ARE UNIVERSAL HUMAN RIGHTS A FORM OF CULTURAL IMPERIALISM?
Are Universal Human Rights a Form of Cultural Imperialism?
An Analysis of the African Charter on Human and Peoples' Rights in the Context of Gay Rights
Mette Helene Christensen & Anne Larsen
Aalborg University
Helene Pristed Nielsen
May 27, 2014
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ARE UNIVERSAL HUMAN RIGHTS A FORM OF CULTURAL IMPERIALISM?
Abstract
Human rights, and especially human rights violations, are a frequently debated topic in
today’s society. Today the legitimacy of states depends, to a greater extent, on their ability to
protect human rights, emphasizing the relevance of the topic. Moreover, minority rights have
become an extensively covered subject within the news media, and especially the rights of
homosexuals in Africa have been subject of recent debate due to the implementation of new and
stricter laws criminalizing homosexuality in various African countries. This increase in laws
condemning homosexuality has especially gained criticism in Western media, which has led to
several Western countries and non-governmental organizations condemning these actions. Some
have chosen to withhold or redirect financial aid in countries adopting such laws.
In this context, the debate between advocates of universal human rights law and cultural
relativists is relevant, as it poses the question whether universally binding human rights are able to
adapt to cultural diversity, and vice versa. In extension of this issue, the aim of this project is to
answer the following research question: With a view to recent debates over the rights of
homosexuals in several African countries, to what extent can human rights, and especially gay
rights, be perceived as a form of Western cultural imperialism?
In order to shed light on the above problem statement, theories concerning the universality
of human rights, cultural relativism, cultural imperialism, and homosexuality will be incorporated.
These principles will be used as analytical tools. Furthermore, the African Charter on Human and
Peoples’ Rights will be included as a main object of analysis, along with the European Convention
on Human Rights and the Universal Declaration of Human Rights as supplementary objects of
analysis. The main purpose of including these covenants is to outline supporting grounds for nondiscrimination on the basis of sexual orientation. Specific cases from Europe and Africa are
included as well to exemplify the differing interpretations of the covenants.
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ARE UNIVERSAL HUMAN RIGHTS A FORM OF CULTURAL IMPERIALISM?
Generally, it is found that the charters are rather similar in their formulations regarding
discrimination. However, how they are interpreted and implemented differ vastly, and it appears
that there is a greater tendency for legal support of homosexual rights within the framework of the
European Convention on Human Rights than in the African Charter on Human and Peoples' Rights.
Additionally, a high level of public resistance toward homosexual rights prevails in many African
countries. In this sense, it is concluded that the notion of universal human rights, and especially gay
rights, can, to some extent, be seen as a form of Western cultural imperialism.
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ARE UNIVERSAL HUMAN RIGHTS A FORM OF CULTURAL IMPERIALISM?
Table of Contents
1. Introduction .................................................................................................................................... 6
2. Methodology ................................................................................................................................... 7
2.1 Sources .................................................................................................................................................. 11
3. Theory ........................................................................................................................................... 12
3.1 Human Rights ........................................................................................................................................ 12
3.1.1 The Universal Declaration of Human Rights ................................................................................. 14
3.1.2 Western Notions of Human Rights ................................................................................................. 15
3.1.3 Non-Western Notions of Human Rights......................................................................................... 16
3.2 Cultural Relativism ................................................................................................................................ 18
3.3 Universality of Human Rights Versus Cultural Relativism .................................................................. 18
3.4 Culture ................................................................................................................................................... 20
3.4.1 Imperialism ..................................................................................................................................... 23
3.5 Cultural Imperialism .............................................................................................................................. 25
3.6 Homosexuality....................................................................................................................................... 27
3.6.1 A Religious Perspective.................................................................................................................. 28
3.6.2 Homosexuality as a Human Right .................................................................................................. 29
4. Case Description ........................................................................................................................... 30
4.1 Homosexuality in Africa ....................................................................................................................... 30
4.2 The African Union ................................................................................................................................. 32
4.3 The African Charter on Human and Peoples’ Rights ............................................................................ 33
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ARE UNIVERSAL HUMAN RIGHTS A FORM OF CULTURAL IMPERIALISM?
4.4 The European Convention on Human Rights ........................................................................................ 34
5. Analysis ......................................................................................................................................... 36
5.1 Defining Sexual Discrimination ............................................................................................................ 37
5.2 Interpreting the Legal Framework for Non-Discrimination of Homosexuals ....................................... 38
5.3 Peoples’ Rights ...................................................................................................................................... 44
5.4 Justifying Discrimination ...................................................................................................................... 46
6. Concluding Discussion ................................................................................................................. 49
7. List of References ......................................................................................................................... 52
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1. Introduction
International human rights law has increasingly begun to focus on the weakest members of
society and the violation of their rights, and the existing human rights instruments have so far not
been sufficient in addressing and protecting the rights of the more vulnerable minority groups. Also,
there has been an intensified focus in the media on this subject. Particularly, the rights of
homosexuals in Africa have been covered extensively, as an increasing amount of laws
criminalizing homosexual practices have been implemented throughout the continent. Most
recently, the adoption of a new and stricter law in Uganda has received a lot of international
attention from human rights non-governmental organizations (NGOs), such as Amnesty
International. This law criminalizes homosexual acts to the degree that such can lead to lifetime
imprisonment. Another legal approach limiting the fundamental freedoms of homosexuals was
implemented in Nigeria only last year, and many other African states have similar laws on the
matter. Currently, 38 African countries have official anti-homosexual laws (Amnesty, 2014). On the
global level, Africa thus accounts for half of the countries in which official laws on the matter exist,
as homosexual practices are currently criminalized in 76 countries worldwide. Punishment hereof
varies profoundly and ranges from fines to imprisonment or even death penalty. South Africa
remains the only country, within the African continent, to protect and promote the rights and
fundamental freedoms of lesbian, gay, bisexual, and transgender (LGBT) people along with the
right to same-sex marriage (Johnson, 2013). Thus, within the context of minority rights,
homosexual rights are highly relevant to examine due to contemporary discussions on the subject.
Especially the Western media tend to have a critical view on the increase of criminalizing
homosexuality. Seen from a Western perspective, this critical view is rather reasonable, as such
laws can be seen as human rights violations. However, there have been great debates on whether the
universality of human rights is a form of Western imposed cultural imperialism and to what extent
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human rights can be universal at all. This poses a moral dilemma, in the sense that interfering might
seem like the right thing to do from an outside perspective. On the other hand, interference or
condemnation might contravene with national values and beliefs and fail to acknowledge existing
cultural differences. Taking such actions also runs counter to the principle of cultural relativism, as
it conveys the belief that one’s own culture is superior to that of others. Therefore, it is essential to
consider the cultural diversity and historic development in Africa in order to obtain a more nuanced
perspective on the matter.
The overall aim of this project will be an attempt to shed light on and answer the following
research question: With a view to recent debates over the rights of homosexuals in several African
countries, to what extent can human rights, and especially gay rights, be perceived as a form of
Western cultural imperialism?
2. Methodology
As briefly mentioned in the introduction, we in this project focus on human rights,
especially gay rights, aiming to examine whether these rights can be perceived as a Western
phenomenon, taking our point of departure in debates about gay rights on the African continent. We
set out to demonstrate the presence or absence of articles protecting the rights of homosexuals,
using the African Charter on Human and Peoples’ Rights (ACHPR) as the main object of analysis,
including the Universal Declaration of Human Rights (UDHR) and the European Convention on
Human Rights (ECHR) as contrastive frameworks for our analysis. All with the aim of discussing
whether the notion of a universally valid set of human rights can be seen as a form of cultural
imperialism.
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We chose to focus on the African region due to the recent controversial events of new and
stricter legislative approaches within the area of homosexuality and gay rights. As previously
mentioned, the African continent accounts for half the countries worldwide with implemented
prohibitions on same-sex practices, with penalties ranging widely from fines to capital punishment.
The International Lesbian Gay Bisexual Trans and Intersex Association (ILGA) have stated:
“By far, [Africa] is the continent with the worst laws on the books when it comes to
homosexuality and other sexual minorities, a phenomenon which is in part rooted in bad
colonial-era laws and political situations, religious autonomy, strong negative belief in
cultural and family values, and the evil of patriarchy” (ILGA, 2013: 33).
The same report by ILGA also states that conditions for homosexuals are actually
deteriorating in several African countries, possibly as a counter-reaction to the globally increased
awareness of promoting and respecting rights of LGBT people. Therefore, we find that
homosexuality and gay rights within the African continent is a highly relevant topic to discuss.
Moreover, when focusing on the possible cultural imperialistic nature of human rights, the African
continent is of high relevance as well, due to its long history of external influences, for example
European colonialism.
It is essential to note that there are both advantages and disadvantages of choosing a
geographical area of this size as our point of focus. Obviously, the African continent includes a
wide range of different countries, cultures, and peoples, and the points set forth in this project
should not be understood as aiming to diminish these differences. Rather, we set out to reach a more
general understanding and, in this context, find it more relevant to include examples from several
different countries than to focus on one particular case in detail. In spite of the vast level of
difference throughout the continent, both in terms of culture and development, an existing notion of
unity prevails, which for example is reflected in the establishment of regional institutions such as
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the African Union (AU). Even though generalizing can be a flawed approach, it can also be
beneficial, to some extent, when aiming to develop a general conclusion on a topic. This will be
done by assuming a broad perspective enabling us to include both differences and similarities from
across the continent and from the different official covenants on human rights.
