Obadia Kajungu
Member
- Jul 8, 2015
- 31
- 39
The Question of Economic, Social and Cultural Rights
By
Obadia Kajungu, Esq.
(ADVOCATE)
Abstract.
This planet is one and it is for everybody so much so that there is no one person who has a better right to enjoy the earth than the other person to the effect that every right shall not let other rights vulnerable in the sense that if you rejoice in your rights on the planet give a better place for others to rejoice in their rights on the planet.
Introduction
Everybody around the globe shall be a witness in this generation of our times about the growing controversial international social issues of homosexuality and same sex marriages being protected or promoted by states under the influence of activists, lawyers, newsmen and but not limited to politicians vying to transform the whole world’s human community to accept the prohibited behavior of homosexuality and sodomy. The behavior is supported by a global network of group of persons known as Lesbians, Gays, Bisexual and Transgender (LGBTQ movement), hereinafter the movement. The movement is haunting the minds of the whole human community around the world for its escalating ambivalent social perceptions and acceptability by various global societies. The movement is seeking to advocate the right of same sex to enjoy carnal knowledge or in other words, sexual intercourse even going beyond to advocate for marital union of same sex persons!
This movement is suspected to have been a result of group of unrealistic rich nihilist persons around the world who are pressurizing the governments to declare homosexuality and same sex marriages globally socially and legally acceptable through politicians, newsmen, lawyers and activists on the pretext of human rights, particularly right to personal liberty and freedom of expression.
The activists and other proponents of the movement are vying to induce governments whose legislatures are prohibiting homosexual behavior so as to dis-apply such laws and instead, pass new laws to warrant homosexuality and same sex marriages socially and legally justifiable on the pretext of human rights.
The Protection of Homosexuality and Same Sex Marriages as
Offences against International Human Rights Law
The acts of supporting or promotion or animation of homosexuality and single sex marriages are in principle a serious violation of international human rights treaties and for that reason, states, governments, activists and any other person or group of persons supporting in any way the movement are violating fundamental human rights, that is the right to cultural heritage and right to cultural identity and their continued actions attracts unanimous condemnations by international human community.
The word culture would mean to include the arts and other manifestations of human intellectual achievement regarded collectively, the ideas, customs, religion, traditions, values and social behavior of a particular people or society. Or culture is the set of distinctive spiritual, material, intellectual and emotional features of society or a social group that encompasses not only art and literature, but lifestyles, ways of living together, value systems, traditions and beliefs (UNESCO, 2001).
After the adoption by the United Nations General Assembly of the Universal Declaration of Human Rights (UDHR) on the 10th of December 1949, the United Nations Commission on Human Rights divided the rights contained in the UDHR into two separate international covenants, one being civil and political rights as enshrined in International Covenant on Civil and Political Rights(ICCPR) and the other being economic, social and cultural rights as enshrined in the Convention on Economic, Social and Cultural Rights(CESCR) thus becoming common among lawyers and other human rights stakeholders to consider the International Bill of Human Rights as consisting of two distinct categories of human rights.
This movement has already put under the siege, governments of western countries particularly Western Europe and North America, and such governments have, in furtherance of the desires of homosexuals, passed legislations to extend the definition of a phrase non discrimination to include “non discrimination on sexual orientation.” This definition of the term discrimination has been broadened by the governments already accepting homosexuality beyond ambits of the UDHR which as of today, Article 2 still provides that ‘everyone is entitled to all the rights without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
In Africa, the westerners are fiercely engulfing anti-gay governments to follow the compass needle by transforming the attitude of African tribal societies towards homosexuality through legislation even going beyond to threatening economic sanctions against such anti-gay governments.
Homosexuality is not a new phenomenon in the human history as the behavior is traceable even in prehistoric societies and ancient Greece and Israel, but it has been declared a prohibited behavior, not only because of the bible but also human conscience. Even in Africa where the bible was not yet preached by colonialists it has been the African moral standing until today that “the man is sexually impenetrable.” Or it is the right of the Catholic or Muslims or a member of African Tribal communities to believe, continue believing and seeing that marriages are between men and women.
The culture, customs, religions, traditions, moral values, tribal languages and alike of the world societies do differ from one society to another. There are some societies such as Europe and North America which have no cultural diversity because of having no tribes or ethnic groups presumably because of partly being migration states or due to sociological revolution or for whatever cause thus having a high level of behavioral tolerance unlike those counties in which tribes, religions and ethnic groups exist like in Africa, South America and Asia. These tribes and ethnic groups have their religions, moral values, vernacular languages, customs, cultures and alike which do not accept homosexuality and same sex love or marriages.
Under international law these religions, moral values, vernacular languages, customs, cultures and alike are protected so that they should not go extinct.
That is why in African schools we have slight caning punishment for children when they behave in a manner inacceptable unlike European schools. The corporal punishments to school children in African schools seek to discourage children while at tender age from growing into behavior which is undesirable in comparison with acceptable standards of African social morality. Therefore African education is dual traffic in the sense that it goes with academics combined with morality while European education is single traffic in the sense that it goes with only academics and let it go alone or in other words “untamed mankind”.
Question: What is the position of homosexuality and same sex marriages in the international law perspective?
As we have observed in the foregoing, the International Bill of Human Rights consists of two distinct categories of human rights, which are categorized into three generations, that is to say, the first generation human rights namely civil and political rights; the second generation human rights namely economic, social and cultural rights but later there was added to these economic social and cultural rights the third generation human rights namely solidarity rights such as the right to self-determination and right to development. So, within the economic, social and cultural rights is where we find second and third generation human rights. Just to cut the story short the civil and political rights are fundamental rights which the states are prohibited to interfere with such rights while economic social and cultural rights are fundamental rights which the states are obligated to protect and promote. In principle every human being is a member and beneficiary of fundamental rights in that there is none has a better enjoyment of these rights than the other. Article 22 of the UDHR provides that;
“everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”
Also, Article 27 of the ICCPR provides for rights of persons belonging to ethnic, religious or linguistic groups thus the governments have obligations to protect such groups’ culture, traditions and religion against assault or any other threat. This right was also reiterated by the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992.
Now basing on the fundamental rights as outlined in the International Bill of Human Rights it is worth noting that these rights are not meant to include every right to be basic or fundamental rights if they are not "innate or inborn or inalienable rights to all human beings. Right to life, right to freedom of association, right to education, right to freedom of expression, right to freedom of belief, right to cultural identity, right to privacy, etc are fundamental or basic rights unlike addictive consensual behaviors such as trying and becoming addicted to same sex, trying and becoming addicted to alcoholism, trying and becoming addicted to cannabis opium, trying and becoming addicted to prostitution, trying and becoming addicted to unrealistic personal liberty without due regard to others emotions, and alike which will later be addictive and difficult for a person to refrain cannot turn to be fundamental rights simply because the culprit cannot refrain from the behavior.
In passing resolutions, the United Nations General Assembly sought to protect the tribal societies and ethnic groups against behavior or culture which may tend to absorb the cultures, religions, tribal languages and moral values of such tribal societies or ethnic groups. These are fundamental human rights and freedoms as being intangible cultural heritage of humanity and states are duty bound to protect and promote.
Homosexuality has a conflicting effect to intangible cultural heritage of humanity by tending to absorb faith, religion, cultural customs and traditions which prohibit this behavior in the sense that such belief, religion, cultural customs and traditions are taught to human being during the early stage of childhood. So, at the infant stage of human growth, a child cannot successfully be taught about religious belief, traditions and moral values of his society in the environment tempting such a child not to trust the said religious belief, traditions or moral values he is being taught by his parent or religious or tribal leader.
