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Expanded criminalisation of consensual same-sex relations in Africa: contextualising recent developments
Adrian Jjuuko and Monica Tabengwa
For the past two decades in Africa, new and disturbing trends have been developing: post-independence criminalisation and expanded criminalisation of same-sex relations. These have involved expanding the laws inherited through colonialism by means such as: expressly criminalising consensual same-sex relations between adults; extending the application of the laws to women who have sex with other women; applying the laws to persons and organisations doing advocacy or providing services to lesbian, gay, bisexual, transgender (LGBT) people; making the punishments harsher and restricting the rights of such individuals through constitutional amendments.
In 1990, Uganda increased the punishment for ‘carnal knowledge against the order of nature’ from 14 years’ imprisonment to life; in 1998, Botswana expanded the criminalisation of same-sex conduct to apply to women. Then, in 2005, Uganda introduced a constitutional amendment expressly prohibiting same-sex marriages, a recriminalisation trend which rapidly spread to Nigeria, Zimbabwe, Rwanda, the Democratic Republic of Congo, Liberia, Cameroon, Malawi, Kenya, Tanzania and the Gambia. In 2014, both Uganda and Nigeria succeeded in passing their laws, though in the former the Constitutional Court declared the Anti-Homosexuality Act (AHA) to be unconstitutional for having been passed without quorum. Only Rwanda formally dropped its plans to criminalise same-sex conduct while the rest are still formally or informally debating how to expand criminalisation of this conduct effectively. Most of these countries already have colonial laws criminalising same-sex relations. Harassment, violence and other human rights violations continue to escalate with some states actively persecuting lesbian, gay, bisexual, transgender, intersex (LGBTI) persons and their communities. This is a big departure from the status quo in Africa before 1990, where homosexuality was mostly not discussed and arrests for same-sex relations were largely unheard of. What went wrong? What happened to change the status quo? This chapter will attempt to discuss the trends of criminalisation from the precolonial period (the period before imposition of colonial rule in sub-Saharan Africa, specifically preceding 1880) to date. It will then delve into the factors that appear to drive the current wave of homophobia, from the role of conservative US evangelicals to the globalisation and politicisation of the LGBTI struggle and the need to protect and preserve what are regarded as traditional values. Its concluding remarks will provide some recommendations for further consideration.
Expanded criminalisation: definition and the current trends
In this chapter the term ‘expanded criminalisation’ refers to the process of building on existing laws to further criminalise same-sex conduct by adding to or reinterpreting them. The six different models used to achieve this are: constitutional; strengthening of existing laws; new criminalisation; enforcement of existing criminal laws; enactment of broader laws; and the judicial model.
The constitutional model
This is where a clause prohibiting same-sex marriages or same-gender sexual conduct is expressly included in the constitution or the protection of same-sex relations is deliberately struck out of it. It is by far the most harmful model. The constitution is the supreme law in most countries; inserting a clause prohibiting same-sex marriages or relations into a constitution can be read as having the effect of stopping courts from interpreting it in a way that favours the rights of LGBTI persons. In 1995, Uganda used this model to prohibit same-sex marriages.1 This provision has not been challenged in its courts partly because currently, the LGBTI movement there is not interested in a battle over same-sex marriages, when they cannot even legally love who they choose to because of the sodomy laws. However, the other reason is that it would be almost impossible to challenge this provision because the principles of constitutional interpretation emphasise the rule of ‘harmony’ or ‘completeness’. These require ‘that Constitutional provisions should not be looked at in isolation. Rather, the Constitution should be looked at as a whole with no provision destroying another but supporting each other.’2 As such, no practical way exists to challenge such a provision once it is part of the constitution, except through international mechanisms.3 During the recent discussion in Uganda of the Constitutional Amendment Act 2015, unsuccessful attempts were made to amend Article 31(2a) to expressly prohibit same-sex practices in addition to same-sex marriages.4 In Kenya, a member of the drafting team admitted that the protection of LGBTI rights was deliberately left out of the 2010 Draft Constitution (Ringa, 2009).
The constitutional model is the very antithesis of the kind of constitutional protection which countries like South Africa have expressly adopted to protect LGBTI rights – the first country in the world to do so. However, even there traditional leaders agitate to have discrimination on the grounds of sexual orientation removed from its constitution. The House of Traditional Leaders submitted a proposal to the National Assembly’s constitutional review committee to amend its section 9 to remove sexual orientation provisions and the review committee has referred the matter to the political parties (Conway-Smith, 2012). Moreover, the Traditional Courts Bill5 threatens to give powers to interpret customary law to the same traditional leaders who want protection of LGBTI rights to be removed from the Constitution of South Africa (Reid, 2012).
The model through which existing laws are strengthened
Through this model existing laws are deliberately made tougher in terms of same-sex conduct and it is applicable where same-sex relations have previously been criminalised. Two approaches are taken: either a new law is introduced to supplement the existing one, or the existing criminal laws are amended to create new offences or enhance the punishments.
A number of countries have taken the first approach. Uganda’s AHA falls into this category as it was a completely new law but one that supplemented the existing penal code provisions. The now nullified AHA introduced the new offences of ‘homosexuality’ and ‘aggravated homosexuality’, and did away with the archaic Indian Penal Code language of ‘carnal knowledge against the order of nature’.6 One of the challenges of such language was the lack of a clear definition. With the introduction of new all-encompassing definitions for homosexuality which, rather than criminalising acts, criminalised homosexuals’ whole existence, nothing could be done around support work and advocacy for equality without it being regarded as a criminal act such as ‘aiding and abetting’ or promoting homosexuality. The other new offences included criminalisation of ‘brothels’, the definition of which includes houses belonging to homosexuals and hotels where they can get rooms; criminalising landlords who provide accommodation to LGBTI persons;7 and criminalising the promotion of homosexuality, which could go as far as covering all advocacy and service provision work around LGBTI rights.8 Another new law is Nigeria’s Prohibition of Same-sex Marriages Act,9 which criminalises the solemnisation of such marriages,10 and prohibits the registration of ‘gay clubs, societies, their sustenance, processions and meetings’.11 This model was proposed in Kenya in August 2014. A bill presented before the Kenyan National Assembly by the Republican Liberty Party sought to prohibit all forms of sexual relations between persons of the same sex, introduce the offence of aggravated homosexuality, enhance the punishments for same-sex relations, and condemn foreigners who committed such offences to death by stoning (Mathenga, 2014).
The second approach, whereby existing criminal laws are amended to create new offences or enhance the punishments, is the most commonly used. In the Gambia, the president recently signed a Criminal Code amendment,12 which contains similar provisions to those that appear in the Ugandan AHA (Guardian, 2014). Burundi reviewed its Criminal Code in 200913 and added consensual same-sex relations to the offences (Human Rights Watch, 2009; Pink News, 2009). And in 2012, Liberia proposed amendments to the Domestic Relations Act and the Penal Code respectively. If these become law, they will penalise any individual who ‘seduces, encourages, or promotes another person of the same gender … to engage in sexual activities’ (Human Rights Watch, 2013b)14 in addition to prohibiting same-sex activity and marriages.
In 2006, Zimbabwe amended its Penal Code to define sodomy as: ‘Any male person who, with the consent of another male person, knowingly performs with that other person anal sexual intercourse, or any act involving physical contact other than anal sexual intercourse that would be regarded by a reasonable person to be an indecent act’.15 This extended the criminalisation to consensual intimate contact between two people of the same sex from the simple definition of having practised anal sexual intercourse. Uganda also took this approach in 1990 when it amended the Penal Code to enhance the punishment for carnal knowledge against the order of nature from 14 years’ imprisonment to life,16 stating that it was in response to the HIV pandemic (blamed at the time on homosexuals). Only one country, Mozambique, has recently done the opposite by amending the Penal Code to remove the criminalisation of same-sex conduct (Lopes, 2017).17
The new criminalisation model
Some countries which previously never criminalised homosexuality, have proposed new criminal laws. The Democratic Republic of the Congo (DRC) particularly stands out. Homosexuality is not, and never has been, criminalised in the DRC but at least three attempts have been made there since 2010 to pass laws criminalising same-sex relations. Perhaps the most serious one occurred in 2010 when the Sexual Practices Against Nature Bill was presented before Parliament with the aim of criminalising such practices. A Member of Parliament (MP) reintroduced the bill before the National Assembly in 2013 (Bah, 2014). In Rwanda, another country which has never criminalised homosexuality, the National Assembly debated whether to make it a crime, but in the end the government denied that it intended to pass such a law (Musoni, 2009). Until recently, none of the efforts under this model had been successful but, in December 2016, Chad passed a law criminalising same-sex conduct for the first time, joining a long list of African countries with similar laws.