We will in this project start out with a theory section in order to establish the tools for
analysis. These include: Human rights and the universality hereof, cultural relativism, cultural
imperialism, and homosexuality. The section starts out by explaining the notion of human rights
which is presented early in the project as it will be an overall focus. Therefore, the purpose of this
section is especially to establish our understanding of the term in order to provide a general
knowledge on the topic as a basis for conducting a thorough analysis. Our understanding of the term
will mainly be based on the description made in the UDHR, as this declaration is acknowledged as
the first global expression of rights, supposed to apply equally to all human beings. Further, it is
easily accessible and often cited, making it universally known. Next, we move on to discussing the
universality of human rights in order to introduce the underlying belief system of the concept of
universality along with the main arguments supporting and criticizing this view. The idea of cultural
relativism will then be introduced briefly, in order to create a basic understanding of that term,
before discussing both principles in contrast to each other. This is relevant to include as the two
principles represent somewhat opposing views within the subject of international human rights law
and can therefore contribute to a broader perspective and thus a more thorough understanding of the
topic. Hereafter, the principles of culture and imperialism will be presented separately in order to
create a basis for discussing cultural imperialism. This chapter is of particular importance to our
project, as it constitutes a main part of our research question. As a final point in the theory section,
we will provide a discussion of homosexuality, as discrimination on the basis of sexual orientation
will be a point of focus throughout this project. Many different types of discrimination could fit into
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the debate on whether human rights can be seen as a form of Western cultural imperialism,
however, in order to avoid a too all-encompassing perspective we find that it will be beneficial to
focus on a specific discrimination. Further, sexuality has been a dominant subject within struggles
of minority rights. Nonetheless, research on the topic is rather new and therefore not as wellrepresented as research on other types of discrimination (Boyd, 2013: 698). Hence, an examination
on the subject of sexuality has the potential to contribute to the field. Also, due to space limitations
we find that focusing on one type of discrimination will enable us to conduct our analysis at a more
in-depth level.
Following the theory chapter we will incorporate a section called case description. This
section will include an introduction to the history of homosexuality in Africa as well as the different
covenants on human rights which will be used for discussion in the analysis, as we find it essential
to provide a basic knowledge on these topics. This chapter will also serve to give a general
description of the attitude towards homosexuality within the African continent. Here, it should, as
mentioned above, be emphasized that we do not intend to convey that Africa should or can be seen
as one homogenous actor. Still, we wish to include a general history and contemporary position on
homosexuality. Further, a brief presentation of the AU and the ACHPR will be given in order to
provide a basic understanding of our object of analysis, namely the ACHPR. Finally, the case
description will include a presentation of the ECHR before using it as an element in our analysis. As
the UDHR has already been touched upon in regard to defining human rights, it will not be included
in the case description. However, it will still be used as a supplementary object in our analysis.
The analysis section of this project will start out with a brief discussion and definition of the
two terms equality and non-discrimination, as they are central components to the overall discussion
and therefore essential to include. This part will also contain a definition of our perception of
discrimination based on sexuality. Hereafter, the analysis section will, as mentioned, focus on the
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ACHPR as the main object of analysis, including the UDHR and ECHR as supplementary objects,
contributing to illuminating the contents of the ACHPR by pointing out similarities and differences
between these documents. We will examine whether the grounds for non-discrimination are more
pronounced in for example the Western declarations than in the African one, which will be done by
analyzing relevant articles from all three covenants, predominantly articles addressing the issue of
discrimination. Examples from different actual cases of discrimination in different African countries
will also be included to exemplify the treatment of sexual minorities in various incidents.
Furthermore, the analysis will attempt to explain how such discrimination is often justified within
the AU, based on the three main arguments of African values, majority morality and the prevention
of HIV. This will be done in order to include arguments from both sides and to attempt to maintain
an objective point of view to the extent that is possible. Conclusively, main arguments and findings
will be summarized and discussed in order to answer our research question.
2.1 Sources
This project mainly draws on articles from academic journals, news articles, and textbooks.
The majority of the sources used stem from recently published data, contributing to attain a
contemporary angle, which in our case is suitable, as the subject of discrimination on the basis of
sexual orientation in Africa, to a great extent, is a contemporary concern, and therefore is wellrepresented within media sources as well as within the field of academic literature. Also, it helps
provide a broader perspective as contemporary literature has a wide range of existing research to
base new findings on. Nevertheless, especially the theory section of this project builds partly on
data which is not new. For example, the section on cultural imperialism partially draws on literature
from the 1970s. This is the case, as the term enjoyed great scholarly focus in the 1970s, shortly after
its initial emergence. The interest of cultural imperialist scholars were, to some extent, ignited by
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ARE UNIVERSAL HUMAN RIGHTS A FORM OF CULTURAL IMPERIALISM?
the decolonization of Africa, which took place in the aftermath of World War II, mainly during the
1950s and 1960s. As the contemporary notion of this concept still builds on the original theoretical
framework, using these older texts does not interfere with or devalue the points we wish to
communicate; rather it helps to convey the original message of this concept.
In addition, the covenants used for analysis originate from between 1948-1981 and can thus
be perceived as somewhat non-contemporary. Their time of origin can have an impact on the
content, and they might have looked differently if they had been drafted today. Nonetheless, they
are still all in force. Further, the age of the covenants has resulted in the existence of academic
literature discussing and examining the covenants, which enables us to attain a more thorough
knowledge on the subject.
3. Theory
The following theory section will, as mentioned, include a presentation of the principles of
human rights, cultural relativism, cultural imperialism, and homosexuality.
3.1 Human Rights
Human rights, and especially human rights abuses, have become a frequently debated topic
of much public concern. Historically speaking, this is a rather new tendency, as human rights were
not perceived as a legitimate international concern up until the end of World War II. Instead, such
matters were limited to be concerns of state leaders, who were protected by rights of sovereignty
(Donnelly, 2011: 496). In the aftermath of the second world war, a more liberal approach to global
affairs occurred which brought along an increased concern about human rights to the international
agenda. In this spirit, the United Nations (UN) introduced the UDHR on December 10 1948, and
since then, the notion of human rights has increasingly been implemented as a key concern in
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national and international affairs around the globe. Especially since the end of the Cold War in the
late 1980s/early 1990s, actions to prevent human rights violations have been taken, for example
through humanitarian interventions such as peacekeeping missions. A reason as to why such
measures have become more frequently employed, is that it has become a more generally accepted
notion that domestic human rights violations can and should be perceived as a threat to global peace
and security, a notion in overall compliance with Democratic Peace Theory (Taylor & Curtis, 2011:
317-19). As national sovereignty remains the supreme principle in the global arena, violating the
internationally recognized human rights does not delegitimize a state or its government, apart from
cases involving genocide. Even so, it has become a growing tendency to view the protection of
human rights in relation to that of a legitimate government, indicating that a state’s ability to protect
its citizens’ human rights is directly associated with its political legitimacy (Donnelly, 2007: 289).
The concept of human rights is by definition rather complex, as it addresses the ethical issue
of what should be perceived as an individual’s basic human rights and when these are considered
violated, and thus to some extent, what should be perceived as right or wrong (Freeman, 2011: 3-4).
Perceptions of these concerns may vary profoundly between individuals, depending on cultural,
social, economic, or political differences, which also express one of the main obstacles to the
concept of universally binding human rights. However, as the UDHR was agreed upon by a vast
majority of the UN member states, it undeniably holds an important role in the formulation of what
is globally perceived as human rights violations and also which basic rights should be respected
(Freeman, 2011: 4-5, 40). It is also this notion of human rights, the one formulated by the UN, that
will be referred to throughout this project.
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3.1.1 The Universal Declaration of Human Rights
The UDHR states that “recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice and peace in the
world”, and respecting such rights is essential in order to “promote the development of friendly
relations between nations” (UDHR, 1948). Within this context, according to the UDHR, the term
human rights should be perceived as to refer to a set of equal and inalienable rights that one has on
no other background than simply being human (Donnelly, 2007: 282). The UDHR mainly addresses
the relationship between governments and their citizens and it was established with the purpose of
formulating a set of guidelines and goals of human rights that states were expected to seek to fulfill,
rather than imposing legal obligations on states.
A main obstacle to the UDHR is the widespread claims that it is Western-biased in its
interpretation of and emphasis on certain rights. This notion is supported by its insufficient
consideration of the UN member states’ cultural differences, further elaborated by the fact that
implementing one human right might mean violating another, or respecting one person’s human
right might cause the violation of another person’s rights. Examples of such issues can be found in
cases involving people of differing religious beliefs or in situations of military interventions.
Furthermore, this perceived Western-bias of the UDHR is also supported by the tendency to focus
more on individual, civil, and political rights over collective, economic, social, and cultural rights
(Freeman, 2011: 6, 42). However, in the aftermath of the global decolonization in the 1950s and
1960s a range of new UN member states occurred, introducing new concerns and priorities to the
human rights agenda. The main focuses of these newly independent states included decolonization,
anti-racism, and the right to self-rule, and adding these subjects to the human rights agenda helped
weaken the claims of Western bias within the UDHR’s concept of human rights (Freeman, 2011:
48). Support for this so-called ‘Western arrogance’ or ‘Western hubris’ can to some extent be found
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in the Modernization Theory (Armer & Katsillis, 2000), whose main argument is that societies
currently at the developing stage are at the so-called premodern stage of evolution and simply have
not achieved the level of economic growth yet, but will eventually take on the social, economic, and
political features of the Western societies, which have reached the highest level of evolutionary
development so far. Such development is expected to be implemented by the global spread of
Western technology that eventually will overcome traditional local cultures in case these are
preventing the evolution. In this sense, Modernization Theory is rooted in the assumption that the
current situation in Western societies is the best or right one and is what should be strived for. Also,
it is assumed that the poorer nations have the resources and ability to reach the same level of
development, simply by adopting Western values and approaches, which to some extent disregard
the long historical process of global inequality shaped, for example, by colonialism (Jaqcues, 2006;
Armer & Katsillis, 2000).
