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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

Message of appreciation from the UFS acting Vice-Chancellor and Rector: Prof Nicky Morgan
2017-01-04

Dear Colleagues, Students, Parents/Guardians, Alumni, and Friends of the university

The University of the Free State (UFS) successfully completed the 2016 academic year, with the official examination ending on 14 December 2016.  We have also completed the last of our graduation ceremonies, and are now preparing to accommodate the additional and ad hoc examinations in the coming weeks.
 
This comes after the university has successfully readjusted its academic programme in October 2016, subsequent to the disruption of activities and programmes for almost a month. All of this could not have happened without the extraordinary support and dedication of the staff and majority of the students at the UFS.
 
I would like to thank all our staff, parents/guardians, alumni, and friends of the UFS for the role they played during these challenging months in order to ensure that we could end the academic year successfully. If it was not for your understanding and uncompromising support, we would not have been able to complete the curricula, continue with the exams, and end the year in this way.
 
However, we all know that this was not an easy task. The sheer dedication and drive of our academic staff to adapt the mode of teaching and assessment of modules must be applauded, as it took courage and perseverance. Not only did they manage to complete the curricula, they also managed to do the assessment almost completely online. The incredible role of our administrative and support staff – including our security personnel – should also be acknowledged with deep appreciation.
 
This has been a learning experience for all, which has provided us with a solid base for academic recovery in the future.
 
During its quarterly meeting on 2 December 2016, the UFS Council expressed appreciation to all staff, students, and the university management for the successful completion of the 2016 academic year.
 
To all our alumni and donors who continued to support the UFS this year – thank you for your commitment, loyalty, and continued contribution.
 
Looking forward to 2017
The UFS announced on 7 December 2016 that it will be increasing tuition and housing and residence fees for 2017 by 8%. The approved increase in fees is in line with the recommendations by the Minister of Higher Education and Training, Dr Blade Nzimande, on 19 September 2016. The increases were approved by the UFS Council on 2 December 2016, with the understanding that it would be paid by the Department of Higher Education and Training by means of the fee adjustment grant for qualifying students with a combined family income of not more than R600 000 per annum.

The university management is aware of the economic realities in South Africa, as well as the financial pressure households are experiencing. The long-term financial sustainability of the UFS, as well as the financial constraints which impact teaching and learning, research, and community service, continues to remain of utmost importance to the Council and to the senior leadership of the UFS.
 
The university management stated its pro-poor approach to student funding on several occasions; that academically deserving students from poor and working class families should receive substantial financial support. For this reason – also because it does not place a burden on poor and working-class families – an increase in tuition fees aligned with the DHET proposal was submitted to Council for approval. The presidents of the Bloemfontein and Qwaqwa Campus Student Representative Councils were present and participated in the discussion on fees – also when Council approved the increase.
 
I am thankful to report that more applications for admission were received for 2017 (42 568) in comparison to 2016 (29 284), and we are excited to welcome first-year students to our campuses in January 2017. See 2017 calendar of events and information.
 
The necessary safety measures have been taken and contingency plans are in place when students return in 2017. The university management will continue to work with the South African Police Service to ensure stability on the campuses and the uninterrupted continuance of the Academic Project.
 
In conclusion, I would like to wish you a restful and safe Festive Season. Thank you once again for your crucial role in making the University of the Free State still one of the universities of choice in the country.
 
Best regards
 
Prof Nicky Morgan
Acting Vice-Chancellor and Rector
University of the Free State

 

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