The essence of the International Bill of Human Rights is until tomorrow to protect the basic rights of mankind that are innate and inalienable. That is why these rights are termed as fundamental or universal or basic rights because everyone was born with them. Homosexuality is not innate or inborn in itself for its being the adapted behavior by an individual in an exceptional environment as a result of either his curiosity or learning from other persons or society surrounding him eventually becoming behavioral malignant, and for that reason homosexuality cannot be a universal right!
Behavior means acts which a person finds himself to have got used to and adapting as inseparable part of his life due to environment or experience or genetical heredity. The law or morals or religion in most of societies seek to prohibit certain human behavior.
The legal theories explain the behavior prohibited by law as crime while behaviors prohibited by social morality or religion are said to be evils. Any person who commits a crime is liable for legal sanction while any person who commits evil things is said to be sinful. Homosexuality is in most of societies prohibited by law, religion and tribal customs around the world including African societies.
According the Draft Declaration on Rights and Duties of States, 1949, the state has unlimited rights to protect its perpetual existence and therefore has the right to legislate and enforce its laws without interference of other states. Those laws passed by legislation can be for purposes of preserving ordre public, protection of its resources, national security, international relationship or any law which the state thinks fit and appropriate for its society including preserving social morality, religion, traditions, values, customs, usages and other intangible cultural heritage of humanity found in its society. In preserving of such social morality, religion, traditions, customs, values, or in other words referred to by UNESCO as “intangible cultural heritage of humanity” found in the society of a given state, the legislation of laws for that purposes, states are acting under the dictate of international conventions and for that reason the states are duty bound to do so by international law not by their own options. In furtherance of this obligation therefore the states are duty bound to criminalize any acts or behavior which it thinks is likely to be dangerous to the continued existence of the said intangible cultural heritage of humanity.
Pursuant to the International Bill of Human Rights, United Nations General Assembly has, through the most recent World Conference on Human Rights, 1993 referred to as the Vienna Declaration and Program of Action, declared that “all human rights are universal, indivisible, interdependent and interrelated.” For this reason therefore if a person is, say enjoying freedom of speech he must be vigilant to the effect of warning himself that every person has the right to dignity, privacy and respect. Thus, in his speech, such a person enjoying freedom of speech should not to affect the reputation, dignity and privacy of other persons. Even if a person has right to personal liberty he has the duty to afford good environment to others so as not to frustrate their right to religious, moral and cultural teachings of religious leaders to the believers or parents to their children, or not to cause harm of any kind, physically, mentally, or emotionally to others. In short in enjoying fundamental rights a person has a duty of care not to affect other fundamental rights enjoyed by other persons. This is a cardinal principle of social legal responsibility of duty of care in tort, contract or criminal law. Every person has obligation to responsibly enjoy these basic rights and freedoms not to make others’ rights vulnerable.
Within the ambit of the statement by the Vienna Declaration and Program of Action which was attended by 171 member states, it was made clear, reiterated and therefore undisputed that human rights must respect each other. In that sense human rights are meant not to conflict each other. This is what gave rise to imposition of certain restrictions in enjoying these fundamental rights and freedoms by persons so much so that human rights must be subject to certain restrictions. As for example Article 27 of ICCPR while imposing obligations for protection of cultural rights to those countries which have tribes, religions, ethnic groups, vernacular languages, culture and morals; Article 19 of the very ICCPR provides that right to freedom of expression, speech and opinion shall be subject to certain restrictions not to affect rights and freedoms of others, not to affect the morals of the society or affect the national security of a given country. It is therefore clear that the fundamental rights and freedom shall not be extreme.
In this regard, if one person believes that behaving homosexually affects social morality, culture and religion of a given society on one hand and another person believes that he has the personal liberty to behave homosexually or the way he likes, therefore, on the other hand, such person believing to have personal liberty has a restricted right to the extent of not to injure the religion, traditions and moral values of the society which are rights of other members of the same society to enjoy.
At this juncture therefore, the major objects of numerous international instruments relating to protection of cultural rights just like other human rights instruments are meant to protect against extinction, the “intangible cultural heritage of humanity” of the world community.
By no means, can one expect societies from those migration states like Europe and North America having the same customs and traditions as those found in natural or tribal societies like in Africa, South America and Asia.
Article 2 of the CESCR enjoins states to pass legislations with view to protect culture, religion, languages, and morals and alike of certain societies or their ethnic groups so as not to let them go extinct.
Article 3 of International Labour Organization (ILO), in its interpretation of “Worst Forms of Child Labour No. 182 of 1999” provides as thus.
For the purposes of this Convention, the term the worst forms of child labour comprises “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children”.
The ILO Directives to Member States No. 190 on the way of interpretation of Article 3, to wit “Worst Form of Child Labour” insists that the governments must take appropriate measures including legislation to prevent west forms of child labour by explaining such child labour as being those according to their nature and environment are likely to affect the health, safety and morals of the child. This can be read together with Article 14 of the Convention on the Right of the Child, 1991 (CRC), ratified by at least 190 member states that is the world’s majority community convention, which provide that a child shall have freedom of conscience, thought and religion. If the child has a right to good environment to be taught religious doctrines or cultural belief which prohibits homosexuality while in fact at the same time the very child is exposed to witness a man who is having publicly getting married to another man, the right of the child to have good environment for moral growth and religious teachings is contravened, thus not the best interest of the child except grave child exploitation. This is also a violation of the right of the parent of bequeathing his faith and morals inherited from grandparents to pass to his child as an intangible cultural heritage of humanity. While worst enough such intangible cultural heritage of humanity will be extinct because of states abandoning from protecting and promoting them to continue existing through legislations. Thus states, by abandoning the protection and promotion of intangible cultural heritage of humanity inherent in their societies, they are in breach of duty imposed by international law and infringing the basic rights of future generation who will find such intangible cultural heritage of humanity extinct.
Furthermore, Article 32 of the said CRC dictates the states to recognize the right of a child to protection against economic exploitation and against being subjected to any labour which is likely to be dangerous or likely to interfere his education or likely to be injurious to his physical health, mental, moral, social and spiritual growth.
Article 2 of Convention on Genocide, 1948 which came in force in 1951 provides among other things that, to impose into any society the culture or behavior which may render the extinction of culture, religion and morals of such a society amounts to acts of genocide and is therefore an international crime.
Articles 17, 22 and 29 of African Charter on Human and People's Rights (AfCHPR) provide categorically that African states shall be duty bound to pass legislations with view to protect the culture, customs, religions, morals and traditions of an African. The emphasis of the AfCHPR is basically on the preservation of African traditions with the right of an African to cultural identity. Further to this, Articles 2 and 15 of Algiers Declaration insists on the right to respect cultural identity and the right of people not to have an alien culture imposed on it.
By forcing African governments and other anti gay governments around the world to accept homosexuality and single sex marriages in their societies is an offence of imposing alien culture into such societies.
There are so numerous international instruments just to mention which seek to protect intangible cultural heritage of humanity such as The Mexico City Declaration on Cultural Policies which states that “every culture represents a unique and irreplaceable body of values since each people’s traditions and forms of expression are its most effective means of demonstrating its presence in the world”; World Conference on Cultural Policies, Final Report, 1982; American Declaration of the Rights and Duties of Man, American Declaration on the Rights of Indigenous People, etc.
Question: Don’t homosexuals exist in Africa?
The truth is, as it has been pointed out in the fore going that homosexual behavior existed across generations but remained a prohibited behavior both by law, religion and customs. Had had there not been homosexuals in Africa, there would never been laws, religion and traditions prohibiting such behavior. But homosexuality remains prohibited in Africa with view to protection of religion, cultural traditions and social morality belonging to African societies which are fundamental rights of Africans.
Question: Where are our rights to religion, culture, traditions by moral values inherited from ancestors of our tribes? Are these rights of ours protected by our governments or states in accordance with international law?
