The rights of LGBTI people or the sacrifices of the (post)Cotonou agreement

Temps de lecture : 10 minutes

The rights of LGBTI people or the sacrifices of the (post)Cotonou agreement

Source : ACP-UE: “La démocratie est le plus sûr moyen de garantir la paix”

April 18, 2021

Written by Géraldine Dezé
Translated by Inji Achour

Adopted in 2000, the Cotonou Agreement is the general framework for relations between the European Union (EU) and the African, Caribbean and Pacific (ACP) countries. For the EU, it is “one of the oldest and most comprehensive cooperation frameworks^[1]European Commission, Q&A: accord politique au niveau des négociateurs en chef sur le nouvel accord de partenariat de l’UE avec les membres de l’OEACP.” between the EU and third countries. The agreement maintains relations with 79 of its countries, including 48 countries in sub-Saharan Africa, and is based on three pillars: development cooperation, economic and trade cooperation, and the political dimension, which is the sensitive issue in the negotiations. The objective of this agreement is to reduce and eventually “eradicate poverty and contribute to the gradual integration of ACP countries into the world economy^[2]The European Union Council, online, “Accord de Cotonou”, https://www.consilium.europa.eu/fr/policies/cotonou-agreement/, accessed on the 10^th of February 2021.”.

On an international level, the EU is seen as a strong ally of the respect and the promotion of gender equality, which is enshrined in its values and principles^[3]Vos, C., « Egalité des sexes dans l’action extérieure de l’UE : un nouveau plan d’action sur fond de tensions », 15 December 2020, online, … Continue reading. In the context of the post-Cotonou agreement, the EU has recognized that its main challenge is both to maintain its relations in the three regions, “while remaining faithful to the values promoted in the European treaties^[4]Pichon, E., “Le future partenariat de l’UE avec les pays d’Afrique, des Caraïbes, et du Pacifique (« post-Cotonou »),  European Parliamentary Research Service (EPRS), PE 646.183, … Continue reading». In February 2020, the European Commission and the European External Action Service admitted that the political dialogue has not always been successful on human rights and democracy in countries “that do not share [its] values on a number of important issues, such as the rights of LGBTI (lesbian, gay, transgender and intersex^[5]Ibid.)».

This article provides an analysis of the difficult negotiations around gender identity and sexual orientation through the (Post-)Cotonou Agreement between the EU and the ACP group. By offering a brief contextualization of these negotiations, the agreement can be seen above all as a political success. Nevertheless, we can observe that sexual minorities are subject to great tension in EU-ACP parliamentary relations.

The (Post-)Cotonou Agreement: What changes and what remains

The Cotonou Agreement governs relations between the EU and the ACP countries. The objective of this agreement is the economic and social development of ACP countries through several components: political dialogue, trade, and development cooperation. This agreement was adopted in 2000 to replace the 1975 Lomé Convention. Signed at the beginning of the century, this agreement expired in February 2020.

It is undoubtedly part of a historical perspective between the EU and the ACP countries “according to which privileged relations between the North and the South were initiated at the end of independence and translated into the 1957 Treaty of Rome and the European Development Fund (EDF) that it established^[6]De Plaen, R., « L’Accord de Cotonou, un vestige du passé ? », 17 November 2016, online, Accessed on 2 November 2021. ».

While expanding, the EU wanted to promote the economic development of its former colonies, in the same way that the ACP group expanded to include the former British colonies.

On December 3, 2020, the chief negotiators, Jutta Urpilainen, Commissioner for International Partnerships and Chief Negotiator for the EU, and Robert Dussey, Togolese Minister of Foreign Affairs, African and Togolese Integration and Chief Negotiator for the Organization of ACP States (OACPS^[7]In parallel with the negotiations, the ACP Group was transformed into an “Organization of ACP States” (OACPS) by amending its founding act, the Georgetown Agreement. For the sake of … Continue reading), reached a political agreement. However, the EU and the OACPS have decided to extend the Cotonou Agreement until November 30, 2021, to allow time for the EU procedure to be completed.  

