Abstract
In the twentieth century, after the documentation of human rights, the struggle for inclusion of sexual orientation and recognition of gender identity (SOGI) in legal frameworks became an important issue. The broad human rights framework encompasses LGBTQ+ rights but its application in individual states is nuanced rather than positive. The countries differ in their legislative approaches with progressive and liberal policies on one hand and homophobia in conservative states on the other. But several nations, especially the weak and developing ones, are still in between, navigating their stance. This research focuses on the African continent and analyses the socio-economic, cultural, and legal hindrances to LGBTQ rights. In many heteronormative African states, discriminatory laws and criminalization endanger the lives of the LGBT community. Challenges faced by LGBTQ rights in Sub-Saharan Africa include the criminalization of same-sex activity in many countries, societal hostility towards LGBTQ individuals, discriminatory laws, and limited legal protections for the LGBTQ community. However, pre colonial history presents a different picture of acceptance rather than hatred in Africa but the advent of imperialism especially Britain had a deteriorating impact on the colonies.
This paper also analyses the intersection of diverse factors such as race, ethnic identity, and socio-economic circumstances with SOGI highlighting the need for legal protection for LGBTQ community. The states that have adopted progressive legislation to safeguard LGBTQ rights are holding the beacon of hope to lead the way forward. But the changes in their laws and societal attitude sometimes, are two distinct ends. And transforming the hostility into harmony and inclusion requires small and careful steps. The interference by the international community and other countries also contributes to establishing firm statutes and legislative safeguards. Furthermore, the impact assessment on the local community due to the endeavours of international organisations and other countries is also portrayed.
Keywords
Decriminalisation, Heteronormativity, Intersectionality, Sexual Orientation, Gender Identity
Introduction
The international community achieved a milestone by formulating the Universal Declaration of Human Rights on December 10, 1948. The principles of non-discrimination and equality are the basis of the UDHR as mentioned in its Article 7- Right to Equality before the Law. It clearly prohibits arbitrary arrest, detention, and interference with privacy of individuals. Many African countries have integrated UDHR principles into their constitutions. The impact of UDHR in African states has been significant, influencing legal frameworks, human rights
movements and governance practices across the continent. For instance, South Africa’s 1996 Constitution explicitly upholds rights such as dignity, equality, and freedom, reflecting UDHR values.
The African charter, heavily influenced by UDHR, demonstrates human and peoples rights. It has been instrumental in promoting civil liberties, political, economic, socio-cultural rights across the continent, serving as a legal framework for human rights advocacy in member states. But, the indivisible and inalienable nature of human rights loses its aura when confronted with state-sponsored homophobia. The notion of homosexual practices as ‘imported western evil’ are propagated by the elite class consisting of the political heads, community leaders and religious segments and authorities in Africa. For instance, in a statement Zimbabwe’s former president Robert Mugabe labelled homosexuality “un-African” and a “white disease”. Often, states like Kenya and Uganda also cry their national rhetoric of Western cultural imperialism. However, same sex relationships have a long history in Africa predating Britishers. Anthropologists’ findings such as the San rock paintings near Guruve region in Zimbabwe dating back 2,000 years show vivid illustrations of coupling males. Other scholars show that same-sex practices and diverse sexualities can be found all over the continent and predate colonisation1. For example, “It was an open secret that Mwanga II, the 19th century King of Buganda in what is now Uganda, was gay” finds Ugandan scholar Sylvia Tamale. “Women-to-women marriage in which one woman pays a bride price to acquire a husband’s rights to another woman has been documented in more than thirty African populations,” discovers the pivotal book on homosexuality in Africa.1
However, the present condition of LGBTQ rights in Africa has been rough when compared to other European countries.Of the 69 countries that criminalise same-sex relations, 33 are in Africa.In most cases, these laws are remnants of colonial rule, and the vague wording of these prohibitions, such as “carnal knowledge against the order of nature” resonates with the decorum of that era. The legal landscape does not seem to have a very positive pitch as evident in present legislations of Uganda, Nigeria and Kenya. These African countries have stringent laws against homosexual activities, often punishable by long prison sentences. Several countries like Nigeria and Uganda have laws that provide for the death penalty to be given to adults who have taken part in consensual same-sex acts.. In some countries, laws are being strengthened even against people who identify them as LGBTQ. The definition of marriage has been strictly defined to be the union between two opposite sex and consideration of same-sex marriage is often looked upon as an alien concept. Several reports highlight how sexual and gender minorities are marginalised by African political, religious and traditional leaders. For instance, in the first half of 2021, “instances of violence against LGBT people in Senegal” were reported by rights groups there, while “police in Kenya came under pressure to properly investigate the brutal murder of a non-binary lesbian in Karatina, north of Nairobi”.
