On September 18, ambassador Magnus participated in a public debate on human rights and sexual minorities at the the Storymoja Hay Festival in Nairobi. In his introduction he focused on universal principles of human rights and what hopes these represent for gender and sexual minorities in Kenya. The full introduction can be found below:
"Distinguished audience,
I appreciate very much to have been invited to this event. I want to thank The Gay and Lesbian Coalition of Kenya (GALCK) and Gay Kenya Trust for arranging this important discussion and for the opportunity to address you. In Kenya and many other parts of the world, securing the rights of sexual and gender minorities is a sensitive issue, which gives all the more reason to discuss it openly in order to promote awareness and tolerance.
Let me make a brief historic review: In 1948, in the aftermath of the Second World War, the Universal Declaration of Human Rights was adopted by the United Nations. It represented the first international recognition that human rights and fundamental freedoms are applicable to every person, everywhere. The first article simply states that "all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards another in a spirit of brotherhood".
Nearly 60 UN member states, among them African countries, representing very diverse and even conflicting political regimes, religions and cultural traditions, united and adopted the declaration. This is now more than 60 years ago, and the declaration has since been incorporated in the constitution and laws of countries across the world.
The principle of universality of human rights is also the cornerstone of international law and international human rights law, and has been reiterated in numerous international conventions, declarations and resolutions. Freedom from discrimination on any grounds is likewise a cross-cutting principle in international human rights law. It constitutes a basic and general principle.
These basic principles are also reflected in the Bill of Rights in the new Kenyan Constitution adopted last year. For example, article 27 in the Bill of Rights, says that the State shall not discriminate directly or indirectly against any person on any ground.
The universality of human dignity and rights means that we all have the same value and shall enjoy the same fundamental freedoms, including civil and political freedom, as well as freedom from fear. It means that nobody can be denied their fundamental human rights. This should be obvious. Across the world, however, people are subject to discrimination because of their religion, gender, ethnicity, sexual orientation or other reasons, and they suffer from exclusion. Not only are states failing their duty to promote and protect human rights and freedoms. As individuals with a duty towards each other and our community, also we fail to respect the human rights of our fellow human beings.
But by excluding or trying to exclude the basic rights of certain individuals or groups, either for religious, cultural or other reasons, the fundamental principles of universality and equality, which are an integrated part of the human rights, are seriously violated. Given that there is no justification to discriminate against any group, sexual and gender minorities must be treated with the same respect for their integrity as all other people. It is the firm belief of my country that only when each individual enjoy their rights and freedoms to the full, they are empowered to be the driving forces of development and peace in their own societies.
Still, in many countries homosexuality remains a criminal offence, exposing individuals not only to arrest, detention and in some cases execution, but also to serious abuse in the societies at large. Legislation that criminalizes people due to their sexual orientation helps to legitimize stigmatization and can encourage or justify threats and attacks on individuals that are gay, lesbian, bisexual, transgender or intersex persons, a group we in short name LGBTI.
Ensuring that human rights are implemented and respected is therefore an ongoing struggle, within and beyond our own societies. On the international level a historic step was taken when the UN Human Rights Council a few months ago adopted the first resolution ever on the human rights of lesbian, gay, bisexual and transgender persons. The resolution was tabled by South Africa, and supported by Norway and many other countries from across the world. The resolution was adopted with 23 countries voting in favor and 19 against, and 3 abstentions. The Human Rights Council in its resolution expressed grave concern at acts of violence and discrimination committed against individuals because of their sexual orientation and gender identity. It requested the High Commissioner for Human Rights to prepare a study on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity in all regions of the world, and how international human rights law can be used to end violence and human rights violations. It also called for a panel discussion to be held at the Human Rights Council to discuss the findings of the study and to consider appropriate follow-up.
