An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Homophobia Plagues Africa
Monday’s statements by a prominent Ghanaian activist provide further evidence of the alarming homophobia that is sweeping across Africa. Ms. Bernice Sam, National Programme Coordinator of WiLDAF (Women in Law and Development) in Ghana argued publicly for the Constitution Review Commission to limit Ghana’s definition of marriage to include heterosexual couples only. Ms. Sam then went even further. She was quoted as saying that it will be “almost impossible for the act of homosexuality to be considered criminal” if the constitution is not reworded in this way.
These statements are just the most recent addition to a growing fervor of discrimination, paranoia, and hatred directed at sexual minorities in Africa. Dangerous rhetoric is being spewed not only by individual citizens such as Ms. Sam, but by heads of state, members of parliaments and judiciaries, religious leaders, and others in powerful positions throughout the continent. Because it was so surprising to have a statement of this kind coming from a lawyer’s human rights organization, we wrote directly to Bernice Sam to give her an opportunity to respond. She did respond elaborately, explaining her commitment to human rights and the comments she’d made on other issues. But at no time did she disavow the statements attributed to her.
Last year, Uganda’s President Museveni chaired a convening of Commonwealth country leaders in Trinidad, where they were directly confronted with the violent homophobia in Jamaica and elsewhere in the Caribbean. (S. Lewis: Ugandan Anti-Gay Bill Must Go). The Commonwealth chose to do and say nothing in response. Left unchecked in the Caribbean, deeply offensive sodomy laws and homophobic statutes are now spreading amongst former and current Commonwealth countries in Africa – most recently Uganda, Malawi, Kenya, Zimbabwe, and now Ghana.
The time has come for leaders in the African Union to take urgent measures to stop this growing and insidious contagion of homophobia. Even those who have not thus far participated in overt discrimination or hate speech are complicit by remaining silent. It was precisely this level of silence on the part of the African Union that characterized the early years of AIDS, when something deadly took root in the continent. There is a danger that such a pattern is emerging again.
The discrimination called for by Ms. Sam and reinforced by increasing numbers of African leaders violates fundamental human rights, which are enshrined in numerous regional and international instruments, including the African Charter on Human and Peoples’ Rights, the Maputo Protocol, the Solemn Declaration on Gender Equality in Africa, and the Convention on the Elimination of All Forms of Discrimination against Women, among others. It is the responsibility of the African Union to intervene, to stop this trend of hatred, and to issue a strong public statement that affirms, protects, and preserves the dignity and human rights of all sexual minorities.
AIDS-Free World believes that HIV flourishes when hatred and discrimination drive already marginalized communities underground, beyond the reach of HIV prevention and treatment services. Anti-gay statements, laws, and policies violate the most basic of all human rights. Hate speech cannot be allowed to proliferate.
Upon reading Ms. Sam’s public remarks and hearing excerpts, AIDS-Free World contacted her and gave her ample opportunity to publicly repudiate the statements attributed to her. Her first reply was lengthy and elaborate, but did not deal with the issue at hand. We requested clarification, and straightforward answers to the following three questions:
1. Do you support the rights of gay women and men to participate fully and openly in Ghanaian society with protected status?
2. Do you denounce all efforts to promote the criminalization of homosexuality in Ghana?
3. Would you denounce any effort taken to modify the Ghanaian Constitution in any ways that would criminalize (or open the possibility of criminalizing) homosexuality, homosexual acts, or homosexual relationships?
Ms. Sam has not responded. We now call upon her organization, WiLDAF, to repudiate her positions, publicly affirm its support for the human rights of sexual minorities, and take appropriate action.
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To read the correspondence between AIDS-Free World and Bernice Sam, and to view a sampling of recent news articles that follow homophobia’s spread across Africa, please visit our website at www.aidsfreeworld.org.
Paula Donovan, Co-Director, AIDS-Free World