Study of Malawi’s First Openly-Gay Couple’, in Beyond the Law: Multi-disciplinary Perspectives on Human Rights, edited by F. Viljoen (2012): 104.
- 85.
David Smith ‘Why Africa Is the Most Homophobic Continent’, The Guardian, February 23, 2014; Rita Scafer & Eva Range, ‘The Political Use of Homophobia Human Rights and Persecution of LGBTI Activists in Africa’ 2015, http://library.fes.de/pdf-files/iez/10610.pdf.
- 86.
Supra note 78, Article 19.
- 87.
The ACHPR adopted new Rules of Procedure in 2020.
- 88.
Adrian Jjuuko, ‘The Protection and Promotion of LGBTI Rights in the African Regional Human Rights System: Opportunities and Challenges’, in Namwase S. & Jjuuko (eds) Protecting the Human Rights of Sexual Minorities in Contemporary Africa (2007) 298.
- 89.
Koen Offen, ‘Defining Feminism: A Comparative Historical Approach’ (1988) 156.
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Laurah, A. (2022). Margins Within the Marginalised: Violence and Access to Justice of Lesbians, Bisexual and Queer Women in Africa. In: Budoo-Scholtz, A., Lubaale, E.C. (eds) Violence Against Women and Criminal Justice in Africa: Volume II. Sustainable Development Goals Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-75953-7_14
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