Struggle for equality: Sexual orientation, gender identity and human rights in Africa

Struggle for equality: Sexual orientation, gender identity and human rights in Africa

Zackie Achmat
Zackie Achmat — Image Credits

Day 1: “Not homosexuality is un-African but our ways of engaging with it”

November 19, 2010

Kristin Palitza

by Kristin Palitza

Human rights apply to everyone … but only in theory. Certain population groups that are perceived as ‘different’ continue to be systematically excluded from the most basic principles of justice and equality.

Thus, homosexuality remains illegal in 38 of Africa’s 53 states and punishable in others. A number of African countries have made shocking headlines in the past months due to gross human rights violations against lesbian, gay, bisexual, transgender or intersex (LGBTI) people.

Uganda, for example, where LGBTI people are criminalised, recently tabled an anti-homosexuality bill that will allow for the death penalty. And Malawi caused a worldwide public outcry when it arrested a gay couple who had celebrated their engagement.

At the same time, there is a marked trend in many other countries to institutionalise discrimination: in the Democratic Republic of Congo, Burundi and Rwanda attempts to criminalise homosexuals are under way. Even in South Africa, where the Constitution protects LGBTI people, hate crimes have been on the rise, especially the “corrective rape” of black lesbians in townships.

“We need to build pan-African and international solidarity and build links between many different organisations in civil society to be as effective as possible [in fighting human rights violations against homosexuals],” says Dr. Antonie Nord, director of the Heinrich Böll Stiftung (HBS) in Cape Town.

She opened the international conference on “Struggle for equality: Sexual orientation, gender identity and human rights in Africa”, which was organised by HBS and the South African Commission for Gender Equality on 15-16 November 2010 in Cape Town.

During the first session, a group of gender and LGBTI experts interrogated the allegation that “homosexuality is un-African”, which is regularly made by the continent’s heads of states. “I am sick and tired of hearing this claim,” says Professor Sylvia Tamale, dean of law at Makerere University in Uganda. “Apart from being factually incorrect, it is an over-generalisation of African sexuality that is out of touch with the realities of our lives, experiences and identities.”

Other panellists also hoped to permanently bury this myth. “Even if there was only one lesbian in Africa, there should be no reason for denying her her rights,” stresses Zackie Achmat, director of the South African Centre for Law & Social Justice.

Dr. Chi-Chi Undie, associate of the reproductive health programme at the Kenyan Population Council, argues that part of the reason for homosexuality being perceived as un-African is that the language used to describe it consists mainly of Western labels. “The words gay and lesbian don’t have meaning in African languages,” she explains. “Our approaches to homosexuality are therefore perceived as foreign.”

Undie argues that a key reason for continuous discrimination is that the wrong impression has developed that homosexuality is the concern of individuals. This, she says, stands in stark contrast to how social issues are usually handled in African society: as community matters.

“Not homosexuality is un-African but our ways of engaging with it,” concludes Undie, suggesting that “concerted efforts are needed to bring about a balance between the individual and the community.”

Professor Marc Epprecht of the department of global development studies at Queen’s University in Ontario, Canada, a historian who spent many years researching factual proof of homosexuality in Southern Africa, notes that there are hundreds of documented cases from as early as 1891 that illustrate African men having had consensual sexual relationships with other African men.

“This shows clearly that the assumption that homosexuality is un-African is unfounded,” he says. Epprecht’s research also found that the general population of many African countries seems to accept homosexuality. It is largely political and religious leaders who use the claim of its un-Africanness for their own purposes, he argues.

Epprecht is confident, however, that more and more Africans will stand up and demand equality: “A gay rights movement has emerged on the continent. People now speak up in many African countries.”

Panellists also highlighted the fact that the fight for human rights is not unique to the continent. “The struggle for equality is our collective struggle. It is not peculiar to Africa,” stresses Michael Cashman, co-president of the intergroup on LGBT rights at the European Parliament in Brussels, in a keynote address.

Cashman says the European Union (EU) is not only concerned about human rights within its own borders but also in countries it has trade relationships with: “If we allow human rights to be diminished in one country or continent, we say goodbye to them in our own.”

He further alerts the audience of extremist tendencies in some European countries, such as France or Italy, which could lead to the restriction of human rights. One warning sign is the EU Joint Parliamentary Assembly’s recent issuing of a statement that aims to undermine equality based on sexual orientation, citing traditional and cultural differences. “This statement is an excuse for LGBTI phobia,” Cashman warns.