Proponents of homosexuality and single sex marriages claim that homosexuals were victims of hash social environments and sexual abuse while still young and therefore falling behavioral impaired. They further argue that some homosexuals were born biologically mutated hormonal wise so finding themselves in that sexual behavior. This is very true in the sense that some of homosexuals were subjected to harsh sexual experience and some were born biologically mutated. The issue arises as to which right must supersede another right after proving that the right to homosexual behavior cannot co-exist in the same room with the right to intangible cultural heritage of humanity. That is why international law recognizes the right to intangible cultural heritage of humanity against any dangerous behavior to this right. So governments have a duty to protect their societies against cultural assault.
Question: Does the law question the environment from which the criminal behavior was adapted?
We have been seeing thieves whose theft behaviors were adapted because of hash poverty of their parents, or being street children and orphans because their parents died of HIV AIDS or accidents thus living harsh life experience of their childhood but we prosecute and jail them.
We have been also seeing rape criminals who have been biologically born sexually aggressive due to their being born with hormonal imbalance, that is excessive libido and testosterone inhibiting their proper functioning of their central nervous system at the time of rape, but we prosecute and jail them harshly up to life sentence. Likewise the study has shown that in some cases theft behavior is biologically inherited from parents to off-springs but still theft has remained a crime everywhere around the world. We have furthermore been seeing gunmen being short dead by security officers so as to protect the society while in fact such actions of gunmen have been associated with mental illness. Therefore the back ground from which a person acquired undesirable or criminal behavior cannot be of any legal justification when it comes to the protection of social interests.
This is because, according to Jeremy Bentham (1748-1832) and John Stewart Mill (1806-1873), the laws are there to bring maximum happiness to the many and pains to the fewest members of the community. This Bentham and Mill’s theory still applies in our contemporary societies so as to protect the majority interests. There is no law which can bring universal happiness in the whole society, it is impossible.
Some other proponents of homosexuality contend that homosexuals have the right to personal liberty and they have the right to deal with their body the way they like. Under the UDHR there is no such basic right as personal liberty but supplemented in the legislations of governments embracing homosexuality and same sex marriages. The addition of the word “personal” is a misdirection of Article 3 of UDHR, which states that “everyone has right to life, liberty and security of person”. However, even the personal liberties are subjected to special restrictions under Article 29 of UDHR and 19(3) of ICCPR. These Articles 29 of UDHR and 19 of ICCPR have a broad meaning to delimit humans from behaving unrealistically in relation to basic human rights regard being heeded to other beneficiaries of human rights. Article 29(2) of UDHR provides that “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purposes of securing due recognition and respect of the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare of the democratic society”. Every human being was born unrealistic in nature and he needs law to engineer him socially. For that reason it is no defense that a person has personal liberty so he can behave the way he likes without due regard to possible social injuries reasonably likely to accrue out of enjoying his personal liberties. He needs restrictions in enjoying his personal liberty so as not to affect the basic rights of others! The obligation of a person to respect the rights of other persons arises from a ‘do not injure your neighbor principle’, a cardinal principle of law that imposes a duty of care owed to the general public.
Question: Does homosexual behavior cause us any legal injury?
As it has been stated in the foregoing regarding a duty of care, in law a person may be at liberty to behave the way he likes provided that he owes a duty of care not to injure his neighbours. So if any action does not affect others none can be liable in law for his behavior. Legal injury may be physical or bodily injury or loss, financial injury or loss and mental or psychological or emotional injury or loss.
We have been experiencing in the legal enterprise that plaintiffs have been among other things successfully scooping un-liquidated damages from courts of law for psychological trauma or “emotional injury”. An example of social responsibility of the law against personal liberty can be, let say you are watching a TV while naked in your seating room and suddenly a neighbor knocks at the door seeking permission of entry, automatically you will have to first put on clothes or tie a towel before opening the door for the neighbor. This is because, as it is in the law, there is also a moral or religious duty of care not to injure your neighbor. By opening a door for the entry of your neighbor without putting on clothes you will injure him emotionally or subject such neighbor to temptations. The society is therefore to be protected through legislations against such experience. That way, African societies, being part of international community and beneficiaries of basic human rights are being emotionally injured when they are exposed to homosexual experience. Another form of legal injury caused by homosexual behavior is that threat to the continued existence of intangible cultural heritage of humanity. In this regard, those who are interested in the behavior are duty bound not to show us what they do.
Question: Can acts of governments criminalizing homosexual behavior lead to extermination of the same?
The answer is no. As distinguished from the law, for morals or religion it is enough for a person to appear in the manner consistent to and in conformity with the set religious or moral standards even if he is behaving in the contrary, provided that his evil behavior is seen by none in his society because God who sees him in darkness will judge him when the time is over. The law threatens sanctions upon proof by evidence through investigation while morals threaten declaring persona non grata in a society upon evidence by overt acts; and religion threatens eternal pains after death with or without overt acts which God saw a culprit doing during his lifetime. So, the law, morals and the religion have sanctions in common although such sanctions have different styles of imposition. But, the law differs from morals or religion in the sense that the law goes deep to investigate actions which would be reasonably invisible to the ordinary public. The law has investigation machinery to probe those hidden actions so as to discover whether the suspect has indeed committed the offence wile morals and religion relies on the super power to have been seeing the culprit even if done in the darkness. In law, investigation may start when there is suspicion or complaint, while in morals or religion once a person looks like obeying moral or religious standards it is enough and the rest are left to the super natural power. For that reason, offences of homosexuality just like other crimes and evils are there to stay. The sanctions are merely there to establish fears in the society so as to reduce immoral or criminal extremism but the truth is that we will remain experiencing such actions across generations and those who will be seen contravening the law will also remain facing legal sanctions. So the continued criminalization of the behavior will not lead to extermination of the behavior except to continue creating fear that humans should not be extreme.
In Europe, apart from education without morality and free run rearing of children another factor leading to high rate of homosexual behavior growth includes among other things feminism which I will discuss shortly later.
The brain of human child, by nature is born tabula rasa. As the child grows he can adapt the behavior which the society may consider inacceptable thus a necessary need of nurturing a child under the closer guidance of the parent if necessary combined with soft corporal punishment so as to prepare a child to behave in a socially acceptable manner.
In short, unlike an animal kid, the behavior of a human being by nature is influenced by many factors including intuitions and environment or experience while the behavior of an animal is influenced by only intuitions although in exceptional circumstances the animal can also be trained. That is why the behavior of a goat of New York in USA, will resemble with that behavior of the goat of Tarime in Tanzania, the goat of Ludewa in Tanzania, the goat of Dar es Salaam, India, Hong Kong or South Africa, while the behavior of humans living in those mentioned areas will automatically differ considerably. It is worth noting therefore that early parental guide and nurturing to the child is necessary and it would be advised that European governments have to change laws of child liberty against their parents.
The widespread feminism in Europe and North America and which is also fast growing around the rest of the world including Africa has led to the change of male perceptions from childhood towards gender equality to go beyond to make male children to grow in fear believing that a woman is untouchable sexually. This fact which it is the truth so far as current sexual criminal offences are concerned has led to boys trying sex among themselves when they attain foolish age of growth. The sexual offences and harsh, up to life custodial imprisonment sentences thereto are preparing male children to look for and find alternatives against nature with view to satisfying their involuntary sexual desires including trying to penetrate each other or animals in fear of criminal liabilities imposed by law in case they have carnal knowledge with their fellow girls. Or girls who are too protected by law against being sexual penetration find themselves forced by nature falling in sexual relationships with their fellow girls. The law against sexual intercourse is as a matter of law intending a girl below eighteen not to be penetrated sexually but as a matter of fact girls are not protected by law against premature sexual penetration. This is because, following the fact that even girls are naturally desirous of being penetrated by men while their fellow boys who would play with them are still afraid of even to venture trying to seduce such fellow girls in fear of legal consequences, the effect has been that girls bellow eighteen have found themselves falling into traps of adult men who date them for money instead of love or true feelings of sex. Or such girls find themselves falling in love with their fellow girls. A boy below eighteen cannot convince a girl above eighteen for sexual relationship. But again if a boy attains eighteen will find his age mate girl above eighteen too demanding financially thus such a boy prefers to have a consensual sexual relationship with his fellow boy or animal. That is where the addiction to homosexuality starts. That is to say, until the age of majority, girls do get addicted to moneys because in their childhood they were protected by law but those with money abused them sexually thus growing without natural love to men. And those fellow boys, having no money to entertain their fellow girls for sexual partnership while their age demands strong sexual desires find themselves being forced by circumstances into same sex relationships. That is why we find that in those countries with high level of feminism we find a large number of same sex love relationships. Sexual intercourse is not a voluntary action and therefore trying to force children to refrain from intermingling or doing sexual intercourse at that foolish age is trying to hinder the nature.
