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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

Moshoeshoe - lessons from an African icon - by Prof Frederick Fourie
2004-11-03

(The full text of the article that appeared in City Press and Sunday Independent)

Our understanding of history informs our understanding of the present. No wonder the contestation over historical figures in South Africa’s past is so fierce and so divisive.
The question is: could it be any other way? I would like to think that it could; that black and white South Africans, across linguistic, cultural, religious and other divides, can develop a shared appreciation of our history – at least with certain periods and personalities as a starting point.

One such personality whose legacy I believe offers a possible platform for unifying our still divided country is King Moshoeshoe, who lived from 1786 to 1870, and is acknowledged as the founder of the Basotho.

King Moshoeshoe is the topic of a documentary that has been commissioned by the University of the Free State as part of its Centenary celebrations this year. It is part of a larger project to honour and research the legacy of Moshoeshoe. The documentary will be screened on SABC 2 at 21:00 on November 4th.

Moshoeshoe rose to prominence at a time of great upheaval and conflict in South Africa – the 19th century, a time when British colonialism was entrenching itself, when the Boer trekkers were migrating from the Cape and when numerous indigenous chiefdoms and groupings were engaged in territorial conquests. It was the time of the Difaqane, a period when society in the central parts of the later South Africa and Lesotho was fractured, destabilised and caught in a cycle of violence and aggression.

In this period Moshoeshoe displayed a unique and innovative model of leadership that resulted in reconciliation, peace and stability in the area that later became Lesotho and Free State. It made him stand out from many of his contemporaries and also caught the attention of his colonial adversaries.

Such an evaluation is not a judgment about which model of leadership is right and which is wrong, or which leader was better than another; but merely an attempt to explore what we can learn from a particular exemplar.
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Historians point to the many progressive leadership qualities displayed by Moshoeshoe which he used effectively in establishing the Basotho nation and in defending it.
First, there is his humanism and sense of justice worthy of any great statesman. Confronted by a situation in which cannibals murdered and devoured his grandfather, Moshoeshoe chose not to take revenge. Instead he opted to rehabilitate them and feed them as he believed hunger drove them to cannibalism.

Secondly, there is his skilful alliance-building with his contemporaries such as Shaka in an attempt to neutralize those rivals who were intent on attacking his followers. This is also displayed in the way he sought the protection of the British to keep the Boer forces at bay.
Thirdly, his emphasis on peaceful options is also seen in his defensive military strategy which saw him retreat to a mountain fortress to be able to protect and build a burgeoning nation in the face of the many forces threatening its survival.

Fourthly, there is his remarkable inclusivity and tolerance for diversity which saw him unite disparate groups of refugees from the violence and hunger that displaced them and then weld them into the Basotho nation. He also engaged with French missionaries, inviting them to stay with him and advise him on Western thought, technology and religion.
These are but some of the qualities which belie the notion that all 19th century African leaders were merely marauders and conquerors that gained their ascendancy through violence. Instead Moshoeshoe is a prime example of the human-centred, democratic and pluralist roots of South African, indeed African society.

The Moshoeshoe project that we have initiated (of which the documentary, called “The Renaissance King”, forms but one part) derives from our location as a university in the Free State, a province with a particular history and a particular political culture that developed as a result of this very model of leadership. This province has benefited tremendously from leaders such as Moshoeshoe and president MT Steyn, both of whom many observers credit with establishing a climate of tolerance, respect for diversity of opinion, political accommodation and peaceful methods of pursuing political objectives in the province. Their legacy is real – and Moshoeshoe’s role can not be overstated.
In addition the project derives from the University of the Free State being a site of higher learning in a broader geo-political sense. As a university in Africa we are called upon to understand and critically engage with this history, this context and this legacy.
Besides the documentary, the UFS is also planning to establish an annual Moshoeshoe memorial lecture which will focus on and interrogate models of African leadership, nation-building, reconciliation, diversity management and political tolerance.

In tackling such projects, there may be a temptation to engage in myth-making. It is a trap we must be wary of, especially as an institution of higher learning. We need to ask critical questions about some aspects of Moshoeshoe’s leadership but of current political leadership as well. Thus there is a need for rigorous academic research into aspects of the Moshoeshoe legacy in particular but also into these above-mentioned issues.
While the documentary was commissioned to coincide with the University of the Free State’s centenary and our country’s ten years of democracy, it is a project that has a much wider significance. It is an attempt to get people talking about our past and about our future, as a campus, as a province and as a country – even as a continent, given the NEPAD initiatives to promote democracy and good governance.

The project therefore has particular relevance for the continued transformation of institutions such as universities and the transformation of our society. Hopefully it will assist those who are confronted by the question how to bring about new institutional cultures or even a national political culture that is truly inclusive, tolerant, democratic, non-sexist, non-racial, multilingual and multicultural.

I believe that the Moshoeshoe model of leadership can be emulated and provide some point of convergence. A fractured society such as ours needs points of convergence, icons and heroes which we can share. Moshoeshoe is one such an African icon – in a world with too few of them.

Prof Frederick Fourie is the Rector and Vice-Chancellor of the University of the Free State

* The documentary on “Moshoeshoe: The Renaissance King” will be screened on SABC2 on 4 November 2004 at 21:00.

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