LGBTQI Rights and Sub-Saharan Africa
LGBTQI Rights and Sub-Saharan Africa
- Ryan ThoresonRyan ThoresonYale Law School, Yale University
In recent decades, the efflorescence of lesbian, gay, bisexual, transgender, and intersex (LGBTI) movements has created powerful inroads for sexual rights in many parts of sub-Saharan Africa. While conditions for LGBTI people vary considerably between and within countries, activists across the region are reshaping political, legal, and social understandings of gender and sexuality through their advocacy, both by seizing opportunities and navigating periods of backlash and repression. Over the years, activists have established domestic movements and have expanded their reach to articulate demands in regional and international forums. Their work has challenged the universality of models developed in other parts of the globe and has generated new tactics to respond to religious, familial, and state-sponsored prejudice. At the same time, questions of representativeness, accountability, and strategy have been raised by constituencies and longtime activists alike, inviting critical assessments of movement politics in the region.
- Groups and Identities
- Post Modern/Critical Politics
- World Politics
Evolving Landscapes for LGBTI Politics
The legal and political landscape for lesbian, gay, bisexual, transgender, and intersex (LGBTI) people varies widely across sub-Saharan Africa. A growing network of activists and nongovernmental organizations (NGOs) have engaged in grassroots advocacy and sought formal recognition of LGBTI rights in the region. As a result of their work, LGBTI communities have won landmark victories in courts, legislatures, and regional forums. But gains have also prompted setbacks, with periodic campaigns seeking to restrict the rights of LGBTI persons and curtail LGBTI organizing. In conjunction with contestation over sexual rights, questions about LGBTI identity politics, other pressing social justice struggles, and the limitations of rights-based frameworks continue to spark lively debate in the context of the region’s unique history and politics.
Naming Sexual and Gendered Subjectivities
In sub-Saharan Africa as elsewhere, a foundational discussion about LGBTI rights is whether the term “LGBTI” is sufficiently accurate and inclusive of the range of populations it purports to describe. Terms like “gay,” “lesbian,” “bisexual,” “transgender,” and “intersex” emerged from specific histories of sexual politics, and their roots are generally traced to the United States and Western Europe. The terms circulated and gained currency globally as a result of both economic and cultural globalization and transnational social movements that sought to expand or restrict sexual rights.
Scholars have pointed out that these terms—and their differentiation of sexual orientation from gender identity and expression—can fail to grasp the nuances of sexual and gendered subjectivities produced by different configurations of acts, identities, and relationships. At the same time, activists and scholars have taken pains to emphasize that queer subjectivities and relationships have long histories in sub-Saharan Africa and are not simply products of colonization or globalization (Epprecht, 2008a, 2013; Morgan & Wieringa, 2007; Murray & Roscoe, 1998).
One alternative to “LGBTI” has been to turn away from an emphasis on identities that are often associated with the Global North and toward acts or relationships that occur more universally. In the realm of public health, this approach has manifested in the use of terms like “men who have sex with men” (MSM) and “women who have sex with women” (WSW), which avoid assigning identities associated with same-sex activity and relationships to those who might not adopt them themselves. Advocates have at times used these more neutral-sounding terms to make inroads with governments that may be reluctant to recognize LGBTI rights but willing to acknowledge that same-sex activity occurs, especially for the purposes of funding and implementing public health programming. Despite this tactical utility, the terms have drawn criticism from some LGBTI activists, who argue that they reduce LGBTI people to sexual activity alone and treat LGBTI individuals in sub-Saharan Africa as epidemiological subjects rather than individuals with identities as full and rich as their counterparts elsewhere in the world (Young & Meyer, 2005).
A second alternative to “LGBTI” has been to embrace subjectivities and terminology that are indigenous to sub-Saharan Africa, or at least locally specific and elaborated as a matter of activist practice. A popular term in Uganda is kuchu, which functions as a capacious term akin to “queer,” but terms vary within the region as scholars and activists uncover and reclaim linguistic histories (Gay Uganda, 2007). Queer communities in different countries have utilized terms—for example, nkouandengue for male homosexuality and mvoye for female homosexuality in Cameroon; yossi and oubi for insertive and receptive partners, respectively, in Senegal; or terms like skesana, moffie, or stabane for queer and intersex bodies in South Africa—that they have invented, adopted, or had foisted upon them (Gueboguo, 2012). Such terms connect those who might otherwise be considered LGBTI to rich linguistic and cultural traditions around gender and sexuality that are highly localized rather than those that are actually or apparently imported from abroad. Despite its origins in the Global North, the term “queer” is also used by some activists in the region to connote a non-normative sexuality or gender that is not wedded to any single rigid identity.