The model through which existing criminal laws are enforced
Under this model, the state suddenly starts vigorously implementing laws criminalising consensual same-sex conduct, some of which have been on the law books in many countries since colonial times but have largely remained dormant. In the past decade, a marked increase has become apparent in the enforcement of existing laws or the more vigorous enforcement of them. Perhaps the most notorious enforcer of anti-gay laws in sub-Saharan Africa is Cameroon, where stories of arrests of persons suspected of being homosexuals are rife.18 Uganda is also increasingly enforcing these laws and, since 2009, arrests have taken place every year (Human Rights Awareness and Promotion Forum (HRAPF), 2013). Indeed these numbers have increased, with 46 cases of arrests recorded in 2014 (HRAPF, 2015). Countries like Zimbabwe and Malawi – where the president had to declare a moratorium after two men were apprehended in 2012 – also continue to enforce these laws.
The model through which broader laws are enacted
This model involves the enactment of broader criminal laws which target LGBTI persons and groups without expressly stating so. They usually concern registration and operation of organisations, public order management, control of pornography, and prevention as well as control of HIV/AIDS. The biggest tactical advantage of this model for the state enacting such laws is that, because they can be generally applied and are not specifically targeting LGBTI persons, it is difficult to advance effective legal arguments that they are discriminatory.19
Uganda, for example, has enacted laws in the following four areas that affect LGBTI persons and organisations. The first is the Non-Governmental Organisations (NGO) Act of 2016, which the president signed into law on 30 January 2016.20 The law is generally progressive but has provisions that restrict the registration of organisations whose objectives contravene Ugandan legislation, and it also imposes ‘special obligations’ on such bodies. Section 44 bars organisations from engaging in activities which are prejudicial to the security and laws and interests of Uganda. These provisions – which are too broad, vague and undefined – would end up restricting the work of human rights defenders including LGBTI persons.21 Second is the Public Order Management Act of 201322 giving powers to the police to stop public gatherings. It may affect meetings of NGOs working on LGBTI issues. The third is the Anti-Pornography Act of 201423 with a broad definition of pornography, which would also cover some of the materials used by LGBTI activists engaged in health-related initiatives. Finally, the HIV Prevention and Control Act of 2014,24 which criminalises intentional transmission of HIV, has presumably led to fewer LGBTI persons undergoing voluntary testing for HIV. Many fear testing, since a seropositive result might be manipulated to convict them of ‘intentional transmission’, regardless of whether this actually happened.
In the case of Zimbabwe, its NGO Bill25 would deny local NGOs involved in ‘issues of governance’ access to foreign funding and prohibit the registration of foreign NGOs engaged in such governance matters. The bill extends the definition of these to include ‘the promotion and protection of human rights and political governance issues’ (Human Rights Watch, 2004, p. 1). This would certainly have affected LGBTI groups.
The judicial model
Under this model the judiciary interprets existing laws broadly and extends their reach. It therefore differs from the other models in that the primary legal actor is the judiciary rather than the legislature. In many jurisdictions, the judiciary has the final power to interpret the law, including the constitution. Judicial precedents on the reach of the law thus become, in effect, part of the law itself until they are overruled or legislation is enacted which overrides such precedents. Once again, Uganda is the leader in using this model. In the case of Jacqueline Kasha Nabagesera, Frank Mugisha, Julian Pepe Onziema and Geoffrey Ogwaro v. attorney general and Hon. Rev. Fr Simon Lokodo,26 the Ugandan High Court held that a skills training workshop conducted by organisations working on LGBTI rights was illegal since it would amount to aiding a criminal act under Section 145 of the Penal Code Act, which criminalises ‘carnal knowledge against the order of nature’. In effect, the court judgment extended the reach of Section 145 from the sexual act itself to advocacy and activism work around legal change, and effectively banned organising to oppose such laws and service provision for LGBTI persons. This decision is under appeal. An earlier one from the same court had limited the reach of section 145 to sexual acts.27
The above are the main models facilitating further criminalisation of same-sex conduct in Africa. It is a very worrying trend. Although there have been some apparently positive developments – such as the nullification of Uganda’s AHA, the halt in plans to criminalise in Rwanda, and the decriminalisation through legislation in Mozambique – the movement towards expanded criminalisation is by far the strongest.
Criminalisation of homosexuality in precolonial and colonial Africa
Politicians and cultural leaders have made various assertions that homosexuality was never practised in traditional sub-Saharan Africa during precolonial times. Such statements generally suggest that it was imported from outside sub-Saharan Africa with Arabs and colonialists often being blamed for it. Hrdy (1987) asserted that ‘homosexuality is not part of traditional societies in Africa’. Similarly, Gelfand (1979) singled out the Shona as having no problems associated with homosexuality. In Buganda, Sir Apollo Kaggwa (1905) claimed that the Arabs introduced the practice. Anthropologist Marc Epprecht (2008, p. 1) refers to these kinds of pronouncements as a ‘strange consensus’ among anthropologists, historians and politicians. Indeed he goes on to show that this consensus is baseless (ibid).
It has been documented that homosexuality is as indigenous to Africa as heterosexuality. Many practices that occurred across the continent could clearly be regarded as same-sex ones. For example, the Portuguese noted the existence of ‘unnatural damnation’ in 1558 among the Kongo, and in the 1590s Andrew Battell made observations about same-sex relationships among the Imbalanga, in what is now modern-day Angola (ibid.).
Other accepted same-sex practices include woman to woman marriages, which take place in more than 40 ethnic groups spread across sub-Saharan Africa from South Africa, through Benin and Nigeria, to Kenya and South Sudan.28 Others that were accepted in some African societies of the past include men treated as women, for example such individuals among the Langi in Uganda might even be allowed to marry men (Tamale, 2003). Ancient paintings and traditional dances and language provide evidence of a history of homosexuality in the continent. For example, a 2,000-year-old cave painting in Zimbabwe depicts same-sex relations (ibid.). In terms of dance, the royal Buganda dance, the Bakisimba, is highly erotic and has males acting out female roles and dancing with men in a visibly sensual way (Tamasuza, 2009). Furthermore, many indigenous languages contain words that refer to homosexuality, for example, the Lugandan word bisiyaga. It has debatable origins but has been in use at least since the Arabs first came to Buganda during the reign of Kabaka Ssuuna, 1832−56 (ibid.). In the Shona language the words murumekadzi and mukadzirume can be loosely translated as man-woman and woman-man respectively. The first refers to a man who takes on female roles and the second to a woman who takes on male roles (Epprecht, 2004). This is perhaps a reference to transgender persons. However, these practices may not easily fit within today’s description of same-sex relations and tags like ‘LGBTI’. They had many different purposes, perhaps the least of which was sexual pleasure. For example, men who took on female roles could sometimes do so because they were possessed by spirits – that is, they were acting as mediums for female spirits (ibid.). It is important to note that the individuals involved in such practices usually conformed to the dominant heterosexual way of life (ibid.). They went on to marry, have children and be part of heterosexual/heterocentric families. In this sense, such persons were similar to those of today described as ‘in the closet’.
It is also important to note that some of these practices were documented more by non-Africans than Africans, usually with highly disparaging language. The heterosexist worldview of these authors perhaps prevented them from studying the practices more thoroughly and thus discerning their real nuance, meaning and significance. For example, the Buganda king, the Kabaka, is commonly referred to as Bbaffe, which loosely translates as ‘our husband’. Used by men and women in reference to the king, the term could easily be mistaken as meaning that the Kabaka was literally a husband to both men and women in the kingdom, and it was acceptable for him to have physical relations with both sexes.
Another vivid example can be found in the Portuguese descriptions regarding the Shona Kingdom of Mutapa and its king, or Mwene Mutapa. The Portuguese described the Mwene Mutapa’s advisers as ‘women’, which was due to a literal translation of the term used for them (Beach, 1980). The implication was that, since they were regarded as women, the king treated them as his wives and could perhaps have sex with them.
These precolonial practices were not necessarily encouraged in these societies, but nor were they necessarily punished. Precolonial African societies ‘tended to place an extremely high and prodigiously over determined value on heterosexual marriage and reproduction. Individual sexual desire was largely subsumed to the broad interests of the extended family or lineage’ (ibid., p. 37). Despite this, individuals were often given leeway to veer from accepted gender roles and sexual practices, provided they did not affect the broader interests of society. As such, homosexuality – just like celibacy and adultery – was deliberately not encouraged but at the same time it was not suppressed (ibid., p. 37). Such things were simply ignored and hardly discussed.29 This is perhaps the source of the ‘strange consensus’ that there was no homosexuality in traditional Africa.
