Equality of LGBTIQ persons in Africa

Equality of LGBTIQ persons in Africa

The journey to equality and non-discrimination for LGBTIQ persons and communities in Africa has been a roller coaster in 2014. – Creator: OSISA. All rights reserved.

How did the lifes for African lesbians, gays, bisexuals, trans* and inter*persons change in 2014? Where are the struggles? Where is progress? An anlaysis

This short paper offers a brief but succinct analysis of legal, policy and socio political changes that have translated to improved and/or reduced human rights protections for Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) persons and communities in select regional countries across Africa. It blends the analysis with comparative jurisprudence and developments on a country to country basis with due regard to the different geopolitics and histories of African countries.

The momentous happenings of 2014

In terms of the legal architecture, 38 of 54 African countries still criminalize consensual adult homosexual sex in private. Within the year 2014, no African country decriminalized homosexual sex although there have been incremental judicial protections for homosexuals in certain countries as mentioned later in this paper.

The battle horn had been blown by the close of 2013 when the Ugandan parliament passed the Anti-Homosexuality Bill punishing adult consensual homosexual sex with up to life imprisonment. The Nigerian senate had also passed a copy paste of similar legislation in late 2013. Gambia and Liberia were still tinkering with similar bills at the close of 2013 but had not passed the bills in their parliaments.
At the dawn of 2014, Nigeria’s presidential press dispatched word that the Same Sex Marriage Prohibition Bill had been signed by President Goodluck Jonathan into law. Uganda followed suit with Museveni calling an international press conference to witness the signing into law of the Ugandan anti-gay law.

Activists and equality allies in Kenya and South Africa protested against these laws outside respective High Commissions in both countries.  In Kenya, a country that maintains British sodomy laws with 14 years’ imprisonment for homosexual sex, the police denied protesters licenses to picket outside the Ugandan High Commission in Nairobi; that did not deter them from picketing and risking arrest. It would be these acts of defiant courage and love in the face of adversity that led the Kenyan parliament to discuss homosexuality in Kenya asking for proof of enforcement of existing sodomy laws and enactment of newer stricter laws should the existing laws be deemed insufficient.

An anti-gay caucus was formed in Kenya’s parliament and declared its intention to be enforcement of anti-gay laws or enactment of newer laws should the existing laws be insufficient. The government of Kenya responded by tabling evidence in parliament to prove that between 2010 and March 2014, a total of 595 cases involving unnatural offences had been dealt with by Kenya’s criminal justice system. While that rested in angst of the parliamentary anti-gay caucus, a minority political party without any representation in the Kenyan parliament petitioned parliament with a proposed Kenya Anti-Homosexuality Bill 2014 for consideration. The proposed law purports to protect children and Kenya’s religious and cultural values. This Bill is still pending in the Kenyan parliament as of November 2014. It must be noted that in Kenya, like most of the 38 out of 54 African countries with sodomy laws, gay and lesbian groups cannot be formally registered by the government, case in point being the ongoing constitutional petition regarding the registration of the National Gay and Lesbian Human Rights Commission against the NGO board of Kenya or the recent LEGABIBO case in Botswana.

Meanwhile, the president of the Gambia appropriated his diplomatic immunity when addressing the UN General Assembly in mid-2014 to declare gays a ‘vermin’ that should be ‘killed’. Gambia recently passed an Anti-Homosexuality Bill that supplies life in prison to gays. The law was assented in November 2014. Consequently, hundreds of LGBTIQ migrants continue to cross the border to Senegal in search of safety from the homophobic regime.

In the Republic of Chad, the penal code is being amended to further increase the punishment for homosexual sex. In Tanzania, one LGBT group has been de-registered once the state found out its actual objectives. This is within the clamorously negotiations for a new constitution of the country where conservative forces determined to maintain the status quo are beset with excluding sexual and gender minorities from constitutional protection. Queer groups in Burkina Faso have been waiting for more than a year for registration decisions from state departments. In Zimbabwe there have been raids on offices of LGBTIQ organizations orchestrated by the state police. A staffer at the Gay and Lesbian Coalition of Zimbabwe was in 2014 detained and harassed by the police for running an ‘illegal’ organization. There has been public discourses in Congo, Ghana, Zambia, Burundi, Malawi and many other African countries with calls for stricter anti-gay laws.  