Although the examples are few, there has been some progress over the last two decades on the protection of LGBT rights in Africa. South Africa legalized same-sex marriage in 2006. South Africa’s constitution prohibits discrimination based on sexual orientation, and it was
the first country in the world to enshrine LGBTQ rights in its constitution. Though there has been societal progress with the evolution of behaviour and practices, there have been instances of a bag filled with mixed reactions. South Africa, notwithstanding strong legal protections, continues to battle violence directed against LGBT people. In 2021, at least 24 people were reportedly murdered in bias-motivated attacks. The Ministry of Justice is revising its policy and approach to combating systemic gender-based violence in the country. “Same-sex relationships are legal in only 22 out of 54 African nations”. There have been notable court decisions, such as Botswana’s continued upholding of its decriminalisation of same-sex relations and Namibia recognizing the rights of same-sex couples married abroad in 2023. Moreover, States which have legalised homosexuality either lack a comprehensive legislation protecting homosexuals from discrimination in key aspects such as employment, health and education or face hostility from social groups. But local advocacy groups, often working underground, strive to support LGBTQ individuals and push for legal and social reforms. These groups are crucial in providing community support and raising awareness. Despite the harsh legal and social environment in many parts of Africa, the resilience and courage of LGBTQ activists and communities continue to drive change, challenging norms and advocating for a more inclusive and a just society.
Problems and Legislative Analysis
The denial of basic rights by the states leads to perpetual discrimination in the social sphere. Living in constant fear of homophobic attacks, LGBT individuals suffer terribly in all the spheres of social and private life. The lack of legal recognition also hampers their acceptance not only in society but in their own family forcing them towards poverty. In the guise of preserving family honour, different forms of violence are directed towards LGBT people leading to stigmatisation and exclusion. This, at times, creates unequal access to education and due to limited employment opportunities, many of them adopt the life of a sex worker thus, risking their lives to AIDS and other venereal diseases. It is necessary to mention here that the pertinent abuse and torture towards the LGBT community is not only a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment but this denial of humanity is a violation of UDHR itself. Some thinkers do not grant LGBT rights a status of special rights and accord them the same status as human rights with a platonic assumption that LGBTQ individuals are not different from heterosexual individuals. But in reality, every basic right that an individual should have gets curtailed because of their sexual orientation. For instance, human rights violations against LGBT individuals in Ghana can be found in Ghana’s Criminal Code, Chapter 6 Section 104 which not only recognised marriage but adoption, social security, employment opportunities, inheritance and property rights, and protection at the workplace if at all they can secure a job. In Sub-Saharan Africa, conservative views towards LGBTQ individuals are often influenced by religion and cultural beliefs. For example, in Malawi, where the majority of the population is Christian, homosexuality is viewed as ungodly, leading to reluctance among politicians to push for the decriminalisation of homosexuality to avoid falling out of favour with voters. Setbacks faced by the LGBTQ community include opposition to public inquiries on LGBTI issues, relays to review anti-gay legislation, and strained relations with the United Nations
regarding the decriminalization of homosexuality. Similarly, in Tanzania, a highly conservative religious society where Christianity and Islam are the dominant religions, many use their religious texts to condemn homosexuality, contributing to societal hostility towards LGBTQ individuals. These religious and cultural beliefs shape attitudes towards LGBTQ rights and contribute to the challenges faced by the LGBTQ community in Sub-Saharan Africa.
