A Critical frontier for Human Rights Advocacy – Melanie Nathan (2019) – the subject of 2 Articles in global press- Harpers and Mamba-Online – elucidating a critical mess for LGBTQI refugees!
This week two articles have been written by accomplished journalists at two different corners of the world, reflecting on the stories of refugees attempting to avail themselves of the refugee system as a means to protection from the persecution they have suffered based on their sexual orientation. Both cases, one about an asylum seeker in South Africa and the other a Kenyan in Uganda, reveal a tedious, inept and broken system for LGBTQI asylum seekers and refugees, certainly on the continent of Africa, a cesspool for persecution where over 30 countries criminalize sexuality, giving license to discrimination and persecution. Noting the myriad of similar cases reported to African Human Rights Coalition (African HRC) and imagining those we do not hear about, these stories are a mere ‘tip of the iceberg’. These stories are examples that serve to insist on reforming the system for LGBTI people, firstly in South Africa, for asylum seekers and secondly in the rest of Africa for refugees seeking resettlement through the UNHCR process.
‘Hostile hosts’, as I call them, are countries that also proscribes either the very law and persecutory milieu that the refugee has escaped from or fosters an homophobic stance in its adjudication process– and yet is expected under the Convention and local laws to provide sanctuary and protection to asylum seekers and refugees.
Story 1 South Africa:
In South Africa, where being gay, lesbian, bisexual or transgender is not criminalized, the constitution provides for full equality, also to include marriage equality. One would think that South Africa would serve a leadership role for other countries to its North. Or at the very least as a beacon for LGBTQI asylum seekers who want the simple basic human right to live fully according to their innate sexuality and/or authentic gender identity. But as it turn out South Africa has only proved itself to be a hostile host, with inept adjudicators in dire need of training on how to handle the job in a way that is lawful, strong in policy with an appropriate and adhered to code of conduct. From these stories it is clear this is sorely lacking:
One story, as published by Mamba Online, involves a gay man seeking refugee from persecution in Zambia. As a gay man from a country where the Penal Code imposes 14 years in prison for homosexuality, his fear of return is well founded, especially in light of all the country conditions for gays in Zambia. However the adjudication he was subjected to is completely without merit and simply ludicrous under the most basic policy concepts for adjudicating LGBT people.
Anold fled Zambia in 2017, leaving behind a well-paid government job. He has now been denied refugee status by the South African Department of Home Affairs.
Mamba Online Reports that “In a sworn affidavit about this case, Anold says, “I was interviewed by a male officer…(who) asked me why I was there. I said because of my sexual orientation. The officer laughed and called another officer. They both laughed….. The officer (said)… that if I claim to be a ‘gay’, why is it that I am not wearing make-up…. He asked if I have sex – am I the woman or the man?”
The contents of the affidavit clearly call into question the qualifications and/or training of staff of the Department of Home Affairs to deal with asylum applications by gay people.
On 30 January 2018 Anold received the decision by Home Affairs which said that his application for asylum was rejected because it is fraudulent. The written reasons given for this rejection were: 1.) He did not play with boys but preferred to play with girls. The officer said in the document that a person who is gay would not enjoy the company of girls. 2.) He would not have chosen to be gay if he was in pain after a rape incident. (He was raped at school) 3.) He could not name LGBT organisations in Zambia. (There are none!) 4.) He failed to give contact details of a previous lover. 5.) That he could not have become a gay and be a Christian. He cannot be gay because Zambia is a Christian country.
This adjudication is fraught with ignorance and in my opinion an unjustified finding and must be the subject of an appeal. And more importantly must be one of the many cases to trigger change by the Department of Home Affairs in South Africa. To that end African HRC will be writing a report to the Government of South Africa including the request for a meeting with the idea of discussing a protocol for implementing understanding and change. There are educational tools and mechanisms for change already in place. This work MUST be done and these cases must be picked up pro bon by local attorneys and properly challenged. African HRC is in the process of making approached on behalf of asylum seekers.
At African HRC, we are currently preparing a report to present to the South African authorities of several such cases, showing Anold’s story is endemic. That in fact South Africa’s Department of Home Affairs is housing homophobia and breaching its obligations. It is time to bring in programming that will assist the South African authorities to educate and train on policy, codes of conduct and best practices.
In other cases actual lesbians and gay men were told – “you are not gay enough” or as in the case of Calli (pseudonym) the denial came with: “You are not here because you are a lesbian you are here because you could not find a job in Cameroon and you are escaping being poor- that is your reason.” In truth not finding a job, being on the street, struggling financially, is a symptom of lesbian persecution, and so to be denied on this basis screams for educating the adjudicator – who should be provided guidelines and whose arbitrary judgment should be monitored, case by case. One cannot deny asylum base on a realistic concomitant of the persecution itself.
In pursuing the help of several organizations to take Calli’s case further, we found a system fraught with road bumps and impossibility and now Calli struggles to survive in sub-par conditions, unable to work, no money for food or rent and very little recourse within South Africa to help her move into a protected decent life. And three is she is in the ONLY country on a continent who recognizes her sexuality with legal equity.
