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19 May 2021 | Story Dr Claire Westman | Photo Supplied
Dr Claire Westman is a Postdoctoral Research Fellow in the Free State Centre for Human Rights, University of the Free State (UFS).

The socio-political and developmental health of a nation can be determined by the lived experiences of, and rights afforded to, the most marginalised within that nation. On the African continent, some of the most marginalised individuals are those belonging to the lesbian, gay, bisexual, and transgender (LGBT) community. While the health of the people of the continent has been brought into even sharper focus since the beginning of 2020 in light of the COVID-19 pandemic, it is clear that the developmental goals of the continent are threatened by the ongoing exclusion and marginalisation of, and violence against, members of the LGBT community. 

Crimes perpetrated against gay, lesbian, and transgender individuals

While discrimination and violence against LGBT persons is not a new phenomenon, there have been an alarming number of murders and crimes perpetrated against gay, lesbian, and transgender individuals over the past few months. In South Africa alone, within the first two and a half months of 2021, at least six murders of LGBT individuals occurred. Similarly, studies have shown that approximately ten lesbian women are raped per week in South Africa in an attempt to ‘cure’ them of their homosexuality and to punish them for their defiance of heterosexual norms (ActionAid, 2009). Across the rest of the continent, violence and discrimination against LGBT individuals is correspondingly rife, with one recent example being the attack on the Kakuma Refugee camp in Kenya, where many displaced LGBT individuals live. This attack led to the death of one gay man and the serious injury of another.

Legislation related to LGBT rights varies across the African continent, with some countries adopting extreme forms of legal punishment, including the death penalty and lengthy prison sentences, while others, such as South Africa, constitutionally protect the rights of LGBT individuals and legally recognise same-sex marriages. A notable statistic emerging from a report compiled by The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA, 2019) shows that of Africa’s 54 countries, same-sex relations are only legal in 22 countries and are punishable by death or lengthy prison terms in countries such as Uganda, Nigeria, and Togo. 

Legal responses to LGBT lives 

While Africa’s legal responses to LGBT lives are often criticised by the Western world, the laws proscribing and criminalising same-sex relationships and LGBT behaviour and expressions are, in fact, one of the many lingering effects of colonialism that have been uncritically adopted within post-colonial Africa. For example, many former British colonies, such as Kenya, Uganda, Ghana, and Nigeria, continue to uphold colonial-era anti-sodomy penal codes, which punish actions ‘against the order of nature’ – that is, homosexual relationships and acts. Such penal codes were imposed in British colonies during the 19th and 20th centuries, and despite independence from Britain, many countries still enforce these penal codes and prosecute those who transgress these laws. Under the inherited British anti-sodomy laws, Kenya, as an example, prosecuted 595 people between 2010 and 2014 (Kushner, 2019). As a result of these colonial-era laws, homosexuality has misguidedly come to be recognised as un-African and a ‘threat’ to African values. 

While the legal status of LGBT individuals varies from country to country, several legal instruments aim to ensure equality and to protect the rights of all individuals across the continent. Legal frameworks such as Agenda 2063: the Africa we want, the African Charter on Human and Peoples’ Rights, and the African Charter on Democracy have been adopted and ratified by members of the African Union with the aim of guaranteeing human rights across the continent, including the rights of LGBT individuals. These frameworks explicitly use terms such as ‘all’ and ‘every human being’ to ensure inclusivity and rights for all, regardless of gender identity or sexual orientation (Izugbara et al., 2020). However, while these frameworks aspire to freedom, rights, and equality for all, there is no specific mention of the LGBT community, which leaves room for discrimination against members of this community (Izugbara et al., 2020). Similarly, while these frameworks are in place to protect the rights and equality of all citizens of the African Union, the ideals of inclusivity and equality are often not adopted or upheld by national governments.

Legal and constitutional rights 

Furthermore, even where rights and protection are legally afforded to LGBT individuals by national governments, discrimination and violence persist. South Africa, for example, is praised for being progressive in the rights and protection afforded to members of the LGBT community through its Constitution; however, when viewed in the light of the ongoing violence committed against gay, lesbian, and transgender individuals, it is clear that these legal rights and protection do not extend to the social level and to the actual lived experiences of the LGBT community. 

It is, therefore, important to understand the more deeply rooted reasons for this violence and discrimination. The work of Judith Butler (2004, 2020) provides one perspective on why the LGBT community is marginalised and victimised. She argues that within all societies there are certain individuals who are positioned as legitimate and grievable, while others are recognised as ungrievable and are, consequently, not considered legitimate citizens of the society. Those who are grievable, such as heterosexual white men in patriarchal societies, for example, are considered worthy of rights and protection, while those who do not conform to the logic of heteronormative patriarchy are ungrievable, and so the upholding of their rights and freedoms is denied based on the notion that they are not legitimate citizens of the nation. The lingering effects of racist, sexist, and puritanical colonial impositions, combined with the heteronormative patriarchal foundation of many African countries, have led to the LGBT community being among those considered (most) ungrievable, and therefore, (most) unworthy of rights, recognition, and freedom.

The question thus becomes – if members of the LGBT community are already marginalised and considered ungrievable and therefore not worthy of the rights and protection granted to legitimate citizens, can there be any possibility of their rights being upheld, even where these are enshrined constitutionally or through other legal instruments?

