Sexual Orientation and Gender Identity Rights - A question of accountability and justice in Africa
By Aobakwe Laone S. van Vuuren and Louis Busingye
THE POLITICS OF LOVE AND SEXUALITY | This essay is part of out August 2021 issue that looks at the ever changing landscape of conventional concepts of sexuality and sexual health in African nations. Strides have been made in some spheres, However it is undeniable that various aspects of love and sexuality continue to have real consequences on the lives of Africans.
From a pro LGBTIQ+ rights lens, this piece presented in a series of two articles, will attempt to diagnose homophobic tendencies and effects on the continent. The study will then explore international human rights law channels as probable solutions to the plight of sexual minority communities in Africa.
‘’UN-AFRICANNESS’’; A MISCONCEPTION
The strong surge against sexual minority communities in the African continent is largely premised on the notion of western cultural influence. In a bid to prevent, the much-revered African culture from western influence and ‘erosion’, wanton discrimination and the criminalisation of LGBTIQ+ existence thrives as a measure of preserving the African heritage. These perspectives that detest same sex relations and queer identities are firmly built upon an African moral standing; one that stubbornly favours heterosexual normativity over other ‘unnatural behaviour’ modelled upon western influence. Indeed African leaders have not shied away from camouflaging the fight against LGBTIQ+ existence as a valid strategy of an African stance on counter-imperialism. President Robert Mugabe, who formerly chaired the African Union, was once quoted as saying that homosexuals were a negative tool of Western Imperialism, thus worse than dogs and pigs.
Whereas condemnation of LGBTIQ+ ‘western ideals’ is amplified by a majority of the African countries having laws that criminalise consensual same sex relations, contemporary scholarship negates these claims to be largely inaccurate. Anthropological study proclaims not only the existence of same sex relations in pre-colonial Africa but also the tolerance and inclusion of diverse sexual orientations. Empirical evidence shows that heteronormativity within the African context was introduced by colonial masters as a means of regulating marriage and procreation through religious doctrine such as Christianity. This was seen as a necessary tool for diminishing African customary practices in favour of western ‘civilised’ customs, inferred to be superior by the imperialist. Homosexuality was thus introduced as an offence in the greater dominions of the continent as a tool of subjugating African practices during colonialism. The infamous case of Republic v. Amkeyo in which the British presiding judge, Justice Hamilton, dismissed customary marriages and reduced them to a mere ‘wife purchase’ arrangement having no civil standing whatsoever under protectorate legislation, is often comparatively used to illuminate the extent to which colonial masters only sought to destroy unifying factors deemed African. In disproving the un-African narrative, scholars present pre-colonial Africa society vastly aware of diverse relation dynamics, which included the institutionalisation of same sex relationships by some African cultures. Through anthropology and oral tradition, various African communities present the existence of persons with varying sexual orientations as minorities in a heterosexual dominant society. Depictions of ‘’boy wives marriage’’ institutions within the Azande community, (modern day Sudan), are well-documented unions that were accepted both legally and culturally. Women in the Sotho ( Modern day Lesotho) who were particularly socio-economically vulnerable due to their dependence on migrant worker males, formed intimate support networks popularly known as mummy-baby networks. Sylvia Tamale, also sheds more weight to the argument that presents homophobia as a western import contrary to popular narrative by providing historical footprints as evidence of pre-colonial same sex relations within the African continent. The Bushmen of Guruve Zimbabwe depict LGBTIQ+ existence in their community through ancient cave paintings. The King of Buganda (modern day Uganda), Kabaka Mwanga, was openly known to be gay. Traditional languages such as the Zulu in South Africa, Wolof in Senegal all contain oral tradition of same sex relations.
The humane manner in which African traditional societies handled queer sexual orientations and gender identities is of value to this discourse on equality. The Langi for example, a tribe in the Northern province of Uganda, effeminate males were regarded as women and could marry men. This resonates with the strive for equality in marriage by the LGBTIQ+ community in Africa today that has only one country in the entire continent (South Africa), having constitutionally extended same sex marriage in 2006. As popular opinion would argue, LGBTIQ+ rights debate is fuelled by western ideological imperialism on Africa and is a means of moral degradation of African values, these views are countered by contemporary scholarship who assert the actual opposite. While alluding to ‘’Anti-sodomy laws’’, Epprecht points out the ironic truth that homophobia originally existed in western civilisations and was exported to Africa through codified western colonial and religious laws. This leading to the criminalisation of homosexuality, rigorously adapted by majority of modern-day African states.