3.1.2 Western Notions of Human Rights
Some argue that the perceived ‘Westernness’ of human rights should be assigned to the level
of modernity, rather than the nations’ Western cultural roots. Therefore, the principle of universally
binding human rights is relevant anywhere with a similar level of modernity, regardless of the
country being Western or not. This argument is supported by the observation that there was no
particular focus on or predisposition for human rights, or the tendency of such, in pre-modern
Europe. Neither did any particular Christian scriptures support a principle of a set of universal
inalienable rights assigned equally to all human beings. From this perspective, human rights did not
emerge from any Western cultural roots but rather from the transformations brought on by
modernization. Modernization posed new economic and political threats to human dignity, resulting
in a range of demands from the public, whereof the notion of human or natural rights constituted a
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central part. As modern markets and states spread globally, these same threats to human dignity
became relevant elsewhere, along with the notion of human rights (Donnelly, 2007: 287). Donnelly
(2007) further states that “[h]uman rights today remain the only proven effective means to assure
human dignity in societies dominated by markets and states” (p. 288); a statement that he backs up
with the notion that market economies and bureaucratic states are constant factors that remain
threats to us all, regardless of other societal problems. Therefore, equal and inalienable universal
human rights should be seen as essential in providing protection from these threats and other
cultural traits should be perceived as secondary to this (Donnelly, 2007: 287).
3.1.3 Non-Western Notions of Human Rights
The points set forth in the UDHR represents the contemporary notion of human rights, but
the idea itself originated in the Western hemisphere during the Age of Enlightenment. A theory on
natural rights can be found in John Locke’s Second Treatise of Government, which was published in
1689. Ideas of this type were what ignited and called for a political reconstruction during the
American and French Revolutions, for example (Donnelly, 2007: 286). Locke’s theory stated that
each individual naturally possesses certain rights, which are not to be controlled or decided by the
government. Furthermore, the government is obligated to respect these rights in order to appear
legitimate, and thus relies on the power vested in it by its citizens (Freeman, 2011: 9, 41).
However, considering or recognizing human rights is not simply a Western notion, as both
traditional African, Asian and Islamic societies supported and employed this concept, although
often with a regard to local religious practices or described as being second to the necessities of the
governing elite. What was missing in the pre-modern world, however, and in the West as well, was
this contemporary notion of universally equal and inalienable rights that one possesses simply by
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being human. Previous notions of rights would be determined by factors such as divine
commandment, tradition, natural law, or family ties (Donnelly, 2007: 284-286). The present Dalai
Lama promotes the universality of human rights and has stated “the acceptance of universally
binding standards of human rights as laid down in the Universal Declaration of Human Rights . . . is
essential in today’s shrinking world” (Lama in Kielsgard, 2011: 159). Early Chinese philosopher
Mo Tzu, for example, expressed the anticipation of a universal love binding us all, including the
governing elite and public office holders. This belief can be extended to resemble the modern
principle of human rights, as love is seen as an entitlement equal to all, also implying the right to
human dignity and respect. Middle Eastern cultures base their perception of rights on various
interpretations of the holy Islamic text, the Qur’an, which also can be seen in accordance with
modern human rights as those presented in the UDHR. As Professor Abdullahi Ahmed An-Na’im
(1990) argues:
“The fundamental position of the modern human rights movement is that all human beings
are equal in worth and dignity, regardless of gender, religion, or race. This position can be
substantiated by the Qur’an and other Islamic sources, as understood under the radically
transformed circumstances today” (An-Na’im in Kielsgard, 2011: 160).
Traditional African cultures also included a regard to equal natural rights. The West African
ethnic group Akan, for example, believes that every person contains an okra which refers to “an
actual speck of God that he gives out of himself as a gift of life” (Wiredu, 1990 in Kielsgard, 2011:
160). Possessing the okra implies an inherent value shared equally by all people, which again can be
seen in association with the concept of human dignity. The Akan’s notions of human rights consider
civil, political, cultural, social, and economic rights, implying an overall resemblance to modern
human rights (Kielsgard, 2011: 160-161).
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3.2 Cultural Relativism
In the following section we will concentrate on cultural relativism, in order to introduce the
term before proceeding to the discussion surrounding cultural relativism and universal human
rights.
The term cultural relativism refers to the belief that different cultures are characterized by
differing principles of morality, belief systems, and practices and can therefore not be fully
understood from an outside point of view. It is the belief that different cultures cannot – and should
not – be compared or paralleled to each other as they build on differing value systems and thus have
no common frame of reference. In this sense, a culture’s beliefs are valid and meaningful relative to
those within this particular culture and should therefore not be attempted translated into one’s own
socially constructed value system (Edgar & Sedgwick, 2008: 78-79). A central notion within this
principle is that no culture or cultural practices should be perceived as inferior or superior to other
cultures, rather all cultures should be regarded as being of equal relevance. It is a common belief
that cultural relativists in general aim to increase focus on the more marginalized cultures even
though that is not necessarily the case (Edgar & Sedgwick, 2008: 80).
3.3 Universality of Human Rights Versus Cultural Relativism
On the subject of international human rights law, a central theoretical debate remains the socalled ‘Universalism-Cultural Relativism’ problem. The assumption is that universal human rights
depend on the existence of fundamental principles of justice transcending society, culture, and
politics, and in this sense, the concept of universally binding human rights is not compatible with
that of cultural relativism. The debate focuses on the contradictory nature of the two concepts, as it
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is assumed that to uphold cultural relativity is to reject the legitimacy of universal human rights and
vice versa (Binder, 1999: 211).
According to works of traditional theorists such as Locke (1689), Wolff (1749), and Vattel
(1758) all persons hold inherent rights regardless of their citizenship, culture, or nationality. These
universal rights of the people should be prioritized over political and social institutions and were
thought to be a precondition for a legitimate sovereign state. In this sense, an international law on
human rights, and enforcement of such, would not violate the principle of state sovereignty and
nonintervention, as state sovereignty would only be guaranteed by respecting human rights. Some
would even argue that state sovereignty derives from natural rights being internationally protected
as opposed to the other way around; a view in overall accordance with the Lockean perspective
(Binder, 1999: 212). If this is the case then individuals, rather than states, have the ultimate
authority in the context of international law, and as a result, human rights advocates have implied
that moral absolutes transcending society and culture do exist. This assumption essentially
constitutes the origin of the ‘Universalism-Cultural Relativity’ debate (Binder, 1999: 213).
The debate was thus founded on the criticism of universal human rights, based on claims of
Western bias within international human rights law – such as the UDHR and the International
Covenant on Civil and Political Rights (ICCPR) adopted in 1966. These devices reflect a liberal
individualism, which is characteristic to the West, and prioritize this over social and economic
needs which might be of more importance to developing nations. They also fail to include other
features such as social membership and respect for nature, which are emphasized in several nonWestern cultures (Binder, 1999: 213-214). Cultural relativists built this criticism on a more
fundamental note, namely the argument that there can be no rights completely separated from
culture and society. This argument is supported by the notion that rights derive from values, which
are determined and developed by human beings, and thus socially constructed. In this sense, they
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are products of human beings, shaped by social and historical contexts and would not exist apart
from human society or culture. As human rights are socially constructed, and not determined by any
source of authority superior to state sovereignty, any belief about rights would have to be culturally
relative and therefore, no universal set of human rights or values can exist without valuing one
culture over another (Binder 1999: 214).
Universalists – or advocates of international human rights law – often reply to this with a
critique of cultural relativism, stating that the concept is self-contradictory in itself. They argue that
cultural relativists generally emphasize certain principles such as equal significance and worth of all
cultures or equal rights of the people to participate in international law making. These are treated as
universally valid values, much like the points of human rights law, and therefore universalists argue
that cultural relativists do favor certain values over other, implying that some cultures must also be
superior to other – hence the claim of self-contradiction. By deeming certain values better than
others, cultures employing such ‘good’ values must be better than those devoted to ‘bad’ values,
meaning that all cultures cannot be of equal value. Neglecting to value certain principles over others
would turn cultural relativism into cultural nihilism; somewhat stating that social democracy is a
system of governance equal to that of Nazism, for example (Binder, 1999: 214-215).
3.4 Culture
In order to use cultural imperialism as a tool in the analysis part of our project the terms of
culture and imperialism will now be described separately, as they are both rather complex terms.
After having touched upon the terms individually the notion of cultural imperialism will be
discussed in order to create a basis for examining the extent to which it is useful when discussing
cultural globalization.
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ARE UNIVERSAL HUMAN RIGHTS A FORM OF CULTURAL IMPERIALISM?
Cultures emerge when human beings join together in communities. The level on which a
culture exists differs. For example, it can exist on the basis of religious beliefs. These beliefs are
decisive for the way in which a society is indicated to be run. Therefore, ethnicity, religion etc. are
fundamentals of culture. In history, religious affiliation has been perceived as the dominant way of
referring to culture, as religion provides a kind of moral core for a certain community. Analyzing
culture can be challenging, as the concept is rather complex in itself. However, including culture
when examining human behavior is essential because culture influences human behavior and
because it constitutes a major part of the world (Murden, 2011: 416).
The theory of culture can be perceived as a tool that can be used to understanding the
meaning of human behavior. This is essential, as people will act upon things in accordance with the
meaning they attribute to them. Barth (2002) defines culture as “learned behavior” and “ideas
transmitted through symbols”. He further draws on the definition of culture as described by Meyer
Fortes. Here, culture is seen as "the standardized ways of doing, knowing, thinking and feeling universally obligatory and valued in a given group of people at a given time" (p. 27).
