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#AfricaMonth: The state of LGBT rights in Africa

19 May 2021 | Story Dr Claire Westman | Photo Supplied

Dr Westman_web read more — 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

SRC Inauguration speech: 22 January 2005

2005-01-22

Campus Head (Prof Peter Mbati). Dean of Students (Dr Natie Luyt). Deputy Director: Student Affairs and my boss (Mr. Teboho Manchu), Members of the University executive and Academic staff members, SRC members, Leaders of trade Unions and Student organizations, Distinguished guests, Ladies and gentlemen, most importantly first entering students and Parents receive my heartfelt revolutionary greetings.

Let me extend my word of appreciation to our distinguished guests for adding value and dignity to this event. Your presence here means a lot to us. Program Director what I bring here with me, assisted by facts, and is therefore just the work of my imagination. Like a love letter addressed to a sweetheart miles away, even though you do not know how she feels, what she wants to hear, and do not even know how her face looks like.

To me a speech is just an honest and intimate conversation. That is why I got into the habit of establishing a dialogue, or a debate, with my acquaintances looking at their faces and trying to persuade them of what I am telling them.

Mr. Speaker and Madam Deputy Speaker of the Student Parliament we are gathering at this ceremony, significantly few weeks after the release of grade 12 results, with the exception of those from Mpumalanga because of fraud. The Grade 12 results also show that only 18% of Black learners matriculated with exemptions, as compared to 53, 6% of white learners. This is an indication that our education system needs an overhaul.

We are also gathered here significantly a day after the management retreat held in Bloemfontein, Masselspoort. The retreat discussed, among other things, the transformation agenda, and some possible solutions to challenges we are facing now.

Most regrettably, we are gathered here when the whole world morns the victims of Tsunami tragedy. Let me therefore tore the line and convey our deepest condolences, from the last robot of my heart, to the affected families. Our hearts and thoughts will always be occupied by this horrified tragedy.

Creating a new Institution

I would submit, for purposes of debate and discussions that this Institution should strive to specialize and excel in regional rural development studies. Since our higher education, institutions in South Africa are generally weak in rural development studies. Instead, most of them tend to have an urban orientation to their programmes. Training everybody for the cities, big business and the private sector. This is a big weakness in a country with such large rural areas and population trapped in poverty, disease and ignorance.

Women’s studies

Program Director, it is only a moron who can argue against the fact that for us to reposition the institution around the regional development challenge, we need to start first with women empowerment. It is a fact that in most of our poor communities and families, it is women who withstand the worst of poverty. They are the ones who daily have to wipe tears from children who are hungry. It is women who look after the sick, the elderly, those dying from AIDS and the jobless. They are the one who have to fetch water, make fire and cook. There can therefore be no rural development studies without women studies, in particular on how to empower them and assist in the provision of basic services, so that they are relieved from some of the burdensome task of the society.

Registration Process

Mr. Speaker and Madam Deputy Speaker of the Student Parliament let me indicate that the registration is a process and not an event, so it cannot be concluded overnight. This huge process demands for people to stay calm, as there is no crisis. People should stop being excited. At the same time, no organization should use its cheap popularity and unilaterally disrupt the continuous and smooth running of the registration process at hand.

Let me strongly indicate, madam deputy speaker, that I am on record for stating that I have forgiven all those who have wronged us. I harbour no bitterness towards the protagonists of our painful and unfortunate events of the past week. And we will overcome this process not by our own devices but by the help of Almighty God and the grace of our Lord Jesus Christ.

Concerning registration of first years, we have programs, concerning that of senior students, we have programs, regarding graduations we have programs, and concerning HIV\AIDS we have programs. So, there is no need for people to press panicking buttons.

Mr. Speaker and Madam Deputy Speaker of the Student Parliament let me be opportunistic and welcome the entire student body on Campus for the academic year 2005. May our lovely first entering students have a happy and momentous year as part of Qwaqwa Campus of University of the Free State. May your studies be fruitful and enjoyable.

Student years are generally the happiest years of your life, so please make the most of them. While you are doing, all your preparations bear in mind that University is not an opportunity, it is just creating opportunities for a person.

On behalf of SRC members, our people, our students and management members I would like to welcome you all. Even though your parents are far away, here at Uniqwa you have more brothers, more sisters and more parents. Since we will love you with the same love as if we are from one family, and I have no doubts that management members will love and care for you as if you are their own children. Should you encounter any problem while studying at the Qwaqwa Campus of University of the Free State do not hesitate to contact us at the SRC offices because we need to ameliorate any factor influencing you negatively while on campus. I wish you well in the attainment of your academic pursuit.

Senior Students: We are not faced with just a new year but another academic year where we all have to work together to achieve our common goal of building our Institution through the development of human power. I urge you to invest your whole selves in this SRC.

For quite some time now, a debate has been ranging as to, whether has there been any progress in this incorporation process, or we are just moving with no direction. This debate is important, but I hasten to add not essential. The SRC is also involved in this debate, but with definite shift in emphasis. For us it is not important to participate in the debate than it is in finding solutions for the challenges of this new chapter in the history of humankind.

To my colleagues: Comrades, we are leading this Institution with a sense of pride and duty, and I know very well that we lead men and women, students who are determined to ensure that we all reach our destination safely and on time.

I said in one of our meetings that there are more enemies on our way, more than we can imagine. I think you witnessed that during the course of this week. The excitement and unnecessary confusions caused by some confused and loosed charlatans bear testimony to my statements. We should not reveal our game plans unless we are ready to slam.

Let me also borrow from the words of the late Albert Lethuli when he said and I quote: “There remains before us the building of the new land, from the ruins of the old narrow groups, a synthesis of the rich cultural strains which we have inherited. The task is immense”. Lastly, a navy divided within its ranks will be vanquished and destroyed by the enemy, but a navy united in purpose and action, loyalty and commitment will not drawn but sail on to victory.

In conclusion, let me call upon all political structures, church denominations, developmental structures, clubs, societies and forums to put aside all their differences, ideological insinuations and forge unity towards transforming Qwaqwa Campus of University of the Free State into an institution that is seen playing vigilant role in developing students academically, politically, socially, spiritually, religiously, culturally and otherwise.

Program Director, let me end my speech by indicating that every drop of my blood is telling me that Uniqwa is my home. I firstly became a student here, I became an activist here, I became a leader here, I became a president here, I will become a graduant here and hopefully I will become an employee here. So never, doubt my commitment towards the community of this campus.

Please be informed, in a central University of Technology’s way, that if there is no UNIQWA in HEAVEN, then I am not GOING.

Let us broaden the social base.

Tello Titus Wa-Motloung President General

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