On 13thJanuary 2014, a bill that was passed by the Senate of Nigeria in November 2011 and The House of Representatives of Nigeria in May 2013 was enacted into law by the President, H.E Goodluck Jonathan. The Same Sex Marriage (Prohibition) Act, among other things, prohibits the “public show of same sex amorous relationships directly or indirectly“. On 24th February 2014, The President of Uganda, H.E Yoweri Museveni signed into law the Uganda Anti-Homosexuality Act which was passed by parliament in December 2013 and introduced as a private members bill in 2009 by Member of Parliament, David Bahati. This law, among other things, prescribes a life sentence for repeat homosexuality.
Africa has over time been perceived as the continent that is almost entirely against rights for lesbian, gay, bisexual, transgender and intersex people. The reasons for this have often been cited as religion, culture and the general ‘unafricanness’ of homosexuality. A large section of the African society considers homosexuality as a western import. This really isn’t the case. Stephen O. Murray and Will Roscoe in their book “Boy-Wives and Female Husbands: Studies in African Homosexualities – 1998” list a broad array of instances of homosexuality in Africa before colonization;
Tutsi boys of Rwanda and Burundi during their training away from the village to become warriors often have sexual relationships together, some of which last into adulthood. Among the Iteso of Kenya, people of hermaphroditic instincts are very numerous. The men are impotent and have the instincts of women and become ‘women’ for all intents and purposes; their voices are feminine and their manners of walking and of speech are feminine.
These are just two examples from a large number of anthropological studies done on homosexuality in Africa. The passing of the two laws, in Nigeria and Uganda, have created what could be seen as a possible domino effect in Africa. Suddenly homosexuality became the main topic of discussion in the media and in Parliamentary circles across Africa. In Nairobi, Kenya, an anti-homosexuality protest was held on 23rd February 2014. The head of the group that organized this protest was quoted as saying that homosexuality “is an affront to nature, religious and biological norms. It is a disgrace to the men and women victims who are supposed to be role models with upright morals in society”. A group of Kenyan Members of Parliament on 18th February 2014 launched a parliamentary caucus against homosexuality. They vowed to ensure the enforcement of existing laws against gay sex and strengthening of the laws, if need be. To that end, they sought explanation from the Attorney-General, the Director of Public Prosecutions, and the Registrar-General as to why openly gay people are not being charged with criminal offences and why they are being allowed to form lobby groups.
In Tanzania, a Member of Parliament from the main opposition party has submitted a proposal for enactment of a law called “The Bill to Prohibit and Control any Form of Sexual Relations between Persons of the Same Sex, 2014”. He claims that the existing laws are not strong enough and wants the country to mirror Uganda’s Anti-homosexuality Law. The Member of Parliament, much like the cases in Uganda and Nigeria, wants the law to punish people who “induce others” to become gay or “promote” homosexuality.
In Ethiopia, where same sex conduct is illegal and punishable with up to 15 years in prison, a bill has been endorsed by Ethiopia’s Council of Ministers making homosexual acts “unpardonable.” A presidential pardon is granted to thousands of prisoners every year on the Ethiopian New Year. However, if the new law is approved, the president will no longer have the power to carry out these pardons. The head of the Ethiopian Human Rights Commission, Mr. Tiruneh Zena, said that a pardon is a privilege, not a right. Therefore he said that passing the bill would not be harmful to gays and lesbians, and he stated that it should not affect the LGBT community in any significant way.
A Member of Parliament in the Democratic Republic of Congo, where homosexuality is not directly banned but where there is a lot of discrimination against lesbian and gay people, introduced a draft bill to the Congolese National Assembly that would explicitly criminalise homosexuality. The proposed penalty for engaging in homosexual acts is 3 to 5 years in prison and a fine of 1 million Congolese francs (about $1,000), while a transgender person would face the same fine and a jail sentence of 3 to 12 years.
These enacted laws and those being considered come into a space where there already exist laws criminalizing same sex conduct and in some cases like the Democratic Republic of Congo, there are no laws explicitly criminalizing the same. In most cases, the existing laws only criminalize the same sex conduct.
- Section 162 of Kenya’s Penal Code Act talks of carnal knowledge against the order of nature.
- So does section 145 of Uganda’s Penal Code Act.
- Chapter 14 of the Penal Law of Liberia criminalizes voluntary sodomy.
These are laws that have existed before the introduction of new laws further criminalizing homosexuality. The difference between these two sets of laws is that sexual act was always criminalized, while the Anti-Homosexuality Act in Uganda and the Same-Sex Marriage (Prohibition) Act in Nigeria go further and criminalize the individual.
The effect of the above mentioned further criminalization is an increase in the following;
- Instances of human rights abuses for gay and lesbian people.
- Access to health becomes incredibly difficult as a result of these laws because individuals are not able to openly speak about their sexual partners.
- People get evicted from their dwelling places due to the fact that they are gay or lesbian.
- Gay and lesbian individuals become targets of attacks in the streets and in social spaces.
- The society effectively considers the individuals criminal due to their sexual orientation or gender identity.
Activists in Nigeria have reported instances of mobs attacking people they believed to be homosexual and beating some of the victims to near death. These victims, on being taken to the police station are then further roughed up by resident officers.