Culture contributes to shaping our perceptions and judgments of others and ourselves.
Therefore, it can be a source of conflict. Especially when people do not act in accordance with our
expectations, cultural differences become evident. As every individual sees things from their own
point of view, cultural differences can lead to a lack of common understanding. What is perceived
as a matter of course in one culture or group may not be perceived in the same way in another group
- it might be seen as strange or wrong. Hence, occurrences across cultures often turn into
complicated matters. Additionally, it should be taken into account that culture can be argued to be
in a constant flux. This means that conditions are likely to change over time and along with these
changes cultural groups may attempt to adapt to these changes. For example, according to
Modernization Theory, which was briefly explained in chapter 3.1.1, the Western model of
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development should be applied to the rest of the world as industrialization and economic
development lead to positive change. All in all, it becomes challenging to define a cultural group in
a final manner, as things such as context and time of occurrence play a role. Even if we make an
effort to understand another cultural group or look at things from a different perspective, this is
challenging, as members of different groups may not follow their cultural conviction completely
due to context or personal reasons (Lebaron, 2003). In previous times, the concept of culture was
mainly of positive association, whereas in more recent times it appears to a greater extent in relation
to conflicts (Hannerz, 1999: 394). According to Hannerz (1999) culture is often connected to
"culture clash, culture conflict, [and] culture wars" (p. 394).
During the Cold War, there was not a lot of focus on cultural differences due to the
domination of the geopolitical struggle between the United States and the Soviet Union. Ideological
and economic points were in focus when it came to defining differences. However, according to
Murden (2011), the end of the Cold War brought with it a triumph of the West as well as a
reshaping of world politics. Culture came to be seen as a means to understand both differences and
similarities of the new age of globalization in which capitalism and cosmopolitan culture met a
world full of different cultures. Further, the existing cultures were brought into closer contact with
one another. In this regard, Western culture has been the most influential (p. 418). This 'Western
domination' has evolved over time, for example, resulting in the emergence of the term
‘Westernization’, which has become a well-known term due to globalization (Murden: 418-419).
The process of globalization is often seen as a top-down process. That is, one single global system
will impact other parts of the world, and this might in extreme cases result in a kind of global
monoculture – such as Westernization. Cultural globalization in this way may end up being a kind
of cultural imperialism, which, as will be further elaborated, is characterized by cultural flows
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taking place between partners of unequal status, and in this way can be used as a mechanism for
powerful states to exercise domination over weaker states (Heywood, 2011: 145).
In regard to the subject of culture it is, as mentioned, crucial to take into account that people
with different cultural backgrounds will often have different views on the same event or subject.
Hence, when discussing the subject of homosexuality and how the African attitude toward
homosexuality differs from the Western attitude, it is crucial to take cultural differences or cultural
diversity into mind.
3.4.1 Imperialism
Imperialism can be argued to have had a great impact on the shaping of world politics and
economic systems. It is by Heywood (2011) defined as "the policy of extending the power or rule of
the state beyond its boundaries . . . In its traditional form, imperialism involves the establishment of
formal political domination or colonialism" (p. 28). Historically, the term has included sovereignty,
control, and heavy influences by dominant states over other states or societies. Imperialism is often
connected to colonialism. In this regard, earlier scholars were preoccupied with the relationship that
emerged between dominant states and the colonies they settled in, whereas the emergence of 'first
wave' imperialist scholars resulted in a focus on how this relationship developed from being
mutually beneficial into a relationship of domination (Kettel & Sutton, 2013: 244). As is the case
for imperialism, it can be argued that colonialism is a form of domination. However, colonialism is
the control one group has over another group’s territory. The relationship between colonialism and
imperialism has been cause for debate. It can be argued that colonialism is a model of political
organization and can be seen as an example of imperialism. Nevertheless, it is also argued to be the
imperial policy of the West occurring from the sixteenth century. Butt (2013) points to three
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characteristics, which to the greatest extent explain the core of colonialism: domination, cultural
imposition, and exploitation. Colonialism is often argued to be one group imposing values on
another. The domination of colonialism is mainly characterized by the rejection of selfdetermination for the colonized people and the attempt to impose rules of the superior power. It has
also been associated with imposing the culture of the superior power onto the colonized group,
which makes it a form of cultural imperialism. The reasons for spreading one's own cultural values
might be a desire for missionary undertakings, or to attempt to enforce political control.
Colonialism can further be perceived as a type of exploitation, for example seen in the form of slave
trade and the founding of trade relations (Butt, 2013).
The European colonization of Africa from the 16th century onwards inevitably has had a
great impact on African development. It is a key factor to include when seeking to understand the
African continent as well as its people as it is today. We therefore find it essential to include a short
section on African colonialism in order to emphasize the influence it has had on economic and
political development and the African self-perception. The largest colonial powers were France and
Britain and after World War I they held power in more than 70 percent of the African continent. It
was especially during the mid 1800s and early 1900s that the imperial rule in Africa was at its
highest (Khapoya, 2012). Most African countries gained independence during the 1950s and 1960s
and it can be argued that decolonization, to a great extent, was affected by super power competition.
Further, it contributed to a change in international relations (U.S, 2014). According to gay rights
campaigner, Peter Tatchell (2014), there are no records of anti-homosexuality laws before Western
colonization. Therefore, homophobia is perceived as an import stemming from the colonial era
(Smith, 2014).
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3.5 Cultural Imperialism
Cultural imperialism has a fundamental position in debates on globalization. It has been
subject to a lot of criticism, nevertheless, it remains a useful tool in explaining the imbalance which
occurs in the process of cultural production and consumption, and furthermore it plays a role in
international as well as supranational politics (Sarikakis, 2005: 80).
Theories of great impact within the field mainly originate in the West. Inspired by Marxist
thought, Herbert Schiller has been one of the more influential theorists within the field. Schiller
(1976) believes that the world, to some extent, is influenced by dominant players in political,
economic, military and cultural terms. In this context the United States is especially perceived to be
dominant in regard to cultural imperialism (Schiller in Sparks, 2012: 282). According to Roach
(1997), the years within which cultural imperialist thinking emerged was also the years that
American-based transnational corporations experienced great economic expansion globally, and an
increase in Western-backed military dictatorships in Asia, Africa and Latin America occurred. The
focus of cultural imperialism was especially put on the economic expansion of American capitalism
in the Southern hemispheres (Roach, 1997: 47-48).
Schiller (1976) defines cultural imperialism as follows:
"The concept of cultural imperialism today best describes the sum of the process by which
a society is brought into the modern world system and how its dominating stratum is
attracted, pressured, forced and sometimes bribed into shaping social institutions to
correspond to, or even promote, the value and structures of the dominating centre of the
system" (Schiller 1976: 9 in Sparks, 2012: 282).
Further, the concept has by Sarmela (1977) been explained as "the economic, technological
and cultural hegemony of the industrialized nations, which determined the direction of both
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economic and social progress, defines cultural values, and standardizes the civilization and cultural
environment throughout the world." (p. 1). Hence, cultural imperialism can be seen as a conceptual
framework seeking to address a range of problems. Further, it is argued that it refers to a global
state in which powerful culture industries and actors to a great extent are found in the West. These
cultural actors then dominate other cultures. The domination is mainly perceived to be the result of
inequalities that have existed throughout history which have led to political and economic power
mainly being located in the West. According to critics (Morris, 2002; Sepstrup, 1989 in DemontHeinrich, 2011: 668), cultural imperialism can be seen as a way of injecting cultural values of the
superior power into national and local cultures and in this way overpower them. By imposing
Western values on other cultures a form of global homogenization can occur (Demont-Heinrich,
2011: 668).
The term of cultural imperialism as a mechanism for theorizing global cultural production
emerged in the late 1960s (Roach, 1997). It can be seen as a response to Modernization Theory,
which, as mentioned, argues that the Western model of development should be applied to the rest of
the world. Cultural imperialism mainly draws on Dependency Theory, which provides insight in the
underlying socio-economic reasons as to why the world acts in a certain way, arguing that wealthy
nations are dependent on the poorer ones to remain in their current subordinate position, in order to
maintain their wealth and be able to prosper (Hendricks, 2000). Cultural imperialism is further
inspired by Marxist theories. It should be emphasized that it does not exclusively revolve around
unequal cultural flows occurring between developing and developed countries. It can also be used
to examine unequal cultural flows among developed countries. This form has not gained scholarly
attention to the same extent as the unequal flows between developed and developing countries
(Demont-Heinrich, 2011: 3). In this project, we will also focus on the cultural flows between
developed and developing countries.
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3.6 Homosexuality
As our focus within human rights in this project is the rights of homosexuals, a general
discussion of the term will now be provided.
Within the history of sexuality there is a general perception that homosexuality is a rather
new invention deriving from Western culture and hence a perception that it is not a part of natural
human behavior. The term came into existence in the late 19th century. Historians of sexuality
argue that even if sexual acts between people of the same sex and the punishment hereof have taken
place before the late 19th century, there was no clear definition of these persons as homosexuals.
Nevertheless, along with a growing understanding and knowledge on the subject of sexuality,
homosexuality became acknowledged as a form of identity. The emergence of the term drew
primarily on theories and histories of gender (Sommerville, 1994: 243-244).
The debate on general sexuality and same-sex attraction is not new. Rather, it has been
subject for debate, dating back to for example Plato's Symposium originating from 385-380 BC.
Hence, even though the term did not exist in earlier societies, issues of sexuality did exist
(Homosexuality, 2011).