A third alternative, particularly in the realm of law and policy, has been to use categorical terms. Recognition of diverse identities and subjectivities has led advocates in sub-Saharan Africa and globally to frame their constituency as those marginalized on the basis of their “sexual orientation and gender identity” (SOGI),1 using these categorical terms to encompass a wider range of identities and subjectivities than those covered by the LGBTI acronym alone. Notably, SOGI not only encompasses those who are, or are perceived to be, LGBTI, but also encompasses those who are heterosexual and cisgender. At the United Nations and in regional and domestic forums, SOGI has been used alongside race, sex, disability, and other enumerated categories to codify explicit protections from discrimination.
Various formulations are used in law and policy, but the acronym “LGBTI” remains the most common shorthand for activists and policymakers working on sexual rights issues. In recognition of the acronym’s limitations, however, “LGBTI” is often used in a provisional and flexible way to encompass not only those who specifically identify as one of the groups within the acronym, but also those who are somewhere on a spectrum of nonheterosexual or noncisgender identities and subjectivities.
The Legislative and Legal Landscape for LGBTI Movements
Opposition to LGBTI rights in sub-Saharan Africa has been a topic of extensive scholarly and media attention, fueled both by the incendiary rhetoric of political leaders in the region and by racialized depictions of African homophobia as uniquely repressive. One of the earliest episodes to gain widespread notoriety was President Robert Mugabe’s remark in 1995 at the Zimbabwe International Book Fair that gay men and lesbians were “worse than dogs and pigs” (Epprecht, 2008b, p. 4). Shortly thereafter, presidents Daniel Arap Moi of Kenya, Yoweri Museveni of Uganda, Sam Nujoma of Namibia, and Julius Nyerere of Tanzania made similar denunciations. Leaders pointedly rejected homosexuality as “un-African,” a persistent trope that continues to be deployed in opposition to sexual rights in many parts of the region (Engelke, 1995, p. 295). Although it is outside of sub-Saharan Africa, Egypt’s government has been especially aggressive in its surveillance, detention, and torture of men who have sex with men, and in recent years has urged the African bloc of states to oppose recognition of LGBTI rights in regional and international forums (HRW, 2004; Long, 2014). In West Africa, periodic crackdowns and hostile rhetoric in Cameroon, Senegal, and the Gambia have politicized LGBTI rights and repressed queer communities (ADEFHO et al., 2010; Feder, 2014; Kassé, 2013).
The vast majority of the modern prohibitions on same-sex activity in sub-Saharan Africa did not originate in the region; instead, they were imposed by foreign powers during the colonial era and subsequently retained or reaffirmed by postcolonial governments (HRW, 2008; Lennox & Waites, 2013). The most notorious is the British law which was codified as Section 377 in the Indian Penal Code in 1860 and subsequently replicated across the British Empire. In sub-Saharan Africa, that prohibition was introduced in Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe (HRW, 2008). Although some of these countries have subsequently repealed their prohibitions, bans on same-sex activity remain in place in most of the countries where they were installed during the colonial era. Other countries, including Burundi, Cameroon, and Senegal, adopted or reaffirmed prohibitions on same-sex activity after independence (Ghoshal, 2013). According to recent surveys of state-sponsored homophobia, same-sex activity among men remains criminalized in 28 states in sub-Saharan Africa, and same-sex activity among women is criminalized in 18 of those states (Carroll, 2016; Human Dignity Trust, 2016).2
Although data on attitudes toward LGBTI people in sub-Saharan Africa are somewhat scarce, some surveys in the region have attempted to track public opinion toward homosexuality and, to a lesser extent, transgender and intersex people. A recent large-scale survey gathered data from six countries in sub-Saharan Africa—Ghana, Kenya, Nigeria, South Africa, Uganda, and Zimbabwe—on a range of topics related to LGBTI rights (ILGA, 2016). The data showed considerable variation among the countries in the cohort, with South African respondents tending to have the most LGBTI-friendly views of the countries surveyed. But in each country, sizeable portions of the population expressed LGBTI-friendly views. For example, when asked whether being LGBTI should be a crime, only 59% of respondents in Nigeria, 54% of respondents in Ghana, 53% of respondents in Uganda, 46% of respondents in Kenya, 44% of respondents in Zimbabwe, and 22% of respondents in South Africa said they strongly or somewhat agreed with criminalization (ILGA, 2016).In another survey, most respondents in Cape Verde, South Africa, Mozambique, and Namibia said they would accept homosexual neighbors, with Mauritius, Sao Tome and Principe, and Botswana nearing that threshold of acceptance as well. Within the region, tolerance of homosexuality was higher among younger, more educated, and urban respondents (Dulani, Sambo, & Dionne, 2016, p. 11). Such findings suggest both that public opinion regarding LGBTI issues is not monolithic in the region and that, within countries, there is a considerable amount of fertile ground for LGBTI advocacy.
