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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

Premiere of the documentary on King Moshoeshoe - Address by the Rector
2004-10-14

Address by the rector and vice-chancellor of the University of the Free State, prof Frederick Fourie, at the premiere of the documentary on King Moshoeshoe, Wednesday 13 October 2004

It is indeed a privilege to welcome you at this key event in the Centenary celebrations of the University of the Free State.

We are simultaneously celebrating 100 years of scholarship with 10 years of democracy

Today is a very important day with great significance for the University. This Centenary is not merely a celebration of an institution of a certain age. It is a key event in this particular phase of our history, in our transformation as an institution of higher learning, in taking the creation of a high-quality, equitable, non-racial, non-sexist, multicultural and multilingual university seriously.

This is about building something new out of the old, of creating new institutional cultures and values from diverse traditions.

It is about learning together - as an higher education institution - about who we are where we come from – to decide where we are going.

It is about merging the age-old tradition of the university, of the academic gown, with the Basotho blanket, the symbol of community engagement.

Then why is it important that we remember Moshoeshoe, where does he fit into our history?

In the Free State province, where large numbers of Basotho and Afrikaners (and others) now live together, a new post-apartheid society is being built in the 21st century.

The challenge is similar to that faced by Moshoeshoe 150 years ago. As you will see tonight, he did a remarkable thing in forging a new nation out of a fragmented society. He also created a remarkable spirit of reconciliation and a remarkable style of leadership.

Not all people in South Africa know the history of Moshoeshoe. Many Basotho – but not all – are well versed in the history of Moshoeshoe, and his name is honoured in many a street, town and township. Many white people know very little of him, or have a very constrained or even biased view of his role and legacy. In Africa and the world, he his much less known than, for instance, Shaka. (In Lesotho, obviously, he is widely recognised and praised.)

We already benefit from his legacy: the people of the Free State share a tradition of moderation and reconciliation rather than one of aggression and domination.

With Moshoeshoe, together with Afrikaner leaders and reconciliators such as President MT Steyn and Christiaan de Wet, we have much to be thankful for.

Our challenge is take this legacy further: to forge a new society in which different cultural, language and racial groups – Basotho, Afrikaners and others – will all feel truly at home.

Bit by bit, on school grounds, on university campuses, in each town and city, people must shape the values and principles that will mould this new non-racial, multicultural and multilingual society.

A shared sense of history, shared stories and shared heroes are important elements in such a process.

Through this documentary film about King Moshoeshoe, the UFS commits itself to developing a shared appreciation of the history of this country and to the establishment of the Free State Province as a model of reconciliation and nation-building.

Moshoeshoe is also a strong common element, and binding factor, in the relationship between South Africa / the Free State, and its neighbour, Lesotho.

For the University of the Free State this also is an integral part of real transformation – of creating a new unity amidst our diversity.

Transformation has so many aspects: whilst the composition of our student and staff populations have been changing, many other things change at the same time: new curricula, new research, new community service learning projects.

In also includes creation of new values, new (shared) histories, new (shared) heroes.

It includes the incorporation of the Qwaqwa campus, which serves a region where so many of the children of Moshoeshoe live, including her majesty Queen Mopeli.

We see in Moshoeshoe a model of African leadership – of reconciliation and nation-building – that can have a significant impact in South Africa and Africa as a whole.

We also find in the legacy of King Moshoeshoe the possibility of an “founding philosophy”, or “defining philosophy”, for the African renaissance.

To develop this philosophy, we must gain a deeper understanding of what really happened there, of his role, of his leadership.

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.

We hope to do this in partnership with National University of Lesotho.

The Moshoeshoe documentary is one element of a long-term project of the UFS. The other elements of the project that we are investigating are possible PhD-level research; a possible annual Moshoeshoe memorial lecture on African leadership; and then possible schools projects and other ways and symbols of honouring him.

It is my sincere wish that all communities of the Free State and of South Africa will be able to identify with the central themes of this documentary, and develop a shared appreciation for leaders such as King Moshoeshoe and the legacy of peace, reconciliation and nation-building that they have left us.

Prof. Frederick Fourie
Rector and Vice-Chancellor
University of the Free State
13 October 2004.

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