Yes, LGBTI rights are still very much a controversial issue, also between the UN Human Rights Council member states. Some states argue that regional differences and traditional values must be taken into account when discussing advancement of human rights. They object to values that they hold are being imposed from the outside. But let me remind you that universal human rights are not imposed from "outside". They are what states agreed to impose on themselves 60 years ago, and there are now around 160 state parties, including of course Kenya, to the international covenant on civil and political Rights, as well as to the covenant on social, economic and cultural rights.
Others will argue that sexual orientation is an undefined concept and therefore has no legal foundation in international human rights law. Again, as UN General Secretary Mr Ban Ki-moon rightly has pointed out: "Where there is tension between cultural attitudes and universal human rights, universal human rights must carry the day". It is our hope that the recent UN resolution will open a broader discussion on how sexual and gender minorities’ human rights can be fully protected across the world.
Also, the UN General Assembly at the end of 2010 voted overwhelmingly in favour of restoring a reference to sexual orientation in an important resolution condemning extrajudicial, summary and arbitrary executions. The reference had been removed by an earlier amendment at committee level. After huge international mobilisation, the reference was again included in the resolution. This demonstrated that efforts to exclude vulnerable groups from human rights protection will be strongly opposed at the UN.
In order to stop abuse and discrimination against sexual and gender minorities, there also needs to be a dialogue at national and local levels on how to ensure that the state takes responsibility for protecting all its citizens rights, and not least on how to change human attitudes. Discrimination and abuse against particular groups in the society is to a large extent a result of personal disapproval or society’s disapproval of some individual’s divergent identity or way of living. But the fact that somebody is different, gives no justification for hatred and abuse. As Desmond Tutu has said: "No one should be excluded from our love, our compassion and our concern because of race or gender, faith or ethnicity – or because of their sexual orientation. Gay people too are made in God’s image. Hate has no place in the house of God".
UN Secretary-General Ban Ki-moon has urged all countries to decriminalize homosexuality. This is important. However, we must acknowledge that international and national human rights law alone does not change negative attitudes and stigma. In Norway, where previous attitudes towards sexual minorities in many ways were similar to those in Kenya, a long struggle took place in order to change attitudes and secure the human rights of sexual and gender minorities. The formal decriminalisation of sex between men happened in 1972, but to change attitudes and ensuring equal rights for all is nevertheless a continued struggle. Incidents of violence and stigma against homosexuals or other sexual and gender minorities still take place in my own country. Only recently was the Marriage Act changed to make it applicable to both same-sex and opposite-sex couples.
The prime responsibility and duty to promote and protect human rights and fundamental freedoms rest with the nation state. However, civil society does play an active role in challenging discriminatory attitudes, practices, laws and standards The protection of human rights defenders is also a very important matter. Human rights defenders are individuals and organizations who raise their voice on basic human rights, and challenge their governments. They can be lawyers who defend the rights of marginalized and vulnerable groups, and challenge laws that discriminate against them. They can be groups or individuals who challenge cultural norms and attitudes. Or they can be journalists who reveal injustices and publish stories that challenge us.
As I’m sure you all know know, in many parts of the world defending human rights is one of the most dangerous things you can do. In Uganda, human rights defender David Kato was killed in his home early this year. Under the slogan "Hang them", the newspaper Rolling Stone had published photos, names and addresses of a number of gays and lesbians. Mr. Kato was one of three activists who sued the newspaper and won the case in court. He risked a lot by being in the frontline for advocating human rights, and most likely for this reason he lost his life.
As a member of the United Nations’ Human Rights Council, Norway is strongly committed to championing the human rights defenders agenda. The resolution tabled by Norway and adopted by the Council in 2010 on the protection of human rights defenders is an important step forward in this respect. It emphasizes the responsibility of states to recognize and protect human rights defenders. Norway has also been the main sponsor of the UN Special Rapporteur on Human Rights Defenders.
The struggle for equal rights and freedom from discrimination for all human beings will continue, and is an ongoing process in all parts of the world. GALCK and a number of other organisations and individuals in Kenya carry out important work to protect and promote the rights of sexual and gender minorities. In promoting the rights of others, they expose themselves to risk and social exclusion, and they deserve our support and respect.
Thank you.