During the past 30 years, the topic of homosexuality has also been researched to a greater
extent than earlier, and it has been proven to be common and widespread throughout the world,
existing in all cultures. However, the extent to which it is accepted varies profoundly. Research has
further found that most men, at some point in their lives, will experience some kind of attraction
toward his own sex (Choe, 2007). As late as in the 1970s it was a general perception that
homosexuality was a learned behavior, and that it was something that should be treated. It was
further suggested that this supposed 'disorder' might stem from a genetic or hormonal basis. This,
however, never became an acknowledged explanation. A common acknowledgement on the basis of
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research of the 1970s, and before that, is mainly that homosexuality was a sin in regard to culture
and beliefs. Hence, at that time a consensus of anti-homosexuality prevailed. However, this view
has later on been criticized for being simplistic. Further examination has shown that there is no
consensus in regard to causes of homosexuality. On the contrary, it was shown that homosexuality
is rather a set of opinions, theories and conjecture as any other human behavioral aspects (Stout,
NY: 29-30).
Sigmund Freud has delivered one of the more prominent theories of homosexuality. He
argued that homosexuality was an expression of something which existed in all human beings,
deriving from biological tendencies of bisexuality. He further believed that all human beings, in
their process of becoming heterosexual, would go through a so-called 'homoerotic' phase, with no
exceptions. During this process specific life experiences can interfere with the development and a
person can remain at the homosexual level. Even if the process would continue in a 'normal'
manner, there would still be a chance of possible homosexual aspects to remain as permanent
(Marmor 1965:2 in Stout, NY: 30).
3.6.1 A Religious Perspective
Historically, religion has had great impact on certain sexual codes of conduct. For example
in Judeo-Christianity it has been a tradition to perceive a monogamous family as morally right.
Therefore, homosexuality as well as other sexual 'deviations' is not met with a positive mind within
this culture. Within the Mormon church, for example, homosexuality was also seen as being sinful.
That is, there has been no room for homosexuality whether it is within Christianity or the Jewish
faith. The attitude towards homosexuality, as is the case today, has varied to a great extent from
culture to culture. In some societies it has been accepted and seen as normal, whereas in others it
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has been condemned. However, a common acknowledgement within the different religions has
earlier been that homosexuals have chosen this specific lifestyle knowing that it is sinful. It has
further been seen as being against nature. The problem about this statement is the uncertainty about
whether we really choose our sexuality ourselves (Stout, NY: 34-35). As mentioned previously,
research has shown that sexual orientation should be assigned the same occurrence as other human
behavioral patterns. These findings are, thus, not in overall compliance with such religious beliefs
that homosexuals knowingly choose such 'sinful behavior'.
3.6.2 Homosexuality as a Human Right
In 2012, a booklet was published by the UN Human Rights Office with the aim of drawing
attention to the obligations that states have in relation to protecting the rights of LBGT people. For
example, the principles for extending the rights to include LGBT people derive from international
human rights law. The Human Rights Council has for almost two decades been investing in raising
awareness of violation of the rights of LGBT people. In the reports on acts of discrimination, the
victims are being beleaguered on the grounds of assumptions of them being lesbian, gay, bisexual
or transgender (UN, 2012a). The booklet focuses its attention on five core legal obligations of
states. These are, in short, to: protect individuals, prevent torture, decriminalize homosexuality,
prohibit discrimination, and respect freedom of expression (UN, 2012b).
In 2013, the United Nations High Commission for Human Rights launched 'Free and Equal';
a campaign for LGBT rights. It was established on the Human Rights Day of 2013, marking the
65th anniversary of the UDHR. The purpose of the campaign was to raise awareness of
discrimination of LGBT people and to obtain respect for the rights of these people. The UN High
Commissioner for Human Rights, Navy Pillay, argues that "The Universal Declaration of Human
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Rights promises a world in which everyone is born free and equal in dignity and rights - no
exception, no-one left behind." Nevertheless, she notes that LGBT people all over the world are still
exposed to violence and discrimination (UN, 2013).
Debates about whether gay rights are a part of basic human rights have increased along with
a growing media attention to the discrimination of LGBT people. As mentioned above, the UN are
dedicated to raising awareness of LGBT people as well as promoting respect for the rights of these
people. The Charter of the United Nations argues for "respect for human rights and for fundamental
freedoms for all without distinction". In the same vein, article 2 of the UDHR states that "Everyone
is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any
kind". In spite of this guidance, UN member states, as noted, continue to have laws illegalizing
same sex relations (Gary & Rubin, 2012). On the basis of the articles of the Charter of the United
Nations and the UDHR, it can be argued that homosexuality can be seen as a human right; an
argument that will be further elaborated in the analysis.
4. Case Description
In order to conduct our analysis the following chapter will present the topics of
homosexuality in Africa, the AU, the ACHPR, and the ECHR.
4.1 Homosexuality in Africa
Having touched upon the notion of homosexuality, this section will explain the history of the
term in Africa, as well as make a general description of attitudes towards homosexuality throughout
the African continent.
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Opposed to arguments made by African politicians, homosexuality actually has a long
history within the African continent. However, it has been claimed to be 'un-African' and it has been
suggested that the West has had a great impact on this part of African history. In recent times
Western organized groups opposing discrimination of homosexuals have been established.
Therefore, it has been argued that both gay self-identification as well as gay activism does not stem
from Africa but originated elsewhere (Lembembe, 2012; Divani, 2011). The colonial history of
Africa shows that it was not necessarily homosexuality, but rather anti-homosexual laws which
were brought to the continent by the West. In spite of these beliefs that homosexuality as well as
anti-homosexual legislation derives from the West, it appears that homosexuality has always existed
on the African continent (Lembembe, 2012). Research by historians as well as anthropologists
reveal that same-sex relations took place in Africa prior to colonization (Divani, 2011). Throughout
history sexuality has been something that people have experimented with, and it has never been
confirmed that this kind of behavior has been tied to specific geographical areas (Evaristo, 2014).
Africa is often perceived as a continent dominated by a homophobic position. This has
attracted international criticism from advocates of human rights. Among others, UN Secretary
General, Ban Ki-moon, has made statements arguing that homosexuals are entitled to the same
rights as everyone else. He has stated: “lesbian, gay, bisexual and transgender people are entitled to
the same rights as everyone else. They too are born free and equal. I stand shoulder-to-shoulder
with them in their struggle for human rights" (UNFE, 2014a). Nevertheless, legislations
criminalizing homosexuality are a widespread phenomenon within the African continent. One
example is Nigeria that in January 2014 passed legislation prohibiting and criminalizing same-sex
marriage joining a wide range of other African countries with similar laws (IGLHRC, 2014).
Another example of legislation concerning homosexuality is seen in Uganda. Ugandan president
Museveni has stated that homosexuals are 'mercenaries' and 'prostitutes' as he recently signed an
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anti-gay bill which states that homosexuals can be jailed for long terms. Acts of homosexual nature
were already illegal before the adoption of the new anti-homosexuality bill, however the new bill
from 2014 ensures that homosexuals can be punished with imprisonment for life (Aljazeera, 2014).
President of Zimbabwe, Robert Mugabe, has argued that homosexuality is not a part of
African culture; rather it has been imported into the country by foreign cultures. This belief is
backed by other Zimbabwean politicians, who argue that homosexuality is alien to the culture of the
country. Similarly, Ugandan Member of Parliament David Bahati has expressed his clear support of
anti-homosexuality by being the main advocate for the Ugandan anti-homosexuality bill and by
expressing that homosexuality is 'un-African' and not in accordance with African values (Divani,
2011).
As mentioned in the introduction, 76 countries around the world have criminalized same-sex
relationships. On the other hand, almost 40 countries have legalized same-sex relationships. Further,
a wide range of countries have made legislations against discrimination of LGBTs (UNFE, 2014b).
All in all, out of the 54 African countries, 38 have laws criminalizing sexual acts between same-sex
partners (ILGA, 2014). However, not all African countries have laws criminalizing homosexuality
and South Africa remains the only country separating itself from others by legislating against
discrimination based on sexual orientation and arguing in favor of civil rights (Johnson, 2013).
4.2 The African Union
The purpose of the ensuing section is to introduce our main focus of analysis throughout this
project, the ACHPR. In order to do so, a brief presentation of the AU and its aspirations is also
relevant and will therefore be the starting point of this chapter.
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The AU was established in 1999 “with a view, inter alia, to accelerating the process of
integration in the continent, to enable it play its rightful role in the global economy while addressing
multifaceted social, economic and political problems compounded as they are by certain negative
aspects of globalization” (AU, 2014a). The Union took over from its predecessor the Organization
of African Unity (OAU), whose main objectives had been to "rid the continent of the remaining
vestiges of colonization and apartheid; to promote unity and solidarity among African states; to
coordinate and intensify cooperation for development; to safeguard the sovereignty and territorial
integrity of Member States; and to promote international cooperation within the framework of the
United Nations" (AU, 2014a). The AU's overall vision is that of "an integrated, prosperous and
peaceful Africa, driven by its own citizens and representing a dynamic force in global arena" (AU,
2014b). Currently, all 54 African states are members, making the AU the most wide-ranging
political institution in the region and thus the most important (Johnson, 2013: 256).
