Based on the final communique published on the meeting held in Australia from July 11 - 14 the CLMM Commonwealth Law Ministers Meeting seems to have altogether passed over the LGBT rights issues that were mentioned in an older agenda excerpted below.
Oddly only the opening speech had any reference to sexual orientation and some related matters:
"Another example of a contemporary Commonwealth challenge to be addressed is in the area of sexual orientation. Our shared commitment, reaffirmed at CHOGM 2009, is to ‘rights for all without discrimination on any grounds’ and opposition to stigmatisation and victimisation. But progress has been uneven towards ensuring that domestic legislation reflects our belief that vilification and targeting on grounds of sexual orientation is at odds with the fundamental values of the Commonwealth."
The older agenda:
Paper by Timothy Otty QC, Doughty Street Chambers
Fraser Campbell and Marie Lucienne Lambert, Clifford Chance LLP
on behalf of the Commonwealth Lawyers Association (CLA)"
Introduction
1. Homosexual conduct is illegal in approximately 80 countries around the world. The law in eight of those countries includes provision for imposition of the death penalty on conviction.
Often as a result of legislation rooted in colonial times, around half of the states that criminalise private consensual homosexual acts between adults are members of the Commonwealth.
There have, furthermore, been a number of domestic legislative proposals in recent times which, if enacted, would have led to a widening of criminalisation and the imposition of harsher sentences, including the death penalty, for acts of homosexuality.
2. These developments would, however, run counter to the clear jurisprudence and guidance of international treaty bodies, to which many Commonwealth states are party, regional courts and a number of leading domestic Courts. This jurisprudence and guidance is clear that the criminalisation of homosexuality is unacceptable as running counter to fundamental principles
requiring respect for human dignity, privacy and non‐ discrimination.
Position in international law
3. The prevalence of anti-homosexual legislation within the Commonwealth states is at
odds with international human rights law. Instruments including the International Covenant
on Civil and Political Rights (ICCPR), the African Charter on Human and People's Rights
(ACHPR) and the United Nations Declaration of Human Rights (UNDHR), enshrine a range
of relevant rights aimed at protecting human dignity, privacy and equality.
4. In Toonen v. Australia, the UN Human Rights Committee held that the criminalisation of sexual conduct between men, including all forms of sexual contact between consenting adult men in private was incompatible with the right to privacy under Article 17 of the ICCPR. It also confirmed that the prohibition of differential treatment enshrined in Article 2 of the ICCPR extended to discrimination on the grounds of sexual orientation.
5. The right to be free of discrimination is also enshrined in Article 2 of the African Charter, which provides that individuals are entitled to the rights under the Charter "without distinction of any kind" including sex.
Article 3 provides for equality and equal protection of each individual before the law. As the African Commission on Human Rights emphasised in Legal Resources Foundation v. Zambia
"The right to equality is very important. It means that citizens should expect to be treated fairly and justly within the legal system and be assured of equal treatment before the law and equal enjoyment of the rights available to all other citizens."
6. The case law emanating from the African Commission of Human Rights provides clear guidance on the primacy of international law to be afforded by its Member States. In Media Rights Agenda and Others v. Nigeria, the Commission stated that governments should avoid restricting rights and should be mindful of rights protected by their national constitution as well as international human rights law. Later in the same judgment, the Commission specifically stated that international law and human rights should prevail over contradictory national law which seeks to set aside the rights of the Charter.
7. The jurisprudence under the European Convention on Human Rights and Fundamental Freedoms (ECHR) confirms the position suggested by case law under the ICCPR and the ACHPR. In Dudgeon v. United Kingdom
the European Court of Human
Rights held that legislation then in force in Northern Ireland, which criminalised certain homosexual activity between consenting males, breached Article 8 of the ECHR (the right to private life). The Court rejected the notion that the relaxation of laws in relation to consensual acts would be damaging to the moral fabric of society, finding that the possible offence such acts might cause could not warrant the interference to the applicant's private life.
Trends in domestic case law
8. Recent trends in the domestic law of Commonwealth states illustrate that the rights enshrined in international law are also recognised by national Courts in this area. In National Coalition for Gay and Lesbian Equality1, the Constitutional Court of South Africa found that statutory provisions and common law offences prohibiting sodomy were incompatible with section 8 (right of equality) and section 9 (prohibition of discrimination, including on grounds of sexual orientation) of the South African Constitution. Whilst acknowledging that the view that sexual expression should be limited to marriage between women and men with procreation as its dominant role could be held for "nuanced religious reasons", the Court found that no justification could be found to limit the right to homosexual activity. Sachs J, rendering a concurring opinion in the same judgement emphasised the signal importance of equality under the South African Constitution:
The present case shows well that equality should not be confused with uniformity; in fact, uniformity can be the enemy of equality. Equality means equal concern and respect across difference ... Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgement and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment.
9. More recently, in a judgement given in the Delhi High Court, the Court found that provisions within the Indian Penal Code that criminalised "unnatural offences" were incompatible with Articles 14 (equality), 15 (non-discrimination), 19 (freedom of expression) and 21 (life, personal liberty and dignity) of the Indian Constitution. Finding that a central tenet of the Indian
Constitution was "inclusiveness", it held that those perceived by the majority as "deviants" or "different" should not be marginalised.
Similarly, the High Court of Fiji in 2005 found sodomy laws to be unconstitutional, on the grounds that criminal law should not be used to discriminate against private same-sex acts. Central to that analysis was an emphasis on the rights to privacy and equality. In this sense, the liberalising trend of decisions in the domestic courts of Commonwealth members is in accordance with that seen in both international tribunals and leading courts outside the Commonwealth (including the United States Supreme Court).
Recent examples of draft legislation extending criminalisation
10. There have, however, been a number of recent instances of attempts to introduce legislation in Commonwealth states with the effect of broadening the scope of existing criminalisation of homosexuality or imposing harsher sentences. The most prominent example is the Ugandan Anti-Homosexuality Bill currently being considered by the Ugandan Parliament.
Others include proposed amendments to the Penal Code of Rwanda, tabled in the Rwandan Parliament in November 2009 (which would have criminalised consensual same-sex acts and relationships as well as the work of LGBT human rights advocates) and the Same Sex Marriage (Prohibition) Bill currently being considered by the Nigerian Parliament (which would not only
prohibit same sex marriages, but also impose criminal penalties on homosexual cohabitees together with anybody who aids or abets them)
Peace & Tolerance
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