Blog post by Rohit Dalai, National Law School of India University, Bangalore
Introduction
On 26 May 2023, Uganda’s President Yoweri Museveni assented to the Anti-Homosexuality Act, 2023 (AHA), which criminalizes same-sex sexual acts between consenting adults and includes the potential death penalty for those convicted of ‘aggravated homosexuality’. This is in addition to the existing Penal Code Act, 1945 (PCA) which penalizes same-sex conduct with life imprisonment. A renewed attempt at legalizing homophobia, the AHA imposes greater penal consequences than those specified in the PCA. State-backed homophobia has forced LGBTQ+ Ugandans into hiding and to flee their country and seek asylum. With the enactment of AHA, there has been speculation of increased migration. However, for migrating Ugandans, persecution based on sexual orientation is not a guarantee for succeeding with asylum applications, including in European Union (EU) nations. Against such a backdrop the United Nations High Commissioner for Refugees (UNHCR) has appealed for the institution of better protection measures for individuals fleeing persecution on account of identifying as being LGBTQ+. In instituting better protection measures there is a need to scrutinize what occurred in the past. It is here that the Committee on the Elimination of Discrimination against Women’s (Committee) 2018 decision in A.S. v. Denmark becomes important.
This piece seeks to analyze whether the Committee’s decision in A.S. v. Denmark is sound both from a rights-based and a procedure-based perspective. Upon the analysis, the rights-based and procedural improprieties are listed. By listing out the improprieties, a case for intersectional foregrounding of decisions is made. Lastly, it is proposed that asylum applications ought to be assessed by keeping in mind intersectionality with an emphasis on a rights-based approach.
What is the case about?
A.S., an ethnic Mugandan of Muslim faith from Uganda fled to Denmark seeking asylum owing to her persecution due to her sexual orientation as a lesbian. A.S. started her journey to Denmark by obtaining a Danish visa from the Norwegian Embassy in Kampala. Notably, A.S. lacked travel documentation despite her inter-state travel. She entered Denmark in possession of a visa bearing the name ‘A.N.’. Notably, A.S.’s asylum application was rejected by the Danish Immigration Services (DIS). The rejection was appealed to the Danish Refugee Appeals Board (Board). The Board dismissed the appeals against the rejection. Upon the rejection, A.S. was asked to leave Denmark. However, the Committee acting through its Working Group on Communication under the Optional Protocol to the CEDAW, issued a request seeking an “interim measure for protection” for A.S. The interim measure entailed Danish authorities refraining from expelling A.S. pending the consideration of her case, under Article 5(1) of the Optional Protocol and Rule 63 of the Committee’s rules of procedure. The Committee in considering the case perused the arguments made by the parties. Eventually, the Committee decided the case in favor of Denmark.
Is the decision fair?
The Committee ruled in favor of Denmark on two broad counts. Firstly, A.S.’s communication was inadmissible under Article 4(2)(c) of the Optional Protocol (p. 8.9), i.e. “manifestly ill-founded or not sufficiently substantiated”. Specifically, A.S.’s account of her persecution given her identity as a lesbian was deemed by the Committee to be incredible due to ‘factual inconsistencies’ in the account and the ‘lack of substantiation’ in general. Secondly, the Committee held that there was procedural propriety in the assessment of A.S.’s asylum application by Danish authorities (p. 8.9). The Committee deemed the assessment to be proper on two broad grounds. First, that A.S.’s ‘allegations’ were ‘thoroughly’ examined by the DIS and the Board (para 8.7). Second, that the state party had appropriately considered the human rights condition in Uganda, and, “in particular, the situation of gay people in Uganda” (para 8.8). Further, the Committee also accepted the state party’s contention that even though homosexuality has been criminalized in Uganda, ‘no one’ has been convicted of it under the Penal Code, arguing that this proved that there was “no routine or systematic targeting” of homosexuals (para 8.8). The Committee agreed with the state party’s drawing of an erroneous inference of no systematic persecution of homosexuals from no penal conviction. At this point, it would be relevant to analyze the aforementioned nuances of the case separately.