4.3 The African Charter on Human and Peoples’ Rights
The ACHPR was adopted in 1981 and came into force in 1986. It was unanimously ratified
by all member states of the AU, which holds the overall political authority of this charter (Murray &
Viljoen, 2007: 87-89). Today, the newly established Republic of South Sudan (2011) remains the
only member state of AU to be a non-signatory of the ACHPR (Johnson, 2013: 256). The ACHPR
was inspired by several other bills and conventions, particularly the American Convention on
Human Rights and the ECHR (Murray & Viljoen, 2007: 87-89). It is enforced by the African
Commission on Human and Peoples’ Rights (ACmHPR), which is an institution of eleven member
states with a monitoring function. The eleven commissioners are well represented both in terms of
geography and gender, as five hereof are women. The Commission gathers twice a year in meetings
generally open to the public where state reports are received, suggestions from NGOs are presented
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and general recommendations to all states are formulated. The structure of the Commission has thus
been categorized as remarkably democratic, due to its transparency and openness toward for
example NGOs. Meetings within the African Commission allow member states to be critical of
each other and highlight the different interpretations of the points set forth in the ACHPR around
the continent. In order to serve as a tool of enforcement, the African Court on Human and Peoples’
Rights (ACtHPR) was introduced in 2004. Since then 26 states have acknowledged the ACtHPR
and thus its ability to handle complaints of human rights abuses (Johnson, 2013: 256-257). Prior to
meetings in the Commission is the so-called NGO Forum, which is open to all NGOs. These forums
usually gather a large number of both African and international organizations who discuss central
themes and possible resolutions to such, which are then conclusively presented to the Commission
in order for it to discuss it in its own forum (Murray & Viljoen, 2007: 110). Even though the
ACmHPR in theory is open to direct complaints from other actors than states, such as NGOs
assigned ‘observer status’, achieving this status can be a difficult task in itself, especially when
affiliated with LGBT rights. In 2010, for example, the Commission voted against assigning
observer status to the South African NGO Coalition of African Lesbians and justified this refusal by
stating that “the activities of the said Organisation do not promote and protect any of the rights
enshrined in the African Charter” (ACmHPR, 2010: 8).
4.4 The European Convention on Human Rights
In order to conduct a thorough analysis of the ACHPR we find it relevant to include other
covenants written on the subject of human rights. Therefore, we have chosen to include the ECHR
and the UDHR as points of reference and comparison in order to outline similarities and
differences, and to examine whether these points support the notion of a universally valid set of
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human rights or rather imply a level of cultural imperialism. As the UDHR was introduced
previously, in chapter 3.1.1, only the ECHR will be presented in the following part.
The ECHR was adopted in 1950 by the members of the Council of Europe and was inspired
by the UDHR, proclaimed just two years earlier. The aim of the Council of Europe is expressed
herein as being “the achievement of a greater unity between its members” which is to be pursued by
protecting and promoting fundamental rights and freedoms (ECHR, 1950: 5). The ECHR, originally
named the Convention for the Protection of Human Rights and Fundamental Freedoms, “aims at
securing the universal and effective recognition and observance of the Rights therein declared”
(ECHR, 1950: 5). Supplementary sections have been added to the ECHR on several following
occasions concerning for example education, property rights, abolition of the death penalty,
treatment of immigrants, prohibition of discrimination, etc.
Article 14 of the ECHR expresses that all human beings should be able to enjoy the rights
presented in this convention without any discrimination on the grounds of “sex, race, colour,
language, religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status” (ECHR, 1950: 12). Protocol 12, introduced in 2000,
expanded on the subject of non-discrimination, as it added Article 1 titled ‘General prohibition of
discrimination’. The first paragraph hereof states that “The enjoyment of any right set forth by law
shall be secured without discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national minority, property,
birth or other status”. The second part states “No one shall be discriminated against by any public
authority on any ground such as those mentioned in paragraph 1”. This supplementary article
emphasizes non-discrimination of any right set forth by law, in extension to its original Article 14,
which only mentioned the rights set forth in the ECHR.
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Articles of the ECHR of particular relevance to LGBT people are the following: Article 3:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”, Article
8: “Everyone has the right to respect for his private and family life, his home and correspondence”,
Article 10: “Everyone has the right to freedom of expression. The right shall include freedom to
hold opinion and to receive and impart information and ideas without interference by public
authority and regardless of frontiers.”, and the above-mentioned Article 14 (ECHR, 1950).
5. Analysis
Before beginning the actual analysis section, we will include a brief outline of how the terms
equality and non-discrimination can be understood. This will be done in order to create a basis for
using these principles for further analysis and to convey our perception of sexual discrimination.
Based on the described theories, we will examine the extent to which human rights, and especially
gay rights, can be seen as a Western imposed phenomenon. In order to do so, the ACHPR, the
ECHR, and the UDHR will be included respectively. Our main focus of analysis will be the
ACHPR, as the point of departure of this project is the African region due to recent legislative
actions in various African countries on the topic of homosexuality. The ECHR and UDHR will be
compared to the ACHPR in order to outline differences and similarities and to determine whether
the universality of human rights is a form of cultural imperialism. We have divided the analysis
section into the following subchapters: Defining Sexual Discrimination, Interpreting the Legal
Framework
for
Non-Discrimination
of
Homosexuals,
Peoples’
Rights,
and
Justifying
Discrimination in order to achieve coherence.
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5.1 Defining Sexual Discrimination
Equality and non-discrimination are central principles of international human rights law.
Peter Westen (1990) has concluded that “without moral standards, equality remains meaningless”
(Westen in Matshekga, 2003: 116), emphasizing the importance of moral values when
understanding and discussing philosophical terms, such as equality. In this context, nondiscrimination is used to cover what the principle of equality lacks and the two principles are thus
closely interrelated. They function best together, as the principle of non-discrimination also has
some shortcomings, for example the fact that there is no existing overall definition of discrimination
and how it should be understood in terms of international human rights law. The Convention on the
Elimination of All Forms of Racial Discrimination (1965) outlined the following definition of racial
discrimination in its first article:
“Any distinction, exclusion, restriction or preference based on race, colour, descent, or
national or social origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public life”
(Matshekga, 2003: 116).
By way of comparison, the ECHR defines discrimination as any distinction that cannot be
impartially and reasonably justified, is without a legitimate purpose, or is sought implemented
through disproportionate means to that of the aim. Although other covenants present different
definitions on the matter, there exists a general perception within the context of international human
rights law that all fundamental rights and freedoms set forth in these texts should be granted equally
to all human beings, regardless of personal attributes such as race, gender, ethnicity, etc.
(Matshekga, 2003: 117).
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ARE UNIVERSAL HUMAN RIGHTS A FORM OF CULTURAL IMPERIALISM?
Based on the above formulations, we believe that discrimination based on sexuality should
be understood as being: any distinction, exclusion, restriction or preference based on gender, sexual
orientation or perceived sexual orientation with the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms
in the political, economic, social, cultural or any other field of public life.
5.2 Interpreting the Legal Framework for Non-Discrimination of Homosexuals
None of the existing legal documents addressing human rights, presented in this project,
directly mention sexual orientation, leaving the issue to be a matter of interpretation, to a great
extent. The ACHPR does not mention sexuality either, and South Africa remains the only African
state that addresses protection from discrimination on the grounds of sexual orientation. This is
stated directly in article 9(3) of the Bill of Rights within the South African Constitution: “The state
may not unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth” (Constitution of
the Republic of South Africa Act, No. 108 of 1996). This Constitution was established in the
aftermath of the abolition of apartheid, in an era of national reconciliation in South Africa,
influencing the great emphasis on equal human rights. It is also worth noting the time and thus the
cultural context of when the ACHPR was composed, in the late 1970s, which might serve as an
indicator as to why sexuality is not included as an explicit right. Another reason could be the abovementioned notion that the ACHPR was built on or inspired by several other covenants that were
drafted even earlier, and do not mention discrimination on the basis of sexual orientation either.
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ARE UNIVERSAL HUMAN RIGHTS A FORM OF CULTURAL IMPERIALISM?
As mentioned previously, a critical approach toward the practices of other member countries
is a common feature of meetings within the AU. South Africa, for example, was questioned on their
attitude of non-discrimination on the grounds of sexuality in connection with their 2005 state report,
and how it relates to the ACHPR. The ACHPR generally places a great emphasis on traditional
family values, which for example is expressed in Article 18 that states: “[t]he family shall be the
natural unit and basis of society”(ACHPR, 1986). In this sense, values of traditional family life are
one of the notions perceived as conflicting with same-sex relationships. South Africa replied that
the principle of non-discrimination does not deviate from the vision of the ACHPR and held that it
is the state’s responsibility to protect the rights of all its people in a manner determined on the
national level in accordance with the South African Constitution (African Commission’s 38th
Session in Murray & Viljoen, 2007: 102-103).
During the presentation of Cameroon’s state report before the AU in 2006, the country’s
legal treatment of homosexuals was the topic of debate. Especially a particular incident, where nine
men were arrested after supposedly having participated in same-sex activities and subsequently
detained for almost a year, was a subject of concern. Several commissioners expressed concern for
this episode due to information provided by NGOs prior to the meeting. Among the critical
concerns were: the observation that criminalizing sodomy might be incompatible with Article 2 of
the ACHPR, the notion whether the extensive medical examinations that were performed on
suspected homosexuals violate Article 5, and one considering the overall Cameroonian lack of
tolerance based on its peoples’ sexuality. Article 2 addresses the right to freedom from any kind of
discrimination and Article 5 concerns prohibition of degrading, cruel and inhuman treatment of
people (ACHPR, 1981). The government of Cameroon replied that their legal approaches were in
overall compliance with public morality, as the majority remains uninterested in a greater tolerance
toward LGBT people. This claim is backed by ILGA, according to whom West Africa has been
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somewhat characterized by detaining people suspected for same-sex behavior based on charges of
sodomy. ILGA further implies that young people have been thrown out of educational institutions
on the basis of suspicions of homosexuality. Moreover, Mr. Amadou Ali, Cameroonian Minister of
Justice, has stated that detaining people on the basis of suspicions of same-sex behavior is carried
out in order to ensure “that positive African cultural values are preserved” and continues to
establish that “homosexuality is not a value accepted in the African society” (ILGA, 2006).