Cultural and social acceptance

While the legal and judicial systems in Africa play an important role in the ways in which LGBT individuals are treated, it is also clear that the law can only function to prevent such crimes and ensure the safety of LGBT individuals to a certain extent. The question then is, what more can be done to protect the rights, freedom, and ultimately, the lives of LGBT individuals across the continent? The obvious place to begin is with the decriminalising of same-sex relationships and the implementation of harsher punishments for those who commit hate crimes against the LGBT community, along with a more holistic approach that aims to conscientise people around LGBT issues and lives. Beyond legislation, there is a dire need for social, religious, and cultural acceptance of LGBT individuals. However, altering long-standing cultural and traditional beliefs and social constructs that marginalise and demonise LGBT individuals poses an enormous challenge, and as mentioned, cannot be done through legislation alone. 

One of the ways through which cultural and social acceptance is being sought is the use of art and visual activism. In South Africa, visual activism relating to LGBT lives is seen in the work of artists such as Nicholas Hlobo, the well-known photography of Zanele Muholi, and performances by Mamela Nyamza. Across the African continent, various alternative forms of resistance and LGBT visibility are emerging through, for example, pride parades, visual and political activism, and the recognition of the existence of LGBT individuals within pre-colonial African societies. These forms of resistance challenge the notions that homosexuality is un-African and a Western import, create agency for LGBT individuals, and lead to an increased visibility of the subjective, lived experiences of these individuals. These forms of resistance, therefore, play an integral role in the acceptance and equality of LGBT individuals on a more social and cultural level.

Work to be done

Clearly, there is still much work that needs to be done legally to guarantee that LGBT individuals are afforded rights and freedoms, but it is also vital that policies and programmes are developed to aid in increasing the acceptance of LGBT individuals on a social level. Without social, cultural, and religious change, legal measures alone will not end the violence and discrimination faced by the LGBT community. Overall, lesbian, gay, and transgender individuals need to be recognised as an important and natural part of African cultures and societies so that they can be positioned as grievable, legitimate citizens who are worthy of rights. Until this happens, Africa cannot truly say that it is free from colonial impositions and ideologies.

Opinion article by Dr Claire Westman, Postdoctoral Research Fellow, Free State Centre for Human Rights, University of the Free State 


News Archive

UFS to honour past and present Cabinet ministers
2010-04-19

The University of the Free State (UFS) is going to confer honorary doctoral degrees on former Minister of Arts, Culture, Science and Technology, Dr Ben Ngubane, and the current Minister of Finance, Mr Pravin Gordhan, during the university’s autumn graduation ceremony next month.

They will receive their honorary doctorates on 18 and 19 May respectively.

“It is an honour for the UFS to confer these honorary doctorates on people like these who have made, and continue to make outstanding contributions towards the wellbeing of this beautiful country. Being associated with people of this stature signifies the direction that the UFS is taking in our quest to be a great university, one of the best in the world,” said Prof. Jonathan Jansen, the Rector and Vice-Chancellor of the UFS.

Dr Ngubane will be honoured for his immense contribution towards positioning South Africa as a major and an influential player in the development of arts, culture, science and technology internationally.

He was the first Minister of Arts, Culture, Science and Technology in the new, democratic South Africa appointed by the former President, Nelson Mandela, in 1994. He was re-appointed to lead this ministry again by former President Thabo Mbeki in 1999.

As Premier of KwaZulu-Natal from 1996 to 1999, Dr Ngubane is credited for his role in bringing about peace and reducing the political violence that ravaged the province at that time.

In 2004 he was appointed as Ambassador to Japan where he initiated, among other projects, the South Africa-Japan University Forum (SAJU).
He has been honoured for outstanding contributions to higher education and community development and holds Honorary Doctorates from the universities of Natal, Zululand, the Medical University of South Africa (Medunsa) and the Tshwane University of Technology.

He is currently the Chairperson of the SABC Board.

Minister Gordhan, on the other hand, formed an integral part of the constitutional transition of South Africa between 1991 and 1994. He chaired the Convention for a Democratic South Africa (CODESA) Management Committee – the midwife and negotiating forum for a free South Africa. He was also co-chair of the Transitional Executive Council, which was a governance structure tasked with ensuring South Africa’s transition process prior to the historic 1994 elections.

In 1994, with the dawn of a new democracy in South Africa, Mr Gordhan became a Member of Parliament and was elected as Chairperson of the Parliamentary Constitutional Committee, which oversaw the implementation of the new constitutional order. At the same time he played a leading role in drafting the present constitution of the democratic South Africa. He also led the process of formulating a new policy framework for local government transformation.

Mr Gordhan was appointed as Deputy Commissioner at the South African Revenue Service (SARS) in March 1998 after being deployed from Parliament as part of the government’s drive to transform the public service. The following year he was appointed as Commissioner for SARS with the important task, amongst others, to transform South Africa’s Customs and Revenue administration – a strategic governmental institution.

He has represented South Africa in many international undertakings, including several peacekeeping missions, as Chairperson of the Customs Workshop for the Second Global Forum on Fighting Corruption and Safe-Guarding Integrity (2001), and is often called upon to make presentations at tax seminars and customs conferences.

In 2000 he was appointed Chairperson of the Council of World Customs Organisation (WCO), based in Brussels, a position to which he was re-elected twice, thus serving from 2000 to 2006.

Media Release
Issued by: Mangaliso Radebe
Assistant Director: Media Liaison
Tel: 051 401 2828
Cell: 078 460 3320
E-mail: radebemt@ufs.ac.za  
19 April 2010
 

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