Achmat agrees that, if the LGBTI movement wants to fight an effective struggle for equality, it must not work in isolation. But he notes that African organisations should not stop at adopting Western ways of organising that focus primarily on challenging courts. He suggests homosexuals should begin their struggle at home, by convincing their families to love them equally, no matter what their sexual orientation. “We have to realise that our community is as important as our Constitution,” says Achmat.

He even went a step further, criticising the African LGBTI movement for concentrating only on the rights of homosexuals, while ignoring threats to the rights of other vulnerable groups and minorities. Asks Achmat: “If I don’t care about other social injustices, than what right do I have as a homosexual to claim equality?

Photos of the conference

Elizabeth Khaxas on social integration of LGBTI people in Namibia. Photo by David Harrison. 

Day 2: "Storm clouds gather as African governments increasingly target homosexuals"

When it comes to the human rights of homosexuals, we are faced with two realities: the legal reality that protects them, and the lived reality of these exact same rights being continuously ignored and violated.

A recent decision by the African Commission on Human and Peoples’ Rights – a quasi-judicial body that reports to the African Union (AU) – was a clear example of this. In early November, it turned down an application for observer status by the Coalition of African Lesbians (CAL), claiming “CAL’s activities do not promote and protect any of the rights enshrined in the African Charter.”

The rejection caused huge outrage as it denies the human rights enshrined in the Charter of those who identify as lesbian, gay, bisexual, transgender or intersex (LGBTI).

But one thing is for sure: LGBTI activists are far from giving up. They will continue to lobby the Commission until they are granted equal rights, says Chivuli Ukwimi, programme officer of the International Gay & Lesbian Human Rights Commission (IGLHRC). The African Commission needs to stop “viewing gay rights as special rights,” he demands. “[AU] states cannot carve out a group of people to separate and discriminate.“
Ukwimi spoke on the second day of the international conference called “Struggle for equality: Sexual orientation, gender identity and human rights in Africa”, 15-16 November in Cape Town.

The African Commission’s decision made crystal clear that the struggle for homosexual rights in Africa is far from over. IGLHRC Africa programme coordinator Monica Mbaru notes that AU member states need to be lobbied persistently to domesticate the African Charter and ensure its proper implementation by referencing international norms for sexual and minority rights.

A vague commitment to the Charter is not enough, she says: “We need watertight equality and non-discrimination clauses as a firm basis for demanding LGBTI rights.”

Africa-wide collaboration will be essential to achieve this, as gender activists already see further storm clouds gather on the horizon. Egypt recently initiated the tabling of a session aimed at defining the ‘values’ of the AU in January 2011. There is concern that the session will be abused to further limit the inclusion of LGBTI people in the AU human rights framework.

Law versus lived reality

Already, the gap between international human rights law, the African Charter and people’s lived realities is shockingly wide. Zambia’s human rights commission, for example, told LGBTI activists it cannot take up their concerns until parliament legalises homosexuality. Otherwise it would be seen as dealing with a criminalised group of the population, Ukwimi recounts.

And a Ugandan politician noted during an AU meeting that gay rights are “alien” to the country’s culture and values. Uganda is one of the African countries that most rigorously persecute LGBTI people. “We live under state-sanctioned homophobia,” explains Frank Mugisha, chairperson of Sexual Minorities Uganda and one of the country’s well-known gay rights activists.

The situation is made worse by religious groups lobbying for harsher laws against LGBTI people, while the national media drives homophobia by publicly naming and shaming homosexuals. As a result, homosexuals are rejected by their families, prevented from going to school and denied employment, which has led to widespread poverty and homelessness within the community as well as serious threats to their safety and security.

An Anti-Homosexuality Bill, proposed in October 2009, only stalled in parliament due to ongoing local, regional and international pressure, says Mugisha. Apart from introducing the death penalty for LGBTI people, the bill, if passed, will allow Uganda to withdraw from international treaties and conventions that promote the rights of homosexuals.

The situation in Nigeria is not much different, says Dorothy Aken’Ova, executive director of the International Centre for Reproductive Health and Sexual Rights. Even though Nigeria subscribes to a national and international legal framework that protects LGBTI rights – on paper – discrimination of homosexuals is rife. “There is an ever widening gap between the law and peoples’ realities,” she confirms.

Similar to the situation in Uganda, homosexual Nigerians are regularly denied education, health and legal services. They are harassed, raped, detained and tortured. “The rights of sexual minorities are constantly violated. And it is the state which directly and indirectly sponsors those violations,” notes Aken’Ova.