According to ILGA, the public attitude towards homosexuals is harsh, and people in same-sex
relationships often keep it a secret. Moreover, the government argued that a population’s morality
and values on the domestic level are superior to the interference of international conventions and
therefore Cameroon’s laws cannot be perceived as conflicting with them (Murray & Viljoen, 2007:
101-104).
The UN Human Rights Committee and the European Court of Human Rights (ECtHR) have
outlined two institutions that seek to provide particular protection for homosexuals - namely the
ICCPR and the ECHR. These two texts include the right to privacy, which is not a point present in
the ACHPR. The reason as to why this point was excluded from the ACHPR is, however, not
believed to be related to sexual orientation, as none of the preparatory work included any mention
of sexual orientation and therefore not the dismissal of it either. Support for protection of privacy
can be interpreted in other rights expressed in the ACHPR, for example Article 5 and 6 concerning
the right of "respect of the dignity inherent in a human being" and to "liberty and security of his
person" (ACHPR, 1981). Supposing that a person's sexual orientation is associated with one's
personality, imposing or advocating limitations to people's sexual attractions would in this sense
violate their personal integrity and human dignity, along with their personal liberty as well. In order
to respect these rights, the state should not interfere in private matters like this, also implying
support for the right to privacy (Murray & Viljoen, 2007: 89). It may, however, be obsolete to
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perform extensive interpretations searching for grounds supporting the notion of privacy, as one
could argue that criminalizing consensual sex between adults of the same sex violates the rights
concerning respect for human dignity, integrity, freedom, and security.
Another argument regarding grounds for the protection of homosexuals within the ACHPR
is the assumption that the term ‘sex’ should be understood as to cover sexuality as well. This
argument is supported by the notion that the ACHPR predates the discourse containing terms such
as gender and sexual orientation and therefore it is not unlikely that ‘sex’ was meant to cover all
aspects related to it, including sexuality and gender. On the other hand, the term ‘sex’ might also
simply refer to gender. This view will be elaborated further on in this chapter in the context of the
ECHR. Another notion is that even though homosexuality might be looked down upon in many
African states, it remains rather unthinkable that people would be refused other rights, such as the
right to a fair trial, simply on the grounds of their sexual orientation (Murray & Viljoen, 2007: 91).
On the contrary, other articles of the ACHPR might serve as limitations to the inclusion and
protection of homosexuals. Article 27(2), for example, states that “The rights and freedoms of each
individual shall be exercised with due regard to the rights of others, collective security, morality and
common interest” (ACHPR, 1981). By including collective morality and common interest, using the
points set forth in the ACHPR to protect one’s rights becomes a matter of interpretation again, in
general left to the authorities and their understanding of the public’s morality. This can be seen in
the arguments put forward above in the case of Cameroon, for example.
Article 2 of the ACHPR can be interpreted to protect the rights of equality and nondiscrimination for homosexuals as it states:
“Every individual shall be entitled to the enjoyment of the rights and freedoms recognised
and guaranteed in the present Charter without distinction of any kind such as race, ethnic
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group, color, sex, language, religion, political or any other opinion, national and social
origin, fortune, birth or other status” (ACHPR, 1981).
It can be seen as including homosexuals as it states that ‘every individual’ is entitled to these rights
without any distinction. Even though sexual orientation is not explicitly mentioned, the article can
still be perceived as applicable to homosexuals. The use of the term ‘other status’ can be interpreted
to include sexual minorities and in extension, the notion of ‘sex’ can, as mentioned above, be seen
as covering sexual orientation as well. Article 2 requires committed states to ensure that all human
beings within the jurisdiction of the state are protected by the rights of the charter (Matshekga,
2003). This notion should, in accordance with the above-mentioned interpretation, be perceived as
including homosexuals as well. Article 2 of the ACHPR is somewhat similar to Article 14 of the
ECHR, which states:
“The enjoyment of the rights and freedoms set forth in this convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national minority, property,
birth or other status” (ECHR, 1950).
Even though sexual orientation is not addressed directly within this convention, it remains a
central issue to the ECtHR, and has been included in subsequent official documents. The ECtHR
has in collaboration with the European Union Agency for Fundamental Rights published the
Handbook on European Non-Discrimination Law (2010). In 2010 it had been 60 years since the
establishment of the ECHR within which Article 14, as stated above, sets out a general prohibition
on discrimination. The handbook provides sections on specific protected grounds. Here ‘sex’,
‘sexual orientation’ and ‘other status’ is specified. In the section on ‘sex’, it is stated that it refers to
discrimination based on gender and hence not sexual orientation. The section on ‘sexual orientation’
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states that cases in this regard often are characterized by an individual being subjected to
unfavourable treatment based on their sexual orientation. The handbook states that despite the fact
that Article 14 of the ECHR does not mention ‘sexual orientation’ explicitly, the ECtHR has
established that it is included in ‘other status’ under Article 14 in various cases (FRA, 2010). An
example of a case of such character is the Fretté v. France case, in which a French homosexual man
applied for adoption but was rejected by the Paris Social Services Department on the basis of
“choice of lifestyle”. The ECtHR decided that Article 14 in conjunction with Article 8 (ensuring the
“right to respect for private and family life”) was applicable (ECtHR, 2002). In addition, the ECtHR
protects against government interference in people’s sexual orientation in accordance with Article 8
(FRA, 2010).
The above mentioned Article 2 of ACHPR and 14 of ECHR both resemble Article 2 of the
UDHR:
“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status” (UDHR, 1948).
The UDHR remains the first international covenant covering the subject of human rights, and even
though sexual orientation is omitted from being directly addressed in here as well, it is arguably still
covered by the inclusion of ‘other status’, as is the case with the ECHR and ACHPR. Considering
the extensiveness of the organization of UN, implementing a common attitude toward anything is a
challenge, and even more so regarding the more controversial subjects such as sexual minority
rights. Also, as national sovereignty remains the supreme principle on the global level, most trials
are handled at a national or regional level, leaving the UN’s actions to be primarily that of a guiding
and observing character. Nonetheless, UN Secretary General Ban Ki-moon in 2010 appealed for the
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global decriminalization of homosexuality while stressing the importance of respecting human
rights. He stated “[l]et there be no confusion: where there is tension between cultural attitudes and
universal human rights, universal human rights must carry the day. Personal disapproval, even
society’s disapproval, is no excuse to arrest, detain, imprison, harass or torture anyone – ever” (UN,
2010).
5.3 Peoples’ Rights
The ACHPR places a great emphasis on traditional values of community, family, and
peoples’ rights. This is, for example, reflected in the Charter’s name, where the emphasis is not
simply on individual human rights, but also on the collectively shared peoples’ rights, i.e. people in
plural. This tendency is a unique feature of the ACHPR and is one of its main points of difference
from the UDHR and ECHR. Article 19 states: “All peoples shall be equal; they shall enjoy the same
respect and shall have the same rights. Nothing shall justify the domination of a people by another”
(ACHPR, 1981: 6). The ACHPR’s focus on peoples’ rights has been explained on the basis of
demands set out by socialist states such as Ethiopia and Mozambique who emphasize the
importance of joint or collective rights. It has, however, also been seen as an indication of the
region prioritizing African social values over Western ideas of individualism, and thus to some
extent rejecting the Western notion of human rights (Johnson, 2013: 276).
The inclusion of the word ‘peoples’ has been widely discussed, especially in terms of how it
should be interpreted. On the one hand, it has been argued as constituting a supporting mechanism
for the sovereignty of the state – an interpretation which is supported by the notion that
safeguarding political and economic self-determination indisputably remains a central concern of
the ACHPR. On the other hand, it has also been argued that this formulation could be interpreted as
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guaranteeing the rights of people whose interests are not in compliance with the state. This is a
valuable notion as it recognizes the post-colonial situation in Africa where the unity of people often
transcends national boundaries as it builds on shared cultural, linguistic, and ethnic ties over that of
state affiliation (Johnson, 2013: 277).
Article 22(1) of the ACHPR states: “All peoples shall have the right to their economic,
social and cultural development with due regard to their freedom and identity and in the equal
enjoyment of the common heritage of mankind” and (2): “States shall have the duty, individually or
collectively, to ensure the exercise of the right to development” (ACHPR, 1981: 7). Addressing the
right of social and cultural development, including a regard for identity, could be seen as a
favorable point in the interpretation of rights of sexual minorities, as it could be interpreted as space
for personal development without state interference and thus expressing grounds for nondiscrimination based on sexual identity. Johnson (2013) argues that a central question surrounding
this notion is whether homosexuals can be understood as being assigned the status of ‘a people’ in
order to be directly addressed in Article 22. In this context, the ECHR serves as a useful object of
comparison or inspiration, as it has shown its ability to adapt gradually to the more recent demands
of homosexual rights. This has for example been achieved by the recognition of homosexuality as
being an individual personal trait shared by a group of people, which subsequently has resulted in
the ECHR viewing homosexuals as a minority group to be protected from discrimination. In a trial
from 2003, L and V v. Austria, the ECtHR concluded that the Austrian state’s verdict that had
criminalized homosexual practices conflicted with Article 14 (prohibition of discrimination)
combined with Article 8 (the right to respect for private and family life) of the ECHR. Furthermore,
the verdict stated that homosexuals are a minority group equal to those based on ‘race, origin or
colour’ and thus differential treatment or negative attitudes toward homosexuals cannot be justified
(ECHR, 2003).
