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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

Legal elite tackle thorny issue of corruption
2013-01-24

 

Our Faculty of Law brought together top experts and judges for a Symposium on Corruption, to investigate one of the most pressing concerns of South Africans.
Photo: Stephen Collett
24 January 2013



   YouTube Video

Chief Justice Mogoeng Mogoeng yesterday (24 January 2013) concluded the proceedings of the first day of the International Symposium on Corruption, hosted by the Faculty of Law of the University of the Free State (UFS). In his address Justice Mogoeng made no excuses as to the magnitude of the threat corruption presents to South African citizens.

“Urgent action and efficient measures are called for to arrest this scourge, for the sake of our constitutional democracy,” he warned. “Our vibrant constitutional democracy will not and cannot survive in the face of rampant corruption.”

Justice Mogoeng said the spate of civil and labour unrest erupting throughout the country can be attributed to corruption. According to him the scope and far-reaching implications of corruption drives South Africans to “boiling point” and evokes “anger, frustration and a don’t-care-attitude that often manifests in widespread protest actions” and disrespect for the rule of law.

“South Africans, irrespective of race or creed, must identify and focus on their common enemies and find a conciliatory and unifying way of dealing with what divides them, including the lingering prejudices of the past,” Justice Mogoeng urged.

Despite the threat corruption poses, he stressed that all South Africans have a role to play in the fight against corruption and that there are different role players that can become involved in the process. Especially important is the media and faith-based agencies which, according to Justice Mogoeng, can regenerate morals and secure a “national moral code.” The State must further ensure enforcement of anti-corruption measures and preside over the selection of individuals of “solid character” to reside in agencies meant to fight corruption.

He highlighted the need for an unbiased and independent judiciary, one immune to outside influences controlled by powerful forces, as well as personal agendas.

Although Justice Mogoeng believes that the private sector is most guilty of transgressions based on corruption, he stated that a “well-coordinated war” against it must be waged in all sectors in order to stamp it out.

Justice Mogoeng presided over the unveiling of the redesigned foyer of the CR Swart Building and praised the Faculty of Law for its innovation with regard to the symposium.

“I look forward with great optimism to more well-organised symposiums that strike at the nerve-centre of the well-being of our constitutional democracy,” he concluded.

Symposium seeks answers and solutions

The Faculty of Law at the University of the Free State (UFS) concluded its International Symposium on Corruption on Friday 25 January 2013. The event featured a stellar cast of speakers, including the Chief Justice of South Africa, three current Supreme Court of Appeal judges, high-court judges, advocates, prosecutors, journalists, as well as local and international legal academics.

Throughout the two-day symposium, corruption was dissected as a severe problem in the South African socio-economic landscape and solutions were sought to alleviate the pressing concern.

The main attractions of the symposium were undoubtedly the attendance and presentations delivered by Chief Justice Mogoeng Mogoeng, as well as Prof. Leon Wessels. Prof. Wessels was described as “one of the founding fathers of the constitution of South Africa” by Judge Fritz Brand, a current Appeal Court judge and the third-longest serving judge in the country.

“Corruption is stealing the constitutional dream of this country. Corrupt leaders are fearless, those who expose corruption, are fearful,” Prof. Wessels warned.

Judge Brand closely trails the second longest serving judge in the country in former Kovsie, as well as former UFS Council Chairman, Judge Faan Hancke. Both judges addressed the symposium and chaired sessions, along with Prof. Johan Henning, Dean of the Faculty of Law, and Judge Ian van der Merwe, Chairman of the UFS Council.

It was, however, not all doom and gloom, as several of the speakers offered tangible ideas in what was often termed the “war on corruption”. Celebrated Sunday Times journalist Mzilikazi wa Afrika who has been arrested following the police leasing scandal which he exposed, urged South Africans to stand together in their fight against corruption, before it is too late.

People on the front lines in the day to day fight against corruption also spoke at the symposium, giving the audience a better understanding of the intricacies and challenges involved in the process. The Head of the National Prosecuting Authority’s Asset Forfeiture Unit, Mr Willie Hofmeyer, as well as Advocate Xolisile Khanyile, who is the Director of Public Prosecutions in the Free State, elucidated this struggle.

The symposium also hosted Prof. Chizu Makajima, a celebrated academic from the United Kingdom.

The two-day symposium ended in style as the delegates gathered in the Centenary Hall on the Bloemfontein Campus for lunch, with a further address by Prof. Leon Wessels


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