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International Relations, PUBLICATIONS

Being a LGBTI person in African countries

Written by Eric Pichon, Anne Vernet, 
LGBTI in Africa

© torbakhopperHE_DEAD (CC-BY-ND 2.0)

More than 4 African countries out of 5 of have laws criminalizing homosexuality, or even punishing LGBTI* rights advocacy. Only in 2014 tougher laws were passed in Nigeria, Gambia and Uganda.

As recent developments in Europe show, having non-discriminative laws doesn’t prevent homophobic feeling; but when this feeling is encouraged or not punished by the authorities, it can favour violence towards LGBTI people, including rapes and killings. Furthermore it leads LGBTI people to live in hiding which increases mental or physical health problems among the population.

On several occasions the European Parliament has reminded the EU of its commitment against all forms of discrimination in all the places it acts.

(*LGBT: Lesbian, Gay, Bisexual, Transgender; LGBTI stands for “LGBT or Intersex” people)

Overview: the legal framework in African countries

Amnesty International provides a map showing the African countries where homosexuality is illegal, as of January 2014.

More recent and broader in scope,  The State of Human Rights for LGBT People in Africa by Human Rights Campaign Foundation and Human Rights First (July 2014) shows that changes have only been for the worse, but it also traces signs of support from well-known Africans.

Legal provisions concerning homosexual behaviour,  gay rights advocacy, or same-sex marriage were compiled by the Library of Congress – Law Library into a well-documented table for 49 African countries . ( Criminal Laws on Homosexuality in African Nations , 02/2014).

For global aspects, cf BBC’s interactive world map Where is it illegal to be gay? BBC News, 10/02/2014.

 

C-Africa-Agenda-A-Look-at-Gay-Rights-Across-Africa

Focus on some countries

Gambia

In October 2014, a crime of “aggravated homosexuality” was added to the criminal code, and can be punished by life inprisonment.

Gambia Cracks Down on Homosexuality . AllAfrica.com.  A dossier on current issues.

Human rights reports or statements (through ECOI.net)

Kenya

Sex acts between men are illegal under Kenyan statutes and carry a maximum penalty of 14 years’ imprisonment, except 21 years in certain aggravating circumstances. In December 2015, President Barack Obama voiced strong support for gay rights in Africa during his trip to Kenya and Ethiopia.

LGBT Rights in Kenya: A Conversation with David Kuria (July 2015)

Uganda

A law adopted in February 2014 – from a former 2009 bill – punishes same-sex sexual relations and their promotion. On 1 August, Uganda’s Constitutional Court declared it “null and void”, because it had been voted without the required quorum. The law might be put to the vote again soon.

Human Rights reports or statements (through ECOI.net)

Uganda planning new anti-gay law . BBC News, 10/11/2014.

Ugandans Celebrate Gay Pride After Anti-Homosexual Law Overturned . Voice of America , 10/08/2014.

Uganda court annuls [February 2014] anti-gay law . BBC News, 1/08/2014.

What exactly does Uganda’s anti-gay legislation say? Vox, 1/08/2014.

Ben Shepherd. The Politics of Uganda’s Anti-Homosexuality Legislation . Chatham House, 24/02/2014.

For the author, the new law imposing life sentences for homosexuality will attract a backlash from international donors, but in the short term, it might well earn Uganda’s President Museveni popular support.

Nigeria

A Same Sex Marriage Act signed in January 2014 – from former provisions – punishes same-sex unions of imprisonment .

Nigerian gets 20 lashes for gay acts . BBC News, 16/01/2014.

UN human rights chief denounces “draconian” anti-homosexuality law in Nigeria . UN News Service Section, 14/01/2014.

Ganiyu Otunba. Enhancing LGBT Rights in Africa: a case study of Nigeria . Uppsala Universiteit, 2014, 52 p.

This research paper demonstrates that popular support for anti-LGBT legislation is mainly due to prejudice conveyed by religious and civil authorities. For example, many people believe that homosexuality was imported by the colonials, although evidence that it existed before the colonial era or in places the colonizers didn’t reach is well documented. The author suggests that awareness-raising will improve LGBT rights in Nigeria.

North African countries

Jayesh Needham. After the Arab Spring: a new opportunity for LGBT human rights advocacy? Duke journal of gender law & policy, 2013 Vol. 20, no. 2, pp. 287-324.

Laurent Ribadeau Dumas. L’homosexualité en Tunisie: bientôt du nouveau ? Geopolis, 12/12/2014.

Although the new Tunisian Constitution has enhanced civic rights, homosexuality is still criminalised in Tunisia. A Facebook initiatie have been launched to abrogate art. 230 of the Criminal Code, which punishes “sodomy”.