BEARING THE BRUNT. CASE STUDY I: UGANDA
The deeply entrenched culture of homophobia and anti-queer rhetoric in Africa, instanced through legislative discrimination and negative social perception, infuriates the victimisation of sexual minority persons on the continent. Premised on their sexual orientations and diverse gender identities, the LGBTIQ+ community in Africa are subject to recurrent human rights violations. In attempting to impose heteronormative norms, African civilisation suppresses the dignity of sexual minorities in the following select instances.
Uganda has notoriously headlined the Anti-gayism movement and it would be prudent to highlight these inconsistencies that project the plight of LGBTIQ+ persons within. The Constitution of the Republic of Uganda sets forth the objective of respecting and promoting ‘’Fundamental and other human rights and freedoms’’. This as one of the core National objectives and principles of the state’s policy declared within its preamble, is reiterated in Chapter Four of the same legislation where the inherent rights of the human being are to be ‘’respected, upheld and promoted by all organs and agencies of Government and by all persons in Uganda.’’ The equality clause is also concise where the same constitution provides that ‘’All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.’’ Non-discrimination as a principle of Human Rights is also guaranteed under the same article.
The LGBTIQ+ community in Uganda, however, are not accorded the same constitutional protection and are instead discriminately targeted both by subsidiary legislation and societal practices that are contrary to the legal dictates of equality provided for by the constitution. The detest for sexual minorities by the Ugandan Government has homosexuality labelled as a crime of ‘’unnatural offence against the order of nature’’, punishable by life imprisonment under the Penal code, a punitive law enacted in 1950, fourteen years prior to independence, by the Imperial British colonial government. This was echoed by the Anti-Homosexuality Act (2014), which criminalized same sex relations with life imprisonment as a capital offence. These eventualities have in-turn, led to negative implications upon the livelihood of LGBTIQ+ persons in Uganda.
The infamous murder of David Kato, who was bludgeoned to death for adamantly advocating for LGBTIQ+ equality, lives fresh in the memories of Human rights activists and practitioners alike. The perturbing reality is that there exists no accountability channels for such gruesome actions. A decade after the fact, no measures have been taken against ‘The Rolling Stone’, a Ugandan tabloid that published the names of notable members of varying sexual orientation and gender identities. This publication instigated the masses against members of the LGBTIQ+ community calling them out on their ‘Un-African’ nature of living, setting in motion a series of events, culminating in the murder of David. Whereas this single, gruesome act of hate perpetrated against a member of the LGBTIQ+ community in Uganda received an immense outpour of condemnation across the globe, this harsh eventuality was symptomatic of a negative stereotype that had been weighed upon the country’s LGBTIQ+ community over a long time and continues to exist. Pastor Martin Sempa – a notable clergyman, is constantly harnessing public dissent castigating homosexuality as an ‘evil practice’, hate speech that is broadcast on national air streams. The lack of protection by the country’s leadership and insufficient legal protective mechanisms on the rights of persons with varying sexual orientations and gender identities has also been documented. President Museveni, who assented to the Anti- Homosexuality bill two years preceding Kato’s murder, once infamously expressed his utter disregard on the topic on international television claiming [sexual minorities], ‘’are disgusting and do not deserve to live.’’ This public resentment is reflective of the lack of political will by the Ugandan state in protecting the rights of sexual minority groups in the country. Sylvia Tamale, a legal practitioner and scholar, devout to defending the rights of sexual minorities in Uganda, elaborates how she has been negatively targeted by the public, her peers and media alike for defending ‘’pathological , deviant and unnatural behaviour.’’ She also goes ahead to gruesomely narrate how such cultural, political and religious fundamentalism has affected people like her who speak against the subjugation and wanton injustices faced by sexual minority groups in a patriarchal, heteronormative country like Uganda.
Uganda’s cruelty towards the existence of sexual minorities, as well as their sympathisers, has been noted by the United Nations Human Rights Council (UNHRC) which identified the atrocities affecting the dignity of LGBTIQ+ persons in the country. The UNHRC has called on the Ugandan Government to protect the rights of LGBTIQ+ individuals by preventing any discriminatory actions towards them, emphasising the need for the State to repeal any draconian legislation by decriminalising homosexual activity. The second cycle of the Universal Periodic Review (UPR) also re-iterated the need to create a conducive atmosphere for the livelihood of sexual minority groups in Uganda by condemning the institutional and legal discrimination against LGBTIQ+ persons by denouncing the Anti- Homosexuality law, again recommending the state to alleviate all traditional practices and stereotypes that perpetuate discrimination and hate towards sexual minority groups in the country, who continue to suffer subjugation and stigmatisation, even in the face of the ongoing devastating Covid-19 global health crisis. Human Rights Watch reported the arbitrary arrest of twenty LGBTIQ+ members by state apparatus including the mayor of the capital city.
