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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

State of our campuses: Impact of non-completion of the 2016 academic year on UFS students
2016-10-08

Dear Parents/Guardians and Students,

Impact of non-completion of the 2016 academic year

The University of the Free State (UFS) reiterates its support and commitment to the cause of free higher education. We have stated our position in all the available spaces. We want to work with UFS students to put pressure on the government to commit itself to accept the many suggestions put forward to make free education possible within a negotiated timeframe.

We are also seriously committed to our responsibility of providing education to all students enrolled at the university. We are doing our outmost to ensure that we can resume academic activities next week.

Description: " Academic non-completion 2016 Tags: " Academic non-completion 2016

We want to bring to your attention what will happen to individual students if the UFS cannot resume classes fully on Monday 10 October 2016.

Currently we have extended the academic year by one week. Some faculties are working on Saturdays and Sundays, starting earlier and finishing later to complete the material that needs to be taught and the practical work that students need to do to be able to write exams.

In the three biggest faculties at the university: Education, the Humanities, and Natural Sciences, this is what will happen:

  • Education will fail to graduate 1 193 students
  • Humanities will fail to graduate 1 125 students
  • Natural and Agricultural Sciences will fail to graduate 1 390 students

In the professional faculties: Economic and Management Sciences, Health Sciences, and Law, this will happen:

  • Economic and Management Sciences will fail to graduate 997 students
  • Health Sciences will fail to graduate 633 students
  • Law will fail to graduate 619 students

In total, approximately 6 000 students will not receive complete transcripts of their degrees and the certificates for their qualifications.

The university currently has 3 238 students on NSFAS bursaries. None of these students will be able to apply for bursaries for the lost year. They will be regarded as having failed or not completed their courses. They will not only miss this year, but the opportunity of studying in the future.

These students come from families to which their success in higher education was supposed to mean a change in the future of the entire family. Some parents/guardians hold more than one job to be able to pay tuition fees.

In not allowing the year to continue and students to finish, we are throwing away the efforts that entire families of poor people have made for four or five years to put their children through university. The promise of free education for future generations means nothing to these families who are poor in the present.

In terms of the academic calendar, it is a false argument to say that universities will be able to enrol first-years, because what 2016 students will miss, is the second semester.

We do not have the capacity to teach double the number of students in the second semester. This also misses the point that those students who were completing modules in order to graduate, will waste an entire year (assuming they have funding) to complete their degrees. This argument does not see the knock-on effect that students, not promoting in modules from first to second and second to third year, etc., will have. Finally, this also misses the point of what will happen to students who have to repeat first-semester modules.

In terms of academic staff, students are discounting the willingness of academic staff to teach double or to have the academic year extended by approximately six weeks between teaching and examinations. The same can be said for all the administrative and support staff required for running the university.

In our case, all the students in the University Preparation Programme (UPP) on the South Campus in Bloemfontein will be stuck without being able to move into mainstream modules, preventing a new intake of UPP students for 2017. These are the poorest and most disadvantaged students at the UFS.

It is absolutely necessary to find a means of protest and political action that will not jeopardise the future of current students and the country’s desperate need for critical skills.  The interdict against violent protest secured by the UFS is still in force. The police will intervene if the interdict is not respected and the UFS will have no control over police actions.

We trust that parents/guardians and students understand the implications of the situation.

Kind regards,

Prof Nicky Morgan
Acting Rector
University of the Free State

 

Released by:
Lacea Loader (Director: Communication and Brand Management)
Telephone: +27 51 401 2584 | +27 83 645 2454
Email: news@ufs.ac.za | loaderl@ufs.ac.za
Fax: +27 51 444 6393


State of our campuses #11: Academic activities on UFS campuses continue

State of our campuses #10: Impact of non-completion of the 2016 academic year on UFS students 

State of our campuses #9: Academic programme on all UFS campuses to resume on Monday 10 October 2016

State of our campuses #8:  UFS extends vacation as from 28 September until 7 October 2016, 28 September 2016

State of our campuses #7: All three UFS campuses will be closed today, 27 September 2016.

State of our campuses #6: All UFS campuses reopen on Tuesday 27 September 2016

State of our campuses #5: UFS campuses to remain closed on Monday 26 September 2016

State of our campuses #4: Decisions about the UFS academic calendar

State of our campuses #3: UFS campuses closed until Friday 23 September 2016 

State of our campuses #2: UFS Bloemfontein and South Campuses closed on Tuesday 20 September 2016 (19 September 2016)

State of our campuses #1: Academic activities suspended on UFS Bloemfontein Campus (19 September 2016)

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