Instead of painting the region with a broad brush, it is helpful to pay attention to the unique political economies within the region that give rise to different forms of hostility. In Cameroon, the state has aggressively enforced the law prohibiting same-sex activity, encouraged in part by sensational anti-LGBT sentiment in the media, and activists have documented how the law has been used to justify systematic intimidation, arrests, and detention (ADEFHO et al., 2010; Alternatives-Cameroun et al., 2013; International Federation for Human Rights & World Organization Against Torture, 2015). In Uganda, state-sponsored homophobia has been fueled in part by religious and political ties with evangelicals in the United States, and attempts to crack down on same-sex activity have spurred broad-based opposition from a formal coalition of LGBTI and allied civil society organizations (Civil Society Coalition on Human Rights and Constitutional Law, 2009; Kaoma, 2009). In Senegal, backlash against LGBTI persons has been inflected by political groups rooting their arguments in Islam, producing distinctive rhetoric and different positioning vis-à-vis the state (Bop, 2008; Kassé, 2013). Although similar prohibitions on same-sex activity exist in a number of states in the region, the ways these prohibitions are enforced, the sociocultural space for LGBTI people and their relationships, and the landscape for visible LGBTI organizing are highly contextual and vary considerably among and within different countries.
Grassroots Organizing and NGOs in Sub-Saharan Africa
As LGBTI communities have grown, vibrant domestic and regional movements have mobilized in sub-Saharan Africa to create space for civil society and advocate for LGBTI rights. The proliferation of LGBTI groups—and broader sexual rights movements advocating for women’s rights, reproductive health and rights, and sex workers’ rights across the region—has brought together a range of voices challenging existing prohibitions and campaigning for affirmative protections.
Some of the earliest LGBTI-identified NGOs in the region were formed in South Africa. Scholars have documented networks of queer people in the country since at least the 1920s, but more formal NGOs and campaigns began to coalesce in the decades after World War II (Epprecht, 2008b, pp. 182–193). In 1968, a Law Reform Movement composed predominantly of white professionals formed to lobby against a proposed blanket prohibition on same-sex activity but then disbanded after achieving that goal. The predominantly white and middle-class Gay Association of South Africa (GASA) formed in Johannesburg in 1982 but ultimately dissolved just five years later due in part to its support of ruling party candidates and refusal to oppose the apartheid regime. In 1986, the Rand Gay Organization formed, and its multiracial membership made it the largest gay and lesbian organization in South Africa. The same year, white gay and lesbian activists in Cape Town who opposed apartheid formed their own group, Lesbians and Gays Against Oppression (LAGO), which was subsequently renamed the Organization of Lesbian and Gay Activists (OLGA). In 1988, after being released from imprisonment on treason charges, Simon Nkoli formed Gays and Lesbians of the Witwatersrand (GLOW). Nkoli’s role in the African National Congress and OLGA and GLOW’s affiliation with the United Democratic Front (UDF), a civil society coalition against apartheid, gave gay and lesbian rights added legitimacy as a human rights and social justice concern as demands for democratic change mounted (Croucher, 2011; Hoad, Martin, & Reid, 2005).
When South Africa transitioned to democracy in the mid-1990s, drafters of the post-apartheid constitutional framework made a point to include sexual orientation as a prohibited ground for discrimination by the state. The National Coalition for Gay and Lesbian Equality (NCGLE) played a pivotal role in securing that groundbreaking text and solidifying its promise (Epprecht, 2008b, pp. 191–193). The Equality Clause of the South African Constitution states that “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth” (Constitution of South Africa, 1996). The inclusion of sexual orientation in the Equality Clause set the stage for a series of sequential, methodical legal victories on behalf of lesbian, gay, and bisexual claimants, including the invalidation of South Africa’s sodomy law; recognition of same-sex partnerships for the purpose of immigration, benefits, adoption, and parentage in cases of artificial insemination; and finally, the recognition of same-sex marriage (Judge, Manion, & de Waal, 2008; Thoreson, 2008, pp. 681–682).