Levelling such homophobic tendencies against the ICCPR, which Uganda ratified and is thus bound to respect the rights of its citizens, forms the crux of the International Human Rights Law’s protective capacity argument. The ICCPR provides under Article 2(1), that a State Party is to undertake all measures to respect and ensure that all individuals within its territories and jurisdiction are accorded the rights within the covenant without distinction of any kind. Article 26 further recognises that all persons are equal before the law and are thus entitled to the equal protection of the law without discrimination. Such arrests (as reported by Human Rights Watch above) do not only flagrantly violate ICCPR provisions which protect the ‘’right to liberty and security of person from subjection to arbitrary arrest or detention’’, but also discriminatively denies the human dignity accorded by the UDHR. The intrinsic, unconditional, and incomparable value that dignity through the respect of human rights, as derived from Kantian moralist philosophy, is utterly disregarded in such circumstances as Beitz asserts pragmatism within the concept of dignity. He states that for dignity to be relevant in the human Rights discourse, institutional protection is mandatory against the various threats of discrimination, far beyond the normative substance that human rights law spells out in legislation.
The lack of dignity for the LGBTIQ+ person in Uganda has similar repercussions in South Africa, a country widely perceived to be a safe space for persons with varying sexual orientations and gender identities in Africa.
COMPETING REALITIES: CASE STUDY II: SOUTH AFRICA
On a continent where Sexual Orientation and Gender Identity (SOGI) rights are largely disregarded, South Africa easily bears mention as a leading standard, being the only African state with constitutional protection of the rights of LGBTIQ+ persons. South Africa became a democracy in 1994, its new Constitution included, for the first time, a justifiable Bill of Rights, of which the Constitutional Court became the final arbiter. With this, South Africa’s Constitution became the first in the world to prohibit unfair discrimination on the grounds of sexual orientation, a deliberate move to guarantee equality for gay and lesbian people. Former South African Constitutional Court Justice, Edwin Cameron, commended this constitutional protection of the socially vulnerable as a practical application of the philosophy of ubuntu.
In South Africa, same-sex marriages are legal and transgender people can change their sex description and gender marker in the national birth register. Despite these protections, the LGBTQ community has long been subjected to hate speech, discrimination, and grotesque violence in the country, targeted because of their sexual orientation and gender identity. This year alone has already witnessed numerous violent crimes against LGBTIQ+ persons in South Africa. In April, the killings of four gay men made headlines, one of which occurred only a couple of days after protests in front of Parliament where advocates demanded the South African government address homophobic violence that continues unabated, across the country. Commemorations of LGBTIQ+ Pride Month in June were marred by the brutal killing of another queer man who was allegedly placed in the boot of a car, which was then set alight.
Homophobic violence in South Africa does not only target gay men. Lesbian women in South Africa are disproportionately faced with the very real threat of “corrective” rape, a form of sexual violence perpetuated by men who allegedly believe that forced sex can change a women’s sexuality. This is often under the guise of essentialised customs and traditional masculinities, evidenced by the 2006 court trial against Jacob Zuma, the man who would later ascend to the South African presidency. Rather than destroying Zuma’s chances of ever attaining the presidency, the 2006 rape trial, in which he was accused of raping a lesbian woman, created a platform for Zuma to popularise essentialized versions of Zulu customs and traditional masculinities, claiming that in terms of his cultural understanding, the plaintiff’s way of dressing was an invitation to sex. Naidoo notes that Khwezi’s attempt to charge and bring to justice the man she accused of violating her resulted, instead, in her vilification, with her sexual history, sexual orientation, lifestyle, and previous experiences of abuse becoming the focus of courtroom theatrics and intense public and media scrutiny. Zuma was acquitted and after receiving numerous death threats, Khwezi fled the country, eventually passing away in 2016 after years in exile, living in hiding and seclusion.
Khwezi’s story is only one out of several other lesbian women subjected to “corrective” rape and suffering, with no support. According to ActionAid, cultural and social discrimination also influences vulnerability to “corrective” rape. An ActionAid research from 2008 suggests that while women generally lack “sufficient support systems”, black lesbian women were especially vulnerable as a great number of them live in townships, where “corrective” rape is prevalent. Of the women surveyed from the Western Cape province, 86% of black lesbian women indicated they lived in fear of sexual assault, in contrast to only 44% of white women expressing a similar fear.