The effect of feminism in Tanzania, we have started to witness the way an escalating number of children below 12, girls and boys are running victims of molestation. In today’s generation adult men are failing to convince women for sexual relationships because of cost implications, the result of which they tend to rape children irrespective of gender something which leads such victimized children to adapt homosexuality as they grow up. The Office of the Director of Public Prosecutions has a record of reported child molestation below twelve by age up to 600 in number in year 2019, although the study is not yet known as to whether the culprits are acting under influence of the homosexuality movement or it is solely an automatic consequence of feminism. This is a disgusting danger.
According to Patrick Devlin (1905-1992) in his book titled “The Enforcement of Morals” (1959) he says that "the general convictions and judgments of the society about a certain phenomenon is where legal decisions must be rested"; that is to say the laws passed by states and judgments passed by courts in a given society must be poised to reflect or meet the general social convictions and judgments of a certain phenomenon.
In sociology we have acceptable norms and unacceptable norms. Those acceptable norms are those social norms where legal principles must be rested. Social norms are rules of social perceptions and conducts (beliefs, attitudes or behaviors) which are socially acceptable in a particular social or cultural group calculated to engineering the behavior – mind relationship of an individual in the light of social attitudes.
Now, the judgments and convictions of our African societies are that homosexual behavior and single sex marriages are a disgusting pollution and an assault against African morality and religion on the one hand but on the other hand homosexuality and or single sex marriages are threats to the continued existence of our intangible cultural heritage of humanity which are raison d’être of the United Nations and international human rights law.
African Commission is the first to blame for keeping inarticulate about this homosexual pandemic by failure of giving appropriate directives to African states with regard to taking appropriate measures of protection of African culture in conformity with the African Charter. The same applies to African Court of Justice because both the Court and the Commission are being operated in the European Union model instead of African Union Model. The next to blame is UNESCO because it has remained dealing cursorily with culture for concentrating its resources to only monuments and stones while forgetting our intangible cultural heritage of humanity. Indeed UNESCO has totally denied the preservation of traditions, tribal values, religion, vernacular languages which are at risk of extinction.
“Culture implies more than just monuments and stones – culture defines who we are. It carries universal values and the many faces of our shared humanity. It is the wellspring of collective imagination, memory and belonging. It is a source of resilience, well-being and social cohesion. It is a force for recovery, creativity and innovation. When peoples’ cultures are threatened, when their heritage is deliberately attacked, when their cultural rights are violated, we must respond with more culture, more knowledge, more unity. When culture is at the frontline of crisis, it must also be on the frontline of recovery and peace-building. Development cannot be sustainable without culture and there can be no lasting peace without respect for cultural diversity and artistic freedom. Protecting culture and heritage means protecting people. This is what UNESCO stands for”.
Irina Bokova, Director-General of UNESCO.
UNESCO was purposefully founded and established by United Nations in 1945 as the successor to the League of Nations being a specialized agency of the United Nations aimed at promoting world peace and security through international cooperation, education, the sciences and culture.
Before the establishment of UNESCO, the nations and tribes around the world used to enter into armed conflicts due to, among other things, disrespects of the culture, religion or traditions of one society by another society. Thus through UNESCO the United Nations recognizes that culture, education and sciences cooperation will promote world peace and security. So by respecting peoples’ culture, religion and traditions of every society the world became peaceful to the largest percent because the disrespect of others’ culture, religion and traditions was among major contributory factors that led to recurring wars of the time; hence UNESCO coming at play. At the World Conference on Cultural Policies, UNESCO proclaimed a right to cultural identity while today the very UNESCO is condoning the behavior threatening the continued existence of its raison d’être, the culture.
Today UNESCO’s functions are no longer practical but have merely remained in papers and lips of officers.
Question: Why are the first world countries very aggressive in protection and promotion of homosexuality?
Following the advancement and widespread personal liberties and feminism in Western Europe and North American countries, the governments in those continents can no longer control their societies anymore to the extent that homosexuality and sodomy are no longer uncommon to almost every citizen and in the sense that this lifestyle cannot be prohibited by law. And unfortunately, members of those countries never tested being discriminated in history save used to discriminate Africans. This experience is cracking the minds of advanced societies as a shame for a white man being discriminated by a black man; something which was never expected to happen in this world. Therefore it becomes the necessary step for gay governments to force the universal socio-legal acceptability of homosexuality and same sex marriages so that those who are already captives of the behavior including white men should not be discriminated on the ground of sexual orientation. I would suggest instead of assaulting antigay laws, cultures, religion and traditions, the governments around the world should join together by taking global initiative against homosexuality using necessary resources for psychiatric measures to cure the generation. For those who will be affected by the behavior to undergo psychological rehabilitation through counseling but it will be better to take a lifelong commitment to nurture children in the environment discouraging them from being homosexuals.
Conclusion.
There is no person or group of persons who has jurisdiction to disrupt or assault the traditions, religion or moral values of tribal societies both under regional or international instruments and therefore those persons or governments advocating for homosexuality and same sex marriages in African societies or any other tribal societies around the world where homosexuality is a prohibited behavior are committing international crime against humanity which attracts international condemnation.
And, according to international human rights law, all governments around the world are inevitably responsible at the highest level to prepare for us conducive environments and protection to afford us pass our faiths, religions, customs, traditions and moral values across generations.
The continued publication, exhibition, protection, promotion and animation of homosexuality and single sex marriages are child exploitation, genocide and therefore a crime against humanity.
The wave of homosexuality and same sex marriages is a fast growing threat in Africa and the rest of the world without due regard that those countries which have tribes are duty bound to exercise their state sovereignty in furtherance of Article 29 of UDHR, Article 27 of ICCPR, Article 2 of CESCR, Article 17 of AfCHPR and all relevant international instruments tending to protect our cultural rights, rights to cultural identity and all other intangible cultural heritage of humanity.
This is a generation of our times and we are the parents of this generation so much so that we should not expect other parents to come for nurturing moral conducts of our children. So we cannot derogate this hereditary parental duty to pass to our children, the faith, traditions and moral values; which our ancestors passed to us throughout generations. This is the holy war of rights (bellum sanctus) under international arena. This is a generation which every individual person is supposed to hold tight his faith against conflicting environment and claim his rights.
As parents of this generation, we have a duty to fight for, prepare and conserve a better place for our children. We have a duty to fight for convenient environment for teaching our religions, customs, traditions and moral values to our children. This war should not be left to only to governments or religious institutions except it is the war every individual should confront around the world.
What will be our defense before God if we leave our children in a dirty world whole our ancestors managed to preserve and bequeathed this earth in its moral purity?
Where are African lawyers to advocate for African moral and religious rights? Are we really responsible fathers of this generation of our times?
A good father leaves a better place for his children!
And God bless you all.
God bless Tanzania, God bless Africa.
________________________
Obadia Kajungu, Esq.