South Africa’s fulsome embrace of LGBTI rights set an example regionally and globally and provided a powerful counterargument to the assertion that LGBTI rights are an imported or foreign concern. However, South Africa was not the only country that saw movements forming and growing during the 1980s and 1990s. Other early organizations in the region included Sister Namibia, formed in 1989, and Gays and Lesbians of Zimbabwe (GALZ), formed in 1990 (Epprecht, 2008b, pp. 193–195). Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) formed in Botswana in 1998. These movements created valuable civil society space for LGBTI organizing but also won important victories. In Namibia, for example, the Labour Act of 1992 included sexual orientation as a prohibited ground for discrimination, which lasted until the provision was repealed by the Labour Act of 2004.
As domestic movements have grown since the 1980s and 1990s, regional organizations and networks have emerged as well. From 2000 to 2012, a media network called Behind the Mask reported on LGBTI issues in Africa and trained journalists to gather stories about LGBTI lives across the continent, providing a powerful platform for African LGBTI authors to speak to each other and a global audience (Currier, 2012). The Coalition of African Lesbians (CAL) formed in 2003; by 2016, it had grown to encompass more than 30 organizations in 19 countries in the region. African Men for Sexual Health and Rights (AMSHeR) formed in 2009; by 2016, it coordinated advocacy on both health and rights for LGBTI and MSM populations with 18 LGBTI and MSM-led groups on the continent. Networks have also formed as a connective tissue between regional and international organizing. In 2007, the International Gay, Lesbian, Bisexual, Trans and Intersex Association (ILGA) formed a regional federation, Pan-African ILGA (PAI), based in Johannesburg. The three regional organizations—CAL, AMSHeR, and PAI—now link domestic movements and activists and foster thoughtful strategizing and coordinated advocacy on a variety of issues.
Notably, regional organizations have not been limited to advocacy alone. Other regional networks and campaigns have focused on health and well-being, especially the expansion of HIV prevention, testing, and care. In 2009, efforts to recenter funding and grantmaking in sub-Saharan Africa led to the formation of the East African Sexual Health and Rights Initiative (UHAI-EASHRI), which supports activism and advocacy in Burundi, Kenya, Rwanda, Tanzania, and Uganda. Although media, health, and funding organizations are not exclusively focused on advocacy, they have played crucial roles in building and strengthening LGBTI advocacy in the region.
Victories and Setbacks in National, Regional, and International Forums
As LGBTI issues have become more prominent in global media, a common trope has been to paint countries in sub-Saharan Africa—or the region as a whole—as a particularly hostile place to be LGBTI (Awondo, Geschiere, & Reid, 2012; Ndashe, 2013; Thoreson, 2014). Such analyses gloss over the considerable diversity and dynamism of domestic, regional, and international LGBTI advocacy in sub-Saharan Africa, which has made powerful gains in recent years.
One area in which activists have had success bringing LGBTI concerns to light is their engagement with national human rights commissions and various mechanisms engaged in the administration of health services, economic opportunities, and other state programming. Governments have made commitments to the inclusion of MSM in their HIV/AIDS programming, for example, recognizing MSM as an at-risk population even in some countries where same-sex activity is criminalized. In 2016, representatives of national human rights institutions and civil society groups issued the Ekurhuleni Declaration, which set out practical solutions states could adopt to further their commitment to end violence and discrimination on the basis of sexual orientation and gender identity in Africa (Ekurhuleni Declaration, 2016). A singular focus on criminalization often obscures these ways that activists have made, and continue to make, inroads against discrimination and invisibility.
