Commonwealth Charter is a fig leaf that will change little for LGBT people

Despite the impression left by some of the UK media, the Queen has not signed a charter ensuring gay rights across the Commonwealth. 

Purna Sen
27 March 2013

“Queen to sign new charter backing gay rights” wrote the Telegraph on March 9, as the Daily Mail declared “Queen fights for gay rights.”

Did the Queen sign a Commonwealth gay rights charter? No.

And this is much less a comment on Her Royal Highness than it is an indication of the state of health of the Commonwealth.

The Commonwealth, which accounts for 30% of the world's population, has drawn up a new Charter of Values on 16 areas, including democracy, human rights and gender equality. At the signing ceremony on Commonwealth Day, 11 March 2013, the Queen said that the Charter spoke to issues of peace, democracy, justice, development and human rights and would allow special emphasis to given to inclusiveness, especially of the most vulnerable.

The charter states: "We are implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds." It speaks of upholding democracy and opposing "all forms of discrimination" although it does not explicitly name discrimination against gay people.

Homosexual acts are illegal in the majority (over 40) of Commonwealth states. 

Words or actions?

The Charter is not an action plan. All of the commitments documented are already in place and the 2009 Trinidad and Tobago Affirmation of Values contained almost exactly the same text on discrimination.  Would not the time between this and the 2013 signing of the Charter have been better spent finding ways to change the reality on the ground in the dozens of member states that can throw people in jail for the crime of having same sex sexual relations? 

Intergovernmental processes are not the most exciting and tend, understandably, to escape much media scrutiny. Having been at the Commonwealth during the negotiations for the 2009 Affirmation, the wording not to tolerate discrimination ‘on any ground’ was certainly a compromise. However, it was important to have something agreed by all members that would allow us to work towards addressing discrimination based on sexual orientation. When previously working on LGBT rights I was rebutted on the grounds that the Commonwealth has no obligation or mandate on decriminalisation of same-sex sexual activity. I have used the Affirmation text time and again in discussions with officials and ministers to draw attention to the need to alter their discriminatory laws.  Four years later, the Charter contents serve the same purpose; they do not signal a new direction nor do they change practice. 

The view that the Commonwealth cares little about, or is not keen to tackle, member states’ violations of rights is widespread.  The Eminent Persons Group, established as a result of the 2009 Heads of Government meeting, was to consider ways of tackling this issue and claims of the association’s irrelevance through addressing development and renewal. Many of their recommendations to Heads were accepted, several with significant caveats, but the creation of a Commissioner, whose role would take in human rights, has not been approved. Two and a half years later a re-statement of values has been signed. The earth has not moved.

If we look beyond the hype, there is little change of direction on offer and even less in terms of action. At the time of writing, the Secretariat has yet to agree an organisational plan of action, several years after the last expired. Member states and the Secretariat have not seen eye to eye on future direction.  There is much hot air about the Charter but little action on action and on current evidence, action is not the organisation’s strength.

But what about a promise from leaders, many of whom represent countries where same sex activity is criminalised and the death penalty remains, to actually take measures on these concerns? Something that says the Commonwealth will encourage, support and advise member states towards the fulfilment of such objectives at the earliest opportunity, for instance. Don’t we all know that actions speak louder than words? 

Ministerial Action Group

The Commonwealth monitors abrogation of its values through a mechanism of which it is proud – the Commonwealth Ministerial Action Group (CMAG). The CMAG is a small group of Foreign Ministers of member states which is tasked with dealing with ‘serious or persistent’ violations of the Commonwealth’s political values. Historically this has mainly focused on military overthrows of democratically elected governments and ‘being CMAG’d’ has resulted in suspension of membership, including of Pakistan, Nigeria, Fiji and Zimbabwe. In 2011 the parameters and methodology were broadened, in the expectation that a wider span of violations might come under discussion.  The means of monitoring human rights violations that I proposed were not taken up – we have yet to see whether CMAGs preferred processes bring a more robust treatment by CMAG members of rights violations by their Commonwealth friends.  

The current CMAG topics include Sri Lanka, in the context of considerable international criticism of that country hosting the next CHOGM while subject to unresolved accusations of human rights violations, including being the subject of debate at the United Nations’ Human Rights Council. Many argue that the Commonwealth’s credibility on rights is on the line if the meeting does indeed go ahead in Sri Lanka.  The UK Foreign Affairs committee stated in 2012 that “continuing evidence of serious human rights abuses in Sri Lanka shows that the Commonwealth's decision to hold the 2013 Commonwealth Heads of Government Meeting in Colombo was wrong”. Malcolm Rifkind, David Miliband, Geoffrey Robertson QC, members of the EPG and rights activists from many countries have made the same call.  I understand that the Secretariat has been approached by members looking for review of the location of CHOGM.  The progress of this issue is yet to be seen but given the tardiness of deliberations and the preference for maintaining good relations at, it would seem, any cost, one has seriously to question the will and ability of the organisation to undertake necessary actions that give meaning to lofty declarations on values.

Not Binding

Over 40 of 54 Commonwealth member states criminalise same-sex sexual activity, and some retain the death penalty for such actions. Commonwealth member states in all regions continue to deny some rights, including being able safely and within the law to choose with whom to be intimate.  

Correctly interpreted, the limitations (or advantages, some might say) of the Charter are summed up by the spokesperson of the Nigerian Senate, Senator Enyinnaya Abaribe: "I am not aware that the Commonwealth of Nations is making laws for Nigeria. Nigeria, as a Federal Republic, is an independent country. Our association with the Commonwealth of Nations is voluntary. The fact the Commonwealth of Nations makes any law or sign any charter does not necessarily mean that we must accept such, especially if such a law or charter is in conflict with our own law. Homosexuality has become an illegal practice in Nigeria and no Commonwealth law or charter can make us change this."

When I was Head of Human Rights at the Commonwealth I worked with member states and know that some have tried to bring LGBT and other rights forward. I have worked with some officials who have treated gay and lesbian people with respect, including by working together with them and finding out, in due course, their sexual orientation. Some of those conversations continue and I pay credit to those working, often quietly, for change.

But I also experienced the venom with which some key leaders view anyone who does not conform to heterosexual norms. This renewed my commitment in this area of work: it is practice that really has to change.  The new Charter, though not unwelcome, does not make a difference to LGBT people or others who still experience discrimination on a variety of grounds.

The Commonwealth’s credibility is vulnerable if it doesn’t move from broad and top-line commitments on values to actions that make a change in the lives of citizens. After all, that is the promise of human rights – dignity for all.

It might be rather convenient to dress up a re-statement of an existing commitment to uphold human rights as something radical and exciting.

The Commonwealth gains some positive PR but really, isn’t it just business as usual on the ground? Pernicious anti-gay legislation remains in force and LGBT people live in fear; the death penalty continues to be used, children labour in huge numbers and women suffer denials of their rights every day.

This Charter contains fine words and a re-assertion of values already claimed, but it commits Commonwealth Leaders to nothing. It certainly is not a gay rights Charter.

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