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5.4 Justifying Discrimination
Three main points that are often presented within the AU framework as valid reasons to
dismiss non-discrimination of people on the basis of their sexuality are African values, majority
morality, and prevention of HIV. Many African leaders have expressed that homosexuality is 'unAfrican'. In the light of African history, however, the validity of such claims becomes questionable,
as same-sex relationships between consenting adults were a somewhat common feature of
traditional African societies, as mentioned in chapter 4.1. Moreover, legal limitations to such
practices did not exist in pre-colonial Africa, but were more likely brought to the continent by
British colonialism. Regardless of whether same-sex relationships are perceived as being in
accordance with African values or not, one could argue that the issue could be seen in terms of nondiscrimination, equality, and tolerance for diversity, and in this sense criminalizing homosexuality
might neither be necessary nor beneficial. Increasing global interdependence has generally meant a
growing call for acceptance and understanding of diversity, and such qualities are not less called for
within the African continent, which is dominated by multi-cultural states (Murray & Viljoen, 2007:
93-94).
The second point, majority morality, refers in this context to the assumption that laws
against homosexuality are in accordance with the overall public opinion. Factual support for this
assumption is difficult to come by, but it might still be a conceivable contention. It is, however,
outlined in the ACHPR that although public opinion should be considered of some relevance, the
African Commission cannot base its conclusions exclusively on the views of the majority. During a
trial in Zambia, the Legal Resources Foundation v. Zambia, the African Commission stated that
“justification . . . cannot be derived solely from popular will, as such cannot be used to limit the
responsibilities of States Parties in terms of the Charter” (ACmHPR, 2001). In South Africa such
issues are dealt with in terms of diversity and do not simply rely on societal perceptions or
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preconceptions. Likewise, in overall accordance with the values of the South African Constitution,
those who do not condone same-sex relationships are tolerated as well, and their freedom to
disapprove and judge is upheld (Murray & Viljoen, 2007: 96).
The last point mentioned in the context of justifying criminalization of homosexuals is that
such laws help prevent further transmission of HIV within the continent. The African continent is
the region with the highest number of HIV infected people, as the World Health Organization
(WHO) estimates that 25 million are currently living with HIV in Sub-Saharan Africa. The total
number of people living with the disease amounts to 35 million worldwide and around 95% of new
infections occur in low- and middle-income countries (WHO, 2013: 4,12). Moreover, it is estimated
that homosexual men are 13 times more likely to be living with HIV than the general population,
worldwide. Especially in Sub-Saharan Africa, this remains a problem and, for example, in
Johannesburg, South Africa, 50% of men who have sex with men are living with HIV. Regionally
this is a common tendency, as research shows that in most African countries the HIV prevalence
among men who have sex with men is higher than that among the general population. As
homosexual relationships are highly stigmatized within this region, many men who participate in
same-sex practices also have sexual relations with women, further increasing the risk of the disease
spreading (WHO, 2011: 26-27). The argument of protecting public health through laws on sodomy
is, however, contradicted by the notion that criminalizing homosexual practices does not prevent
such practices from taking place, rather it forces people within this minority to hide their sexuality,
ultimately leading to higher risks of infection due to insufficient public education in the area and
fear of consulting a doctor. In this sense, homosexuals are excluded from strategies implemented in
order to prevent HIV from spreading, such as educational approaches and easy access to prevention,
despite their, to some extent, increased biological exposure to becoming infected (Murray &
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Viljoen, 2007: 96-98). The AU addresses the issue in the Abuja Declaration with the following
statement:
“We are aware that stigma, silence, denial and discrimination against people living with
HIV/AIDS . . . increase the impact of the epidemic and constitute a major barrier to an
effective response to it. We recognize the importance of greater involvement of People
Living with HIV/AIDS” (AU, 2001 Abuja Declaration §12).
There is, however, no particular mention of sexual minorities or educational programs for
such throughout the Abuja Declaration, rather the emphasis is placed on the biological vulnerability
of women and girls to HIV infection and also their “subordinate position to men” (AU, 2001 Abuja
Declaration §7). Recognizing same-sex relationships, particularly between men, would in this sense
be a progressive approach for the AU in preventing HIV to spread further.
On the topic of improving the rights of homosexuals on the African continent, the ACHPR
is in general not perceived as an advantageous instrument in doing so. The International Gay and
Lesbian Human Rights Commission (ILGHRC) has for example warned against filing complaints
to the African Commission on issues concerning sexual orientation or gender identification and the
violation of such, as this might result in the Commission endorsing the opposite assessment than the
claim intended, concluding that homosexuality is noncompliant with ‘African values’. According to
Murray and Viljoen (2007), human rights advocates should rather take a more patient approach of
lobbying the African Commission where possible and seek to prepare the commissioners for future
proposals on the subject of sexuality in order to increase chances of a positive response (p. 106).
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6. Concluding Discussion
We set out to determine the extent to which human rights, and especially gay rights, can be
perceived as a form of Western cultural imperialism, in the light of recent debates over the rights of
homosexuals in several African countries. Our point of departure was the debate between advocates
of universal human rights law and cultural relativists; a debate surrounding the question whether it
is possible and expedient to formulate a set of universally binding human rights or if such would
neglect to consider global cultural diversity.
Human rights have in general become an incorporated part in most countries, as the respect
and promotion of such is increasingly seen as a precondition for a state to be perceived as
legitimate. The rights of sexual minorities have in general been assigned a lower priority or to a
great extent ignored. Recently, however, gay rights have become a more frequently debated subject
internationally, as stricter laws criminalizing homosexual practices have been implemented in
several countries, especially within the African continent.
We built our analysis on the theoretical framework surrounding international human rights
law, cultural relativism, cultural imperialism, and homosexuality. Our object of analysis was mainly
the ACHPR, supplemented by the UDHR and ECHR. Based on the rhetoric of these covenants, we
set out to examine the grounds for rights concerning sexual orientation, somewhat expecting the
Western originating covenants to be more explicit in their inclusion of sexual orientation as a
human right. However, this was not confirmed by simply reading the documents, as none of them
mention sexual orientation directly. Nevertheless, they can all be interpreted to apply to
homosexuals. The UDHR states that everyone is entitled to the rights expressed within the charter
“without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status” (Article 2 UDHR, 1948). Both the
ECHR and ACHPR contain almost identical formulations to that of UDHR in their articles
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concerning the entitlement of rights (ECHR Article 14 and ACHPR Article 2). As stated in the
analysis, supporting grounds for the inclusion of sexual orientation can be found in the term ‘sex’
and especially also in the term ‘other status’. This notion has been supported by the ECtHR, who
established that sexual orientation is included in ‘other status’ under its Article 14.
In general, all three covenants are remarkably similar in content and formulation. However,
we found differences in the usage and implementation of the different documents, which was
specified in the examples included in our analysis section. For example, we found that the ECtHR is
more likely to interpret the ECHR to benefit sexual minorities in specific cases involving
discrimination on the basis of sexual orientation. Whereas the ACtHPR is more likely to interpret
the ACHPR as to exclude sexual minorities from enjoying these rights as such practices are
perceived as ‘unAfrican’. The fact that the ACHPR is somewhat inspired by Western charters on
human rights, such as the ECHR and the American Convention on Human Rights, supports the
notion of Western influence. It therefore, to some extent, also supports the notion of cultural
imperialism as it builds on Western originated formulations of human rights. On the other hand, the
fact that the charters are alike could also imply support for universal human rights, as it might
simply serve as an implication that these regions all perceive the same rights as essential.
Nevertheless, gay rights as a human right is a rather controversial matter which, so far, has a higher
probability of being supported in the West.
South Africa remains an exception to this, due to its political reform in the 1990s. It is hence
essential to emphasize the size and disparity of the African continent when making conclusions on
this matter, as situations differ vastly throughout the continent. Still, many African countries face
the same social, economic, and political issues and share somewhat similar histories, and a general
notion of African unity prevails. Therefore, we have maintained a more general perspective
throughout this project.
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Previously, the conditions for sexual minorities were unfavorable in Europe as well and
including sexual orientation in the context of non-discrimination is a relatively new tendency. Based
on the process concerning rights of LGBT people as seen in Europe, it could be anticipated that a
similar development might take place in the African region. This assumption is supported by the
fact that current conditions for sexual minorities in Africa somewhat resemble the previous situation
in Europe. Also, the ACHPR was not adopted until 1981 - more than 30 years after both the UDHR
and the ECHR. Thus, in the context of human rights, the African countries might simply be further
behind in the process and might take on such changes when demanded by its citizens.
In sum, human rights and especially gay rights can, to some extent, be seen as a form of
Western cultural imperialism in the sense that the notion of universal human rights fails to consider
differing cultural values; a view in overall accordance with the perspective of cultural relativists.
Furthermore, Western notions of human rights are, to some extent, attempted coercively
implemented, for example by withdrawing or redirecting economic support in African countries
where these rights are not upheld. On the contrary, human rights are not simply a Western tendency
and approaches to protect people and their rights have been implemented worldwide. The ACHPR
is, for example, unique in its focus on collective rights and inclusion of traditional African values,
further supporting that human rights are not simply Western. Nonetheless, the principle of
universally binding human rights is, to some extent, dominated by Western values and can therefore
be perceived as a form of cultural imperialism.
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7. List of References
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AU - The African Union (2014a) AU in a nutshell. Retrieved from
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Constitution of the Republic of South Africa, No. 108 of 1996, Bill of Rights. Retrieved from
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Dunch, R. (2002). Beyond Cultural Imperialism: Cultural Theory, Christian Missions, and Global
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Divani, A. (2011, October 12). Is Homosexuality "Un-African"? Think Africa Press. Retrieved from
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Donnelly, J. (2011) Human Rights in Baylis, J., Smith, S., & Owens, P. (2011). The globalization of
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