More importantly, these practices were not criminalised. All African societies had established social norms, and deviance was usually punished. For sexual deviants the punishments were particularly heavy, and so, if heterosexuality was one norm from which no deviation was allowed, punishments for homosexuality would have been prescribed. Thus, the fact that there seems to be no designated punishment for same-sex relations points towards tacit acceptance of these practices, rather than the assertion that they did not exist. Indeed, it could be said that it was colonialists who first introduced criminalisation of homosexuality.30
Criminalisation of same-sex relations during colonialism
Western criminalisation of homosexuality was introduced into most of sub-Saharan Africa in colonial times. Territories in that region during the period were purportedly shared between the British, the French, the Germans, the Portuguese and the Belgians. All these colonial nations, apart from Belgium, imposed laws criminalising same-sex relations on their colonies.31
Britain had already criminalised same-sex relations and introduced penal laws criminalising same-sex conduct in the colonies it had previously established in India.32 Thus almost all British colonies in Africa brought in those laws which described such activities as ‘carnal knowledge against the order of nature’.33 The only exceptions were Ghana and South Africa. The laws imposed in Ghana had been developed for Jamaica (Friedland, 1981) while South Africa was the only British colony not to become subject to these laws. Instead, its law was inspired by Roman-Dutch legislation. These laws outlived colonialism, and as they remain in the law books of these African countries, they continue to greatly affect the LGBTI persons living there. A lasting legacy indeed, as Human Rights Watch observes.34
Some colonies in French-ruled Africa also suffered the introduction of laws criminalising same-sex relations, despite the fact that homosexuality had been decriminalised in France in 1791 (ibid.). These were: Senegal,35 Cameroon36 and Benin.37 Moreover, these laws still exist to date.
German law criminalised homosexuality through paragraph 175 – a section of the German Criminal Code between 15 May 1871 and 10 March 1994 – which made homosexual acts between males a crime, among other things. However, as German colonial rule did not last long, with the British and the French taking the colonies over after World War 1, its impact on the colonies’ criminal law was minimal (Human Rights Watch, 2008).
The Portuguese introduced criminal laws in their colonies of Mozambique and Angola. The former does not currently criminalise consensual same-sex relations while the latter does.38
The fact that the colonialists introduced written laws does not imply that there were no preexisting laws in Africa. The continent had its own system of laws based on unwritten norms and customs. It is quite difficult to find any discussion of punishment for homosexuality in such laws, yet punitive measures for other sexual transgressions are well recorded.39 The early writers, including African ones who were no doubt imitating the style of their Western teachers, only mentioned in highly disparaging language the existence of the practice. This tends to support the view that, in reality, same-sex relations were not actually punished in Africa before colonialism, despite the apparently negative view held of them. As already seen above, such practices were also not openly embraced and heterosexuality was certainly dominant.
The colonialists, especially the British, took their time in developing laws that were ‘suitable’ for the conditions in the colonies and did not simply impose existing English laws on them. Although British law was introduced in Africa through the Africa Order in Council, 1890, the colonies (meaning the white representatives of the British government and white settlers) were soon afterwards empowered to make their own laws. Many of them simply adopted laws that had already been developed; India was seen as a good source. That is why we see the language of the Indian Penal Code 1860 – which already contained section 377 criminalising carnal intercourse against the order of nature – incorporated into the laws of most of British Africa.
It could be argued that perhaps the lawmakers were too lazy to review the Indian laws in light of the conditions in each of the colonies, and thus Section 377 was introduced almost inadvertently. However, the fact that when the colonies made their own laws, they chose to leave in the provisions on same-sex relations says a lot about the intention. The ‘lazy legislator’ theory seems unlikely in light of subsequent events. Uganda, for example, abandoned the Indian Penal Code in 1930 and adopted its own, which was modelled on the Griffith Code that had been adopted by Queensland, Australia in 1901.40 Instead of removing the provisions on same-sex relations, they added the provision on ‘gross indecency’ and enhanced the punishment from ten years’ imprisonment to fourteen and corporal punishment. This seems to demonstrate a clear intention to ‘deal’ with the issue of homosexuality, thus leading to deliberate efforts to further criminalise homosexual behaviours.
The fact that the colonialists introduced criminalisation of homosexuality would seem to contradict the generally prevalent opinion at the time that Africans did not practise it. Why legislate against a behaviour that did not exist? Or, alternatively, if legislation was necessary, then it can be presumed the behaviour existed. On closer scrutiny however, the fact of criminalisation could be said to reinforce the paradigm of the absence of homosexuality among Africans. This is because the laws were not introduced to ‘cure’ Africans of the practice but rather to deal with European homosexuality. It was criminalised in Britain and largely abhorred; indeed, it has been shown that some of the leading explorers, colonists and missionaries practised it and perhaps left Europe to escape from the restrictive environment.41 Thus, when the laws were adopted, they were intended more for Europeans than Africans. This was in line with the whole system of colonialism, which was mostly built to serve European interests. Africans were largely out of the picture, and a separate legislative system – customary law – was mainly applied to them. Arguably, therefore, criminalisation of homosexuality served exactly the same purpose as it did in Europe: the control of Europeans’ behaviour.
It should also be noted, though, that the laws were rarely enforced during the colonial period. Increasingly, perceptions concerning homosexuality continued to change in Britain and other parts of Europe, all of this occurring at the same time as the anti-colonialism movement between the end of World War II and 1965. By 1967, when homosexuality was decriminalised in Britain, most African countries were already independent. Most former British colonies thus retained these laws at independence and simply adopted them; said laws still form part of the legislation of these countries today.
Criminalisation of homosexuality in post-independence Africa
At independence, perhaps most governments were too preoccupied with the new power – and the trappings that came with it – to give much careful consideration to the nature of the laws that they were inheriting. Ironically, they also coveted the colonial state’s power of repression and suppression, against which they had hitherto fought, and deliberately left the laws in place (Prempeh, 2007, p. 479). Many colonies simply adopted new constitutions that were negotiated in London and other capitals of the former colonial powers. These constitutions gave full powers to the legislatures to make their own laws. In the case of British colonies, the various post-independence laws passed for each colony clearly gave the new state the power to make their own. Somehow, though, the new legislatures found it easier simply to adopt the existing colonial laws. Although many of the independence constitutions were hurriedly amended, ostensibly to remove the last vestiges of colonial rule, the laws made by the colonialists remained deliberately untouched (ibid, p. 502). They continued in force and many still remain so. Some of the most enduring are the penal codes.
Moreover, in the past decade, many African states have taken these laws down from the shelves, dusted them off, and are now actively resurrecting them. Such laws now serve important functions in the modern economic, political and social dialogues between former colonies and former colonial powers
They are being used, for example, to fend off any criticisms of African states in terms of their criminalisation of same-sex relationships and treatment of LGBT citizens by using the argument that the former colonial powers introduced them in the first place. As such criticisms are often levelled at African states in the context of discussions about economic and other forms of aid the Global North is proposing to provide, the origins and existence of these laws allow African leaders to accuse former powers of having a double standard. Indeed, the point of independence was the ideal opportunity for the British to repeal such laws, mirroring their inclusion of human rights provisions – to protect British citizens or nationals who remained in the newly formed states – in the constitutions drawn up following independence.
A corollary purpose of these laws is to reinforce the notion of African state sovereignty. The treatment of African state citizens is asserted to be the concern only of the particular state involved. Sovereignty has of late become the best excuse whenever other countries express concern about the existence of such laws.
Why expanded criminalisation?
Homosexuality has existed in Africa for as long as it has anywhere else in the world. It is part of the human condition. There is evidence, as outlined above, to show that homosexuality existed in precolonial Africa and that, though it was not encouraged, it was mostly not criminalised. As explained above, criminalisation of same-sex practices was introduced to the continent through colonialism. However, at independence, African states adopted those criminalising laws alongside others used to entrench colonialism. After some time, however, these independent states started taking ownership of the laws and Africanising them. Africanisation consisted of – and continues to be accomplished largely through – amendments and expansion of penalties.
The latest wave of legal change, over the last two decades, is concerned with the expanded criminalisation of the LGBT community. New laws are used to buttress existing ones, the punishments for existing ones are expanded, and the statutory wording is changed to clearly define the offences being criminalised.
As discussed above, this was not always the case. Merely describing the trend begs the question: what has led to these legal steps aiming to expand criminalisation? The reasons can be summarised as: the growth of Pan-Africanism; the rise of the LGBT movement globally and in Africa; the role of evangelicals and other religious fundamentalists; the recent changes in constitutionalism in the continent; the threat of the South African experience; the HIV epidemic; political opportunism; and the global culture wars which make African states into proxies.
