Background

According to the United Nations Office of the High Commissioner for Human Rights, lesbians, gays, bisexuals, transgender, intersex and queer persons (LGBTIQ+ persons) are particularly vulnerable to these COVID-19 measures. The situation is even more precarious in Africa where LGBTIQ+ organisations are viewed as imposing ‘values contrary to African values’. The sentiments against LGBTIQ+ persons are so strong that Ghanaian and South African religious leaders have gone to the extent of blaming LGBTIQ+ persons for COVID-19. Hence, there is a higher burden on the African community to ensure that the rights of LGBTIQ+ persons are protected during COVID-19. Using laws at the African Union level as a basis, this contribution highlights that LGBTIQ+ persons face challenges in the enjoyment of their rights during COVID-19. It provides recommendations to different stakeholders to ensure that the LGBTIQ+ community is not marginalised during pandemics such as COVID-19.

Protection of LGBTIQ+ persons at the African Union level
Despite the fact that African leaders consider LGBTIQ+ persons as ‘un-African’ and conveniently marginalise them during measures to combat pandemics such as COVID-19, the legal framework at the African Union level is clear on the protection of their rights.

To begin with, the African Charter on Human and Peoples’ Rights (African Charter), which is the foundation of the African human rights system, in its article 2 provides that the rights and freedoms therein are applicable to ‘every individual’ without any distinction such as, amongst others, on the basis of sex or ‘other status’. The mention of ‘other status’ makes the list non-exhaustive and hence includes all LGBTIQ+ persons.

To go a step further, as noted by the UN Human Rights Committee, in the case of Toonen v Australia, ‘sex’ includes sexual orientation. Moreover, the Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) defines women as ‘persons of female gender, including girls’. Thus, lesbian women and transgender women must also benefit from the rights protected by the Maputo Protocol.

In addition to the above treaty provisions, the African Commission on Human and Peoples’ Rights (African Commission) adopted Resolution 275 on the Protection against Violence and Other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, which ensures the protection of LGBTIQ+ persons from violence, amongst others. The African Commission has further released several press statements concerning the protection of human rights during COVID-19. Although none of these specifically mention LGBTIQ+ persons, many of them mention vulnerable persons, with the one by the Special Rapporteur on the Rights of Women in Africa focusing on women.

Challenges faced by LGBTIQ+ in Africa during pandemics such as COVID-19
Notwithstanding the above protection framework, it is of no surprise that countries are using COVID-19 regulations as a means to actively curb the rights of LGBTIQ+. One such instance is Uganda where 20 members of the LGBTIQ+ community were arrested at a shelter for ‘breaching’ social distancing measures and were held in jail for 50 days before the Director of Public Prosecutions withdrew the charges.

In addition to such active violations of the human rights of LGBTIQ+ persons, African states are lacking in ensuring that they address the increased vulnerabilities that LGBTIQ+ persons face during COVID-19. According to a brochure published by the Centre for Human Rights at the University of Pretoria, there are several specific challenges that African LGBTIQ+ persons face during pandemics such as COVID-19 that restrict their human rights. These include: restricted access to shelters and community centres; restricted access to health services; threats from hostile/homophobic lockdown environments; increased mental health impacts; increased social discrimination and attacks; and potential use of force and misuse of emergency powers by states.

Way forward

Hence, the African continent needs to adopt safeguard measures to ensure that LGBTIQ+ persons enjoy their human rights despite pandemics such as COVID-19. These measures can be adopted at three levels:

• The African Commission: In addition to the existing statements that encompass vulnerable groups, the African Commission needs to be very specific about the challenges that LBGTIQ+ persons face during pandemics such as COVID-19. Similar to the press statements that focus on women and indigenous persons, it is recommended that the African Commission adopt a statement concerning the exacerbated vulnerabilities faced by LGBTIQ+ persons. Such a press statement can request African leaders to take steps to ensure that these vulnerabilities are minimised.
  
  More generally the African Commission needs to lobby for more independence in executing its functions so that there is no repeat of the past when, following pressure from the Executive Council of the African Union, it had to withdraw observer status given to an LGBTIQ+ organisation.
• African states: Despite the fact that many African states have adopted homophobic policies (eg, laws criminalising same-sex relationships), they need to appreciate that pandemics such as COVID-19 bring with them specific vulnerabilities for LGBTIQ+ persons. African states’ responsibility is four fold. First, they need to ensure that they do not use COVID-19 as a shield to further violate the rights of LGBTIQ+ persons. Second, they need to take positive steps and set up mechanisms in the form of committees or task forces to ensure that vulnerable persons such as LGBTIQ+ have access to services that contribute to the realisation of their rights. Third, they need to adopt initiatives such as sensitisation campaigns aimed at the general population and training for government officials and the police Fourth, African states need to use due diligence by decriminalising same-sex relationships and ensuring that those impeding the rights of LGBTIQ+ persons are held accountable for their acts.
• Civil society organisations: In most African states, civil society organisations have been spearheading the dialogue around the rights of LGBTIQ+ persons, including during COVID-19. In addition to calling out governments for non-respect of the rights of LGBTIQ+ persons, sensitisation and the provision of services, civil society organisations are recommended to take up the dialogue of LGBTIQ+ persons at the African Union level and to collaborate with the African Commission in bringing this issue in the fore.

The LGBTIQ+ community in Africa already faces human rights violations in ‘normal’ situations and pandemics such as COVID-19 only make it worse. Therefore, different stakeholders need to be proactive in the steps that they take to ensure that these violations are minimised.