Defending the rights of LGBTI people is made extremely difficult, as the common judiciary premise that a person is ‘innocent until proven guilty’ is not applied. In Nigeria, sexual minorities are assumed guilty until they prove their innocence.

“We need education and strategic dialogue [on the human rights of LGBTI people] to increase advocacy for the decriminalisation of national laws as well as the undiluted domestication of international instruments. We have to exhaust all available mechanisms,” Aken’Ova stresses.

She also suggests that to achieve long-term change LGBTI groups should support the election of human rights activists into government positions, so that they can become role models for good governance and uphold the rights for all.

No access to public services

The LGBTI rights situation in Zimbabwe is following the examples of Nigeria, Zambia and Uganda, fears Fadzai Muparutsa, gender programme manager of Gays and Lesbians of Zimbabwe: “Homophobic attacks are on the increase, in a systematic and sustained way.”

The country’s current Constitution is ambiguous with regard to the rights of homosexuals because it includes a mixture of colonial Dutch and traditional law. But Muparutsa believes the Constitutional reform process currently under way will make the situation worse rather than better. “The justice system is not independent. It is under Zanu-PF, and the party doesn’t want to give homosexuals rights,” she reckons.

According to Muparutsa, religious, cultural and traditional leaders have already been co-opted by government into making homophobic statements. 

Africa’s Arabic nations also widely condemn homosexuality. Georges Azzi, executive director of the Lebanon-based Arab Foundation for Equality and Freedom, who joined the conference via Skype, says LGBTI people are clearly regarded as second-class citizens in the region. Like in many other African countries, severe homophobia and social discrimination make it extremely difficult for sexual minorities in Arab countries to access public services and places their personal safety at risk.

Azzi believes that although international collaboration on LGBTI rights is important, it is key for each African state to create its own strategy to effectively lobby for the human rights of homosexuals: “Activists need to develop country-specific strategies and make their own security assessments instead of following Western LGBTI agendas.”

Namibian gender activist and director and the Women’s Leadership Centre, Elizabeth Khaxas agrees: “We need to make choices within the social constraints placed on us.” In Namibia, for example, the Constitution gives homosexuals individual but no family rights. And there are many unwritten laws that restrict LGBTI people from living their lives freely. “We live in a cultural context that doesn’t allow for anything else than heterosexuality,” Khaxas laments.

Moreover, Namibia has a sodomy law that is generally interpreted as prohibiting homosexuality. “We have more legal protection against the abuse of the rights of animals than of homosexual people in our country,” notes Namibia’s public protector Advocate John Walters. He promised conference participants to lobby for the removal of the sodomy legislation upon his return to Namibia: “There is no place for it in our law.”

Advocating for legislative change

Even in South Africa, which has one of the most progressive LGBTI legislations on the continent, which for example allows homosexuals to marry, victimisation, harassment and discrimination continue.

“South Africa is at best an ambivalent case study in terms of LGBTI rights. There are huge gaps between existing rights and realities on the ground,” notes Eusebius McKaiser, associate at the Centre of Ethics at the University of the Witwatersrand in Johannesburg and well-known radio talk show host.

He says apart from engaging in a legal struggle for equal rights, LGBTI groups should educate communities about homosexuality and thus gain broad-based support for claiming their rights: “We need to render gay love ordinary”.

But there is some good news, too. Nine months ago, the South African Department of Justice and Constitutional Development officially recognised LGBTI people as a vulnerable group and made the promotion of homosexual rights a priority.

“We seek to build a foundation to raise the profile of this group inter-departmentally and inter-sectorally,” promises the department’s senior legal administration officer Siphiwe Ntombela. The necessity for this approach is shown by a recent study conducted by the department, which found that 76 percent of interviewees feel that LGBTI rights are not upheld in the country.

According to Ntombela, “adequate policy responses” to the continuous discrimination of LGBTI people are being developed. The department is, for example, in the process of drafting a Combating of Hate Crimes Bill, which will protect the rights to sexual orientation and gender identity. Civil society organisations will be invited to a consultative workshop to give their input, Ntombela assures.

Another focus area will be the training of public service providers. “Discrimination of LGBTIs by state employees is a daily reality. It ranges from institutionalised homophobia to secondary victimisation. We find this unacceptable,” says Ntombela, adding that it was the mandate of government employees to uphold the Constitution and enforce laws.

Unfortunately, such initiatives are few and far between on the African continent, and it will take unabated national, regional as well as international efforts to prevent the LGBTI rights situation on the continent to worsen.

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