The growth of Pan-Africanism
One of the main reasons for the protracted battle against homosexuality in Africa is the growth of the Pan-African identity in the continent, with agitation increasing for African solutions to be found for African problems. In its earliest form, Pan-Africanism was about African peoples coming together to oppose colonialism, imperialism and to uphold traditional African values. It has now developed from opposing colonialism to opposing neo-colonialism and all other forms of exploitation within the continent. Championed by pillars like Kwame Nkrumah of Ghana, Sekou Toure of Guinea, Leopold Sedor Senghor of Senegal, and Muammar Gadaffi of Libya, it led to the foundation of the Organisation of African Unity in 1981 followed by the African Union in 2003. The African Charter on Human and Peoples’ Rights (ACHPR) uses the language of peoples’ group rights and duties, all of which are concepts cherished by Pan-Africanists.42 More recently leaders, such as Thabo Mvuyelwa Mbeki of South Africa, have championed arrangements like the New Partnership for African Development (NEPAD) and the African Peer Review Mechanism (APRM). Increasingly, African leaders are standing together to solve African problems. At the United Nations level, the strong African Group stands up for African issues.
The connection between this growth of Pan-Africanism and the increased criminalisation of homosexuality, is that African states join together to oppose what they see as another form of Western imperialism: the focus on decriminalisation of homosexuality and acceptance of same-sex relations. The often-expressed justification for this is that African states are sovereign and can therefore determine how to deal with the issue. The real underlying reason is the need to demonstrably stand up to the West in a variety of contexts. This political dynamic also explains why some African presidents, such as Yoweri Museveni of Uganda and the recently ousted Robert Mugabe of Zimbabwe, came out strongly against homosexuals. Increasingly, the West’s requirement of support for LGBT rights, especially in the context of aid and other forms of political assistance, is portrayed domestically in these countries as an imposition of Western values on Africans. Political opponents level criticisms along these lines at existing leadership in order to gain advantages in internal and international political struggles. In this political dynamic, the individual rights of LGBTI persons have been sacrificed.
Resistance in the form of basic criminalisation – as well as extending the reach of criminal law against same-sex relations – seems to be the domestic response to increased Western agitation for human rights protections for LGBTI communities in African states. President Museveni made this resistance quite clear when he lashed out at the US and other Western countries during his signing of the AHA on 20 February 2014, saying that: ‘There’s now an attempt at social imperialism, to impose social values. We’re sorry to see that you [the West] live the way you live but we keep quiet about it’ (Biryabarema, 2014). This use of the concept of ‘social imperialism’ fits neatly into the popular view in Africa that homosexuality is a Western import and that it is evidence of how the West is destroying African values and systems. Political leaders adopt this analysis and use it at the national and regional levels, reinforcing the political trend towards expanded criminalisation of same-sex relations.
The rise of the global LGBT movement
The global LGBT movement has grown exponentially in the past two decades so that groups advocating for equality and non-discrimination for LGBT persons can be found in virtually every country or region in the world. The rapid growth of this movement is not just in Africa but everywhere in the world. Bolstered by England and Wales’s 1967 decriminalisation of same-sex relations in private for the age group 21 years upwards,43 the decriminalisation movement gained momentum. Many countries in Europe, as well as Canada, Australia and others, have now eliminated criminal laws against homosexuality and homosexual behaviour. Indeed, these countries have moved on to protect the human rights of LGBT people in positive ways.
In Africa, South Africa became the first country to prohibit discrimination based on sexual orientation and gender identity (SOGI) in its 1996 Constitution.44 Leading figures in South Africa like Nobel peace prize laureate Archbishop Desmond Tutu have openly supported the cause for LGBT equality. The UN Human Rights Council has passed resolutions protecting the rights of LGBT persons and so have regional human rights bodies including the African Commission on Human and Peoples’ Rights (hereafter, African Commission).45 Since the 1990s, many countries have gone on to legalise same-sex marriages, including Canada and now the United States of America.46 Protection of LGBT rights is now part of many countries’ foreign policy and the former US President Barack Obama was key in ensuring that the US took the lead on this. Even the Pope has, within specific contexts, shown that the church should not discriminate against families with LGBT children (Molloy, 2014). The LGBT movement has, within a few decades, gone from being despised to being a force to reckon with, receiving support from powerful governments and opinion leaders. Those who are opposed to the equality of every person are now in the minority in international politics. At the same time, this rise in influence and capacity to effect change has rendered the LGBT movement vulnerable to attacks, particularly from fundamentalist religious figures and politicians of all stripes. Allegations of a global gay agenda aimed at recruiting children and decimating the traditional family continue to be made, and to be believed, and the emerging power of the LGBT campaign, including its tendency to focus solely on LGBT issues above anything else, makes them all the more believable. Therefore the LGBT movement’s growth and gains have provoked a reactionary expansion of the anti-gay movement, which explains why laws are used to curtail the advancement of the campaign for equality.
The role of evangelicals and other religious fundamentalists
These developments have not been lost on the anti-gay religious fundamentalist groups which have successfully enlisted a significant number of prominent African religious leaders and politicians to campaign about restricting LGBT people’s human rights. According to Rev. Dr Kapya Kaoma (2009), researcher and noted authority on the ties between US right-wing evangelicals and anti-LGBT legislation in Uganda, powerful US-based Christian fundamentalists, see Africa as virgin ground for promoting their anti-gay and socially conservative agenda. These evangelical groups have lost power – and financial support – in their base, the US, and have now shifted to regions such as sub-Saharan Africa, recruiting clergy and African leaders to further dominate global Christian politics. One way of doing so is to use domestic laws to entrench stigma and discrimination against LGBT rights. The discussion has been particularly enflamed by the ‘threat’ of gay marriages occurring in the rest of Africa (after being allowed in South Africa), and the false claim that homosexuals are bent on ‘recruiting’ children into the practice in order to boost their numbers. This has led to many actively resisting LGBT equality efforts.
Another argument evangelicals use is that a ‘homosexual agenda’ exists to take over the world and erode African cultures and values. This kind of thinking was evident in the Ugandan Anti-Homosexuality Bill (AHB) 2009’s memorandum, which clearly articulated the bill’s purpose was to safeguard the African traditional family, and to protect children. A direct connection is plain between the rise of the Pentecostal evangelical movement in Africa and the agitation for the increased criminalisation of homosexuality. Waves of evangelism, of all religious stripes, have swept through the continent for centuries, starting with the Arab Muslims’ arrival and including the later Catholic and Anglican missionary movements. But it is the most recent Pentecostal evangelical wave that has produced the greatest agitation against homosexuality in the continent. It is thus scarcely surprising that the rise of this movement there has coincided with an expansion in criminalisation of same-sex relations (Campbell, 2014).
The Pentecostal groups are led by the charismatic preachers of a gospel of material prosperity and puritanism. As Kapya Kaoma (2012, p. 3) comments: ‘A sympathetic approach to local culture and the retention of certain cultural practices might explain the growth of the prosperity gospel in Africa.’ These preachers attract large followings and influence them to extend their beliefs into political actions. Mostly, these teachings have derived support from the generally widespread belief in demons and ancestral witchcraft across Africa. In Uganda, prominent leaders of the Pentecostal movement speak out vehemently against homosexuality. These include Pastor Joseph Sserwadda, its chief leader in Uganda, Pastor Martin Ssempa, who is undoubtedly the most fiery opponent of LGBTI rights in the country,47 Pastor Solomon Male,48 and Pastor Stephen Langa of the Family Life Network (FLN). These leaders often form strategic alliances with US evangelicals who provide them with support and propaganda.49 The latter frequently fly to Africa and preach directly to the congregations, raising up anti-gay hatred.50
Those on the religious right also form important political alliances. In Uganda, the Hon. David Bahati, the MP who tabled the AHB, and Hon. Nsaba Buturo, the then minister of ethics and integrity, as well as President Museveni, are all said to be closely linked to The Family, a powerful evangelical group which is opposed to homosexuality (Observer, 2009). In his work on the subject, Kapya Kaoma has documented this connection between evangelicals and the increased agitation for expanded criminalisation of homosexuality in Uganda, Zambia and other parts of Africa (2009, p. 6).
In Uganda, submissions made in litigation surrounding these laws provide clear, direct evidence of the religious right’s involvement in anti-LGBTI legislation. The Inter Religious Council of Uganda (IRCU), the FLN and the Uganda Centre for Law and Transformation, all religious right groups, applied to join the case challenging the AHA 2014 as respondents.51 In their application, they clearly indicate that their efforts were key to the passing of the AHA,52 a direct admission that these religious groups played an important role in that process.