(ADVOCATE)
Sent from my Infinix X657B using JamiiForums mobile app
By
Obadia Kajungu, Esq.
(ADVOCATE)
Abstract.
This planet is one and it is for everybody so much so that there is no one person who has a better right to enjoy the earth than the other person to the effect that every right shall not let other rights vulnerable in the sense that if you rejoice in your rights on the planet give a better place for others to rejoice in their rights on the planet.
Introduction
Everybody around the globe shall be a witness in this generation of our times about the growing controversial international social issues of homosexuality and same sex marriages being protected or promoted by states under the influence of activists, lawyers, newsmen and but not limited to politicians vying to transform the whole world’s human community to accept the prohibited behavior of homosexuality and sodomy. The behavior is supported by a global network of group of persons known as Lesbians, Gays, Bisexual and Transgender (LGBTQ movement), hereinafter the movement. The movement is haunting the minds of the whole human community around the world for its escalating ambivalent social perceptions and acceptability by various global societies. The movement is seeking to advocate the right of same sex to enjoy carnal knowledge or in other words, sexual intercourse even going beyond to advocate for marital union of same sex persons!
This movement is suspected to have been a result of group of unrealistic rich nihilist persons around the world who are pressurizing the governments to declare homosexuality and same sex marriages globally socially and legally acceptable through politicians, newsmen, lawyers and activists on the pretext of human rights, particularly right to personal liberty and freedom of expression.
The activists and other proponents of the movement are vying to induce governments whose legislatures are prohibiting homosexual behavior so as to dis-apply such laws and instead, pass new laws to warrant homosexuality and same sex marriages socially and legally justifiable on the pretext of human rights.
The Protection of Homosexuality and Same Sex Marriages as
Offences against International Human Rights Law
The acts of supporting or promotion or animation of homosexuality and single sex marriages are in principle a serious violation of international human rights treaties and for that reason, states, governments, activists and any other person or group of persons supporting in any way the movement are violating fundamental human rights, that is the right to cultural heritage and right to cultural identity and their continued actions attracts unanimous condemnations by international human community.
The word culture would mean to include the arts and other manifestations of human intellectual achievement regarded collectively, the ideas, customs, religion, traditions, values and social behavior of a particular people or society. Or culture is the set of distinctive spiritual, material, intellectual and emotional features of society or a social group that encompasses not only art and literature, but lifestyles, ways of living together, value systems, traditions and beliefs (UNESCO, 2001).
After the adoption by the United Nations General Assembly of the Universal Declaration of Human Rights (UDHR) on the 10th of December 1949, the United Nations Commission on Human Rights divided the rights contained in the UDHR into two separate international covenants, one being civil and political rights as enshrined in International Covenant on Civil and Political Rights(ICCPR) and the other being economic, social and cultural rights as enshrined in the Convention on Economic, Social and Cultural Rights(CESCR) thus becoming common among lawyers and other human rights stakeholders to consider the International Bill of Human Rights as consisting of two distinct categories of human rights.
This movement has already put under the siege, governments of western countries particularly Western Europe and North America, and such governments have, in furtherance of the desires of homosexuals, passed legislations to extend the definition of a phrase non discrimination to include “non discrimination on sexual orientation.” This definition of the term discrimination has been broadened by the governments already accepting homosexuality beyond ambits of the UDHR which as of today, Article 2 still provides that ‘everyone is entitled to all the rights without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
In Africa, the westerners are fiercely engulfing anti-gay governments to follow the compass needle by transforming the attitude of African tribal societies towards homosexuality through legislation even going beyond to threatening economic sanctions against such anti-gay governments.
Homosexuality is not a new phenomenon in the human history as the behavior is traceable even in prehistoric societies and ancient Greece and Israel, but it has been declared a prohibited behavior, not only because of the bible but also human conscience. Even in Africa where the bible was not yet preached by colonialists it has been the African moral standing until today that “the man is sexually impenetrable.” Or it is the right of the Catholic or Muslims or a member of African Tribal communities to believe, continue believing and seeing that marriages are between men and women.
The culture, customs, religions, traditions, moral values, tribal languages and alike of the world societies do differ from one society to another. There are some societies such as Europe and North America which have no cultural diversity because of having no tribes or ethnic groups presumably because of partly being migration states or due to sociological revolution or for whatever cause thus having a high level of behavioral tolerance unlike those counties in which tribes, religions and ethnic groups exist like in Africa, South America and Asia. These tribes and ethnic groups have their religions, moral values, vernacular languages, customs, cultures and alike which do not accept homosexuality and same sex love or marriages.
Under international law these religions, moral values, vernacular languages, customs, cultures and alike are protected so that they should not go extinct.
That is why in African schools we have slight caning punishment for children when they behave in a manner inacceptable unlike European schools. The corporal punishments to school children in African schools seek to discourage children while at tender age from growing into behavior which is undesirable in comparison with acceptable standards of African social morality. Therefore African education is dual traffic in the sense that it goes with academics combined with morality while European education is single traffic in the sense that it goes with only academics and let it go alone or in other words “untamed mankind”.
Question: What is the position of homosexuality and same sex marriages in the international law perspective?
As we have observed in the foregoing, the International Bill of Human Rights consists of two distinct categories of human rights, which are categorized into three generations, that is to say, the first generation human rights namely civil and political rights; the second generation human rights namely economic, social and cultural rights but later there was added to these economic social and cultural rights the third generation human rights namely solidarity rights such as the right to self-determination and right to development. So, within the economic, social and cultural rights is where we find second and third generation human rights. Just to cut the story short the civil and political rights are fundamental rights which the states are prohibited to interfere with such rights while economic social and cultural rights are fundamental rights which the states are obligated to protect and promote. In principle every human being is a member and beneficiary of fundamental rights in that there is none has a better enjoyment of these rights than the other. Article 22 of the UDHR provides that;
“everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”
Also, Article 27 of the ICCPR provides for rights of persons belonging to ethnic, religious or linguistic groups thus the governments have obligations to protect such groups’ culture, traditions and religion against assault or any other threat. This right was also reiterated by the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992.
Now basing on the fundamental rights as outlined in the International Bill of Human Rights it is worth noting that these rights are not meant to include every right to be basic or fundamental rights if they are not "innate or inborn or inalienable rights to all human beings. Right to life, right to freedom of association, right to education, right to freedom of expression, right to freedom of belief, right to cultural identity, right to privacy, etc are fundamental or basic rights unlike addictive consensual behaviors such as trying and becoming addicted to same sex, trying and becoming addicted to alcoholism, trying and becoming addicted to cannabis opium, trying and becoming addicted to prostitution, trying and becoming addicted to unrealistic personal liberty without due regard to others emotions, and alike which will later be addictive and difficult for a person to refrain cannot turn to be fundamental rights simply because the culprit cannot refrain from the behavior.
In passing resolutions, the United Nations General Assembly sought to protect the tribal societies and ethnic groups against behavior or culture which may tend to absorb the cultures, religions, tribal languages and moral values of such tribal societies or ethnic groups. These are fundamental human rights and freedoms as being intangible cultural heritage of humanity and states are duty bound to protect and promote.
Homosexuality has a conflicting effect to intangible cultural heritage of humanity by tending to absorb faith, religion, cultural customs and traditions which prohibit this behavior in the sense that such belief, religion, cultural customs and traditions are taught to human being during the early stage of childhood. So, at the infant stage of human growth, a child cannot successfully be taught about religious belief, traditions and moral values of his society in the environment tempting such a child not to trust the said religious belief, traditions or moral values he is being taught by his parent or religious or tribal leader.