Casting doubts on A.S.’s identity
Doubts were raised about A.S.’s account of her being a lesbian. To substantiate the doubts, the Board highlighted inconsistencies in A.S.’s account in her asylum application. A.S. had stated before the Board that she realized that she was a lesbian in 2007 (p. 4.9). However, the state party put forth that A.S. had also stated that she had known she was lesbian before her marriage in 2007. Accordingly, this was used to assail the credibility of A.S.’s account of her being a lesbian. Further, there were doubts raised as to whether the incidents of repression occurred. The fact that A.S. was unable to give an account of the bar she operated was used to controvert her account (p. 4.10). Additionally, the ability to run the bar “without experiencing any problem with customers or the authorities” despite the customers being “openly lesbian” formed an additional reason to refute A.S.’ account (p. 4.10). Taken together, grounds put forth by A.S. were deemed to be “inconsistent, elaborative and sketchy” by the Board which was subsequently endorsed by the state party (para 4.12). In failing to scrutinize the arguments made by the state party, the Committee failed to substantively scrutinize the case.
The need for an intersectional analysis
Substantive scrutiny would have entailed looking at the human rights record of Ugandan authorities and the citizens. Moreover, the impact of homophobic hate crime visited upon A.S was to be analyzed. Firstly, Stella Nyanzi, a prominent Ugandan queer rights advocate and scholar of sexuality, and Andrew Karamagi, a Ugandan human rights lawyer and social-political justice advocate, have described Uganda as socially and legally hostile to homosexuals, “perhaps more than any other country”.[1] The hostility manifests in the form of homophobic attitudes and state-sponsored gendered violence against sexual minorities.[2] Regrettably, in spite of Nyanzi and Karamagi’s seminal exposition of the hostility towards sexual minorities in Uganda, the Committee failed to refer to it.
As has been mentioned previously, discrimination against homosexuals is legalized through Section 145 of the PCA which penalizes homosexuality. Notably, the Ugandan Parliament had enacted the Anti-Homosexuality Act, 2014 which was subsequently struck down by the Constitutional Court of Uganda. Pertinently, the recent promulgation of AHA imposes the ”death penalty for same-sex intimacy – including so-called ‘serial homosexuality.” It is well documented that the legalization of homophobia is often accompanied by violent homophobic attacks against sexual minorities. Against such a backdrop, A.S.’s account of the repression is highly probable.
The fact that A.S. was an ethnic Mugandan of the Muslim faith lends further credence to her account, in that there exists a negative perception of homosexuality in both Mugandan culture and Islam. First, historical accounts point to the fact that Mugandan culture has traditionally placed “extremely high value” on heterosexual relational norms which have only been rigidified post-colonization.[3] Secondly, Islamic ideology appends “hegemonic status to heterosexuality”, with homosexuality being deeply opposed.[4] Taken together, A.S.’ identity as a lesbian Mugandan Muslim, placed her in a precarious position of facing repression based on multiple axes of her identity. Notably, A.S.’s precarity ought to have been taken seriously by the Committee. A.S.’s intersectional identity in a society with deep-rooted homophobia makes her account highly probable. Despite the high degree of probability, the Committee failed to assess the risk of violence against A.S. if she were to be sent back to Uganda.
Procedural improprieties galore
Erroneous application of the prima facie standard
The Committee accepted the state party’s contention that A.S. had failed to “establish a prima facie case” for her communication to be made admissible (p. 4.2). That is, as is used by UNHCR, the determination of refugee status based on the “readily apparent, objective circumstances in the country of origin or former habitual residence such as persecution, conflict, generalized violence, or events that seriously disturb the public order”. Such determination is primarily carried out by state parties and the UNHCR. Curiously, neither the Committee’s decision nor the state party’s argument refers to the understanding of the ‘prima facie approach’ in the Emergency Handbook. However, the state party’s understanding of the ‘prima facie approach’ can be evinced from its use of M.N.N. v. Denmark to buttress its arguments.