Recent developments in constitutionalism
Starting in the 1990s, the so-called third wave of constitutionalism (Huntington, 1991) reached Africa. It appeared to embrace democracy and human rights for all (Fombad, 2007) but, as later events have shown, has largely been a mask for imperial presidencies and may yet be a false start until more substantial changes are made (Prempeh, 2007). Long-term dictatorships started to falter and fall, and new leaders came into power in many countries. Infamously labelled the ‘new breed of African leaders’ by US President Bill Clinton (1993−2001), they included Yoweri Museveni of Uganda, Meles Zenawi of Ethiopia, Paul Kagame of Rwanda, and Isaias Afewerki of Eritrea, who all went on to preside over dictatorships or semi-dictatorships. In East, West and Southern Africa, constitutional discussions began to be held. In East Africa, assemblies were put together to draft new constitutions − Uganda’s was promulgated in 1995, and that of Eritrea in 1997. In francophone West Africa, national conferences bringing together civil society organisations were held in 11 different countries, which in most cases resulted in new constitutions.53 During the same period, in anglophone West Africa, new constitutions were promulgated: for example, Ghana’s in 1992 and Nigeria’s in 1999. Moreover, with the end of apartheid in South Africa, a new progressive constitution was implemented in 1996 and around the same time many other Southern African states got new leaders and constitutions.54
This wave of constitutionalism was mostly about human rights protection and providing space for political party activity. The debates surrounding human rights did not in most cases lead to a discussion on LGBT rights, but they did lay the ground for every marginalised group to be able to make future claims for inclusion. Only South Africa expressly recognised sexual orientation as a protected ground for non-discrimination.55 However, sex and gender as grounds for non-discrimination are protected in almost all these constitutions and, at least at the international level, the term ‘sex’ has been declared to include sexual orientation.56 The constitutions use highly inclusive phrases like ‘all persons’, ‘all citizens’, ‘any person’, ‘every person’. This has allowed marginalised groups such as LGBTI persons to claim their rights in courts. In Uganda, the High Court has ruled in two cases that the constitutional Bill of Rights applies to LGBTI persons equally,57 despite the majority of the population being opposed to same-sex relations.58
This rise in constitutionalism has allowed these marginalised sections of society to claim equal rights. As a result, anti-gay bodies fear that LGBT groups may use the constitutions to make successful claims for other rights, including the right to marry. A consequent political push back has led to constitutions being specifically amended to prohibit same-sex marriages, and to legislation being introduced to further prohibit same-sex relations. In Uganda, the fear of LGBT persons claiming the right to marry led to the 2005 amendment of the Constitution’s Article 32 (which provides constitutional protection for marriage) firmly restricting it to heterosexual couples.59 The current efforts to expand criminalisation can also be seen as a reaction to the third wave of constitutionalism opening up many African nations’ constitutions to claims for non-discrimination and equality for all.
The threat from South Africa − the recognition of same-sex marriages
South Africa is one of the most influential countries in the continent and its biggest economy. It is a strong pillar of the African Union and the Southern Africa Development Community (SADC). What happens there usually has an effect on the rest of Africa. Its 1996 Constitution prohibits discrimination on the basis of sexual orientation,60 the first time that a constitution had introduced a prohibition on this ground, not just in Africa but worldwide. In 1998, the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality and another v. minister of justice and others61 decriminalised consensual same-sex relations. This was a major step, which paved the way for many other developments, including legalising same-sex marriages62 and allowing same-sex couples to adopt.63 These developments, especially in relation to marriage and adoption, horrified many including within South Africa itself. Prior to that, such matters could conveniently be regarded as only happening in the West and never in Africa. Their occurrence in South Africa was a ‘game changer’ for LGBTI rights, and meant that they were now much closer to home and could not easily be dismissed as Western issues. As a way of insulating themselves against the possibility of legal same-sex marriages, African countries started legislatively prohibiting them and also further criminalised same-sex relations.
The HIV epidemic
Perhaps more than anything else, the HIV epidemic, and the efforts made to counteract it, brought discussions on sexuality to the fore throughout Africa and the world. This also opened up discussions about homosexuality and its perceived role in exacerbating the epidemic, and led to the recognition of the category ‘men who have sex with men’ (MSM) as one of the key populations whose needs must be addressed in order to fight the spread of the disease. However, anti-gay groups have used these same studies to blame and demonise homosexuals, leading to calls for expanded criminalisation of homosexual behaviour.
When HIV was first diagnosed in the US, it was initially described as an epidemic among gay men and for a long time AIDS was described as a disease of gay men only. In Uganda, this perception drove the amendment of the criminal law in 1990 to increase the punishment for homosexuality from imprisonment for 14 years to life.64 This same reasoning is still used today in the quest to further criminalise homosexuality, based on the false premise that criminalisation will stop the practice, and thus stop HIV from being spread through same-sex relations.
Political capital purposes
The current expanded criminalisation efforts are also mainly about politicians creating political capital for themselves. As established and long-lived political leaders are increasingly seen as more dictatorial and less democratic, with consequent loss of popular support, they resort to any issue that can help them regain their lost popularity and perceived legitimacy. Anti-homosexuality discourse and legal measures promise to provide such an opportunity for renewing these leaders’ political popularity, due to the widespread opposition to homosexuality as promoted not just by the politicians but by religious leaders.
This dynamic was clearly played out during the five years of the AHB, later the AHA, in Uganda. David Bahati, the obscure politician who tabled the bill in 2009, went on to win the next election in 2011 unopposed in his constituency, and thence to become vice chair of the ruling party caucus in parliament. He is now a minister in President Museveni’s government. Speaker of Parliament, Rebecca Kadaga, who insisted on passing the bill, despite obvious procedural deficiencies in its introduction,65 was popularised in the Ugandan press and maintained her position in the next parliament. When she lashed out at John Baird, the Canadian foreign minister, over his negative comments about the bill, the popular media hailed her as a Ugandan hero (Chimp Reports, 2012). President Museveni, who signed the bill into law, was voted into power for a fifth term in a controversial election in February 2016. He was congratulated when he signed the law and a huge thanksgiving party was organised for him (Hodes, 2014). It is clear that the popular support and political rewards they receive is the reason why politicians want to be associated with the passing of such laws.
Export of other countries’ culture wars to Africa
Culture wars, which are said to exist in every country, could also be described as clashes of values and value systems. One of the issues at their centre is same-sex relations. The dominant view in the past was that such relationships were immoral and non-religious. Nowadays, a general move internationally towards acceptance of same-sex relations is evident. Nevertheless, the changes are only happening due to LGBT communities’ constant engagement and struggles with the dominant cultures.
In the US, Canada and some countries in Western Europe such as the UK, France and Germany, it is these efforts that have made progress possible: legal protection has been achieved for LGBT persons, with some laws including recognition of same-sex union and marriage. As expected, the positive changes have, in many cases, not been fully accepted and conservative groups are working to reverse them. This means that, with legal protections and a foreseeable continuation of such gains in some jurisdictions, anti-gay organisations have refocused their efforts to stop such measures happening elsewhere. Africa provides an easy ground for the fighting of these wars. In the same vein, liberal groups also struggle to make recognition of LGBT persons a global reality and have extended their activities to lobby their governments or friendly foundations to work globally to protect LGBT rights, including in Africa. That is why, for example, different US foundations fund various bodies in Uganda, Zambia and other African countries which work in this area. The financial support given to anti-gay groups is used to advocate for such purposes as legislation aimed at further criminalising homosexuality (Kaoma, 2009), while funding given to pro-LGBT groups is used to oppose such legislation.