The essence of the International Bill of Human Rights is until tomorrow to protect the basic rights of mankind that are innate and inalienable. That is why these rights are termed as fundamental or universal or basic rights because everyone was born with them. Homosexuality is not innate or inborn in itself for its being the adapted behavior by an individual in an exceptional environment as a result of either his curiosity or learning from other persons or society surrounding him eventually becoming behavioral malignant, and for that reason homosexuality cannot be a universal right!
Behavior means acts which a person finds himself to have got used to and adapting as inseparable part of his life due to environment or experience or genetical heredity. The law or morals or religion in most of societies seek to prohibit certain human behavior.
The legal theories explain the behavior prohibited by law as crime while behaviors prohibited by social morality or religion are said to be evils. Any person who commits a crime is liable for legal sanction while any person who commits evil things is said to be sinful. Homosexuality is in most of societies prohibited by law, religion and tribal customs around the world including African societies.
According the Draft Declaration on Rights and Duties of States, 1949, the state has unlimited rights to protect its perpetual existence and therefore has the right to legislate and enforce its laws without interference of other states. Those laws passed by legislation can be for purposes of preserving ordre public, protection of its resources, national security, international relationship or any law which the state thinks fit and appropriate for its society including preserving social morality, religion, traditions, values, customs, usages and other intangible cultural heritage of humanity found in its society. In preserving of such social morality, religion, traditions, customs, values, or in other words referred to by UNESCO as “intangible cultural heritage of humanity” found in the society of a given state, the legislation of laws for that purposes, states are acting under the dictate of international conventions and for that reason the states are duty bound to do so by international law not by their own options. In furtherance of this obligation therefore the states are duty bound to criminalize any acts or behavior which it thinks is likely to be dangerous to the continued existence of the said intangible cultural heritage of humanity.
Pursuant to the International Bill of Human Rights, United Nations General Assembly has, through the most recent World Conference on Human Rights, 1993 referred to as the Vienna Declaration and Program of Action, declared that “all human rights are universal, indivisible, interdependent and interrelated.” For this reason therefore if a person is, say enjoying freedom of speech he must be vigilant to the effect of warning himself that every person has the right to dignity, privacy and respect. Thus, in his speech, such a person enjoying freedom of speech should not to affect the reputation, dignity and privacy of other persons. Even if a person has right to personal liberty he has the duty to afford good environment to others so as not to frustrate their right to religious, moral and cultural teachings of religious leaders to the believers or parents to their children, or not to cause harm of any kind, physically, mentally, or emotionally to others. In short in enjoying fundamental rights a person has a duty of care not to affect other fundamental rights enjoyed by other persons. This is a cardinal principle of social legal responsibility of duty of care in tort, contract or criminal law. Every person has obligation to responsibly enjoy these basic rights and freedoms not to make others’ rights vulnerable.
Within the ambit of the statement by the Vienna Declaration and Program of Action which was attended by 171 member states, it was made clear, reiterated and therefore undisputed that human rights must respect each other. In that sense human rights are meant not to conflict each other. This is what gave rise to imposition of certain restrictions in enjoying these fundamental rights and freedoms by persons so much so that human rights must be subject to certain restrictions. As for example Article 27 of ICCPR while imposing obligations for protection of cultural rights to those countries which have tribes, religions, ethnic groups, vernacular languages, culture and morals; Article 19 of the very ICCPR provides that right to freedom of expression, speech and opinion shall be subject to certain restrictions not to affect rights and freedoms of others, not to affect the morals of the society or affect the national security of a given country. It is therefore clear that the fundamental rights and freedom shall not be extreme.
In this regard, if one person believes that behaving homosexually affects social morality, culture and religion of a given society on one hand and another person believes that he has the personal liberty to behave homosexually or the way he likes, therefore, on the other hand, such person believing to have personal liberty has a restricted right to the extent of not to injure the religion, traditions and moral values of the society which are rights of other members of the same society to enjoy.
At this juncture therefore, the major objects of numerous international instruments relating to protection of cultural rights just like other human rights instruments are meant to protect against extinction, the “intangible cultural heritage of humanity” of the world community.
By no means, can one expect societies from those migration states like Europe and North America having the same customs and traditions as those found in natural or tribal societies like in Africa, South America and Asia.
Article 2 of the CESCR enjoins states to pass legislations with view to protect culture, religion, languages, and morals and alike of certain societies or their ethnic groups so as not to let them go extinct.
Article 3 of International Labour Organization (ILO), in its interpretation of “Worst Forms of Child Labour No. 182 of 1999” provides as thus.
For the purposes of this Convention, the term the worst forms of child labour comprises “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children”.
The ILO Directives to Member States No. 190 on the way of interpretation of Article 3, to wit “Worst Form of Child Labour” insists that the governments must take appropriate measures including legislation to prevent west forms of child labour by explaining such child labour as being those according to their nature and environment are likely to affect the health, safety and morals of the child. This can be read together with Article 14 of the Convention on the Right of the Child, 1991 (CRC), ratified by at least 190 member states that is the world’s majority community convention, which provide that a child shall have freedom of conscience, thought and religion. If the child has a right to good environment to be taught religious doctrines or cultural belief which prohibits homosexuality while in fact at the same time the very child is exposed to witness a man who is having publicly getting married to another man, the right of the child to have good environment for moral growth and religious teachings is contravened, thus not the best interest of the child except grave child exploitation. This is also a violation of the right of the parent of bequeathing his faith and morals inherited from grandparents to pass to his child as an intangible cultural heritage of humanity. While worst enough such intangible cultural heritage of humanity will be extinct because of states abandoning from protecting and promoting them to continue existing through legislations. Thus states, by abandoning the protection and promotion of intangible cultural heritage of humanity inherent in their societies, they are in breach of duty imposed by international law and infringing the basic rights of future generation who will find such intangible cultural heritage of humanity extinct.
Furthermore, Article 32 of the said CRC dictates the states to recognize the right of a child to protection against economic exploitation and against being subjected to any labour which is likely to be dangerous or likely to interfere his education or likely to be injurious to his physical health, mental, moral, social and spiritual growth.
Article 2 of Convention on Genocide, 1948 which came in force in 1951 provides among other things that, to impose into any society the culture or behavior which may render the extinction of culture, religion and morals of such a society amounts to acts of genocide and is therefore an international crime.
Articles 17, 22 and 29 of African Charter on Human and People's Rights (AfCHPR) provide categorically that African states shall be duty bound to pass legislations with view to protect the culture, customs, religions, morals and traditions of an African. The emphasis of the AfCHPR is basically on the preservation of African traditions with the right of an African to cultural identity. Further to this, Articles 2 and 15 of Algiers Declaration insists on the right to respect cultural identity and the right of people not to have an alien culture imposed on it.
By forcing African governments and other anti gay governments around the world to accept homosexuality and single sex marriages in their societies is an offence of imposing alien culture into such societies.
There are so numerous international instruments just to mention which seek to protect intangible cultural heritage of humanity such as The Mexico City Declaration on Cultural Policies which states that “every culture represents a unique and irreplaceable body of values since each people’s traditions and forms of expression are its most effective means of demonstrating its presence in the world”; World Conference on Cultural Policies, Final Report, 1982; American Declaration of the Rights and Duties of Man, American Declaration on the Rights of Indigenous People, etc.
Question: Don’t homosexuals exist in Africa?
The truth is, as it has been pointed out in the fore going that homosexual behavior existed across generations but remained a prohibited behavior both by law, religion and customs. Had had there not been homosexuals in Africa, there would never been laws, religion and traditions prohibiting such behavior. But homosexuality remains prohibited in Africa with view to protection of religion, cultural traditions and social morality belonging to African societies which are fundamental rights of Africans.
Question: Where are our rights to religion, culture, traditions by moral values inherited from ancestors of our tribes? Are these rights of ours protected by our governments or states in accordance with international law?