In some countries, including those where legislative reform has been unsuccessful, judicial actors have also vindicated the rights of LGBTI claimants. As noted above, South African courts have been particularly receptive to LGBTI claims, largely due to the inclusion of “sexual orientation” in the Equality Clause and explicit statutory recognition that gender identity and intersex status are protected categories in the country’s nondiscrimination laws (Thoreson, 2013). Important victories have been won elsewhere as well. In 2008, the High Court of Uganda reviewed a case where authorities raided a prominent LGBTI activist’s house, arrested a guest, and subjected the guest to sexual harassment and assault in detention. In Victor Juliet Mukasa and Yvonne Oyo v. Attorney General, the High Court ruled that the authorities’ conduct violated the applicants’ rights to liberty, dignity, privacy, and protection from cruel, inhuman, and degrading treatment under domestic and international law (Victor Juliet Mukasa and Yvonne Oyo v. Attorney General, 2008). The decision is widely invoked as an affirmation that LGBTI people and human rights defenders do not forfeit their constitutional and human rights despite criminal laws in Uganda prohibiting same-sex conduct. Later, in Kasha Jacqueline et al. Rolling Stone, Ltd. and Giles Muhame, the High Court similarly affirmed that publishing the names, pictures, and personal information of alleged LGBTI activists violated a range of constitutional rights that LGBTI people, like other people, enjoy (Kasha Jacqueline et al. v. Rolling Stone, Ltd., and Giles Muhame, 2010).
Using similar reasoning, victories have been won by LGBTI NGOs seeking formal registration in countries where same-sex conduct is criminalized. LGBTI groups across the continent have faced issues with formal registration, and many do not expressly frame their advocacy in terms of LGBTI rights when seeking recognition from the state. For those that have been denied registration based on their apparent LGBTI advocacy, however, the courts have provided a venue to challenge the denial and assert constitutional rights.
In 2012, for example, the government of Botswana rejected a registration application from LEGABIBO. The government asserted that the country’s constitution “does not recognize homosexuals” and that LEGABIBO’s activity could be rejected as “prejudicial to or incompatible with peace, welfare or good order in Botswana” under the Botswana Societies Act. In 2014, the Botswana High Court rejected these arguments and permitted LEGABIBO to register as an organization. The court reasoned that the country’s constitution does not restrict the rights of gay, lesbian, and bisexual people, and the penal code’s prohibition of same-sex activity does not forbid people from merely identifying as lesbian, gay, or bisexual or forming associations to lobby for LGBTI rights. It concluded that denying LEGABIBO’s registration application violated the applicants’ constitutional freedoms of expression, association, and assembly (LEGABIBO, 2014). In 2016, after the government appealed, the Court of Appeals unanimously upheld the lower court’s reasoning and ordered the Registrar of Societies to register LEGABIBO (Shapi, 2016).
Similarly, in 2013, Kenya’s Non-Governmental Organizations Coordination Board denied an application for registration from the National Gay and Lesbian Human Rights Commission (NGLHRC), on the grounds that its name was “unacceptable” and that the country criminalized same-sex activity. The Board also denied an application from Transgender Education and Advocacy (TEA) on the grounds that the names provided by the members of the organization did not match their sex assigned at birth. In 2014, the High Court of Kenya ruled that the Board’s rejection of TEA’s registration was “unfair, unreasonable, unjustified and in breach of rules of natural justice,” violating the constitutional freedom of association (In the Matter of an Application for Judicial Review Orders and In the Matter of Non-Governmental Organization Co-Ordination Act, 1990 of Kenya, 2014). In 2015, the High Court also ruled in favor of NGLHRC, declaring that “the words ‘every person’ in Article 36 of the Constitution includes all persons living within the republic of Kenya despite their sexual orientation,” and that the refusal to register NGLHRC violated the constitutional freedom of association (Eric Gitari v. Non-Governmental Organizations Co-Ordination Board and Four Others, 2015).
Yet where criminalization of same-sex activity is concerned, courts in sub-Saharan Africa thus far have been reluctant to intervene in any forceful way, with the notable exception of the Constitutional Court of South Africa. In 2000, the Supreme Court of Zimbabwe issued a closely divided opinion in Banana v. State that placed a great emphasis on public opinion against same-sex activity and ultimately opted to uphold Zimbabwe’s criminal laws prohibiting consensual same-sex activity (Banana v. State, 2000). In Kanane v. State, the High Court and Court of Appeals in Botswana reached a similar conclusion regarding that country’s prohibition on same-sex activity (Kanane v. State, 1995, 2003). Despite some progress in Kenya, too, the High Court ruled in 2016 that anal examinations could be used to “prove” homosexuality, despite testimony that these invasive tests are medically dubious and a form of torture (HRW, 2016). Although judicial recourse continues to be an option to challenge criminalization of same-sex activity, activists have been cautious about bringing suits where their success is uncertain.
