The Re-Criminalization of Sexual Minorities as a Testing Ground for International Human Rights Law in Africa
Abstract:
This Article scrutinizes the recently enacted statutes that re- criminalize sexual minorities in Africa from the standpoint of international human rights law (IHRL). These statutes are currently justified under cultural relativism, that is, the idea that African culture abhors homosexuality, which represents a malicious import from the Western world. We argue that the re-criminalization statutes violate IHRL in multiple stances and that in no way are these violations justifiable under cultural relativism. This does not mean that there is no virtue in cultural relativism, but a limit must be fixed to the dehumanization of minorities which is the intended purpose of these statutes. IHRL itself establishes this limit. One acronym that will be used throughout this article is “SOGIESC,” which stands for “sexual orientation, gender identity, gender expression, and sex characteristics.” In the discourse surrounding the re-criminalizing statutes, SOGIESC is often represented as the battlefield within which powerful polarized forces, namely Africa and the Western world, clash to recover their respective sovereignty and assert ownership over IHRL. This Article moves away from this polarized perspective, which ultimately leaves sexual minorities unprotected, and aims to reaffirm that individuals belonging to these minorities are humans in all respects and, as such, enjoy the full plethora of human rights under IHRL. Moreover, to avoid falling into the Western import trap, this Article accounts for the development of SOGIESC as a participative discursive practice—a practice to which African nations have in fact contributed—and focuses on the African civilization as represented by the African Charter of Human and Peoples’ Rights (ACHPR), together with other international human rights treaties, to show that African nations do recognize SOGIESC within their own IHRL discourse.
Recommended Citation: Matteo M. Winkler & Ilias Bantekas, The Re-Criminalization of Sexual Minorities as a Testing Ground for International Human Rights Law in Africa, 48 Fordham Int'l L.J. 743 (2025).