Philippe Mischkowsky. Rafle d’homosexuels orchestrée par une journaliste . Courrier international, 9/12/2014.

In Egypt, a country where homosexuality is criminalised, a TV journalist broadcast the images of gay men arrested in a hammam -probably after informing the police herself – and exposed their faces.

O. Harim. Behind the scenes with Algeria’s first LGBT magazine . France 24 blogs, 3/12/2014.

Senegal

Same-sex sexual activity is illegal in Senegal.

Pour vivre heureux vivons cachés: etre homosexuel au Sénégal / Libre Belgique (2016)

South Africa, a regional exception?

South Africa is, to date, the only African state recognizing same-sex marriage. Nevertheless, anti-LGBT feeling is far from absent among the population.

Constitutional Change and Participation of LGBTI Groups: A case study of South Africa / IDEA (December 2015)

In 1993 South Africa promulgated its first democratic interim constitution and became the first country in the world to include a prohibition on unfair discrimination on the ground of sexual orientation in its constitution. This discussion Paper considers the history and context in which this groundbreaking development occurred.

Sarah Jean-Jacques. L’Afrique du Sud et la dépénalisation universelle de l’homosexualité: Echec d’un acteur phare des droits humains ? IRIS Institut de relations internationales et stratégiques (France), Mémoire, 15/10/2014, 149 p.

South Africa appears torn on the international stage between its post-apartheid stances as the African human (and LGBTI) rights champion and its desire to maintain its position as a regional leader. This leads the country to promote the universal decriminalisation of homosexuality at the UN while not condemning African countries which make it a crime.

Chi Mgbako. Out in Africa: LGBT Organizing in Namibia and South Africa by Ashley Currier (review) . Human Rights Quarterly, Vol. 35, no. 2, pp. 517–520, 2013. DOI 10.1353/hrq.2013.0018.

A detailed review of a book analysing LGBT activists’ visibility strategy across time in South Africa and Namibia.

Luis Abolafia Anguita. Tackling corrective rape in South Africa . The International Journal of Human Rights, Vol. 16, no. 3, pp. 489–516, 2012.

Despite a legislation guaranteeing equal rights to LGBTI people, homophobic feeling is widespread in South Africa and, according to the author, the government doesn’t do much to combat it. The author examines how civil society organisations could engage with official consultative bodies such as the Commission for Gender Equality and the South African Human Rights Commission to enforce anti-homophobic legislation.

Three African LGBT activists

The Leading Global Thinkers of 2014: Binyavanga Wainaina , author, Kenya, for revealing a secret to advance LGBT rights in Kenya. Foreign Policy, 11/2014.

Binyavanga Wainaina published I am a homosexual, mum in Africa is a country, 19/01/2014.

Nick Mwaluko (Tanzania, Kenya) writes about LGBTI issues in the Huffington Post.

Cf in particular: DeGaying Uganda. Huffington Post, 8/02/2011,
about David Kato , a gay Ugandan activist hammered to death.

Analyses

Social, political and legal aspects

U.S. Support of Gay Rights in Africa May Have Done More Harm Than Good / Norimitsu Onishi, New York Times, 20.12.2015

LGBT rights in Africa and the discursive role of international human rights law / AM Ibrahim, African Human Rights Law Journal (2015) 15 263-281

The protection against discrimination based on sexual orientation under the African human rights system / Rudman, Annika in African human rights law journal , 2015 vol:15 iss:1

This article explores two main problems: first, how the rights to dignity, equality and non-discrimination should generally be interpreted and applied under the regional African human rights system when related to sexual orientation. Second, it analyses the procedural or other hurdles that may stand in the way of bringing a claim of discrimination based on sexual orientation to the African Commission on Human and Peoples’ Rights or the African Court on Human and Peoples’ Rights.

Equality of LGBTIQ persons in Africa / Heinrich Böll Foundation (March 2015)

How did the lives for African lesbians, gays, bisexuals, trans and intersex persons change in 2014? Where are their struggles? An analysis of the progress.

Debating Love, Human Rights and Identity Politics in East Africa: A Socio-Legal Exploration Oloka-Onyango, Joe (May 2015)

This article reviews recent developments concerning the situation of Lesbian, Gay, Bisexual and Intersex (LGBTI) individuals through legislation and in the East African courts of law, exploring the implications for the wider struggles by sexual minorities for enduring legal recognition and accommodation.

Two French journals dedicated issues to homosexuality in Africa:

Kees Waaldijk. The Right to Relate: A Lecture on the Importance of “Orientation” in Comparative Sexual Orientation Law . Duke Journal of Comparative & International Law, Vol. 24, no. 1, pp. 161–199, Fall/2013.

