* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
More than half the continent has outdated laws that criminalise people for who we love or our gender
Yvonne Wamari is Africa programme officer at OutRight Action International
Sixty-eight countries around the world continue to criminalise same-sex relations. Almost half of them are based in Africa, comprising more than half the continent.
These laws are grossly outdated.
In effect they send the message that LGBT+ people are criminals purely for whom we love or our gender. They give the green light to harassment and violence, legitimise state persecution, and put LGBT+ people at risk of blackmail and extortion as well as forced outing, imprisonment, and even death, leading to many of us by and large living secret lives in fear for our safety.
In many countries that still carry these relics of colonial rule, criminalisation laws lie largely dormant, undoubtedly affecting public opinion and hindering acceptance of LGBT+ people, but not looming over them with the threat of imprisonment.
Across the African region, however, events in recent months point to a trend of testing the efficacy of such laws, and setting a dangerous judicial precedent paving the way for imprisonment of LGBT+ people in the future.
In Zambia two men, Japhet Chataba and Steven Samba, were arrested in 2017 and charged under the country’s penal code, which prescribes a maximum penalty of life imprisonment for same-sex relations between men. In November 2019, Lusaka High Court sentenced them to 15 years’ imprisonment. An appeal to the high court was denied.
Soon afterwards, also in November 2019, 47 men were arrested in Nigeria during a police raid of a hotel. They were accused of being “initiated” into a gay club – they were at a private birthday party – and charged under the country’s draconian “Same Sex Marriage (Prohibition) Act”. The law criminalises expressions, or even “abetting” and knowledge of same-sex attraction.
In addition to being discriminatory, and in stark contrast to basic human rights standards, the application of laws criminalising same-sex relations is inherently problematic.
The right to a fair trial dictates due process and procedural fairness, and the right to be presumed innocent until proven guilty. Proven being the key word. There is no scientific way to prove same-sex attraction. As such, the methods used to incriminate LGBT+ people under these archaic laws further violate their basic rights, through the use of, for example, forced anal testing; a method that holds no scientific value, is incredibly invasive, and recognised to amount to torture by the UN committee against torture. Psychological and physical violence, and intimidation are also used to force confessions.
In Uganda, on October 21, 2019, police arrested 16 activists from “Let’s Walk Uganda”, a community-based organisation for LGBT+ youth. Police interrogated them about their gender expression, used homophobic insults, and forced them to undergo anal examinations. On November 10, police raided “Ram Bar”, a known LGBT-friendly bar in Kampala and arrested 125 people. Anal testing and intimidation tactics were used against them too, according to activists in Uganda.
This trend of arrest and application of archaic laws coincides with growing hate speech from politicians and religious leaders who claim that same-sex attraction and gender identities beyond the binary are “un-African” and somehow threatening to society.
Numerous African nations have been leading the charge against recognition of the human rights of LGBT+ people at the UN. Gabon, which did not previously criminalise same-sex relations, now does. Nigeria also passed a more draconian criminalisation law; Uganda and Egypt have threatened to follow suit.
This trend is incredibly worrying, as it overshadows the progress which has been made in the nine countries that have decriminalised same-sex relations, the few that have shown signs of supporting the human rights of LGBT+ people at the UN, or even enacted anti-discrimination legislation to protect all their citizens.
It also threatens future progress, by pushing LGBT+ people further underground, and limiting our ability to advocate for our right to be who we are and love whom we choose.
It is high time for African leaders, both political and religious, to accept that LGBT+ people have always existed, and will continue to exist everywhere. It is also time for independent judiciaries to be genuinely independent, and to issue judgments based on international human rights standards as opposed to public opinion or religious and political power-play.
We are here, we are African and we pose no threat to our societies. On the contrary – if allowed to reach our full potential, we can support our communities and our countries to thrive.