The abstentions by Botswana, Namibia and Ghana can be viewed more positively than South Africa. This is because none of these countries have a domestic constitutional or policy framework that is unequivocally supportive of SOGI issues. It was interesting to note that in spite of not having a specific constitutional provision on sexual orientation or gender identity, all three countries referenced the framework of universal human rights as constitutionally prohibiting discrimination.
The Constitution of Botswana doesn’t condone violence against any person, nor does it allow discrimination against any person.
The Government of Namibia is opposed to any violence against individuals based on sexual orientation and gender identity. We have repeatedly stated that such acts are prohibited and punishable by our domestic criminal laws and there no single case has reported to the authorities alleging persecution of LGBT people in Namibia.
Article 10 of Namibian Constitution states:
All persons shall be equal before the law and no person may be discriminated against on the grounds of sex, race, color, ethnic origin, religion, creed, socio or economic status.
In 2014, the African Commission on Human and Peoples’ Rights, meeting at its 55th Ordinary Session held in Luanda, Angola, adopted a resolution No. 275 entitled, “Resolution on Protection against Violence and Other Human Rights Violations against Persons on the Basis of Their Actual or Imputed Sexual Orientation and Gender Identity”.
This resolution was adopted against the background of what the Commission found to be alarming incidents of acts of violence, discrimination and other human rights violations that continue to be committed against individuals in any part of Africa because of their actual or imputed sexual orientation or gender identity. The resolution also expressed deep concern over failure of law enforcement agencies to diligently investigate and persecute perpetrators of violence and other human rights violations against persons on the basis of their real or imputed sexual orientation and gender identity. It condemned the increasing incidents of violence and other human rights violations including murder, rape, assault and other forms of persecution of persons on the basis of their imputed or real sexual orientation and gender identity.
Mr. President, we are meeting at this time against the backdrop of what happened in Orlando. Ghana’s Constitution prohibits discrimination of all kinds. And therefore, the resolution of the African Commission of Human and Peoples’ Rights is in conformity with our Constitution. The laws of Ghana will not permit any individual to be persecuted or assaulted because of their sexual orientation.
Thus all three countries referenced a national constitutional framework of universal rights. Ghana went one step further and also referenced the Resolution on Sexual Orientation and Gender Identity at the African Commissions on People and Human Rights as well as the mass murder in Orlando.
As Ghana put it:
Mr. President in 2011 Ghana voted against the resolution that has been referred to in the preambular paragraph. But there has been evolution in thinking – partly because of the Orlando situation and also because of the resolution of the African Commission on Human and Peoples’ Rights, which I have just cited.
However, all three countries balanced this framework of universal human rights with the so-called lack of consensus on the notion of sexual orientation and gender identity.
As Botswana put it:
It must be noted, however, that at international level and within international law there is no agreed definition and acceptance on the use of the terminology on sexual orientation and gender identity as discussed under the current resolution. It is in fact a concept that is still developing even at the international level. The reason that we abstain at this stage, takes into consideration the fundamental importance of respecting the relevant domestic debates with matters associated with historical, cultural, social and religious sensitivities.
The fact that there is no binding international instrument guiding us in the field of international human rights law which provides us with an agreed definition of sexual orientation and gender identity poses a legal lacuna for us. The same lacuna exists with regards to an instrument that establishes rights based on sexual orientation and gender identity. In the absence of international human rights law that guides our work in the Council, what instrument will guide an Independent Expert while assessing our States. We are concerned that a mandate of an Independent Expert is sought to be established by this resolution as this mandate will be allowed to interfere into sensitive issues at the national level.
Ghana echoed the concerns around cultural sensitivity:
But Mr. President, this is a very sensitive matter culturally in Ghana. Attitudes have been hardened because of the behavior of certain groups within the homosexual community. The case of the Republic of Ghana versus Dr. Sulley Ali-Gabass, who was a medical practitioner in one of our leading hospitals, and ties a young boy of under 16 years old, and forcibly had anal sex with him in a car. The victim, Basheer Mohammed, later contracted HIV. He was induced with gifts such as Samsung Galaxy and cash of 20 cedis, which was less than perhaps a dollar in Ghana, because his poverty was exploited by this man. He denied responsibility, but an investigative journalist who went undercover to interview him got his confession on tape. So he was subsequently arrested and prosecuted and sentenced to several years in prison. This actually hardens attitudes towards issues like same-sex marriage or commercialization of homosexuality.
As all three countries described it, the conflict between these two positions resulted in the abstention. What was remarkable in the statements by all three countries is that while all of them choose to reference the Constitutional framework, neither Ghana, Botswana nor Namibia chose to reference their criminal law under which same-sex sexual acts are illegal in all three countries. This is the correct position as clearly, it should be the Constitution and not the penal statutes that should determine the international policy of the state. Whichever way one looks at it, the vote was a brave one for both staking out their countries positions as being against discrimination and violence on grounds of SOGI and for breaking with the African group position to pioneer a more rights affirming position.
 Aengus Carroll, State Sponsored Homophobia, ILGA, 2016. p.36