The sting of criminalization continues to bite but the liberation and moral citizenship in the universe of equals is within reach, keep walking
Continued criminalization of homosexual sex conduct in 38 of 54 African countries and the introduction of stiffer laws in some of these countries continue to occasion discrimination, persecution and asylum flight for many Lesbian, Gay, Bisexual, Trans, Intersex and Queer (LGBTIQ) individuals across Africa . This is in spite of the holding by the African Commission on Human and Peoples Rights in Zimbabwe Human Rights NGO Forum vs Zimbabwe that discrimination on the basis of sexual orientation was against the African Charter on Human and Peoples Rights (ACHPR) which more than 98% of African states are party to.
Additionally, more UN treaty monitoring bodies continue to recognize sexual orientation as a protected ground from non discrimination with UN agencies such as the UN Human Rights Council in 2011 asking states that criminalize homosexual sex conduct to repeal sodomy laws in order to curb discrimination on the ground of sexual orientation. There have also been legislative strides on the equality of marriages in France, the United Kingdom and American states such as New York and Uruguay. There are also ongoing judicial hearings on equal marriages in Chile and USA.
These international efforts run in parallel against many legal, political and cultural hurdles to equality within many African states who are party to the ACHPR and major UN human rights treaties. Illustratively, continued criminalization of homosexual sex in 38 of 54 African states, introduction of sodomy laws in Burundi, stiffer same sex relationship penalties in Liberia, Uganda and Nigeria and political and religious rhetoric in Kenya are some of the factors accentuating discrimination and hindering equality for LGBTIQ. Further, diplomatic ties of aid to ‘gay rights’ by western allies to African countries have perpetuated greater homophobia in Africa with ‘gays’ being viewed as the stumbling block to access public welfare funding for health, education, shelter and other basic public amenities tied to western funding.
It must be mooted from the foregoing that the legal and political space for LGBTIQ persons in Africa has shrunk in the last one year, however, there are gains towards strengthening equality inclusive of LGBTIQ persons. For example, in the last few years, countries like Botswana, Mozambique, Mauritius and Seychelles have introduced legislation that forbids discrimination in employment on the basis of sexual orientation. Kenya has also been taking strides to implement a constitution passed in 2010 which has sweeping equality provisions, the Kenyan government has also bought, branded and distributed free condom lubricants to gay clinics across the country, slow but valid recognition. Ugandan activists have been prosecuting state officers for violating their right to assemble. Within the last two years, there has been a surge of LGBTIQ equality players strategizing on incrementally using locally available legal provisions and mechanisms to achieve equality. While this can be attributed to modeled equality championing from the West, there is also a regional awakening by African equality players seeking more equality reforms from their three arms of government
I suggest through observatory learning and practice, that activists in African are slowly learning two things: One, decriminalization might be achieved through aristocratic judicial institutional avenues but culture, politics and religion might present draw backs and thus shrinking the space to enjoy the new found freedoms. So they have started training state agents, civil society, informal workers, trade unions and allied professional associations on diversity and inclusion and many other public dialogue programs. Two, and of focus in this paper is that while criminalization of homosexual sex conduct occasions human rights violations, there is no law limiting the application of fundamental rights and freedoms to homosexuals. The significance of the ruling in Victor Juliet Mukasa and Yvonne Oyoo vs. the Attorney General of Uganda has finally silted. The valiant spirit of David Kato and his compatriots in the case of of Kasha Jacqueline, Pepe Onziema & David Kato vs. Giles Muhame and The Rolling Stone Publications Ltd speaks to many across the continent.
Collectives are organizing towards using regional legal mechanisms such as the African commission on human and peoples’ rights and the east African court of justice to enhance equality. This vibrancy among lawyers and NGO activists towards judicial avenues is a good precondition that nurtures change. It is further strengthened by the fact that more and more queer persons, especially the emerging urban youth, are becoming more confident to cash their public trust with state officers demanding equal concern for all.
These regional constellations when viewed together with equality developments in the west continue to entrench civic dispositions among African LGBTI individuals to put their governments to account. Just like the Arab uprising, it reinforces duty to more individuals to participate in realizing change towards an egalitarian society. These developments continue to spur hope that believes in the butterfly effect of liberation across countries however slow the wave surges. Of greater significance is that when these developments are reported in public media, they enhance civic education among public that gay is human and human is sovereign as to dignity and rights. International equality politics have also imbued defiance towards cultural sovereignty resulting to proud ownership of native gay words like shoga in Kenya and Kuchu in Uganda. Whenever equality features in news, the news have reportedly humanized many struggling questioning queer teens in their villages with understanding that they are not alone and that someone is fighting for their confused human self. Because equality unites nations, cultures identities and peoples.
Decriminalization of homosexual sex conduct must and shall be achieved in Africa, the questions of when finds answer in incremental litigation. Besides lobbying and advocating for acceptance, respect for difference and decriminalization, LGBTIQ Africans are learning the value of actively engaging their third arms of government in incremental litigation towards protecting the already available human rights in their national constitutions. There is a growing conscious process of learning, consulting, observing and utilizing local judicial and quasi judicial mechanisms (in parallel to other mechanisms) towards combating discrimination on the ground of sexual orientation.
In the coming year or two, my legal crystal ball predicts litigation in many African courts on fundamental matters like the freedom of association (most African LGBTI organizations have been denied registration by their governments), the right to education (when students suspected of engaging in homosexual sex are expulsed from learning institutions when those who engage in heterosexual sex are not expelled), freedom of assembly (due to denial of assembly permits/break of meetings as seen in Uganda), private prosecution of violence, blackmail and extortion (when police fail to follow up) , and; protection from discrimination on the ground of sexual orientation (for example when persons are dismissed from work on account of their sexual orientation) and many others.
The incremental litigation approaches being undertaken and those planned will have many benefits: they will increase levels of civic awareness and disposition among the public; they will build a body of judicial evidence on patterns of discrimination targeting homosexuals, such judicial evidence will carry immense guiding value during decriminalization suits; This process promises to build equality law through judicial law making powers especially in the commonwealth, and a vibrant social justice movement through amicus curiae.
The call is to activists and equality workers. To build partnerships with strategic government agencies and civil society, to dare risk but with valiant caution, to keep engaging duty bearers without relent and to celebrate victories however small. The sting of criminalization continues to bite but the liberation and moral citizenship in the universe of equals is within reach, keep walking.