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Rights of Special groups

Sexual minorities include LGBTQI. The essence of human rights law in any society is to ensure that those who are on the margin of the society, the vulnerable and the marginalized are not denied their basic rights on same footing with other members of the society. The chief goal of human right laws is to ensure that the high and mighty in the society do not suffocate the weak amongst them. By necessary implication, human rights law came principally in order to ensure that minorities in any society are not mere objects of survival, but persons who should survive and thrive like everyone else.

One of the tests by which the quality of a democracy is judged is the protection it provides for each individual citizen and for the vulnerable and disadvantaged groups. We undertake to do more to advance the course of human rights in Africa generally, and specifically to end the moral shame exemplified by the plight of women, children, the disabled and ethnic minorities in conflict situations in Africa. - Paragraph 10 of the NEPAD(New Partnership for African Development) declaration on democracy, political, economic and corporate governance 2002.

Among the various minorities that have continued to face grave violation, subjugation and other disregard for their fundamental human rights are the sexual minorities, popularly known as the LGBTQI. The LGBTQI people are being discriminated against on the basis of perceived or real sexual orientation and gender identity in Africa and the world.

The hallmark of any democratic society is tolerance and broad mindedness. The law should not be so into the scope of a person’s private living- The wolfenden committee report of 1957.

Most criticisms are based on religious idiosyncrasies and our definition of what is normal. Is homosexuality African?

The criticism of homosexuality going against the order of nature holds no ground, as the law of nature changes from time to time. Whether or not homosexuality is African, take note that Africa does not have a single history as there are Africans in South Sudan, Cameroon, Nigeria, Yoruba land, inter alia. Furthermore, most practices during the precolonial era were covered by the code of silence.

Examples of some African countries where homosexuality was practised under a code of silence is the Kwayama ethnic group of planters and herders in Angola. King Mutesa and King Kabaka Nwanga of the Baganda kingdom of Uganda were said to be homosexuals. For example, the young Asande men were said to be involved in homosexual practises because of lack of women, and the young girls available had been taken over by the rich men. The Asande men could be found in current South Sudan and Central African Republic. The Pangwe men of Cameroon also had sexual conduct between men considered as “wealth medicine”, which means that whoever got involved in it could encounter the god of wealth. In Uganda, king Kabaka Nwanga has been said to have been initiated into homosexuality by the Arabs. The idea of criticism from the perspective of morality holds no ground, as whose morality is to be upheld? That of the Christians, Muslims, Atheists, etc? Thus, the right approach to criticism lies with the rights based approach. As human rights defenders, we are expected to move from the love of law to the law of love. In other words, what we should have is the rule of law and not the rule by law. The rights of sexual minorities have to be respected.

The criticism from the perspective of religion also holds no water. The morality of the majority is not good enough to quash the morality of the minority. Rule of law, and not religion, should be the basis of any democratic society. This is because religion is a choice. Who determines what is normal?

In the case of Toome v Australia, the human rights committee noted that article 2 and 26 of the ICCPR CONVENTION includes sexual orientation when it refers to “sex”. The decision was equally reaffirmed in Joseline v New Zealand that “sex” as used in the ICCPR convention includes sexual orientation. The African Charter also states that the right to dignity is a right possessed by every person. The African commission in 2014 issued a resolution on the protection of the rights of sexual minorities in Africa. Looking through the South African constitution, which has been referred to as a transformative constitution because it provides expansive rights, article 9(3) provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including sexual orientation. In the case of National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Orders, the petitioners argues that common law offences relating to sodomy were no longer constitutional. Concurrent with the petitioners, the constitutional court of South Africa found that these offences, all of which were aimed at prohibiting sexual intimacy between gay men, violated the right to equality since they unfairly discriminated against gay men on the basis of their sexual orientation. This is because the South African constitution expressly includes sexual orientation as a prohibited ground of discrimination.

The judicial tribunal considered gay people as a vulnerable minority group in society, and they found that attempts at criminalizing their most intimate relationship are inappropriate for the reason that they devalued and degraded them. Exclusion of this kind therefore constituted a violation of their fundamental right to dignity. In addition, the court saw no logic in criminalizing private conduct between consenting adults which causes no harm to anyone else. This intrusion on the innermost sphere of human life according to the court, also violated the constitutional right to privacy. Minister of home Affairs v Fourie was the first case in Africa which celebrated a gay marriage. The court unanimously held that the common law definition of marriage as being a union between a man and a woman failed the constitutional provision against discrimination. In Mojekwu v Mojekwu, the Supreme Court held that a person should not be discriminated against based on sex. This argument may be extended to sexual minorities. In Constitutional Right and Others v Nigeria, the court held that majority wish or morality alone is not enough to render the right of a minority set of people useless. Ebah v Federal Republic of Nigeria, the court held that the petitioner did not have locus standi to bring the case before it and that there are no gay communities in Nigeria.