The state party held that the extraterritorial application of CEDAW was possible only in case serious gender-based violence was expected upon A.S.’s return to Uganda (p. 4.4). In essence, the state party asserted that A.S. failed to establish a prima facie case “on the grounds that she would be exposed to a real, personal and foreseeable risk of serious forms of gender-based violence if she were returned to Uganda” (p. 4.4). This argument by the state party is fallacious. While A.S. was required to establish a prima facie case, it was to be based on A.S. showing that there was a ‘real, personal and foreseeable risk of serious forms of gender-based violence’upon her return to Uganda. This effectively makes establishing the prima facie case contingent upon satisfying a higher standard of ‘real, personal and foreseeable risk of serious forms of gender-based violence’.
The rationale for using the standard was two-fold. First, the Committee’s decision in M.N.N. v. Denmark. Second, the Board’s assessment of A.S.’s application. It is arguable that both of the instances were cited erroneously by the state party. The Committee in M.N.N. v. Denmark had posited that the Committee would need to determine what amounted to “serious forms of gender-based violence” (p 8.10). This would depend on the complainant establishing “a prima facie case before the Committee by sufficiently substantiating such allegations” (p. 8.10). Applied to the present case, this meant that A.S. had to simply establish a prima facie case. Based on the establishment, the Committee had to determine whether gender-based violence would occur on A.S.’s return to Uganda. However, in this case, the entire burden was shifted to A.S. Similarly, the Board’s assessment was mentioned to argue that the assessment was based on an extensive “collection of general background material” on the nation from which Denmark received asylum seekers (p. 4.3). As per the material, there was no systematic targeting of homosexuals by the Ugandan authorities. However, the aforementioned examples of the legalization of homophobia accompanied by hate crimes point to systemic attacks on homosexuals. Thus, the uncritical acceptance of the state party’s arguments by the Committee in the present case amounts to procedural impropriety.
Barring of witness and the weakening of A.S.’s case
An additional procedural error in the case pertained to the Board’s barring of A.S. from calling her girlfriend as a witness. Citing Section 54(1) of the Aliens (Consolidation) Act, 2019 and the Board’s jurisprudence, the State party sought to justify the debarring (p. 4.14). As per the latter, witnesses were only allowed to testify on grounds directly linked to seeking asylum. Witnesses could not testify only “with regards to the asylum seeker’s general credibility” (p. 4.14). However, such a formulation lacks flexibility. In A.S.’s case, her credibility was assailed to reject her asylum application which was based on the grounds of the possibility of persecution in the event of returning to Uganda. Essentially, A.S.’s credibility and the grounds for seeking asylum were interlinked. The test for not allowing witnesses was hence procedurally improper. The committing of these errors by the Committee led to the rejection of A.S.’s application. Furthermore, the errors amount to contravention and non-adherence to CEDAW, the Universal Declaration of Human Rights (UDHR) and the Yogyakarta Principles Plus 10 (YP).
Taking A.S.’s rights seriously
Until recently, the Committee has adopted four decisions arising out of individual communication involving issues regarding sexual orientation. While the Committee is focused on “women and the question of gender as a legal category”,[5] it needs to recalibrate its approach by being amenable to undertaking intersectional scrutiny of cases before it. In the absence of a queer-centric decision-making treaty body, the Committee ought to look at gender identity and sexual orientation in conjunction to ensure that one aspect does not trump the other. In doing so, the Committee can draw upon the concept of ‘intersectionality’ as exposited in the Guidance Note on Intersectionality, Racial Discrimination and Protection of Minorities (Guidance Note). In the present case, the reference to the Guidance Note would have facilitated the Committee’s understanding of the “ways in which social identities overlap, and, in negative scenarios, could create experiences of concurrent forms of oppression”. The concurrent forms of oppression in A.S.’s case would operate on the axes of sexual orientation and gender identity. Thus, a conjunctive gender-sexuality analysis ought to have been undertaken by the Committee. This would have entailed the scrutiny of A.S.’s application based on CEDAW, UDHR and YP.