An introduction to a chair in comparative sexual orientation law, clearly laying down and explaining all the concepts involved in this matter.

Homosexuality and the African Charter on Human and Peoples’ Rights: What Can Be Learned from the History of the European Convention on Human Rights? Johnson, P. (2013), Journal of Law and Society, 40: 249–279.

This article explores what those seeking to develop gay and lesbian rights in Africa might usefully learn from the historical evolution of similar rights under the ECHR.

Struggle for equality: Sexual orientation, gender identity and human rights in Africa / Heinrich Böll Foundation  (October 2010)

Public opinion

Africans tolerant on religion, ethnicity, nationality, and HIV, but not on homosexuality, Afrobarometer survey finds / Afrobarometer 1.03.2016

Afrobarometer reports that survey respondents in 33 countries exhibit largely tolerant attitudes toward social differences, with the major exception of homosexuality. Even so, homophobia is not a universal phenomenon in Africa: At least half of all citizens in four African countries say they would not mind or would welcome having homosexual neighbours.

The Global Divide on Homosexuality . Pew Research Center’s Global Attitudes Project, 4/06/2013.

In the African countries surveyed, homosexuality is widely rejected:  “Should society accept homosexuality?”  the answer is no for 61% of the interviewees in South Africa; 90% in Kenya, 96% in Uganda, Ghana, Senegal; and 98% in Nigeria.

Uganda’s New Anti-Gay Law: Part of a Broader Trend in Africa . National Geographic (USA), 28/02/2014.

Anti-homosexuality legislation is popular in the African countries where they’ve been passed.

Health

Chris Beyrer. Pushback: The Current Wave of Anti-Homosexuality Laws and Impacts on Health . PLoS Medicine, Vol. 11, no. 6, pp. 1–3, 06/2014.

The climate of fear generated by homophobic discrimination and violence leads LGBTI people to live in hiding and avoid health facilities.

International Institutions’ positions

Several international fora have expressed their concerns about anti-LGBTI provisions.

African Commission on Human and Peoples’ Rights (African Union’s consultative body)

Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender .  African Commission on Human and Peoples’ Rights. 55th Ordinary Session, 05/2014.

The ACHPR “strongly urges States to end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims.”

United Nations

Statement on human rights, sexual orientation and gender identity – letter dated 18 December 2008 from the Permanent Representatives of Argentina, Brazil, Croatia, France, Gabon, Japan, the Netherlands and Norway to the United Nations, addressed to the President of the General Assembly, signed by [inter alia] […] Cape Verde, Central African Republic, […],  Gabon, […], Guinea-Bissau, […] Mauritius, […], Sao Tome and Principe, […]

“11. We urge States to take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention.
12. We urge States to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice.
13. We urge States to ensure adequate protection of human rights defenders, and remove obstacles which prevent them from carrying out their work on issues of human rights and sexual orientation and gender identity.”

Human Rights Council Resolution on Human rights, sexual orientation and gender identity (A/HRC/17/L.9/Rev.1) , 15 /06/ 2011

The UN Council ” express[es] grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.”

Human Rights Council Resolution on Human rights, sexual orientation and gender identity (A/HRC/27/L.27/Rev.1) , 22/09/2014

“takes note with appreciation of the report of the United Nations High Commissioner for Human Rights entitled “Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity” ( A/HRC/19/41 )”

South Africa’s role in these resolutions : analysis in FR by Sarah Jean-Jacques , 17/11/2014.

EU positions

Treaties

The Treaty of the EU commits the Union to promote its respect for human rights in the wider world (art. 3 TEU) this includes prohibiting  discrimination on the grounds of sexual orientation (as expressed in the European Charter of Fondamental Rights referred to in art. 6 TEU), in particular in its external relations (art. 10 and 19 of the Treaty on the Functioning of the European Union ).

Council of the European Union

Guidelines to promote and protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and intersex (LGBTI) persons . Council of the European Union, Foreign Affairs Council Meeeting, 24/06/2013.

These guidelines, updating a previous toolkit (2010) indicates the type of conduct to be adopted by EU and Member states representatives in front of anti-LGBTI discrimination, in particular when implementing aid or agreements with foreign countries.

Commission

List of actions by the Commission to advance LGBTI equality / DG for Justice and Consumers (December 2015). See VI External action: LGBTI issues in Enlargement, Neighbourhood and Third Countries.

Through the European Instrument for Democracy and Human Rights (EIDHR) , the EU supports several projects defending the rights of LGBTI people. For example, one project empowers civil society to challenge homophobic laws and discrimination against LGBTI people, another one gives legal and medical assistance to individuals imprisoned because of their homosexuality.

