A social-legal analysis of the realisation of gender and sexual minorities' rights within the African human rights system

Abstract

The international human rights system has formalised the evolution and normalisation of equal dignity for every human being. Human dignity as a core value is – as a right itself, or even as a principle – the foundation of human rights. Although existing social norms in the African context seem to dictate where and when the principle of human dignity should or should not be applied, the very existence of the African human rights system emphasizes that this concept is inherent in every human being and entails that states have a positive obligation to progressively realise it through its instruments. This research dissertation evaluates the inclusion of the rights of gender and sexual minorities within the African human rights system by giving a general understanding of this system’s normative and institutional frameworks, by inquiring into this system’s approach to gender and sexual minorities’ issues, and the extent to which this approach has been inclusive in realising their rights. The central argument in this dissertation is that the inclusion of gender and sexual minorities’ rights within the African human rights system is still hindered by various challenges even if progressive steps in advancing their rights within this system’s normative and institutional frameworks are noticeable. This research finds that gender and sexual minorities are rights-holders when it comes to normative frameworks of the African human rights system. The research also finds that even if the African Commission on Human and Peoples’ Rights has been pro-active in advancing the rights of gender and sexual minorities and leading the way for other human rights institutions within the African human rights system, its institutional independence has been questioned when it comes to advancing the rights of gender and sexual minorities. The research also contends that challenges that hinder the effective inclusion of the rights of gender and sexual minorities within the African human rights system are based on outdated principles and do not reflect the current realities experienced by African people. This paper concludes that the ideal of an all-inclusive African human rights system must be inclusive of and advance the rights of gender and sexual minorities.