PERSONS IN UGANDA

(e) support the local, national, regional and continental initiatives directed at
eradicating all forms of discrimination against women.
2. States Parties shall commit themselves to modify the social and cultural
patterns of conduct of women and men through public education, information,
education and communication strategies, with a view to achieving the
elimination of harmful cultural and traditional practices and all other practices
which are based on the idea of the inferiority or the superiority of either of the
sexes, or on stereotyped roles for women and men.
Like all other international human rights instruments, the African Charter does
not expressly provide for sexual orientation and gender identity as grounds of
discrimination. However the charter expressly states that the rights enshrined
there in are recognised and guaranteed to ‘every individual’ without distinction. The
phrasing of the grounds given for non-discrimination is also indicative of the fact
that the grounds given are not exhaustive and can be interpreted to include other
categories of discrimination if they so arise. The list of grounds begins with ‘such as
indicating that those given are merely examples of what could constitute prohibited
grounds for discrimination. The list is also left open-ended by the use of the words
‘or any other status’ which leaves it possible for inclusion of other grounds. This was
recently affirmed by the African Commission when they adopted a resolution in which
they interpreted the above Articles to include the grounds of sexual orientation and
gender identity. 54 In the resolution, the commission states that:
Recalling that Article 2 of the African Charter on Human and Peoples’ Rights
(the African Charter) prohibits discrimination of the individual on the basis
of distinctions of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin, fortune,
birth or any status;
Further recalling that Article 3 of the African Charter entitles every individual
to equal protection of the law…’
These declarations, being used as the basis for passing a resolution protecting LGBTI
persons in Africa, are evidence that the body responsible for interpreting the charter
has officially recognised sexual orientation and gender identity as prohibited grounds
of discrimination under the African Charter. The above articles can therefore be
interpreted to expressly protect the rights of LGBTI persons.
Again, the African Charter protects form discrimination based on sex, and an
argument can be sustained that sex includes sexual orientation, 55 which would be in
line with the UN Human Rights Committee’s position in Toonen v Australia. 56
54 The African Commission on Human and Peoples’ Rights Resolution on the Protection against Violence
and other Human Rights Violations against Persons on the Basis of their Real or Imputed Sexual Orientation or
GenderIdentity’: Adopted at theAfrican Commission on Human and Peoples’ Rights meeting at its 55 th Ordinary
Session held in Luanda, Angola, from 28 April to 12 May 2014, Available at http://www.achpr.org/
sessions/55th/resolutions/275/
55 See R Murray and F Viljoen ‘Towards Non Discrimination on the basis of Sexual Orientation: The
normative Basis and procedural possibilities before the African Commission on Human and Peoples’ Rights
and the African Union’ in Human Rights Quarterly, Vol. 29, 2009, 86-111.
56 n13 above.
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