Positive protections

However, there are positive legislative protections against discrimination on the basis of sexual orientation in the labour laws of Botswana, Mozambique and in the Constitution of South Africa. Further, the High Court in Botswana has recently held (in the case regarding registration of LEGABIBO-an LGBTI group) that discriminating against homosexuals is unconstitutional. In Kenya, the High Court ruled in 2014 that denial of registration to a transgender group (Transgender Education and Advocacy) was unconstitutional and amounted to discrimination on the basis of gender and sex. In a separate case, regarding a Transwoman who sought to change her gender marker in the national examinations certificates and was denied, the High Court in Kenya ruled that it was a breach of her right to dignity, expression and equality; that the denial amounted to discrimination on the basis of her gender, which discrimination was unconstitutional. In Uganda, the High Court struck down the Anti-Homosexuality Act of 2014 on the basis that it was passed without quorum, no other meritorious reason or analysis was given.

While these positive rulings from the judiciaries might sound scanty and cursory, they are monumental and precedental. They imbue confidence and throw light on the path of foot soldiers who are fighting under the shadows of criminalization and general oppression. They are victories that must be savored, sung and retold, to strengthen not just the hearts of activists on the ground, but also the communities they serve and diaspora migrants who have fled the cruelty of criminalization at home countries.

With the growth of extractive, construction and manufacturing industries in Africa, the continent is under a subtle militarized scramble by the East and the West. The argument by many African leaders that we need to give priority to socio economic rights at the expense of civil political rights has in the end proved to be nothing but a smokes screen meant to use poverty to manipulate people in a way that galvanizes power and resources to a privileged few who are connected to the political class.

Myths and stereotypes

The public discourses around homosexuality in Africa have not changed much in 2014. The public discourses are often characterized by over sexualization of LGBTIQ persons with myths and stereotypes that are based on archaic Victorian notions of sexuality and gender. There still abounds many myths and stereotypes perpetuated by the political elite who dehumanize homosexuals calling them pigs (Mugabe of Zimbabwe), vermin (Yayah of Gambia) and un-African (Museveni of Uganda). The rhetoric that homosexuality is un-African flies loathe of historical and anthropological evidence that depicts existence of homosexual practices prior to the advent of colonization. It is the same case with the ruse that homosexuality is against African culture when evidence alludes to homosexual pederasty, boy wives, female husbands and twin spirited healers before colonialism.  Africans who argue that homosexuality is ungodly ignore the fact that the healers, diviners and medicine men who served and healed their ancestral linage, and who were used by gods to heal,  were in fact not alien to twin spirit identities and expressions- in dressing and often, sexually.

The political class who want to use homosexuality as a red herring succeed because they have not only impoverished their populace and therefore made them vulnerable to manipulation but also because they have denied them access to education that would open vistas of learning in their minds. The education curriculum content is also restrictive to critical learning; for example, the history taught in primary and secondary schools is largely Eurocentric when it comes to African tribal cultures, identity and origins. Also, the religious groups have a huge sway in curriculum content due to their symbiotic relationship with the state in providing welfare services such as health and education. While some might argue that these social welfare programs are the bargaining chip that religious institutions use to bend the will of the state, it is also very telling how the ‘cultural wars’ of evangelization have started legislating homophobia only after more than 50 years after the independence of many African states. It is also very telling how states that adopted colonial homophobic laws are now owning them and strengthening them with the help of evangelical groups with western affiliation. Be that as it may, the evangelicals have since changed tactic from using crusades and churches to push their agenda; they are now forming NGOs that provide charity to impoverished populations while at the same time teaching the recipients of the charity conservative propaganda including homophobia.