EP resolutions

28th session of the UNHRC. P8_TA(2015)0079

The EP “44.  Expresses its concern about the recent increase in the number of discriminatory laws and practices, and of acts of violence against individuals, on the basis of their sexual orientation and gender identity; encourages close monitoring of the situation of LGBTI people […]; welcomes the UNHRC resolution on combating violence and discrimination based on sexual orientation and gender identity, adopted on 26 September 2014; reaffirms its support for the High Commissioner’s continued work to promote and protect the enjoyment of all human rights by LGBTI people, in particular through statements, reports and the Free & Equal campaign”

The work of the ACP-EU Joint Parliamentary Assembly. P8_TA(2015)0035

The EP “15.  Reiterates its deep concern over the adoption and discussion of legislation further criminalising homosexuality in some ACP countries; calls on the JPA to place this on the agenda for its debates”

Situation in Egypt. P8_TA(2015)0012

The EP “17. Expresses its outrage at the intensifying clampdown against the LGBT community in Egypt urges the Egyptian authorities to cease criminalising LGBT people, on the basis of the ‘debauchery law’, for expressing their sexual orientation and for assembling, and to release all LGBT people arrested and imprisoned under this law”

Freedom of expression and assembly in Egypt. P8_TA(2014)0007

The EP “13. […] urges the Egyptian authorities to cease criminalising LGBT people for expressing their sexual orientation and right of assembly”

Nigeria, recent attacks by Boko Haram. P8_TA(2014)0008

The EP “12. Reiterates its calls for the abolition of the Same-Sex Marriage (Prohibition) Law, along with sections 214, 215 and 217 of the Nigerian Penal Code, which would put LGBT people – both Nigerian nationals and foreigners – at serious risk of violence and arrest;”

Launching consultations to suspend Uganda and Nigeria from the Cotonou Agreement in view of recent legislation further criminalising homosexuality 2014/2634(RSP)

Recent moves to criminalise lesbian, gay, bisexual, transgender and intersex (LGBTI) people 2014/2517(RSP)

The situation in Nigeria 2013/2691(RSP)

The EP “17.  Considers deeply regrettable the adoption of the Same-Gender Marriage (Prohibition) Bill, which makes it a crime to be in a same-sex relationship, support the rights of LGBT people, operate a gay-friendly venue or display affection between two people of the same sex; calls on the President of Nigeria, therefore, not to sign the law passed by the House of Representatives, which would put LGBT people – both Nigerian nationals and foreigners – at serious risk of violence and arrest”

2010 revision of the Cotonou agreement P7_TA(2013)0273

Parliament gave its consent to the ratification in June 2013, but expressed ‘its strongest reservations about parts of the Agreement which do not reflect the position of the European Parliament and the values of the Union’. Parliament objected, in particular, to the absence of an explicit clause on ‘non-discrimination on the basis of sexual orientation’

Violence against lesbian women and the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons in Africa 2012/2701(RSP)

EU Strategy for the Horn of Africa 2012/2026(INI)

The EP “40.  Stresses that human rights, especially the rights of women, children, LGBT people and religious minorities, have long been neglected in the region, and notes that sectarian Islamism has spread in parts of the Horn of Africa and is threatening minority freedoms”

Uganda: the killing  [on 26 January 2011] of [gay rights activist] David Kato  2011/2573(RSP)

Uganda: the so-called ‘Bahati bill’ and discrimination against the LGBT population 2010/3009(RSP)

Uganda: anti-homosexual draft legislation  2009/2805(RSP)

Member states

Communiqué relatif à l’arrêt dit du « mariage franco-marocain entre personnes de même sexe » du 28 janvier 2015 . Cour de cassation (France), 28/01/2015.

A convention between France and Morocco “provides that, to determine whether marriage is allowed, it is necessary to consider for each spouse, the law of the State of which he is a national”. Same-sex marriage is not allowed in Morocco; nevertheless, the French Court of Cassation stated that ” Marriage between persons of the same sex is a fundamental freedom that an agreement between France and Morocco shall not impede if the future Moroccan spouse has a link with France, as his home.” (unofficial translation)

Le mariage entre personnes de même sexe est une liberté fondamentale à laquelle une convention passée entre la France et le Maroc ne peut faire obstacle si le futur époux marocain a un lien de rattachement avec la France, tel que son domicile.

NGOs

Why gay rights is a development issue in Africa, and aid agencies should speak up / Hannah Stoddart, Oxfam Blog, 9.01.2015

 

 

Discussion

4 thoughts on “Being a LGBTI person in African countries

  1. This is quite informative. I was only aware of information about Nigeria and Uganda. Thanks for this concise list. We still have a long way to go in the fight for equality.

    Like

    Posted by femistrange | December 9, 2016, 00:51

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