The way forward: suggestions on how to stem the tide
In the last decade negative rhetoric against minority groups has risen across the world, especially that which targets sexual and reproductive health freedoms of women and LGBT people. This trend, particularly virulent in Africa, has largely been driven by US conservative religious groups and their agents who use their extensive resources throughout the continent in a bid to regain their lost relevance as custodians of human morality and family values in the West (ibid.). Political leaders have also taken advantage of this trend to denounce, demonise and vilify LGBT persons for political gains. They use negative populist views to distract attention from their own deficiencies while inviting support from wealthy powerful religious leaders overseas, especially right-wing evangelicals from the US. Ironically, given the colonial origins of anti-homosexual criminal laws, these political leaders justify their denunciation of homosexuality as being ‘neo-colonial’ and ‘un-African’, and therefore Western impositions which are contrary to African culture and religion. We suggest the following measures for stemming this tide:
Responding squarely and respectfully to the falsehoods
It is crucial for the LGBT community and their allies to engage directly with the falsehoods being peddled by anti-gay groups. The talk of a ‘gay agenda’ – to take over the world, decimate African values, reduce African populations, or to recruit all children into homosexuality and eventually turn the whole world gay – may seem ridiculous, but in the domestic politics of many African countries these ideas are taken very seriously. Such false information needs to be combated with clear, scientific and supported narratives that reveal it for what it is: a web of lies. More evidence-based studies need to be done on these common myths, and the findings widely disseminated. There is also a need for more space in the media to discuss these myths. Furthermore, the work and organising of pro-LGBT organisations needs to be more transparent and visible in order to do away with the thinking that a secretive ‘gay agenda’ exists to make the whole world gay. These anti-gay myths are sometimes ‘confirmed’ in the eyes of those opposed to LGBT rights when gay-rights groups are seen as employing so-called aggressive and antagonistic behaviour in their fight for rights. Although it is vital that such characterisations are not uncritically accepted, we must at the same time be precise in our public awareness work. For example, it may not always be useful to label someone opposed to homosexuality – or the methods employed by anti-gay activists – as homophobic. It is essential to unpack this term and employ it only where it really fits. Sometimes, it is important to understand the views espoused by the opposing side and respond in a respectful way in order to build bridges and create social space for dialogue to take place. Change takes time and takes different forms; the successes achieved in some parts of the Global North in terms of protection of LGBT persons have demonstrated this. Africa therefore needs to tackle the issue at its own pace, but emphasising protection of human dignity and human lives. In the next few decades, a clear and marked change will be detectable as has been the case in some parts of the Global North.
Holding accountable those responsible for spreading hate
Whereas African countries may not yet be willing to hold accountable their citizens who promote hate under the guise of protecting morals or religion, other countries can hold their own citizens to account. The use of religion to dominate and persecute is nothing new, of course. However, the current spread of criminal laws against same-sex conduct, as well as other limits imposed on bodily integrity – such as Uganda’s Anti-Pornography Act of 201466 – are challenges that must be addressed immediately. In many African countries LGBT persons can be both direct targets and ‘collateral damage’ as a result of persecution and imprisonment. Much of the damage has already been done through the passage of new and/or expanded laws, which directly persecute LGBT persons and those defending their rights. In addition, a variety of laws – such as the NGO Act in Uganda67 – narrow and control advocacy and stifle minority groups’ dissenting voices in many African countries; these include Nigeria,68 Kenya69 and Zimbabwe.70 Even though some of this harm may not be undone at this time, in some circumstances it is possible to hold accountable those responsible.
The attention and publicity around the AHB in Uganda brought about much-needed international scrutiny of ongoing human rights violations based on gender, sexual orientation, and gender identity and expression in the country. This scrutiny brought into the open the connection between US conservative right-wing Christian campaigners and Ugandan political and religious leaders, as already discussed above. This kind of exposure created a context for LGBT activists in Uganda to begin strategising about how to hold those campaigning for expanded criminal laws responsible for hate crimes against LGBT Ugandan citizens. The impetus for action gained ground in the country from 2012 onwards, with LGBT activists taking on the anti-gay US religious crusader Scott Lively using the US Alien Torts Statute.71 Although the case against him was ultimately lost in the US courts due to the first amendment protections that he enjoyed as a US citizen, the court made it clear that his actions of promoting hate against homosexuals outside the US would constitute persecution under international law. This forced Lively to appeal, an evident sign that the strategy had worked. In Uganda, the case has already had an impact, with reduced numbers of US evangelicals coming to the country and actively speaking out against homosexuality in public.
In order to export these anti-gay endeavours into Africa, US stakeholders rely on finding willing local champions. American missionaries mentored and sponsored domestic politician David Bahati and the religious leader, Pastor Martin Ssempa so that they could launch their careers in Uganda, and they provided the platforms from which they preached hatred. In 2008, Pastor Rick Warren72 travelled to Uganda and partnered with Ssempa in running an anti-gay campaign. It is therefore also essential that such collaborations are exposed, and that the participants are held accountable together with their sponsors. For example, when the fact that Warren favoured Ssempa’s work was exposed, he was forced to denounce that support (Ethington-Boden, 2014). Having originally refused to condemn the extreme bill, Warren – much criticised following suspicions of having backed it – finally relented and released a statement to correct certain ‘untruths’. He even urged Ugandan pastors not to support the law as it was ‘unjust, extreme and unchristian towards homosexuals’ (ShadowProof, 2009). Indeed, after this exposure, Ssempa appeared to have lost much of his drive in advocating for anti-homosexual legal measures. Moreover, since the Massachusetts court issued the subpoena on him in May 2015, as part of the Lively litigation, he has rarely commented on or discussed LGBTI issues and is said to be in hiding (Kampala Sun, 2016). Such strategies therefore work, and make those who are minded to support and export homophobia accountable for their actions.
Taking advantage of the opportunities presented by expanded criminalisation
Opportunities are present in every situation, however unpleasant. Activists for LGBTI rights need to take advantage of these even in light of heightened hostility and expanded criminalisation. A case in point is the tabling of the AHA in Uganda. This law exacerbated an already dangerous environment for LGBTI people in that country, but activists were able to use its existence to expose homophobia, increase organising efforts, and forge partnerships domestically and internationally that had hitherto been difficult to achieve. They gained support in this way and were consequently able to bring a legal action to have the law nullified. Such efforts open up the space and enable dialogue and debate, which helps to change perceptions and expose the violations suffered by LGBT groups.
Non-Africans respecting and valuing African solutions for African problems
The rest of the world has a lot of experience and expertise to offer Africa on how to deal with homophobia. However, this advice loses its value if it is paternalistic and domineering. It is essential to respect, value and support homegrown movements. African countries will not and cannot decriminalise in exactly the same way as the US or the UK have done, or any other country for that matter. The specific sociopolitical contexts of each country always intervene, so that the techniques which worked in one may not necessarily be applicable elsewhere.
One that may not work is confrontation, which involves making demands for immediate equality and change. It is, rather, negotiation, mutual respect and understanding that are the hallmarks of African engagements. Allies should support these African initiatives and attempt to gain insight into approaches used by the African LGBTI communities; it is not helpful to impose a particular model of how the work should be done.
It must be acknowledged that many communities in Africa never sanctioned violence against people based on their sexuality; rather, the spirit of ubuntu73 and general tolerance are more common. The proliferation of anti-same-sex conduct, criminal laws and intolerance came with Western colonisation, and in particular with British colonialism. These laws, by and large, were rarely enforced until recently. In Botswana, for example, no one was known to have been prosecuted for ‘carnal knowledge against the order of nature’ until the Kanane case in 1995,74 in Zambia until two men were arrested in 2013 (Karimi, 2013), and in Malawi until the prosecution of Tiwonge Chimbalanga and Steven Monjeza after an engagement ceremony in 2009 (BBC News, 2009). In Uganda a full trial of a person under these offences has never taken place, and it is only in relatively recent times that arrests have been made (HRAPF and The Civil Society Coalition on Human Rights and Constitutional Law, 2013). Accordingly, to demand immediate decriminalisation may not be the most effective or useful path for African groups to take. Their priority, rather, is to develop understanding and respect for LGBT persons within the community.
It is important to respect and value locally generated ideas, views and strategies and allow LGBT and other supportive groups in Africa to take charge of their destiny. Western allies’ interventionist and paternalistic approaches have tended to stoke the fire of negative rhetoric against LGBTI rights. Concepts such as ‘aid conditionality’75 and international sanctions for human rights violations as tools to promote human rights for LGBT persons, can jeopardise the same people they are designed to protect. In Liberia, a speech by former British Prime Minister David Cameron about cutting aid to countries that violated citizens’ rights, including those of the LGBT community, resulted not only in LGBT people being blamed for all manner of social ills in Liberia, but gave impetus to more laws being passed to impose harsher sentences for same-sex conduct.76 Similar views were expressed across sub-Saharan Africa, in Ghana, Malawi, Zambia and other states which are mainly dependent on foreign aid, and resulted in many local citizens blaming and vilifying LGBTI groups for their woes.77 Supporting Africa-led initiatives instead would negate the rhetoric that LGBT NGOs are fronts for Western allies intent on spreading homosexuality and same-sex marriage.78
Maintaining visibility and presence
For a long time, LGBTI people in most of Africa have lived closeted lives and the few who have openly come out were only able to do so in recent times. It is therefore crucial to maintain the visibility and presence of the community and to keep LGBT concerns alive, regardless of the sacrifice. It is important to reinforce the message that even the most homophobic and intolerant cannot legally or morally condone violence against people on the basis of perceived or actual SOGI status. The testimonies of systemic discriminatory conduct by state and non-state agents, and the continuous rejection, displacement and undue violence imposed on the bodies of LGBT persons in Africa are impossible to ignore. Even the African Commission finally had to acknowledge the existence of these facts. At its 56th Session from 21 April to 7 May 2015 in Banjul, Gambia, it finally relented and voted to grant the Coalition of African Lesbians (CAL) observer status (Asiimwe, 2015). This vote followed a resolution which had been passed at the previous session condemning violence and discrimination against individuals based on ‘real or imputed SOGI status’.79 The granting of observer status not only legitimised and recognised CAL as an important and deserving contributor to the African human rights framework, but also gave voice to the thousands of LGBTI Africans who are denied the same rights in their own countries and societies.