In Kenya, a Christian NGO has been circumcising pubescent boys from poor families that cannot afford circumcision fees and then in return they take the boys through a week of training on how to be a man.  These NGOs are also lobbying the state around ‘family values’ using their NGO identity. Financial support from the referenced NGOs, like most NGOs in Africa, comes from the west.

The civil society

With increased militarization, surveillance and constriction of the public space through lewd public order management laws, social justice movements have increased intersectionalities and solidarity in their struggles. For example, the Ugandan civil society coalition for constitution reforms provided a rich pot for allies from the feminists, the migrants and other reformist movements to fight off the Anti-Homosexuality Act as well ongoing work to strike down the Anti-Pornography Act and Public Order management Act of 2014.

Still, much work remains to be done to realize equality for LGBTIQ persons across Africa; queer movements must invest in building meaningful allies with other social justice movements in African countries where that has not been done- mainstreaming helps normalize what was hitherto taboo. The African Commission on Human and People’s Right’ resolution against violence on grounds of real or perceived sexual orientation and gender identity needs to be implemented by domestic human rights commissions and justice departments- it is upon the queer groups in domestic countries to follow through on this ground breaking pan African authority as equal citizens of their respective countries.

Strategic litigation has proven successful in Uganda, Kenya, Botswana and South Africa, this should offer a learning reference for groups in other countries to engage the judiciary, especially where, as evidently often, parliament and the executive keep relying on popular majoritarian views on queer equality. Movements across Africa might also want to invest more on opening themselves up to the public and the media in order to reduce stereotyping which is largely based on invisibility and secrecy. There is also a strategic advantage in linking the queer equality struggle with the academia in order to equip tomorrow’s professionals with a universal view of equality. Further, cross country partnerships between movements has proven successful in lobbying at the African Commission, this needs to be sustained and replicated in smaller regional levels of cooperation and pollination between movements.

The elephant in the room

The international community must be led by the advice and priorities of domestic groups before speaking to or engaging with African governments on matters touching on queer equality due to the hazardous weaponization of queer equality as a political tool in sovereignty battles between Africa and the west. Caution must be had before diplomats and heads of states from the west make any LGBTIQ themed statements to African leaders in any forum. Such engagements must also integrate the struggles for gender equality, adequate sanitation, safe housing, maternal health, poverty, insecurity and other broader concerns that do not isolate LGBTIQ issues as an elephant in the room.

LGBTIQ asylum and refugee assistance programs need to provide more psychosocial support-inclusive of basic needs- to asylum seekers and refugees who have fled their home countries and are still in Africa, especially when they flee from a country that has criminalization to another with criminalization. The refugee regime in Africa will benefit from sustained sensitization trainings on sexuality and gender to cure the harm of prejudices by some service providers who have never encountered queer refugees.

The queer diaspora needs to respectfully engage local actors in their home country and work on sustainable information sharing platforms that avail actionable ways of assistance to make home safer to reduce the brain drain occasioned by migration. Queer groups in the west can help African queer groups with knowledge transfers in documenting violations, security, mentorship, fellowships, scholarships, learning exchange programs, among others. Individuals can assist by directly supporting or mentoring activists, donations to programs they find useful, petitions to their governments to support equality for all inclusive of LGBTIQ persons in Africa, among other imaginative ways of getting involved.

The journey to equality and non-discrimination for LGBTIQ persons and communities in Africa has been a roller coaster in 2014. Each of us has a part to play in raising consciousness of our shared humanity, our common struggle to liberation from whatever form of oppression, be it greedy capitalists, tyrants, homophobes, sexists and many other forms of oppression which are all connected.  There is an African adage to the effect that with each little step you take, you arrive. Let us not tire in the path, let us leave beacons and guides for those that walk with us and seek the truth. Let us give hope and love by our actions unceasingly, wherever the spin of the globe finds us. Tyranny and lies might hold for a while but eventually truth and justice triumphs. May our actions- beyond ideas and thoughts, bring us closer to that truth in 2015.

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