The new treaty retains some of the features of the Lomé and Cotonou conventions, although its structure and content have been substantially modified. The geographical coverage of the agreement, its duration (20 years), the trade regime and the definition of the essential and fundamental elements of the agreement remain almost identical. But what changes, for example, is the regionalization with three protocols. The word “partnership” (partnership dialogue) has become the key word, replacing the term “political dialogue” and the language used is not always binding: the wording of the agreement has become more symmetrical^[8]Boidin, J-C., « Relations UE-ACP : la fin des préférences ? Une analyse du nouvel accord post-Cotonou », ECDPM, n°289, January 2021, p .8.,

notes Jean-Claude Boidin, former head of unit at the Directorate General for International Cooperation and Development at the European Commission. Trade and development aid, previously at the heart of the Lomé Conventions, have been progressively restricted to more technical chapters of the agreement, even though they are at the base of this famous reinforced political partnership.

For some, therefore, this new agreement is a political success that has succeeded in reconciling respect for the features of the Lomé and Cotonou agreements on the one hand, and confirmation of the special place of the ACP countries in the EU’s external relations on the other. The Europeans proposed a new partnership based on a “common base” (called “foundation:) and three regional protocols, in order to take into account the new strategic interests of the EU and the ACP group. This common foundation sets out “the values and principles that unite the countries and specifies the strategic priority areas in which both parties intend to collaborate^[9]Ibidem».  

With human rights, fundamental freedoms, democracy, the rule of law and good governance as strategic priorities, Europeans have tried to put reproductive health issues, the recognition of free sexual orientation and gender identity, and the abolition of the death penalty at the center of the discussions – efforts that have so far not borne fruit.

A political asset, but…

The EU and the members of the OACPS form a significant international force, representing more than 1.5 billion people and more than half of the seats in the United Nations^[10]ACP, « L’après-Cotonou : les négociateurs parviennent à un accord de partenariat entre l’UE et les Etats d’Afrique, des Caraïbes », 3 December 2020, online, Accessed on March 03, … Continue reading. And with 79 ACP countries, the Cotonou Agreement is the largest North-South cooperation agr
eement. It is notably consistent with the international cooperation agenda of the 2000s: it promotes the Millennium Development Goals, aid effectiveness, human rights and proposes a “holistic^[11]De Plaen, R., op.cit.” approach. This approach is now reflected in the Sustainable Development Goals adopted in September 2015 at the United Nations. The agreement addresses themes such as policy coherence for development (Art. 1), democracy (Art. 9), fragility (Art. 11), migration (Art. 13), investment and the private sector (Art. 21), agriculture (Art. 23), peace (Art. 28), gender equality (Art. 31), environment, climate change (Art. 32), etc.^[12]The entire Agreement can be found at the following link: http://www.europarl.europa.eu/intcoop/acp/03_01/pdf/mn3012634_fr.pdf.

Through this new agreement, the EU and OACPS member countries hope to address emerging needs and global challenges, such as the COVID-19 pandemic, climate change, ocean governance, migration, peace and security.

The respect and promotion of human rights are important to the EU, both within the EU and in its relations with its partner countries. This partnership with the ACP group is no exception in this regard. In 2020, the European Commission assures that “in addition to upholding the principle of equality and non-discrimination on any grounds, including gender, ethnic or social origin, religion or belief, political or any other opinion, disability age or any other status, the new agreement will be binding on the EU and the Organization of African, Caribbean and Pacific States in the fight against racism, racial discrimination, xenophobia and related intolerance, and all forms of violence^[13]European Commission, Q&A: accord politique au niveau des négociateurs en chef sur le nouvel accord de partenariat de l’UE avec les membres de l’OEACP.”. Yet, the note published by the European Parliament’s Research Service in July 2019 was already concerned about possible changes to the agreement with regard to the rights of LGBTI people, recognizing that “differences of opinion also exist among EU member states^[14]Ibid.. »