Given the many stories of actual persecution and hence the fear of return, experienced by individuals, I believe South Africa has unlawfully failed its duty to provide asylum protection in these two cases, noting many other individuals who have provided complaints to African Human Rights Coalition remain in similar limbo.
Last year in my capacity as ED of African HRC:
We are calling on the leadership of South Africa, President Cyril Ramaphosa, and all political representatives to work to fix South Africa’s broken asylum system, to work to end corruption and cruelty and to ensure people are treated with the dignity and respect they deserve. We are also calling on South Africa to take a leadership role on the continent with regard to LGBTQI decriminalization and rights. It is time for real leadership, to live up to the Constitution and the responsibilities it insists upon. Here.
Article 2 Uganda:
The 1951 Refugee Convention is the key legal document that defines a refugee as: “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
In Africa LGBTQI people are persecuted in the over 30 countries that criminalize sexuality and gender identity. For most, unable to reach foreign continents or qualify for visas for countries where they may choose to claim asylum, there is but little choice than to cross a border into a neighboring country to seek protection, under the Refugee Convention. However for LGBTQI people asserting their membership to the “social group”, “LGBTQI”, is fraught with problems as elucidated in one of the heart wrenching stories reported this week, the story of Lucas.
Jacob Kushner, sometimes stationed in Kenya, is a freelance American journalist who has written several in depth article covering LGBTQI asylum seekers and refugees. I have been privy to his relentless quest for accuracy and fact checking. His latest article appears in Harpers, and tells the story of Lucas, whose story I was able to help verify for the publication, as personally known to me. Lucas is suffering a fate similar to several other LGBTI people who sought refuge in Uganda, escaping extreme anti-LGBT hostility and violence in their own countries, Kenya, Ethiopia, Rwanda and Burundi. As Lucas’s story reflects, Uganda is a hostile host in breach of its obligations toward these refugees.
Other countries with a similar problematic reception of LGBTI refugees include Malawi, Libya and Senegal. It is almost impossible for a person to declare themselves a refugee for such status in these countries, albeit their right under the Convention and their only hope for protection, because the countries refuse to recognize them under the social class of LGBTI, which has also been criminalized in the host country. Here is an analogy: Its like asking a country to recognize you as a bank robber so you can become a refugee and seek protection. Yes the host country sees the potential refugee as a criminal. And the refugee is thus subject to the very persecution one sought to escape.
In Senegal a gay man from The Gambia was denied refugee status by the Senegalese Government which refused to recognize being gay as legitimate basis for being declared a refugee, notwithstanding its clear qualification under “social class”. UNHCR said it was thus unable to pursue his case for resettlement. With advocacy African HRC we were able to work with the UNHCR representative in Dakar and the Canadian embassy and the man was resettled. It took over a year and I always wonder how many others have been turned away. I also wonder to what extent UHCR is working with the respective governments such as Senegal and Uganda and Malawi, to negotiate clearer policy and safer process.
The story reflected in the Kushner article is enlightening and a tip of the iceberg when it comes to the hardship this is causing for LGBTQI people. Imagine the case of Sophina (pseudonym) who arrived from Burundi because as a celebrity on TV when outed found her life to be in great danger. So she fled across the closest border to Uganda asking UNHCR for refugee protection. She was told that UNHCR would not take her case unless she went to a police station to register as a refugee. She was warned by Ugandan LGBT individuals who she befriended, that if she did that she would be at grave risk for assault, sexual abuse, possible torture, detention and when released, for ongoing blackmail. She was terrified and refused the requisite step in her trajectory. When she reported back to UNHCR, hand in hand with a report from African HRC delineating the dangers, UNHCR still refused to take her case for protection and possible resettlement. They also refused to accompany her to the police station to register. African HRC tried to solicit the help of a Ugandan Human Rights Lawyer who did not pursue the case. We are planning on submitting our updated report to Geneva on this issue. To this end we find articles such as that by Kushner most helpful, for all the effort to authenticate and assure the facts.
We were able to financially support Sophina while solutions were sought for over a year, but have had to move her to a new location where the same struggle persists. Her only option seems to be to make her way to Kenya where LGBT refugees are being processed, albeit at a slow rate, where the hardship is enormous and a 4 year process in abject poverty awaits, or down to South Africa, and there it seems like yet another confrontation fraught with risk and uncertainty. To do either, at least $3,000 is needed to support Sophina’s endeavor. This is just one of many people stuck in limbo and poverty!
Please read the stories of Lucas, a Kenyan in Uganda, HERE, and Anold, a Zambian in South Africa, HERE, and stay tuned as I will be back to talk about the next steps in our advocacy to seek remedies for these critical inequities. To be part of the solution please share these stories widely.
Donations assisting LGBTQI refugees can be made HERE.
POSTED BY MELANIE NATHAN
Divorce and Family Mediation: www.privatecourts.com
Advocacy: African Human Rights Coalition
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