While the constitution provides protections for LGBTIQ+ persons, prevalence of violent and discriminatory attacks against them illustrates a reality that competes with the ideals espoused by the constitution. LGBTIQ+ rights advocates and civil society organisations have, for years, called for government action to address the crimes committed against LGBTIQ+s in South Africa. In 2013, responding to these crimes and pressure from civil society, the South African government, in partnership with relevant stakeholders, relaunched a National Task Team (NTT). The NTT comprises representatives from government and civil society organisations and is tasked with several objectives. Chief amongst its objectives, is the development of a National Intervention Strategy to respond to and prevent, gender and sexual orientation-based violent crimes perpetrated against LGBTI persons and the development of an Inter-sectoral Implementation Plan which would link parallel and complementary initiatives. According to the 27th UPR Working Group Sessions SOGIESC Recommendations, the NTT has worked with various government departments to make strides towards equal treatment of LGBTI people, though realities on the ground would suggest very little progress has been made in this regard. It appears that many South Africans still perceive LGBTQ individuals as inherently immoral and “un-African”, and thus pay little attention to the abuse they endure on a daily basis in the country.
In some instances this indifference is coupled with blatant homophobic sentiment, coming from within the echelons of government itself. When four gay men lost their lives in April, the report on these murders was followed by a disturbing one in which a spokesperson for the Gauteng Department of Cooperative Governance and Traditional Affairs, shared a link to the story on Twitter, alongside a fist emoji and the caption “Aluta Continua” (the struggle continues). Naturally, this led to a widespread condemnation of the tweet by activists and allies across the country, who decried the blatant celebration of hate crimes, calling it a revelation of the government's unapologetic homophobia. Moreover, the tweet was also emblematic of the widespread and stubborn resistance of LGBTQ rights in South Africa, signalling an autochthonous homophobia that has allowed for violent crimes against the queer community to continue unabated. In response to this incident, the Gay and Lesbian Alliance of South Africa once again urged parliament to pass The Prevention and Combating of Hate Crimes and Hate Speech Bill of 2018. The bill aims to outlaw hate crimes and hate speech on the grounds of race, gender identity and sexual orientation, with its ratification being delayed by concerns that it may inhibit freedom of speech.
South Africa’s constitution has been commended the world over for its extensive nature and application. Following South Africa’s accession to the African Charter in 1996, it has been invoked in numerous judgements, mostly as a mere confirmation of existing constitutional provisions and correlation with international human rights instruments. In one example; Article 5 of the African Charter helped Langa J substantiate the assertion that Section 11(2) of the 1993 constitution, which outlawed inhuman and degrading treatment or punishment, was in correspondence with most international human rights instruments.
For all its accolades, the South African constitution has not been able to respond to the trend of violence and hate crime against LGBTIQ+ persons in South Africa. The constitution in prohibiting discrimination against lesbians and gays, as well as ensuring marriage equality and transgender transformation, is still head and shoulders ahead of other states on the continent, and remains an exemplification of both the tremendous strides made in LGBTIQ+ equality on the continent, as well as an illustration of the gaps that still need to be addressed through advocacy and education, holding governments accountable, to achieve equality and justice for LGBTIQ+ people in Africa.
CONCLUSION
By presenting both Uganda and South Africa respectively, this research, which forms the first half of an article series, explores two extreme jurisdictions experiencing the brutal nature that a blanket discrimination has on sexual minorities on the African continent. A deliberate focus has been made in this instance to focus on East and Southern Africa for case studies. Whereas constitutional protection is provided de jure in the Rainbow nation, grievous instances of homophobic violence and discrimination still go unaccounted for. On the other hand, the Pearl of Africa is notoriously regarded as the worst country to live in for persons with queer Sexual Orientation and Gender Identities, casting a very dark reputation for cruelly responding to the quest for equality by the LGBTIQ+ community. In both these jurisdictions, societal negative attitudes towards upholding sexual minority rights reflect the casual or dismissive attitude of authorities in expending justice whenever called upon. The next part of this series will attempt an assessment of protective mechanisms that can address these violations, as well as present two more case studies from East and Southern Africa. Throughout the series, the research will reflect on both regional and international human rights echelons, which present an interesting clash of opinion and approach.
Aobakwe Laone van Vuuren is an international human rights and policy development specialist. He has an MA in Applied Human Rights from the University of York and is an alumnus of the Chevening Scholarship. Laone self-identifies as queer and is interested in research to improve the legal and social position of LGBT persons and other minority populations in Southern Africa.
Louis Busingye is a Human Rights Lawyer based in Rwanda. He currently serves as the Strategic Associate at Interconnected Justice, a pan African organization that advocates for the dignity of African persons and heritage.