Exposing the real intentions of these laws and how they affect civic space
Through the politicisation of sexual and reproductive health and rights, political, religious and other community leaders have sought to isolate LGBTI persons, activists and supporters, criticising them for trying to create ‘special’ rights and protections. It is vital that this is realised and resisted as being a ruse deliberately constructed to obscure and eliminate voices of dissent, and limit civil society actions that criticise government for violation of citizen rights and/or failure to adequately provide them. A case in point is Nigeria’s Same-sex Marriage (Prohibition) Act of 2013, which criminalises such marriages and also the registration and operation of NGOs and clubs supporting LGBT issues.80 This law affects not just LGBTI organisations but all which provide services to key populations, including HIV-related services. LGBT issues must not be addressed in isolation but must be integrated into mainstream human rights campaigns such as violence against women and other sexual and reproductive rights. In Uganda, the AHA of 2014 was defeated by a group of ten petitioners, only four of whom were openly gay.81 This was only possible because the act had been understood to impact on a wider section of the public, not only LGBT persons and groups. Non-LGBT civil society organisations and individuals were also affected who were either related to, in contact with, or known to LGBTI groups or individuals. According to clause 14 of the original bill, parents, friends, work colleagues and everyone in contact with or knowing of LGBTI persons were expected to report them to the police.82 And any NGO that provided a service to a known homosexual was also to be sanctioned by the law.83 The reach and destructive impact of such a law needs to be further exposed and rejected.
LGBTI persons/groups supporting other equality causes – intersectionality
All human beings live multiple and layered identities, all of which are a direct result of social relations, history and the operation of power structures. We belong to and identify ourselves as members of various groups at the same time and can therefore simultaneously experience both oppression and privilege. For instance, a university professor who is otherwise privileged due to the job he holds, but who identifies as transgender, can experience workplace discrimination because of his gender identity.
Intersectionality is defined as a tool of analysis that ‘aims to reveal multiple identities, exposing the different types of discrimination and disadvantage that occur as a consequence of the combination of identities … It takes account of historical, social and political contexts and also recognises unique individual experiences resulting from the coming together of different types of identity’ (Association for Women’s Rights in Development, 2004, p. 2).
Discrimination is experienced by LGBTI persons on the basis of multiple factors including gender, sexual orientation, economic status, age, health status, race, ethnicity, gender identity and nationality. It is impossible to separate the different types of discrimination and oppressions because they intersect to create, sustain and exacerbate vulnerabilities. Focusing on one cause obscures other sources of oppression and discrimination and can result in partial solutions. Awareness of these multiple factors must be considered and integrated into intervention strategies that support programmes and policies.
For instance, MSM do not form a homogeneous group. The concept of MSM is in itself problematic because it focuses only on a sexual behaviour. It fails to encompass the broader social context that defines and shapes the daily experiences of LGBT persons as members of communities who may hold different social locations and identities, and have different lived experiences determined and shaped by various factors. It is therefore important to acknowledge that homophobia is not necessarily the only cause of oppression and persecution, and that many different factors converge and intersect to make LGBT people vulnerable.
It follows from this intersectional analysis that LGBT groups should also be involved in supporting causes and movements for social and political change generally. This creates the opportunity to gain assistance from allies and also helps others to recognise that the human rights campaign is one big movement and that no one is seeking special rights or undermining other people’s rights.
Conclusion
Laws seeking to further criminalise same-sex relations in Africa are now commonplace. These retrogressive and dangerous laws threaten the very existence of LGBT persons and work to deny them support from other groups in society. The reasons for them are many and varied but what is clear is that both religious and political leaders benefit from this state of affairs. These actors paint the gay rights movement in a negative light and feed the largely conservative African populations with falsehoods. The laws are used as a tool to dominate and suppress, quite reminiscent of apartheid and other forms of exclusionary politics. They are also used for reasons completely unrelated to the circumstances of LGBT people, that is, to advance the interests of politicians and others in acquiring and maintaining power. To deal with this trend, there must be concerted and deliberate efforts to address the issues raised and also to seek acceptance and understanding from the rest of the population. The struggle is long-term. It is work that must be done with a distinct appreciation for local conditions and cannot be done in isolation. It is a struggle that involves uplifting everyone. It is essential that the global human rights movement appreciates and incorporates these basic facts. The faster this occurs, the easier it will be to advocate for the reform of such laws in Africa. It remains clear that this trend is not irreversible; on the contrary, it is unsustainable since it is counter-productive to subject part of the population to violence and exclusion simply on the basis of their SOGI.
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1 Through inserting the current art. 31(2a), which prohibits same-sex marriages, into the Ugandan Constitution. See Constitution (Amendment) Act, 2005, section 10 (Uganda).
2 Per Barungi Bossa JA/JCC in Davis Wesley Tusingwire v. attorney general, Constitutional Petition no. 2 of 2013 (Constitutional Court of Uganda), para. 7. This principle had been established and confirmed by the Supreme Court in earlier cases like Paul Semogerere v. attorney general, Constitutional Appeal no. 1 of 2002 and Attorney general v. Susan Kigula and others, Constitutional Appeal no. 3 of 2006.
3 E.g., a ruling by the East African Court of Justice would be binding on Uganda under art. 38 of the provisions of the Treaty for the Establishment of the East African Community.
4 See, e.g., submissions made by the Family Life Network (FLN) to the parliamentary legal and parliamentary affairs committee on the Constitutional (amendment) Bill 2015, Kampala, 20 May 2015, available at: http://parliamentwatch.ug/meeting/meeting-family-life-network/ (accessed 27 Feb. 2018).
5 B1-2012 (formerly B15-2008), Republic of South Africa, Traditional Courts Bill, available at: www.parliament.gov.za/storage/app/media/Docs/bill/616525_1.pdf (accessed 27 Feb. 2018).
6 The Anti-Homosexuality Act (AHA), 2014, sections 2 and 3 (Uganda).
7 Ibid., section 7.
8 Ibid., section 13.
9 Same-sex Marriage (Prohibition) Act, 2013 (Nigeria).
10 Ibid., section 1.
11 Ibid., section 4.
12 Criminal Code (Amendment) Act, 2014 (the Gambia).
13 Loi No.1/05 du 22 avril 2009 portant révision du code pénal [Law no. 1/05 of 22 Apr. 2009, Amending the Penal Code], art. 567, see www.wipo.int/wipolex/en/details. jsp?id=13386 (accessed 28 Feb. 2018).
14 For an update on Liberia see: Country Policy and Information Note. Liberia: Sexual orientation and gender identity. Version 2.0. Feb. 2017, available at: www.refworld.org/pdfid/589dd4bc4.pdf (accessed 7 May 2018).
15 Criminal Law (Codification and Reform) Act, Cap. 9:23 (no. 23 of 2004), S.I. 152 of 2006, Supplement to the Zimbabwean Government Gazette (16 Jun. 2006). See the Zimbabwe Legal Information Institute website at: https://www.zimlii.org (accessed 5 Mar. 2018).
16 Penal Code (Amendment) Act, 1990 (Uganda).
17 Mozambique’s Parliament adopted a new Penal Code on 28 Nov. 2014, which was subsequently ratified by the Mozambican president and published in the Official Gazette of 31 Dec. 2014. It came into force on 29 June 2015. The law repealed the Mozambican Penal Code that had been in force since 1886.
18 See, e.g., Human Rights Watch (2013a).
19 Of course it could be argued that these laws have an adverse impact on a particular group but this would require going beyond the text of the law to analyse the implications, as Oloka-Onyango (2015, pp. 473−82) does for the laws recently passed in Uganda.
20 The NGO Act, no. 5, 2016.
21 See Human Rights Awareness and Promotion Forum (HRAPF) (2016). Also see Jjuuko (2016).
22 Public Order Management Act, no. 9 of 2013.
23 Anti-Pornography Act, 2013.
24 HIV Prevention and Control Act, 2014.
25 NGO Bill, HB 13, 2004 (Zimbabwe). It was passed by the Zimbabwean Parliament but the president never signed it into law.