Firstly, A.S.’s gender identity as a woman would make CEDAW applicable to this case. Given the binding nature of CEDAW, it would obligate Danish authorities to adhere to it. The applicability of CEDAW would entail a consequentialist analysis based on Article 3. In this case, Article 3 was contravened since the application of the Aliens Act hinders A.S.’s “exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men” as a woman. Given the deep-rooted homophobia in Uganda, A.S.’s deportation would prevent her from enjoying rights and freedoms given her gender identity as a woman in addition to her sexual orientation as a lesbian.
Secondly, as per Article 14 of the UDHR, everyone has the “right to seek and to enjoy” asylum from persecution in other countries. Notably, the UDHR’s articles are based on a belief that the individual’s interest comes before that of the state, and that the state was not to deprive the individual of their rights. In the present case, the application of Article 14 would have entailed granting A.S.’s asylum since her interests would be accorded primacy.
Thirdly, the application of Principle 23 of the YP would have ensured that A.S.’s application was accepted on the ground that she had a “well-founded fear of persecution on the basis of sexual orientation including where laws criminalize forms of sexual orientation”. A.S.’s fear was well-founded as it was based on systemic persecution of homosexuals, with Section 145 of the Penal Code Act criminalizing homosexuality. A conjunctive application of CEDAW, UDHR and YP, would have obligated Denmark to grant A.S. asylum.
Conclusion
The precise identity of A.S. is unknown given the sensitive and confidential nature of Committee proceedings in cases of individual communications. Information on A.S. after the rejection of her application is conspicuously missing, which makes it difficult to assess what happened to her. There is a high probability of A.S. having been deported to Uganda since there have been past instances of deportations by the state party. In her report titled ‘Well-Founded Fear: Credibility and Risk Assessment in Danish Asylum Cases’, Bendixen documents instances of deportation on rejection of asylum application. Such deportations have exposed the ‘rejected people’ to the exact torture, reprisal and killings they feared.
Avoiding such consequences necessitates undergirding the assessment of asylum applications with a robust rights protecting approach. While procedure is an essential aspect of decision making it should be complementary to the emphasis on the rights of asylum seekers. Further, an intersectional perspective needs to be adopted to scrutinize asylum applications. A procedure-based assessment of asylum applications is insufficient to scrutinize the aspect of persecution. It is only with the adoption of a rights-based approach underpinned by intersectionality can there be an effective assessment of such asylum applications.
[1] Stella Nyanzi and Andrew Karamagi, ‘The social-political dynamics of the anti-homosexuality legislation in Uganda’ (2016) 29 Agenda 24.
[2] Kalemba Kitizo, ‘Bequeathed Legacies: Colonialism and State-led Homophobia in Uganda’ (2017) 15 Surveillance and Society 567-568.
[3] John Osogo Ambani, ‘A Triple Heritage of Sexuality? Regulation of Sexual Orientation in Africa in Historical Perspective’ in Sylvie Namwase and Adrian Jjuuko (eds), Protecting the Human Rights of Sexual Minorities in Contemporary Africa (Pretoria University Law Press 2017) 50.
[4] Rusi Jaspal, ‘Islam and Homosexuality’ (2016) The Wiley Blackwell Encyclopedia of Gender and Sexuality Studies 1.
[5] Ksenya A. Kirichenko, ‘Queer Intersectional Perspective on LGBTI Human Rights Discourses by United Nations Treaty Bodies’ (2023) 49 Australian Feminist Law Journal 55, 62.
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