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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 committed to transformation
2005-02-23

UFS committed to transformation

The management of the University of the Free State (UFS) takes note that plans are being made to stage a student protest at the UFS main campus on Monday 28 February 2005 .

This is in line with a concerted national campaign to highlight the issue of transformation at higher education institutions.

At this stage the UFS management has not received any application from student formations to stage such a protest at the main campus in Bloemfontein .

The UFS upholds the right of all staff and students to hold legal, non-violent protests and in this spirit encourages the student formations to apply for permission to hold their protest. However, the UFS management has been - and always will be willing to discuss the important issue of transformation of the UFS with staff unions and student formations.

Again the UFS management appeals to student formations to make use of this open door policy and not to adopt a confrontational position. In fact the management and the Senate of the UFS have come out in support of a new phase of transformation at the UFS.

In his speech at the official opening of the UFS earlier this month (on 4 February 2005 ), the Rector and Vice-Chancellor, Prof Frederick Fourie, announced that a comprehensive transformation plan for would be drafted for the UFS.

This Transformation Plan would address issues such as:

  • a new institutional culture for the UFS
  • the need for representivity in the staffing of the UFS
  • ensuring relevance of curricula for the South African and African context
  • enhancing excellence in the overall academic life of the UFS
  • ensuring greater interaction among black and white students and staff
  • addressing outstanding issues in the incorporation of the Qwaqwa and Vista campuses, among others

Concerning some of the issues that are being put forward to motivate for a protest march, the UFS would like to highlight the following facts:

  1. The situation at the Qwaqwa campus
  • It is not true that the UFS has decided to close down the Qwaqwa campus. This is a complete falsehood. The campus was incorporated into the UFS in January 2003 and since then every effort is being made to ensure the viability of the Qwaqwa campus.
  • In fact the UFS has just upgraded residences at the Qwaqwa campus – to the tune of R6,8-million.
  • In addition, another R1,4-million has been set aside for the upgrading of other facilities on the Qwaqwa campus.
  • More staff has been appointed and the library is acquiring more books etc.
  • The management of the UFS wants to assure staff at the Qwaqwa campus once again that there has been no decision to close the campus.
  • We realise that the incorporation of the campus into the UFS has given rise to certain fears and concerns, but these are being addressed, including the question of reporting lines of staff and the further delegation of powers to the head of the Qwaqwa campus, Prof Peter Mbati.
  1. The situation at the Vista campus
  • A number of processes are currently under way to address outstanding issues following the formal incorporation of the Vista campus into the UFS in January 2004.
  • This includes the integration of former Vista staff into the UFS as well as the alignment of the conditions of service of the former Vista staff with the UFS conditions of service.
  • Indeed, over the last few weeks, a climate of trust has been developing and a number of meetings have taken place in contrast to the situation that obtained at the end of 2004.
  • Just last week, the Rector reassured the Vista Task Team representing the former Vista staff that these staff members are indeed part of the UFS staff complement.
  • When the Vista campus was incorporated into the UFS, it was agreed that no new first years would be registered there, so as to avoid duplication with the main campus which is only a few kilometers away.
  • Instead, those students who were registered as Vista students at the time of incorporation (January 2004) would be allowed to complete their studies.
  • In terms of this agreement another process of consultation with key stakeholders on and off campus would be initiated to determine how the physical facilities of Vista could be used to contribute to educational and skills provision in the region and the province.
  • This process is still in its early stages and no final decision has been made regarding the long term strategic reconfiguration of the Vista campus.
  • In any case, as stated by the Rector, former Vista staff do not have to fear about their work security as this is not dependent on the future use of Vista campus – the two issues are not related.
  1. Financial aid for students at the Qwaqwa campus
  • Concerning financial aid to students at Qwaqwa, the UFS has to date (that is up to 22 February 2005 ) made available R25 000 each to 705 students.
  • That amounts to R17,6 million.
  1. Financial aid for students at the Vista campus
  • Concerning financial aid to students at Vista , the UFS has to date (that is up to 22 February 2005 ) made available R14 500 each to 104 students.
  • That amounts to R1,5 million.
  1. Registration
  • The registration processes at both these campuses are not yet completed. So final figures are not yet available.
  • What we can say so far, is that 1339 students have registered at the Qwaqwa campus and that more are expected to register. At Vista , 545 students have registered so far, and more are expected to do so.
  • In an effort to assist students during the registration process, management has put in place a structure which is called the Monitoring Committee.
  • This Monitoring Committee provides counseling on courses of study but also sorts out problems relating to academic fees, etc.
  • This is how the UFS management in a concrete way gives expression to its commitment to broadening access for academically deserving students.
  1. Alleged racism
  • There have recently been unsubstantiated allegations of racism leveled at the UFS.
  • We would like to state unequivocally, that the UFS does not and will not tolerate racism in any way.
  • There are policies and procedures in place to deal with such allegations and those who feel aggrieved should bring this to the attention of the Director of Diversity, Mr Billyboy Ramahlele.
  • The UFS also has sensitisation programmes for staff and students to assist in bringing about a truly non-racial, non-sexist, inclusive, multicultural and multilingual campus.

.

  1. Conclusion
  • The UFS management remains committed to the further transformation of the institution so that it can play its role in supporting the goal of a non-racial, democratic South Africa united in its diversity.
  • We are committed to the successful incorporation of the Vista and Qwaqwa campuses and to the speedy resolution of all outstanding issues facing staff and students on these campuses.
  • We appeal once again to staff and students on these campuses, who are indeed members of the broader UFS community, to play a constructive role in the debate about the strategic direction of the UFS and all its campuses.

 

Issued by: Mr Anton Fisher

Director: Strategic Communication

Cell: 072-207-8334

Tel: 051-401-2749

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