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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

Moshoeshoe film screened at UFS as part of transformation programme
2004-10-14

A ground-breaking documentary film on the life and legacy of King Moshoeshoe I, the founder of the Basotho nation, will be screened at the University of the Free State (UFS) tonight (Wednesday 13 October 2004) at 19:00.

Rector and Vice-Chancellor of the UFS, prof. Frederick Fourie, said the UFS commissioned the documentary as a practical demonstration of the university’s commitment to the continued transformation of the campus and the creation of a new inclusive institutional culture for all staff and students.

It is part of a larger UFS project to honour the Moshoeshoe legacy of nation-building and reconciliation and to explore his role as a model of African leadership.

The documentary tells the life story of the legendary king, with emphasis on his remarkable leadership skills, his extraordinary talent for diplomacy and conflict resolution and his visionary commitment to creating a new nation from a fragmented society.

Almost all the filming was done on or around Moshoeshoe’s mountain stronghold, Thaba Bosiu.

The last part of the documentary explores the lessons for African leadership to be learnt from Moshoeshoe. The hour-long documentary film was produced by the well-known journalist Mr Max du Preez and was commissioned by the UFS as part of its centenary celebrations.

“Through this documentary film about King Moshoeshoe, the UFS commits itself to developing a shared appreciation of the history of this country,” said prof. Fourie.

“King Moshoeshoe was a great African statesman and leader. He was born in this region of the country, but his influence and legacy extends way beyond the borders of the Free State, Lesotho and even way beyond the borders of South Africa,” said prof. Fourie.

As part of the larger project, the UFS is investigating a possible annual Moshoeshoe memorial lecture that will focus on African leadership, nation-building and reconciliation, possible PhD-level research into the life and legacy of King Moshoeshoe and a literary anthology including prose and poetry.

“We must gain a deeper understanding of what really happened during his reign as king. Therefore the University of the Free State will encourage and support further research into the history, politics and sociology of the Moshoeshoe period, including his leadership style,” said prof. Fourie.

According to prof. Fourie the Moshoeshoe project will enable the UFS to give real meaning to respect for the diversity of our languages and cultures, and the unity South Africans seek to build as a democratic nation through such diversity.

According to the producer of the documentary, journalist Mr Max du Preez, the UFS deserves credit for recognising this extraordinary man and for financing this important documentary.

Du Preez said: “It was about time that South Africa rediscovered Moshoeshoe. Colonialist and Afrikaner Nationalist historians have painted him as a sly, untrustworthy and weak leader. Most historians have preferred to glorify leaders in South Africa’s past who were aggressors and conquerors. In the process most present-day South Africans came to regard Moshoeshoe as a minor tribal figure.”

“Yet this was the man who broke the cycle of violence, famine and suffering during the traumatic time in central South Africa in the early 1800s. During the entire 19th century, Moshoeshoe was virtually the only leader in South Africa who did not answer violence with violence, who did not set forth to conquer other groups and expand his land,” said Mr du Preez.

“I have no doubt that the stability that the Free State region has enjoyed over more than a century was largely due to Moshoeshoe’s leadership and vision. He can quite rightly be called “The Nelson Mandela of the 19th Century,” Mr du Preez added.

Explaining the title of the documentary film, Mr du Preez said: “We decided to call the documentary “The Reniassance King” because whichever way one looks at it, Moshoeshoe symbolised everything behind the concept of an African Renaissance.”

“He was progressive, just and fair; he deeply respected human life and dignity (we would nowadays call it human rights); he embraced modernity and technology without ever undermining his own people’s culture or natural wisdom; he never allowed European or Western influence to overwhelm him, make him insecure or take away his pride as an African,” said Mr du Preez.

“Moshoeshoe was the best of Africa. If only contemporary African leaders would follow his example of what African leadership should be,” Mr du Preez said.

Among the interviewees in the film were Lesotho’s most prominent historian, Dr LBBJ Machobane, the head of the UFS’s Department of History, prof. Leo Barnard, Moshoeshoe expert and Gauteng educationist Dr Peter Seboni, Lesotho author and historian Martin Lelimo and Chief Seeiso Bereng Seeiso, Principal Chief of Matsieng and direct descendant of the first King of the Basotho.

The documentary film on King Moshoeshoe will be screened on SABC 2 on Thursday 4 November 2004.
 

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