… A difference in views on sexual orientation and gender identity between EU and ACP parliamentarians

When the European Parliament gave its consent to the ratification of the 2010 amended version of the Cotonou Agreement on June 13, 2013, the institution expressed “its strongest reservations^[15]Pichon, E., Kourchoudian, G., “LGBTI in Africa : widespread discrimination against people with non conforming sexual orientations and gender identities”, European Parliamentary Research … Continue reading”, in particular towards the absence of an explicit clause of “non-discrimination on the basis of sexual orientation^[16]“Recommendation on the draft Council decision on the conclusion of the Agreement amending, for the second time, the EU-ACP Agreement, signed in Cotonou on 23 June 2000 and amended in Luxembourg on … Continue reading». In its resolution of February 11, 2015 on the work of the Joint Parliamentary Assembly (JPA), the Parliament condemned the criminalization of LGBTI people and expressed the wish that the successor to the Cotonou Agreement would explicitly provide for sanctions for “discrimination based on sexual orientation or gender identity^[17]Texts adopted – The work of the ACP-EU Joint Parliamentary Assembly – Wednesday, 11 February 2015 (europa.eu)”. Regarding the European Parliament’s relations with the African Union’s (AU) parliamentary body, the Pan-African Parliament, a joint statement on the margins of the fourth Africa-EU summit clearly notes that “on the issue of discrimination on the basis of sexual orientation, there has been a difference of opinion between members of the European Parliament and their African counterparts^[18]Declaration of the EP-PAP Parliamentary Summit to the IVth Africa-EU Summit (2014)”.

When the negotiations resumed in June 2020, at their final phase, the political issues track had been expressly isolated from the rest of the negotiations. While the abolition of the death penalty is considered a matter of state sovereignty on the part of ACP countries, the refusal is even more categorical on the recognition of free sexual orientation and gender identity. This issue, certainly the most sensitive, was considered non-negotiable, since the partnership is there to promote mutual understanding, whose main argument is “the respect for differences in terms of values and cultures^[19]Firtion, P., « Accords post-Cotonou : les négociations entrent dans le dur », Rfi, 8 June 2016, online, accessed on 15 February 2021.».  Robert Dussey made a point of respecting these cultural differences. For him, Africa and the OACPS states are winners from these talks, because they “have not capitulated^[20]Firtion, P, op.cit.”.

In addition, a compromise mentions the Universal Declaration of Human Rights in the agreement, which in its second article advocates freedom regardless of race, opinion, sex or any other status^[21]Jeune Afrique, « L’UE et les ACP révisent l’accord de Cotonou », 20 March 2010, online, accessed on 7 February 2021. The irony is that this aspect is not included in the Universal Declaration. On the other hand, Article 4 does not fail to recall that the respective parties attribute particular importance to all evolutions: “This regular evaluation shall take into account the economic, social, cultural and historical situation of each country^[22]2000/483/EC: Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, … Continue reading”.

The protection of LGBTI persons in Africa: a brief overview^[23]For more information, see: Pichon, E., Kourchoudian, G., “LGBTI in Africa : widespread discrimination against people with non conforming sexual orientations and gender identities”, European … Continue reading

Homosexuality is still considered a crime in 38 ACP countries, and homosexuals face the death penalty in five of them^[24]Texts adopted – Second amendment to the Cotonou Agreement of 23 June 2000 *** – Thursday, 13 June 2013 (europa.eu). While some countries on the African continent are beginning to decriminalize sexual orientation^[25]Ibid.see Map 1 below), three out of five African countries have laws that criminalize homosexuality and the public expression of sexual or gender behaviors that do not conform to heterosexual norms^[26]Ibid.

and these same laws criminalize the advocacy of LGBTI people. While some African countries have partially decriminalized homosexuality and/or restrictions based on gender identity or have given them greater protection, the fact remains that LGBTI people are still far from enjoying the same rights as other citizens.

