On 7 March 2012, the UN Human Rights Council’s 19th session will hold a panel discussion on Human Rights, Sexual Orientation and Gender Identity.
The panel will be opened by the UN Secretary-General, Ban Ki-moon, who has recently urged member states to stop discrimination based on sexual orientation in its laws and practices. The panel discussion is the outcome of a UN Human Rights Council Resolution taken in June 2011.
The key question to be answered by the Panel, Human Rights Council and Member States, is how to act against the persistent discrimination and violence perpetrated against people on the basis of their sexual orientation and gender identity.
Whether anything concrete will come from this endeavour by the UN Human Rights Council remains to be seen. Whilst the Secretary-General is increasingly vocal against the continued criminalisation of same-sex sexual conduct, this has clearly not inspired a change of heart by many States. A brief look at the recent Universal Period Reviews of States in southern Africa, show a reluctance by States to engage with UN Human Rights Council recommendations to review their Penal Codes and remove laws which criminalise consensual sexual relations between adults of the same sex.
Zimbabwe opposed recommendations to decriminalise same-sex sexual relations at its Universal Periodic Review. In its report to the 19th session of the Human Rights Council, Zimbabwe’s Justice Minister, Patrick Chinamasa stated that “[homosexuality] is alien to our culture but some countries persist in foisting it on us. LGBTI is unacceptable to us….No amount of sugar coating, rebranding or aid dangling will make this alien value acceptable to the Zimbabwean people.”
Similarly, Malawi, at its Universal Periodic Review strongly opposed recommendations for a review of its Penal Code, claiming that the “wishes of the people” required the continued criminalisation of same–sex sexual relations. Malawi has however indicated that these laws might be reviewed by its Law Commission.
The same reluctance was heard at Namibia’s Universal Periodic Review. Namibia however claimed that LGBT persons were in any event not prosecuted under the laws if the sexual activities took place in private.
Swaziland, at its Universal Periodic Review rejected decriminalisation of same-sex sexual conduct, but similarly claimed that “to date no one had been prosecuted for sexual orientation offences. As the world revolved, Swaziland would look into the possibility of adopting a policy on the issue.”
Mozambique, at its Universal Periodic Review by the Human Rights Council, argued that homosexuality is not criminalised in its Criminal Code and that there was no restriction on freedom of association. Whilst this position is laudable, Mozambique can follow in Angola’s footsteps by specifically prohibiting discrimination on the basis of sexual orientation.
The UN Human Rights Council creates a space for States to encourage each other to promote, protect and fulfil human rights. Unfortunately there appears to be a widening gap between the arguments at UN level in favour of increased protection from discrimination and violence on the basis of sexual orientation and gender identity, and the discourse perpetuated by political leaders at national level, in favour of increased criminalisation, stigmatisation and exclusion of people based on sexual orientation.