Author: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)
Chinelo Okparanta is a Nigerian writer, currently living as a citizen in the United States. She understands the prejudices of her native country, especially against homosexuals. In some parts of Nigeria, a gay individual may be stoned to death under the Shari’a law. Okparanta writes, in her lesbian romance Happiness like Water, ‘yes, our love may be hidden, but it is strong. It can still bring happiness’.
Why must the love between two consenting adults be hidden? Should the State have the power to decide towards whom one may show affection? These disconcerting questions may be answered in terms of global Constitutions.
The most important Brazilian decision which entailed the right to happiness was in 2011. The Supreme Court had to rule on the interpretation to be given to article 1.723 of the Civil Code, which only recognizes a common-law relationship between a man and a woman as a family unit which must be public knowledge, continuous, and long-lasting, and be established for the purpose of building a family. The need for the aforementioned ruling resulted from the fact that government bodies refused to grant these rights to homo-affectionate couples. Therefore, the Court had to decide if this union also covered same-sex couples, even though the provision expressly mentions ‘man and a woman’.
On May 8th, 2015 a press release revealed that the Tanzanian President, Jakaya Kikwete, has signed the controversial Cybercrimes Bill which seeks to criminalize acts related to computer systems and information and communication technologies and to provide for a system of investigation, collection and use of electronic evidence. The said law has serious implications for constitutional and international human rights, particularly freedom of expression and information online and the right to privacy. The most controversial provisions relate to criminalization of sharing of information, extensive police powers of search and seizure, surveillance without judicial authorization as well numerous vaguely defined offences.
It is important to note that that freedom of expression is one of the fundamental aspects of human life. As human beings, we need freedom to develop and share thoughts or ideas about things that happen and influence the way we live. Freedom of opinion, expression and information encourages free debate and plurality of ideas which is important for development of any society. More importantly, these rights are internationally recognised human rights. They are engrained in the Universal Declaration of Human Rights 1948 (art.19), the International Covenant on Civil and Political Rights, 1966 (art.19) and the African Charter on Human and Peoples Rights 1981 (art.9), all of which have been ratified by Tanzania.
Author: Joelle Dountio
PhD candidate, Faculty of Law, University of Pretoria
Religion, traditional cultural beliefs and law are all used by humans to fuel hatred, stigma, and discrimination towards homosexuals. The rights to equality, non-discrimination and freedom from torture, cruel, inhuman and degrading treatment as upheld by the International Bill of Rights and other human rights instruments are, for the most part, all recognised in the constitutions and other national laws of most African countries. However, 36 of the 54 African countries have punitive laws on homosexuality. Meanwhile, homosexuality is a sexual orientation and a prohibited ground for discrimination under international human rights law (Toonen v. Australia).
Historically, religion has been used to justify some of the worst atrocities committed against human beings. Some of these atrocities include: slavery, the holocaust, apartheid, racism and terrorism. Today, the Bible is used to justify homophobia based on the famous kingdoms of Sodom and Gomorrah. The question I ask is, does the Bible really mean that we should kill these people as is happening today? And even if it does mean this, what about other practices for which the Bible says people should be killed? This Bible says married women who have sexual relations outside their marriage should be killed. The Bible says we should sell all we have and give the money to the poor. The Bible says we should not make carved images of anything in heaven. Why do Christians not apply these? Apparently man chooses to follow only those sections of the Bible which suit him and enable him to meet his selfish goal irrespective of the consequences to others. Is this not hypocrisy?