The interplay between LGBTQ+ rights and other marginalised identities (e.g race, gender, religion) is often overlooked. Legal recognition of transgender individuals lag behind those who identify themselves as gay, lesbian and bisexual. In Africa, about half of the continent bans transgender and gender-nonconforming Africans from “altering the gender markers on their legal identification” which is possible in numerous countries in the world. In Tanzania, setbacks include a top-down societal structure limiting freedom of speech, abuse of authority by police officials, limited spaces for civil society organisations, conservative religious views condemning homosexuality, and the perception that connecting with foreigners is safer than connecting with locals. The discrimination in legislation and stigma and marginalisation in society make the self-exposure path difficult for them.
Within the LGBTQ+ community itself, women are more susceptible to violence. The cases of curative rapes against lesbian or bisexual women go unpunished by the authorities due to no legislative protection. When the states do not acknowledge LGBT rights in their laws, the principles of transparency and good governance are violated. In developing countries, there is less accountability on the government’s part to recognize rights. Apart from this, the countries with democratic structures or authoritative governments allow safe gender change cases of state-sponsored homophobia. FannyAnn Eddy, in her speech at UNHRC in 2004, was the first to highlight “the use of culture, tradition, religion, and societal norms to deny the existence” of LGBT people.
Global outlook
Every country has its own public opinion and its people shape attitudes on the acceptance of homosexuality. From a global perspective, it remains sharply divided by the country’s economic development, social apparatus and the cultural past. “Western Europe and the Americas are more accepting than those in Eastern Europe, Russia, the Middle East, and sub-Saharan Africa, and publics in the Asia-Pacific region generally are in a split.” This split is a function of the mainly the economic development of nations where religious groups and political parties also play a major role. “But even with these sharp divides, views are changing in many of the countries that have been surveyed since 2002”, when the Research and Centre first began asking questions. In many nations, there has been an increasing acceptance of it, including in the United States, where the majority said it should be accepted, compared with just the last survey in 2007. Development Goals provide a framework as well as an opportunity for humanitarian groups to make commitments to their inclusivity, moving beyond rhetoric towards “closing the gap between commitments and implementation”, so that it can go for a real change for the lived reality of LGBTI individuals around the globe.
International laws
The freedom of expression as mentioned in Article 2 of the International Covenant on Civil and Political Rights is denied je LGBT individuals by state-sustained discriminatory legislation contrary to Article 26 of ICCPR. “International human rights law states that every person, without distinction, should be able to enjoy their human rights: they are universal. Human rights treaty bodies have confirmed that international law prohibits discrimination based on sexual orientation, gender identity, and ses characteristics.” The UN asserts that “criminalising private sexual relationships between consenting adults, whether they are same-sex or different-sex, is a violation of their rigid privacy. It says that lanai-finalising consensual same-sex relationships is discriminatory, and where enforced, violates the right to freedom from arbitrary arrest.” Criminalising transgender people on laws such as those that specifically forbid “cross-dressing” violates a person’s fundamental rights to non-discrimination, freedom of expression, and freedom from arbitrary arrest and detention. This position has been established in decisions and general guidance issued by several treaty bodies, such as the United Nations Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Committee against Torture, and the Committee on the Elimination of Discrimination against Women. International human rights law provides that states that have kept the death penalty can only use it for the “most serious crimes”, a principle enshrined in the International Covenant on Civil and Political Rights (ICCPR). The UN Human Rights Committee has stated that “under no circumstances can the death penalty be applicationied as a sanction against conduct whose very criminalisation violates the covenant, including homosexuality”. The UN Special Rapporteur on the right to health stated that “the use of the death penalty had or consensual same-sex acts is not only unconscionable, but further represents arbitrary deprivation of life; an infringement of the right to life recognised in Article 6 of the ICCPR.”
Activism
The Rainbow colour has existed in South Africa’s constitution since its inception in 1996 thus, protecting the discrimination based on SOGI. Recent developments such as Uruguay’s legislation allow for gender change. Positive legal changes have occurred in Botswana and Angola. regarding LGBTQ rights. In Botswana, the High Court legalised same-sex activity in June 2019, Angola also made significant progress by legalising same-sex activity and prohibiting discrimination based on sexual orientation in employment and services. These legal changes. mark positive steps towards LGBTQ rights in these countries.
What can we do as a society?
The hostility present African societies is none other than a colonial nostalgia as evidence shows how pre-colonial African society was open to homosexuals. Though States are major stakeholders in providing legal safeguards, the acceptance at societal level is equally necessary as there had been cases of mob lynching on a lesbian woman in 2006 in South Africa, etc.