In order to reduce the negative effects of the laws and to stop further discriminatory laws from being enacted, several measures have been taken, both locally and internationally. The Nigerian activists this writer has spoken to said that the key responses to the laws should be continued and increased support for the organizations and the community on the ground in Nigeria. This is mainly to quell the rhetoric that homosexuality is a western import. There is a need to build the community’s capacity to speak out against the Act. They insisted on quiet diplomacy – Use the contacts that the international community has in their respective countries to speak to high level persons in Nigeria and abroad about the negative effects of the Act.
Incremental strategic litigation has been seen as a way in which such laws can be quelled. Indeed in Kenya, there is an ongoing case against the NGO Co-ordination Board and the Attorney General on the refusal to register an organization with the words “gay and lesbian” in its name. When more such cases are strategically brought to court, a collection of favourable judgements will go a long way in challenging the laws as they come up. Supporting strategic litigation by building the capacity of the activists on the ground in Africa on the same and assisting in establishing the grounds in which this can be done is one other response to the increased intolerance by the states towards gay and lesbian people.
International Multi-national corporations form a big part of Africa’s business sector. These corporations usually have non-discrimination clauses in their policies and in most cases, these clauses include non-discrimination on grounds of sexual orientation, gender identity and expression. Activists at the local level and the international community can push these multi-national corporations and foreign embassies to speak out publicly about the negative effects of these laws and the level of discrimination these laws bring about. They should liaise with the local organizations to find out the effects of these laws and how human rights are curtailed due to the existence of the same.
The Civil Society Coalition for Human Rights and Constitutional Law in Uganda called for a number of responses before and after the law was signed by the president. Among the responses they called for was a recall of United States, European and other ambassadors from the country. This is meant to highlight the deteriorating human rights condition in the country. They called for travel bans for politicians, religious leaders and other public figures who support the law. They asked the International community to engage the African Union and the leadership of other African nations such as Rwanda and South Africa to speak out against the law and the discrimination of sexual and gender minorities.
But perhaps what could be seen as the most controversial of the responses sought would be aid conditionality. In October 2011, during the Commonwealth Meeting of Heads of State, David Cameron, the UK Prime Minister, threatened to reduce development aid to countries that criminalize homosexuality. Shortly after the statement was made, The United States also announced that they would use all available mechanisms, including measures related to development cooperation, to promote the rights of lesbian, gay, bisexual and transgender persons. In February this year, the World Bank postponed a US$ 90 million loan due to the signing of the Anti-Homosexuality Act. Norway said it would be withholding $8m in development aid to Uganda, and Denmark will divert $9m away from the Ugandan government saying that they couldn’t distance themselves too strongly from the law and the signal that the Ugandan government now sends to not only persecuted minority groups, but to the whole world. Austria said it was reviewing its assistance to Uganda.
Most African countries rely heavily on international aid for development, for improvement of infrastructure, for health care for their people and even for day to day running of sectors of government. It follows therefore that placing a condition for aid on the protection of human rights, even explicitly on gay and lesbian rights, would be a great incentive for the states to promote these rights. However, this is not always the case. Two things will happen once conditions are placed on aid to protect or promote rights of LGBT persons.
Firstly, homosexuality is widely viewed by states and the society in Africa as a phenomenon that comes from the west. One that did not exist in the continent until the infiltration of the west. This means that when western nation’s condition aid on promotion of LGBT rights, the false rhetoric of homosexuality being a western import is further crystalized. As much as this is often done in good faith, it will appear as the west pushing a western agenda onto Africa. Ugandan government spokesman Ofwono Opondo termed the postponement of The World Bank’s loan to his country as “blackmail”. This greatly undermines the efforts of the activists on the ground and has them having to work even harder to convince the society that there are those among them who are of diverse sexual orientation and gender identity who are not influenced by the west but belong to the same society.
The second thing that happens is a backlash on the LGBT community. Following the statement by UK Prime Minister David Cameron in 2011, there was a spike in violence against LGBT people in Tanzania and Kenya. The reason for this was that the LGBT community was blamed for the potential deterioration of living standards caused by the reduction in aid.
States will not relent on rights for LGBT people once aid is cut or even threatened to be cut. They will react to popular opinion of the people and the popular opinion will always be that Africans’ actions should not be dictated to by the needs of the west. This will always bring back the ugly head of colonization. Aid conditionality has severally been compared to neo-colonialism which is something that is incredibly unpopular in Africa. And that is putting it lightly.
What ought to be done is that for all the recommendations given on responses to discrimination on the grounds of sexual orientation and gender identity, focus should not only be placed on lesbian, gay, bisexual and transgender people but also to all the other atrocities that are happening in Africa. Withdraw ambassadors from Zambia because of violence and discrimination against women, child abuse, trafficking in persons, and discrimination against persons with disabilities and based on sexual orientation and gender identity. Issue travel bans to Uganda because of corruption, abuse by security forces and discrimination against sexual and gender minorities. The LGBT community should not be perceived by the society as a special group seeking special rights. After all, we are all human beings, we are all citizens of our respective countries in Africa. We all suffer from the same injustices our states put us through. We are all African.