Against this backdrop, some of the most celebrated victories for LGBTI people in recent years have been legislative, typically as states reviewing their laws have been persuaded either to remove provisions that limit LGBTI rights or to add or strengthen protections for LGBTI people. In 2004, Cape Verde decriminalized same-sex activity, which was followed by decriminalization in Lesotho and Sao Tome and Principe in 2012. In 2015, the government of Mozambique enacted a new penal code that eliminated a prior prohibition on “vices against nature,” which was understood to prohibit same-sex activity (BBC, 2015). In 2016, the parliament of Seychelles decriminalized same-sex activity, which had previously been punishable with up to 14 years of imprisonment (Uranie, Athanase, & Vannier, 2016). In South Africa, where lesbian, gay, and bisexual people turned to the judiciary after the democratic transition to vindicate their rights, transgender and intersex people have won a number of important protections through lobbying and legislative advocacy (Gross, 2011; Kaggwa, 2011, 2013). In 2003, after consultations with transgender and intersex groups, the country’s parliament enacted the Alteration of Sex Description and Sex Status Act, which allows individuals to alter their sex in the National Population Register (Morgan, Marais, & Wellbeloved, 2009; Thoreson, 2013). And in 2005, intersex activists successfully pushed for an amendment to the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which explicitly clarified that intersex persons are protected by the constitutional reference to discrimination based on sex (Thoreson, 2013).
Campaigns to repeal criminal laws and enact LGBTI rights provisions have had more success in some countries than in others. Even as LGBTI rights are increasingly recognized regionally and internationally, some governments have strengthened or expanded criminal laws to cover a wider range of behavior related to LGBTI identities, relationships, and advocacy. Of these, two in particular stand out: the Anti-Homosexuality Act enacted in Uganda in 2014 and the Same-Sex Marriage (Prohibition) Act enacted in Nigeria in 2013.
The Anti-Homosexuality Act in Uganda set off a domestic and international furor when it was introduced into parliament in the fall of 2009. The genesis for the Anti-Homosexuality Act was said to be a seminar that a number of evangelicals from the United States held with Ugandan lawmakers, where they warned that existing laws against same-sex activity were insufficient and LGBTI individuals were recruiting children (IGLHRC & SMUG, 2009a, 2009b). Later that year, a member of parliament introduced a private member’s bill that dramatically strengthened laws targeting LGBTI individuals and advocates.
Among other things, the original bill would have punished attempted same-sex activity with seven years in prison, punished same-sex activity or touching with the intent of same-sex activity with life in prison, and created a category of “aggravated homosexuality” punishable by death (Anti-Homosexuality Bill, 2009). Although Uganda enacted a constitutional amendment in 2005 defining marriage as a union of one man and one woman (HRW, 2005), the bill would have gone further, stating that anyone who “purports to contract a marriage with another person of the same sex commits the offence of homosexuality and is liable on conviction to imprisonment for life” (Anti-Homosexuality Bill, 2009). A number of provisions also would have targeted civil society, including a section punishing the “promotion of homosexuality” with up to seven years in prison and a section punishing those who fail to report same-sex activity with up to three years in prison (Anti-Homosexuality Bill, 2009). After domestic, regional, and international outcry that focused heavily on the death penalty portion of the bill, a version punishing both “homosexuality” and “aggravated homosexuality” with life imprisonment was passed in 2013 and signed into law in 2014 (Bwire, 2014).
After the law passed, activists brought challenges in the Constitutional Court of Uganda and the East African Court of Justice. In a unanimous ruling, the Constitutional Court of Uganda struck down the law, finding the Act was impermissibly passed without a necessary quorum of legislators (Wesaka, 2014). Rebecca Kadaga, the Speaker of Parliament who shepherded the bill to passage, vowed to retable the bill in 2016 (Kuchu Times, 2016). Even in the absence of the bill, advocacy groups in Uganda have documented persistent human rights violations against LGBTI and kuchu Ugandans, including arrests and detention, torture, threats and incidents of violence, loss of property, invasion of privacy, and deprivations of housing, education, and employment (Jjuuko, 2013; SMUG, 2016).