Only a few African countries have explicitly abolished the criminalization of LGBTI people, such as South Africa and Guinea-Bissau in 1993. The notion of “unnatural vices” was removed from Mozambique’s penal code in 2015 and from Angola’s in 2019. In most of the other 21 African countries, homosexuality has never been criminalized in legislation. However, in some of them, provisions criminalizing “unnatural acts”, “indecency”, or “debauchery” have been adopted and are used ag
ainst LGBTI people. In 2016, a provision in the penal code on “offence to public morals” was used for the first time to imprison gay and lesbian people in Côte d’Ivoire. Similar provisions have also been used to arrest LGBTI people in the Central African Republic. Mali, Burkina Faso and the Democratic Republic of Congo block the registration of LGBTI organizations.

Map 1: Sexual orientation laws and tolerance of homosexuals in Africa^[27]The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 2019; Afrobarometer, 2016 (Percentage of respondents who said they would “like it a lot,” “like it a … Continue reading

However, recent years have seen the emergence of a disturbing trend of harsher legislation coupled with repressive measures against homosexual persons. A common argument used to support discriminatory legislation and other measures targeting LGBTI people is that non-conforming sexual orientations and gender identities were brought to Africa by Western colonizers and are contrary to “African values^[28]Ibid.)”. This claim has long been disproved by academic research, but tolerance for LGBTI people is still very low in most African countries and LGBTI people remain vulnerable to discrimination … Continue reading.

In his recommendations on the draft Council decision on the conclusion of the agreement, the rapporteur for the European Parliament, Michael Cashman, does not fail to point out that the European Commission cannot remain silent on these discriminatory laws, at the risk that this would amount to tacit approval. The Commission should have been more assertive in the negotiations to assert article 21 of the EU treaty^[29]« Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a … Continue reading on the principle of non-discrimination on the basis of gender and other grounds. For the rapporteur, future political dialogues on the protection of LGBTI people will only be possible if it is explicitly addressed in the agreement, which is the framework for many other agreements^[30]Texts adopted – Second amendment to the Cotonou Agreement of 23 June 2000 – Thursday, 13 June 2013

Conclusion

With ambitious economic and political objectives, the (post)Cotonou agreement is presented as “the most comprehensive partnership agreement^[31]European Commission, Q&A: accord politique au niveau des négociateurs en chef sur le nouvel accord de partenariat de l’UE avec les membres de l’OEACP.» with the African, Caribbean and Pacific countries. Although gender equality is strongly reaffirmed, both as one of the major objectives of cooperation and as a cross-cutting theme, it is clear that sexual orientation or gender identity are absent from both the old and the new partnership agreement between the EU and the ACP countries. However, in November 2020, the EU did not fail to reaffirm that it was “the example to follow in the fight for diversity and inclusion^[32]European Commission, « Union of Equality: The Commission presents its first-ever strategy on LGBTIQ equality in the EU“, 12 November 2020. ».

The European institutions and the member states seem to have a difficult task. On the one hand, they are obliged by the treaties to promote the EU’s core values in their external relations and to monitor and combat abuses in their partner countries. On the other hand, their actions and statements in this area risk reinforcing the perception that the EU is trying to import “outside” values, especially as notions of sexual orientation and gender identity as grounds for discrimination are being challenged by African countries in multilateral arenas.

If the EU opens the way to a stronger and more ambitious partnership with Africa under the presidency of Ursula von der Leyen, it is in everyone’s interest not to confine free sexual orientation and gender identity to one continent or another, nor to instrumentalize it as a state competence.

To cite this article: Géraldine DEZE, “The rights of LGBTI people or the sacrifices of the (post)Cotonou agreement”, 04.19.2021, Gender in Geopolitics Institute