Mujib Jimoh (Duke University School of Law) has posted When Consensus Silences Rights: Judicial Consistency and LGBTQIA Protection in Africa on SSRN. Here is the abstract:
The promotion of contemporary human rights in Africa—including the rights of LGBTQIA persons—has been significantly constrained by the difficulty of attaining human rights consensus among African States. Yet existing human rights scholarship has paid limited attention to the extent to which this consensus deficit has hindered the enjoyment and advancement of rights on the continent. This essay fills that gap by examining the role of the consensus problem in African human rights jurisprudence and its concrete impact on rights protection. It argues that the lack of consensus has weakened the institutional confidence of the African Court on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights, contributing to their reluctance to take a definitive and sustained stance on LGBTQIA rights. As a response to this constraint, the essay contends that judicial consistency—across decisions, resolutions, concluding observations, and recommendations relating to sexual orientation and gender identity—offers a viable strategy for mitigating the effects of consensus fragmentation. By foregrounding consistency as a formidable tool, the essay reframes how African human rights bodies can advance contested rights even in the absence of broad State agreement.
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