Although it received less attention internationally, Nigeria’s Same-Sex Marriage (Prohibition) Act similarly sought to criminalize both same-sex relationships and civil society engagement. The legislation was ostensibly introduced to prohibit same-sex marriage, and established criminal penalties of 14 years imprisonment for anyone who enters into a same-sex marriage or civil union (Same-Sex Marriage (Prohibition) Act, 2013). In addition to its provisions on same-sex marriage, the legislation also criminalized “the public show of same-sex amorous relationship directly or indirectly” and “the registration of gay clubs, societies and organizations, their sustenance, processions and meetings,” with either offense punishable by up to 10 years imprisonment (Same-Sex Marriage (Prohibition) Act, 2013). Research in the wake of the Same-Sex Marriage (Prohibition) Act suggests that it has had a profound effect on LGBT communities and advocates in Nigeria, ranging from incidents of threats and violence to a contraction of spaces for free expression and association (Adebanjo, 2015; Ifekandu, 2015; Leitner Center for International Law and Justice, PEN Nigeria, & PEN American Center, 2015).
Furthermore, the general shift toward decriminalization in sub-Saharan Africa and elsewhere contains a major caveat for same-sex practicing women. In some instances, laws prohibiting same-sex activity between men alone have been equalized not by decriminalizing same-sex activity between men, but by additionally criminalizing same-sex activity between women. This was evident in penal reform in Botswana in 1998, the Gambia and Zambia in 2005, and Malawi in 2011 (Human Dignity Trust, 2016; Mwakasungula, 2013; Tabengwa & Nicol, 2013). The criminalization of women’s sexuality has received less attention than criminalization of sexual activity among men, in part due to the considerable funding allotted to HIV/AIDS advocacy for men who have sex with men (MSM) and emphasis on the ways that criminalization impedes responses to male-to-male transmission of HIV. Even in countries without explicit provisions criminalizing same-sex activity between women, women who are or are perceived to be LGBTI face various forms of violence, discrimination, and exclusion shaped by multiple marginalizations (GALCK, 2016). In South Africa, where so-called “curative rape” has been most prominently discussed, for example, black lesbians are “positioned as doubly vulnerable to gender-based violence,” with gender, race, sexuality, and class intersecting in complex ways (Mkhize, Bennett, Reddy, & Moletsane, 2010, p. 26).
In addition to domestic courts and legislatures, the African Commission on Human and Peoples’ Rights (ACHPR) has gradually provided a regional forum for activists to draw attention to the rights violations that LGBTI people experience. In 2006, S. N. Nyeck publicly spoke at the ACHPR to present a shadow report on the climate for LGBTI people in Cameroon, and SMUG and the International Gay and Lesbian Human Rights Commission (IGLHRC) presented a shadow report to the ACHPR on the climate in Uganda (Ndashe, 2011). Soon after these initial interventions, LGBTI groups on the continent sought institutional accreditation to bring their issues before the ACHPR. In 2008, the Coalition of African Lesbians (CAL) applied for observer status, which allows NGOs to engage more deeply in the ACHPR’s work. CAL’s application was deferred until 2010, when it was denied observer status. Activists mobilized civil society to protest the denial, and after years of lobbying, the ACHPR ultimately granted CAL observer status in 2015 (Sekyiamah, 2015).
As NGOs attempted to get access to the ACHPR, they also sought to institutionalize recognition of the issues LGBTI people face. In 2007, the NGO Forum at the ACHPR adopted a resolution on human rights defenders—the first to use the terms “sexual orientation and gender identity,” but the ACHPR itself declined to adopt the resolution—a pattern that followed with a number of other resolutions adopted by the NGO Forum (Ndashe, 2011). It was not until 2014 that the ACHPR adopted its first resolution—Resolution 275—expressly referencing sexual orientation and gender identity. The resolution, “Protection Against Violence and other Human Rights Violations Against Persons on the Basis of their Real or Imputed Sexual Orientation or Gender Identity,” first notes the African Charter’s prohibition on discrimination, emphasis on equal protection under the law, and recognition of the right to life and freedom from torture and other cruel, inhuman, and degrading treatment or punishment (ACHPR, 2014). It then expresses concern about violence and other human rights violations and urges states to curb those abuses, whether they are perpetuated by state or nonstate actors (ACHPR, 2014).
After its adoption, both regional institutions and civil society have cited Resolution 275 as evidence of a commitment and obligation to address violence and discrimination against LGBTI people in sub-Saharan Africa. In 2015, the ACHPR hosted a joint thematic dialogue on sexual orientation and gender identity (SOGI) with the Inter-American Commission on Human Rights and UN mechanisms; as a result of that joint dialogue, the participants issued a report containing recommendations to give effect to Resolution 275 (ACHPR, IACHR, & UN, 2016). The resolution has also created space for LGBTI NGOs in sub-Saharan Africa to engage in critical conversations about LGBTI rights in the region; in the spring of 2016, South Africa hosted a seminar for national human rights commissions, NGOs, and LGBTI advocates to discuss responses to violence and human rights violations based on SOGI. At that meeting, representatives of the South African government urged other governments in the region to respect, protect, and promote LGBTI human rights, invoking Resolution 275 to illustrate regional acknowledgement of human rights abuses on the basis of SOGI and a shared commitment to act (Masutha, 2016).