26 High Court miscellaneous cause no. 33 of 2012 (Uganda).
27 Kasha Jacqueline and two others v. The Rolling Stone Magazine and Giles Muhame, High Court misc. app. no. 163/2010.
28 See Epprecht (2004), p. 224; and Wieringa (2005), pp. 285−6.
29 Indeed, President Yoweri Museveni of Uganda stated that homosexuality had always existed but had never been encouraged (Njoroge, 2013).
30 See Amnesty International (2013).
31 Belgium had decriminalised homosexuality in 1794. Although France had done the same earlier, in some colonies, it was still imposing laws criminalising same-sex relations in 1791.
32 Section 377 of the Indian Penal Code 1860 criminalised carnal intercourse against the order of nature.
33 The African countries affected were: Botswana, Gambia, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia and Zimbabwe.
34 See generally, Human Rights Watch (2008).
35 The Penal Code provision currently in force is art. 319 of the Senegalese Penal Code Loi de base no. 65–60 du 21 juillet 1965 portant Code Pénal du Sénégal (Basic Law no. 65–60 of 21 Jul. 1965 on the Penal Code of Senegal).
36 The current law is section 347 bis of the Cameroon Penal Code, Chapter 5, Part 3 of Book 1.
37 The current law against homosexuality is art. 88 of Benin’s Penal Code of 1996, and until then it relied on the Penal Code of French West Africa adopted by French colonial decree on 6 May 1877.
38 Angola criminalises same-sex relations in sections 70 and 71 of the Penal Code.
39 E.g., for girls among the Baganda, adultery was punishable by death, or in cases where the sentence was reduced, they could suffer mutilation and in some cases fines. See Roscoe (1911), pp. 261−3.
40 1930 Penal Code Ordinance, no.7 of 1930, later Cap 128 of the Laws of Uganda Protectorate, revd. edn. 1935.
41 See generally, Aldrich (2007).
42 ACHPR, 1981 Chapter 2, arts. 27−9 on duties. For a critical discussion of the language of duties, see, e.g., Mutua (1995).
43 Sexual Offences Act of 1967 (England and Wales).
44 This is under Section 9 of the Constitution of the Republic of South Africa, 1996.
45 The first one was passed on 17 Jun. 2011, requesting a study on discrimination and sexual orientation (A/HRC/17/L.9/Rev.1). The second focused on human rights and SOGI (adopted 26 Sep. 2014). A/HRC/RES/27/32 was passed, calling for a report from the Office of the High Commissioner for Human Rights on best practice for combating discrimination based on SOGI.
46 US Supreme Court, James Obergefell, et al., petitioners v. Richard Hodges, director, Ohio Department of Health, et al., 576 US (2015).
47 Pastor Martin Ssempa, a Ugandan pastor and activist and founder of the Makerere Community Church, is a leading anti-gay crusader in the country. In 2012, he was convicted on charges of conspiracy to tarnish Pastor Robert Kayanja’s name after accusing him of ‘sodomising’ youths in his church. Since he is also an American citizen, a subpoena was issued for him to give evidence in Sexual Minorities Uganda (SMUG) v. Scott Lively which was ongoing in Massachusetts, US. Since it was issued, he has rarely appeared in public or made comments about LGBT persons, and thus it has never been served on him personally. See The Kampala Sun (2016).
48 Pastor Solomon Male, a Ugandan pastor and executive director of Arising for Christ, is one of the country’s strong opponent of homosexuality. He was also convicted alongside Ssempa on charges of conspiracy to tarnish Pastor Robert Kayanja’s name by accusing him of ‘sodomising’ youths in his church. He chairs the National Coalition Against Homosexuality and Sexual Abuses in Uganda (NCAHSAU), though he was at one point opposed to the AHB, which he described as ‘a waste of time’.
49 A key example is the alliance between Pastor Stephen Langa’s FLN and Scott Lively, which saw the latter coming to Uganda in March 2009 and preaching against homosexuality.
50 E.g., Lou Engle soon followed Scott Lively in visiting Uganda. He held a mass rally at Makerere University which was attended by the AHB’s mover, Hon. David Bahati and the then minister of ethics and integrity, Hon. Nsaba Buturo. See Kron (2010).
51 Inter Religious Council of Uganda (IRCU), the FLN and the Uganda Centre for Law and Transformation v. attorney general of Uganda and ten others, Miscellaneous Constitutional Application no. 23 of 2014.
52 Ibid.
53 These took place between 1990 and 1993, in most of francophone Africa: Benin, Chad, Comoros, Republic of the Congo, Gabon, Mali, Niger, Togo, and Zaire (now Democratic Republic of the Congo).
54 E.g. Zambia in 1996, Namibia in 1990, Malawi in 1995, Angola in 1992 and Mozambique in 1990.
55 Constitution of the Republic of South Africa, Section 9(3).
56 Toonen v. Australia, Communication no. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), para. 7.
57 These were Victor Mukasa and Yvonne Oyo v. attorney general, High Court miscellaneous cause no. 247 of 2006 and Kasha Jacqueline, David Kato Kisuule and Pepe Julian Onziema v. The Rolling Stone Newspaper, miscellaneous cause no. 163 of 2010.
58 The Pew Research Center (2013) established that the African public are the least accepting of homosexuality worldwide with 96% of Ugandans believing society should not accept it.
59 Civil Unions Act 2006 (Uganda).
60 This is under Section 9 of the Constitution of the Republic South Africa, 1996.
61 National Coalition for Gay and Lesbian Equality and another v. minister of justice and others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 Oct. 1998).
62 Minister of home affairs and another v. Fourie and another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 Dec. 2005); Lesbian and Gay Equality Project and others v. minister of home affairs and others [2005] ZACC 19.
63 Du Toit and another v. minister for welfare and population development and others [2002] ZACC 20.
64 Penal Code (amendment) Act, 1990 (Uganda).
65 Indeed, during the AHA case the Constitutional Court criticised her actions which were partly the basis on which the AHA was nullified. See Professor J. Oloka-Onyango, Hon. Fox Odoi-Owyelowo, Professor Morris Ogenga-Latigo, Andrew M. Mwenda, Dr Paul Semugoma, Jacqueline Kasha Nabagesera, Julian Pepe Onziema, Frank Mugisha, HRAPF and the Centre for Health, Human Rights and Development (CEHURD) v. attorney general, Constitutional Petition no. 8 of 2014, p. 26.
66 Anti-Pornography Act, 2014 Republic of Uganda.
67 NGO Act, 2016.
68 Bill to Regulate the Acceptance and Utilisation of Financial/Material Contribution of Donor Agencies to Voluntary Organisations, Jun. 2014 (Nigeria).
69 NGO Coordination Act proposed amendment, 2011 (Kenya).
70 NGO Bill, 2004 (Zimbabwe).
71 During SMUG v. Scott Lively. Case 3:12-Civ-30051 MAP 2012 where SMUG is represented by the Center for Constitutional Rights (CCR).
72 Rick Warren, the founder and senior pastor of the Saddleback Church in California, US, is an influential conservative preacher and author.
73 Loosely translated as ‘I am because we are’, it means that communities are a sum of their many individuals, coexisting and supporting families and each other.
74 Kanane v. the state, 2003 (2) BLR 67 (CA).
75 See Anguita (2012).
76 See Human Rights Watch (2013b).
77 See, e.g., Canning (2011).
78 For a more detailed discussion of the role of international solidarity and the pitfalls to avoid while engaging on issues like the AHB in Uganda, see Jjuuko (2016).
79 The African Commission’s ‘Resolution on the Protection against Violence and other Human Rights Violations against Persons on the Basis of their Real or Imputed Sexual Orientation or Gender Identity’, adopted at the meeting of the African Commission at its 55th Ordinary Session held in Luanda, Angola between 28 Apr. and 12 May 2014, see www.achpr.org/sessions/55th/resolutions/275/ (accessed 28 Feb. 2018).
80 Section 4(1) (Nigeria).
81 The Petition is officially cited as Professor J. Oloka-Onyango, Hon. Fox Odoi-Owyelowo, Professor Morris Ogenga-Latigo, Andrew M. Mwenda, Dr Paul Semugoma, Jacqueline Kasha Nabagesera, Julian Pepe Onziema, Frank Mugisha, HRAPF and CEHURD v. attorney general, Constitutional Petition no. 8 of 2014. In respective order, the petitioners are: a law professor, one of the MPs who authored the minority report on the AHB, a former leader of the opposition in the last parliament, a journalist and media company owner, an HIV activist for MSM, a lesbian activist, a trans activist, a gay activist, an organisation offering legal aid services to marginalised groups, and an organisation working on health issues.
82 AHB, no. 18 of 2009.
83 Ibid., clause 13.