Minorities deserve rights as importantly as other members of the society. They should not only survive, they should also thrive. The government is to protect the weak from the strong. Human rights law will become highly baseless if it does not protect the minorities and those on the margin of society.

Indigineous minorities and Ethnic Groups

From country to country, region to region and continent to continent, there are people who have distinct lifestyles or ways of life which is markedly different from other members of the society. This group of minorities, in most cases, live in a particular area and have peculiar self identification. Some of their peculiar identifications are their strong affinity or relationship with their land. And also, peculiar self identification that separates them from other members of the society. They are sometimes hunters and gatherers or pastoralist people.

Due to their peculiar way of life, they have historically suffered discrimination from other members of the society. Besides discrimination, most of their fundamental rights are usually disregarded by state parties in the formulation of policies that may have tremendous impact on their way of life.

The designation of distinct groups as indigenous has its origin in the pattern of European empire building and colonial settlement that proceeded from the late 15th century onward. Those who already inhabited the encroached upon land and who were subjected to oppressive forces became known as native, aboriginal or indigenous. The concept of indigenous people evoked with the consolidation of power by Europeans over non-European land and the emergence of new states by European settlements between the sixteenth and nineteenth century.

In line with past usage, the term indigenous is today applied to or invoked by those whose ancestral roots are embedded in the land in which they live, much more deeply than the roots of more powerful sectors or still, inhabiting the same or proximate land. Desire to maintain historically grounded bond of community constituted by their own cultural, social and political institutions is the hallmark of indigenous people.

The first international convention regarding minority rights is the ILO(international labour organisation) CONVENTION 169 on Indigenous and tribal people 1989. There is also the UN declaration on the rights of indigenous people adopted by the UN general assembly on 7th of September, 2007. The UN declaration is the principal law regulating the rights of indigenous people. Some of the rights include the one covered in article 4 of the UN declaration which provides for the autonomy or self government over their own internal and local affairs. Article 5 provides for the right of indigenous people to participate fully in governmental activities which are likely to affect them. Article 18 and 19 of the convention states that indigenous people must have a say in all the decisions affecting them. Article 26(1) states that indigenous people must have a right to their traditional lands. Article 28(1) states that indigenous people are entitled to compensation in the event of encroachment.

The African Charter on Human and People’s Rights does not specifically provide for the rights of indigenous people. However, there are some rights contained in the African Charter that indigenous people can largely lay claim to. The last statement is made without forgetting the fact that all rights contained in the African Charter on human and people’s rights belongs to everyone, including the indigenous people. The African Commission has what is called a working group on the rights of indigenous people and it was established in 2000. Looking at the name African Charter on Human and Peoples’ Rights, it has been argued that the word “peoples’” could possibly refer to indigenous people and other ethnic minorities. It must be understood that article 21(1) of the African Charter has been said to be one of the people rights which indigenous people can lay claim to. It states the right to dispose their wealth. Examples in Africa are the Koikoi, the Batswa of Burundi and the Basahra of Botswana. In Endorois v Kenya, the Endorois people were indigenous people who lived in the Baboria lake. After some time, the federal government chased the people away to set of a game reserve. The Endorois people were refused entry into the game reserve, and they in turn claimed that the location was where their ancestors were buried and where they communed with their gods. They said they could not live well out of the land. When the Kenyan government did not budge, the people took the case to the African Commission on Human and People’s right. The commission relied on Article 22 which states the right to development of all people as the basis of the decision. The court held that the refusal to let the people worship in the lake was a violation of their right to religion, while the forceful taking of the land was a violation of property. The forceful removal from the land was said to be a violation of their right to development. In Ogiek v Kenya, the facts were similar to the Endorois case. About ten thousand members of the Ogiek committee were sent out of their ancestral land by the Kenyan government. The African court held that it was a violation of their right. The constitutions of Burundi and Cameroon are the only ones in Africa that provide for the rights of the indigenous people. Article 164 of the Burundi 2004 constitution provides for the indigenous right of the Batswa people and are to have three representatives in the national legislature. The 1972 of the Cameroonian constitution also provides for the right of indigenous minority in article 65.

The major features of indigenous people are their self identification and their ancestral attachment to the land. Article 27 of ICCPR and Article 30 of CRC have provisions which relate most closely to indigenous people. The Saramaka case is an important one in the American community. In the case of the indigenous community Yakye v Paraguey it was declared that a fallout from probably dispossessing indigenous people from their land could amount to an article 4 of right to life violation if the living conditions of the people are incompatible with the principles of human dignity.