Internationally, too, sub-Saharan African governments have shown some willingness to recognize the human rights abuses that LGBTI people face around the world. In 2011, South Africa initiated a groundbreaking resolution before the UN Human Rights Council that called for a study and panel discussion on violence and discrimination on the basis of SOGI (UN Human Rights Council, 2011). Although few governments in sub-Saharan Africa voted in favor of the resolution, a number abstained from the vote and the resolution ultimately passed. In 2014, a second resolution regarding SOGI was brought to a vote, and it again passed with several abstentions (UN Human Rights Council, 2014). In these and other efforts, delegations from the region have shown some willingness to recognize that gross violations of LGBTI people’s rights merit attention as a human rights concern.
The Politics of LGBTI Movements
Advocacy for LGBTI rights in sub-Saharan Africa is far from static, with an evolving map of actors and agendas that sometimes overlap and sometimes conflict. The growth of LGBTI movements across the continent has generated lively intermovement conversations about identity, inclusion, strategy, and political ideology. Among these are debates about the affinity between lesbian, gay, and bisexual movements, transgender movements, and intersex movements; the importance of allying with women’s movements, sex workers’ movements, and other social movements; and questions of allocating resources and prioritizing goals in coalitional work (African LGBTI Manifesto/Declaration, 2013; Mbugua, 2013). Activists in sub-Saharan Africa have also spoken out against interventions from the Global North, both from activists and from governments using blunt tools like aid conditionality, exercising moral and political authority over transnational efforts which purport to be done in their name (Black Looks, 2011; Monthly Review Online, 2007). Advocates within the region have recently called for more critical reflection on queer and LGBTI activism in sub-Saharan Africa, urging those involved in activism to think about the interplay of the personal and political, the growing professionalization of activism and dissociation from the grassroots, and missed opportunities that might be seized (Theron, McAllister, & Armisen, 2016).
Nor are these debates limited to questions of law, policy, and formal advocacy. In sub-Saharan Africa as elsewhere, rights owe their validity and vitality to social movements that make them actionable. Looking beyond the text of laws and judicial rulings to social movements and the dignity, well-being, and inclusion of LGBTI people is central to assessing the long-term political prospects for LGBTI rights in the region. Even in South Africa, where so many legal rights have been won, high levels of violence and sexual assault against black lesbians have painfully signified the limits of black-letter law in providing actionable protections for people in their everyday lives (HRW, 2011; Mkhize et al., 2010, p. 9). Although legal protections can be symbolically and practically powerful, advocates recognize that those protections must be shored up by political and popular commitment to have maximal effect (de Vos, 2015).
Future research on LGBTI rights in sub-Saharan Africa must critically engage with these questions. Unearthing the histories of LGBTI lives in the region and grappling with questions of geopolitical dynamics remain urgent and important endeavors. At the same time, thinking about power within movements, the efficacy of human rights advocacy relative to other forms of activism, and the utility of NGOs as vehicles for social change are fruitful avenues for inquiry. The innovative work being done on these questions is relevant not only in the African LGBTI context, but for social movement scholarship more generally.
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1. SOGI is the most common appellation, but activists increasingly use “SOGIE” to include “gender expression” and “SOGIESC” to include “sex characteristics.”
2. The states where same-sex activity between men is criminalized are Angola, Botswana, Burundi, Cameroon, Comoros, Eritrea, Ethiopia, the Gambia, Ghana, Guinea, Kenya, Liberia, Malawi, Mauritania, Mauritius, Namibia, Nigeria, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Swaziland, Tanzania, Togo, Uganda, Zambia, and Zimbabwe (Carroll, 2016). The states where same-sex activity between women are criminalized are Botswana, Burundi, Cameroon, Comoros, Eritrea, Ethiopia, the Gambia, Guinea, Liberia, Malawi, Mauritania, Senegal, Somalia, Sudan, Tanzania, Togo, Uganda, and Zambia (Human Dignity Trust, 2016).