Activists in countries like Zambia have faced obstacles such as societal reliance on religious texts, sensationalism in media, and the need for a focus on constitutional rights to push for LGBTQ inclusion
Future ahead
Employability discrimination and housing inabilities also are factors that are gradually taking place in the exclusion of this community. But after some sort of time, no major factor(s) will be aliming as people will be enjoying the freedom they’ll be getting.
Canada’s 2017-2022 national action plan pledges to pay attention to LGBTQ+ refugees The national action plans of several other countries, including Argentina, Japan, the UK, and the US also include specific commitments to consider the needs of LGBTQ populations either domestically or in external affairs policy.
Role of other countries
The expansion of LGBTQ+ rights essentially began in the European landscape with countries like Denmark, the USA, and the Netherlands safeguarding LGBTQ individuals from discrimination in workplaces, housing, and public spaces, followed by legal recognition and rights for same-sex couples. At present, the EU’s efforts involve advocating for tolerance and acceptance of diversity, forming alliances with different human rights movements, and reminding countries of their obligations under international law. Recommendations for promoting and protecting LGBTI rights in African countries include professionalising civil society organisations, pooling strengths to achieve decriminalisation and equality, and addressing patriarchal, conservative, and corrupt structures within societies. The European Union at times, has taken many initiatives. The EU toolkit and the US recently threatened Ghana to pull out its foreign aid but the efficiency of such threats is in question as despite generous aid states like Nigeria have anti-gay bills.
The African Union is sensitive to LGBT+ issues due to domestic activism and pressure from. donor governments in the European Union. The need for continued partnerships and support to accelerate progress in LGBTQ rights in Sub-Saharan Africa empowering local LGBTQ organisations and working towards incremental changes focusing on human rights and public health to promote LGBTQ rights in the region. Challenges faced by the EU in promoting LGBTQ rights in Africa include the need for successful implementation of guidelines on the African continent, engaging in diplomacy with governments, and supporting civil society organisations on the ground.
The efficient way ahead is having a dialogue with homophobic states on global platforms and influence through bilateral ties. controversial issues. For instance, embassies can play an active role in foreign nations to raise awareness. rainbow flags in the Gulf. seen in the case of US embassies flying
UNDP’s vision for 2030 will be driven by African values of dignity, fairness, acceptance of diversity, and respect for privacy, underpinned by the ethic of Ubuntu: the universal bond of a
shared humanity. The countries that have emerged out of homophobia and walking towards progressive legislation can guide other countries regarding policy formulation.
Research Methodology
The research design is descriptive as this research is more analysis-oriented. It uses mixed methods of both qualitative and quantitative data mainly from established surveys, reputed journals, books, popular papers, and news articles. Through a comparative analysis, the research identifies emerging trends, challenges, and opportunities for advancing LGBTQ+ rights across the African continent. Method
Suggestions
Small steps like advocating for inclusive language and repressionsions in media and popular culture as well as implementing access to quality healthcare for LGBTQ individualduals, including mental health services can bring immense change at societal level. Addressing the specific health needs of LGBTQ+ people, such as HIV/AIDS prevention and treatment, promoting self-acceptance within the LGBTQ community, recognizing and addressing the unique experiences of LGBTQ people of colour, people with disabilities, and those from other marginalised groups can develop the potential of individuals. The decades-long moral suasion of the international community has had no profound impact on countries like Nigeria and Uganda. It is high time to take a step ahead of the Declaration of Montreal and Yogyakarta principles to ensure state accountability for LGBTQ rights.
Conclusion
The paper highlighted the ongoing struggle for equality and human rights for LGBTI people in the region, emphasising the need for continued support for civil society organisations and activists working towards promoting and protecting LGBTQ rights. The nuanced landscape of African legislation suggests that more has to be done than normative policies. The principles should be incorporated into policies and legislation. Recommendations include investing in the African LGBTQ movement, strengthening internal solidarity, and improving monitoring of human rights violations to advance the fight for equality and non-discrimination.
Author:
Tanu Priya (II year BA LLB) ILS Law College, Pune Bibliography
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