Proponents of homosexuality and single sex marriages claim that homosexuals were victims of hash social environments and sexual abuse while still young and therefore falling behavioral impaired. They further argue that some homosexuals were born biologically mutated hormonal wise so finding themselves in that sexual behavior. This is very true in the sense that some of homosexuals were subjected to harsh sexual experience and some were born biologically mutated. The issue arises as to which right must supersede another right after proving that the right to homosexual behavior cannot co-exist in the same room with the right to intangible cultural heritage of humanity. That is why international law recognizes the right to intangible cultural heritage of humanity against any dangerous behavior to this right. So governments have a duty to protect their societies against cultural assault.
Question: Does the law question the environment from which the criminal behavior was adapted?
We have been seeing thieves whose theft behaviors were adapted because of hash poverty of their parents, or being street children and orphans because their parents died of HIV AIDS or accidents thus living harsh life experience of their childhood but we prosecute and jail them.
We have been also seeing rape criminals who have been biologically born sexually aggressive due to their being born with hormonal imbalance, that is excessive libido and testosterone inhibiting their proper functioning of their central nervous system at the time of rape, but we prosecute and jail them harshly up to life sentence. Likewise the study has shown that in some cases theft behavior is biologically inherited from parents to off-springs but still theft has remained a crime everywhere around the world. We have furthermore been seeing gunmen being short dead by security officers so as to protect the society while in fact such actions of gunmen have been associated with mental illness. Therefore the back ground from which a person acquired undesirable or criminal behavior cannot be of any legal justification when it comes to the protection of social interests.
This is because, according to Jeremy Bentham (1748-1832) and John Stewart Mill (1806-1873), the laws are there to bring maximum happiness to the many and pains to the fewest members of the community. This Bentham and Mill’s theory still applies in our contemporary societies so as to protect the majority interests. There is no law which can bring universal happiness in the whole society, it is impossible.
Some other proponents of homosexuality contend that homosexuals have the right to personal liberty and they have the right to deal with their body the way they like. Under the UDHR there is no such basic right as personal liberty but supplemented in the legislations of governments embracing homosexuality and same sex marriages. The addition of the word “personal” is a misdirection of Article 3 of UDHR, which states that “everyone has right to life, liberty and security of person”. However, even the personal liberties are subjected to special restrictions under Article 29 of UDHR and 19(3) of ICCPR. These Articles 29 of UDHR and 19 of ICCPR have a broad meaning to delimit humans from behaving unrealistically in relation to basic human rights regard being heeded to other beneficiaries of human rights. Article 29(2) of UDHR provides that “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purposes of securing due recognition and respect of the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare of the democratic society”. Every human being was born unrealistic in nature and he needs law to engineer him socially. For that reason it is no defense that a person has personal liberty so he can behave the way he likes without due regard to possible social injuries reasonably likely to accrue out of enjoying his personal liberties. He needs restrictions in enjoying his personal liberty so as not to affect the basic rights of others! The obligation of a person to respect the rights of other persons arises from a ‘do not injure your neighbor principle’, a cardinal principle of law that imposes a duty of care owed to the general public.
Question: Does homosexual behavior cause us any legal injury?
As it has been stated in the foregoing regarding a duty of care, in law a person may be at liberty to behave the way he likes provided that he owes a duty of care not to injure his neighbours. So if any action does not affect others none can be liable in law for his behavior. Legal injury may be physical or bodily injury or loss, financial injury or loss and mental or psychological or emotional injury or loss.
We have been experiencing in the legal enterprise that plaintiffs have been among other things successfully scooping un-liquidated damages from courts of law for psychological trauma or “emotional injury”. An example of social responsibility of the law against personal liberty can be, let say you are watching a TV while naked in your seating room and suddenly a neighbor knocks at the door seeking permission of entry, automatically you will have to first put on clothes or tie a towel before opening the door for the neighbor. This is because, as it is in the law, there is also a moral or religious duty of care not to injure your neighbor. By opening a door for the entry of your neighbor without putting on clothes you will injure him emotionally or subject such neighbor to temptations. The society is therefore to be protected through legislations against such experience. That way, African societies, being part of international community and beneficiaries of basic human rights are being emotionally injured when they are exposed to homosexual experience. Another form of legal injury caused by homosexual behavior is that threat to the continued existence of intangible cultural heritage of humanity. In this regard, those who are interested in the behavior are duty bound not to show us what they do.
Question: Can acts of governments criminalizing homosexual behavior lead to extermination of the same?
The answer is no. As distinguished from the law, for morals or religion it is enough for a person to appear in the manner consistent to and in conformity with the set religious or moral standards even if he is behaving in the contrary, provided that his evil behavior is seen by none in his society because God who sees him in darkness will judge him when the time is over. The law threatens sanctions upon proof by evidence through investigation while morals threaten declaring persona non grata in a society upon evidence by overt acts; and religion threatens eternal pains after death with or without overt acts which God saw a culprit doing during his lifetime. So, the law, morals and the religion have sanctions in common although such sanctions have different styles of imposition. But, the law differs from morals or religion in the sense that the law goes deep to investigate actions which would be reasonably invisible to the ordinary public. The law has investigation machinery to probe those hidden actions so as to discover whether the suspect has indeed committed the offence wile morals and religion relies on the super power to have been seeing the culprit even if done in the darkness. In law, investigation may start when there is suspicion or complaint, while in morals or religion once a person looks like obeying moral or religious standards it is enough and the rest are left to the super natural power. For that reason, offences of homosexuality just like other crimes and evils are there to stay. The sanctions are merely there to establish fears in the society so as to reduce immoral or criminal extremism but the truth is that we will remain experiencing such actions across generations and those who will be seen contravening the law will also remain facing legal sanctions. So the continued criminalization of the behavior will not lead to extermination of the behavior except to continue creating fear that humans should not be extreme.
In Europe, apart from education without morality and free run rearing of children another factor leading to high rate of homosexual behavior growth includes among other things feminism which I will discuss shortly later.
The brain of human child, by nature is born tabula rasa. As the child grows he can adapt the behavior which the society may consider inacceptable thus a necessary need of nurturing a child under the closer guidance of the parent if necessary combined with soft corporal punishment so as to prepare a child to behave in a socially acceptable manner.
In short, unlike an animal kid, the behavior of a human being by nature is influenced by many factors including intuitions and environment or experience while the behavior of an animal is influenced by only intuitions although in exceptional circumstances the animal can also be trained. That is why the behavior of a goat of New York in USA, will resemble with that behavior of the goat of Tarime in Tanzania, the goat of Ludewa in Tanzania, the goat of Dar es Salaam, India, Hong Kong or South Africa, while the behavior of humans living in those mentioned areas will automatically differ considerably. It is worth noting therefore that early parental guide and nurturing to the child is necessary and it would be advised that European governments have to change laws of child liberty against their parents.
The widespread feminism in Europe and North America and which is also fast growing around the rest of the world including Africa has led to the change of male perceptions from childhood towards gender equality to go beyond to make male children to grow in fear believing that a woman is untouchable sexually. This fact which it is the truth so far as current sexual criminal offences are concerned has led to boys trying sex among themselves when they attain foolish age of growth. The sexual offences and harsh, up to life custodial imprisonment sentences thereto are preparing male children to look for and find alternatives against nature with view to satisfying their involuntary sexual desires including trying to penetrate each other or animals in fear of criminal liabilities imposed by law in case they have carnal knowledge with their fellow girls. Or girls who are too protected by law against being sexual penetration find themselves forced by nature falling in sexual relationships with their fellow girls. The law against sexual intercourse is as a matter of law intending a girl below eighteen not to be penetrated sexually but as a matter of fact girls are not protected by law against premature sexual penetration. This is because, following the fact that even girls are naturally desirous of being penetrated by men while their fellow boys who would play with them are still afraid of even to venture trying to seduce such fellow girls in fear of legal consequences, the effect has been that girls bellow eighteen have found themselves falling into traps of adult men who date them for money instead of love or true feelings of sex. Or such girls find themselves falling in love with their fellow girls. A boy below eighteen cannot convince a girl above eighteen for sexual relationship. But again if a boy attains eighteen will find his age mate girl above eighteen too demanding financially thus such a boy prefers to have a consensual sexual relationship with his fellow boy or animal. That is where the addiction to homosexuality starts. That is to say, until the age of majority, girls do get addicted to moneys because in their childhood they were protected by law but those with money abused them sexually thus growing without natural love to men. And those fellow boys, having no money to entertain their fellow girls for sexual partnership while their age demands strong sexual desires find themselves being forced by circumstances into same sex relationships. That is why we find that in those countries with high level of feminism we find a large number of same sex love relationships. Sexual intercourse is not a voluntary action and therefore trying to force children to refrain from intermingling or doing sexual intercourse at that foolish age is trying to hinder the nature.
The effect of feminism in Tanzania, we have started to witness the way an escalating number of children below 12, girls and boys are running victims of molestation. In today’s generation adult men are failing to convince women for sexual relationships because of cost implications, the result of which they tend to rape children irrespective of gender something which leads such victimized children to adapt homosexuality as they grow up. The Office of the Director of Public Prosecutions has a record of reported child molestation below twelve by age up to 600 in number in year 2019, although the study is not yet known as to whether the culprits are acting under influence of the homosexuality movement or it is solely an automatic consequence of feminism. This is a disgusting danger.
According to Patrick Devlin (1905-1992) in his book titled “The Enforcement of Morals” (1959) he says that "the general convictions and judgments of the society about a certain phenomenon is where legal decisions must be rested"; that is to say the laws passed by states and judgments passed by courts in a given society must be poised to reflect or meet the general social convictions and judgments of a certain phenomenon.
In sociology we have acceptable norms and unacceptable norms. Those acceptable norms are those social norms where legal principles must be rested. Social norms are rules of social perceptions and conducts (beliefs, attitudes or behaviors) which are socially acceptable in a particular social or cultural group calculated to engineering the behavior – mind relationship of an individual in the light of social attitudes.
Now, the judgments and convictions of our African societies are that homosexual behavior and single sex marriages are a disgusting pollution and an assault against African morality and religion on the one hand but on the other hand homosexuality and or single sex marriages are threats to the continued existence of our intangible cultural heritage of humanity which are raison d’être of the United Nations and international human rights law.
African Commission is the first to blame for keeping inarticulate about this homosexual pandemic by failure of giving appropriate directives to African states with regard to taking appropriate measures of protection of African culture in conformity with the African Charter. The same applies to African Court of Justice because both the Court and the Commission are being operated in the European Union model instead of African Union Model. The next to blame is UNESCO because it has remained dealing cursorily with culture for concentrating its resources to only monuments and stones while forgetting our intangible cultural heritage of humanity. Indeed UNESCO has totally denied the preservation of traditions, tribal values, religion, vernacular languages which are at risk of extinction.
“Culture implies more than just monuments and stones – culture defines who we are. It carries universal values and the many faces of our shared humanity. It is the wellspring of collective imagination, memory and belonging. It is a source of resilience, well-being and social cohesion. It is a force for recovery, creativity and innovation. When peoples’ cultures are threatened, when their heritage is deliberately attacked, when their cultural rights are violated, we must respond with more culture, more knowledge, more unity. When culture is at the frontline of crisis, it must also be on the frontline of recovery and peace-building. Development cannot be sustainable without culture and there can be no lasting peace without respect for cultural diversity and artistic freedom. Protecting culture and heritage means protecting people. This is what UNESCO stands for”.
Irina Bokova, Director-General of UNESCO.
UNESCO was purposefully founded and established by United Nations in 1945 as the successor to the League of Nations being a specialized agency of the United Nations aimed at promoting world peace and security through international cooperation, education, the sciences and culture.
Before the establishment of UNESCO, the nations and tribes around the world used to enter into armed conflicts due to, among other things, disrespects of the culture, religion or traditions of one society by another society. Thus through UNESCO the United Nations recognizes that culture, education and sciences cooperation will promote world peace and security. So by respecting peoples’ culture, religion and traditions of every society the world became peaceful to the largest percent because the disrespect of others’ culture, religion and traditions was among major contributory factors that led to recurring wars of the time; hence UNESCO coming at play. At the World Conference on Cultural Policies, UNESCO proclaimed a right to cultural identity while today the very UNESCO is condoning the behavior threatening the continued existence of its raison d’être, the culture.
Today UNESCO’s functions are no longer practical but have merely remained in papers and lips of officers.
Question: Why are the first world countries very aggressive in protection and promotion of homosexuality?
Following the advancement and widespread personal liberties and feminism in Western Europe and North American countries, the governments in those continents can no longer control their societies anymore to the extent that homosexuality and sodomy are no longer uncommon to almost every citizen and in the sense that this lifestyle cannot be prohibited by law. And unfortunately, members of those countries never tested being discriminated in history save used to discriminate Africans. This experience is cracking the minds of advanced societies as a shame for a white man being discriminated by a black man; something which was never expected to happen in this world. Therefore it becomes the necessary step for gay governments to force the universal socio-legal acceptability of homosexuality and same sex marriages so that those who are already captives of the behavior including white men should not be discriminated on the ground of sexual orientation. I would suggest instead of assaulting antigay laws, cultures, religion and traditions, the governments around the world should join together by taking global initiative against homosexuality using necessary resources for psychiatric measures to cure the generation. For those who will be affected by the behavior to undergo psychological rehabilitation through counseling but it will be better to take a lifelong commitment to nurture children in the environment discouraging them from being homosexuals.
Conclusion.
There is no person or group of persons who has jurisdiction to disrupt or assault the traditions, religion or moral values of tribal societies both under regional or international instruments and therefore those persons or governments advocating for homosexuality and same sex marriages in African societies or any other tribal societies around the world where homosexuality is a prohibited behavior are committing international crime against humanity which attracts international condemnation.
And, according to international human rights law, all governments around the world are inevitably responsible at the highest level to prepare for us conducive environments and protection to afford us pass our faiths, religions, customs, traditions and moral values across generations.
The continued publication, exhibition, protection, promotion and animation of homosexuality and single sex marriages are child exploitation, genocide and therefore a crime against humanity.
The wave of homosexuality and same sex marriages is a fast growing threat in Africa and the rest of the world without due regard that those countries which have tribes are duty bound to exercise their state sovereignty in furtherance of Article 29 of UDHR, Article 27 of ICCPR, Article 2 of CESCR, Article 17 of AfCHPR and all relevant international instruments tending to protect our cultural rights, rights to cultural identity and all other intangible cultural heritage of humanity.
This is a generation of our times and we are the parents of this generation so much so that we should not expect other parents to come for nurturing moral conducts of our children. So we cannot derogate this hereditary parental duty to pass to our children, the faith, traditions and moral values; which our ancestors passed to us throughout generations. This is the holy war of rights (bellum sanctus) under international arena. This is a generation which every individual person is supposed to hold tight his faith against conflicting environment and claim his rights.
As parents of this generation, we have a duty to fight for, prepare and conserve a better place for our children. We have a duty to fight for convenient environment for teaching our religions, customs, traditions and moral values to our children. This war should not be left to only to governments or religious institutions except it is the war every individual should confront around the world.
What will be our defense before God if we leave our children in a dirty world whole our ancestors managed to preserve and bequeathed this earth in its moral purity?
Where are African lawyers to advocate for African moral and religious rights? Are we really responsible fathers of this generation of our times?
A good father leaves a better place for his children!
And God bless you all.
God bless Tanzania, God bless Africa.
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Obadia Kajungu, Esq.
(ADVOCATE)
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