Court gives hope to Africa’s queers

In­dia’s re­peal of a colo­nial 1861 law has fired up LGBT rights groups in Bri­tain’s for­mer African colonies

Mail & Guardian - - Africa - Carl Col­li­son

Hailed as a land­mark ruling, the Supreme Court of In­dia’s re­cent de­crim­i­nal­i­sa­tion of same-sex re­la­tions is be­ing seen by African queer rights ac­tivists as “the spark [they] need” to push for the scrap­ping of sim­i­lar laws in Africa.

In their unan­i­mous de­ci­sion to de­crim­i­nalise sec­tion 377 of the In­dian Pe­nal Code — which pun­ished those in same-sex re­la­tions by up to 10 years’ im­pris­on­ment — the Supreme Court judges call it “ir­ra­tional, ar­bi­trary and in­com­pre­hen­si­ble as it fet­ters the right to equal­ity for [the] LGBT [les­bian, gay, bi­sex­ual and trans­gen­der] com­mu­nity… [the] LGBT com­mu­nity pos­sesses [the] same equal­ity as other ci­ti­zens.”

It adds: “Mem­bers of LGBT com­mu­nity mem­bers and their fam­ily mem­bers are owed an apol­ogy from so­ci­ety for be­ing de­nied equal rights over the years.”

A Hu­man Rights Watch re­port by Alok Gupta, ti­tled This Alien Le­gacy — The Ori­gins of “Sodomy” Laws in British Colo­nial­ism, says that sec­tion 377 was “a model law” in­tro­duced in Bri­tain in 1861, which was then ex­ported to its colonies.

The re­port ar­gues that many of the coun­tries that out­law same-sex re­la­tions do so “be­cause they once were British colonies”.

“They brought in the leg­is­la­tion … be­cause they thought ‘na­tive’ cul­tures did not pun­ish ‘per­verse’ sex enough. Sec­tion 377 was … a colo­nial at­tempt to set stan­dards of be­hav­iour, both to re­form the colonised and to pro­tect the colonis­ers against moral lapses.

“It was also the first colo­nial ‘sodomy law’ in­te­grated into a pe­nal code … Its in­flu­ence stretched across Asia, the Pa­cific Is­lands and Africa — al­most ev­ery­where the British im­pe­rial flag flew.”

The list of African coun­tries that in­her­ited ver­sions of this law in­clude Botswana, Gam­bia, Ghana, Kenya, Le­sotho, Malawi, Mau­ri­tius, Nige­ria, Sey­chelles, Sierra Leone, So­ma­lia, Swazi­land, Su­dan, Tan­za­nia, Uganda, Zam­bia and Zim­babwe.

“[Sec­tion 377] was where it all started,” says Alan Msosa, a Malaw­ian aca­demic at York Univer­sity in Canada, where he is re­search­ing hu­man rights and same-sex re­la­tions in Malawi.

Sec­tion 153 of the Malawi Pe­nal Code pun­ishes “any per­son who has car­nal knowl­edge of any per­son against the or­der of na­ture; or per­mits a male per­son to have car­nal knowl­edge of him or her against the or­der of na­ture” with up to 14 years’ im­pris­on­ment, “with or with­out cor­po­ral pun­ish­ment”.

De­scrib­ing the In­dian court’s de­ci­sion as “his­toric and a land­mark ruling”, Msosa says: “We were all fol­low­ing that case very closely. And the most im­por­tant thing to come out of that de­ci­sion is that, ac­tu­ally, these laws can be or­dered down. It shows that de­crim­i­nal­i­sa­tion can hap­pen in the for­mer British colonies.”

Msosa adds that the In­dian case of­fers African queer rights ac­tivists lessons in how to push for equal­ity when ap­proach­ing courts.

“One of the core ar­gu­ments that con­ser­va­tives raise is that de­crim­i­nal­is­ing will give a free pass for any same-sex ac­tiv­ity, in­clud­ing that which is non­con­sen­sual,” he says. “More so, they in­stil fear that it will be pro­mot­ing same­sex acts be­tween adults and mi­nors. So this case re­minds us as ac­tivists that, when we make our sub­mis­sions, we should make that dis­tinc­tion clear. This case shows that, when that ar­gu­ment is made clear, there is a higher chance — or it is at least pos­si­ble — that de­crim­i­nal­i­sa­tion can be suc­cess­ful.”

Call­ing the In­dian ruling “a mile­stone”, Ruth Mu­ganzi, pro­grammes di­rec­tor at the Ugan­dan-based queer me­dia plat­form kuchutimes.com, echoes Msosa’s sen­ti­ments.

“There are a lot of lessons we can learn here in Uganda from that case. Be­cause if you look at where the process for them started, it wasn’t easy. They had to fight a lot on all fronts.

“In Uganda, we still have a long way to go in fight­ing dis­crim­i­na­tion it­self. But their vic­tory gives us a lot of lessons and hope.”

Mu­ganzi adds that, since the ruling in In­dia, “small pock­ets of ac­tivists have started talk­ing about what it means for us. Hav­ing a fel­low for­mer colony strike down their law, which we [also] in­her­ited, gives us a prece­dent. It gives the LGBT com­mu­nity here in Uganda a step­ping stone, know­ing that, if it can be struck down in for­mer colonies, then it can be done for us [too].”

For now, though, the pri­mary fo­cus, she says, “is ba­si­cally just how do we con­tinue the strug­gle against dis­crim­i­na­tion be­fore we go ahead [in] tack­ling a big case like de­crim­i­nal­i­sa­tion. But we’re tak­ing notes from other coun­tries like Kenya.”

Kari Mugo is op­er­a­tions man­ager at Kenya’s Na­tional Gay and Les­bian Hu­man Rights Com­mis­sion, which is pe­ti­tion­ing the coun­try’s high court to re­peal sec­tions of the coun­try’s pe­nal code that pun­ishes same-sex re­la­tions by up to 14 years’ im­pris­on­ment.

Al­though the hear­ings are over, Mugo says that “the court it­self said it was aware of [the In­dian] de­ci­sion as part of its ju­di­cial re­view and that it un­der­stood that it did af­fect some of the sub­mis­sions made dur­ing the case. Al­though we can’t add any­thing to our ar­gu­ments, the fact that the court is aware of this ruling is promis­ing.

“Read­ing the judg­ment from the In­dia court and see­ing the same is­sues that we are high­light­ing — that these are ar­chaic, colo­nial laws and that there needs to be room in any democ­racy for equal­ity — was very val­i­dat­ing to read,” she says, adding that the ruling “brought it closer to home”.

“So often, we get ac­cused of be­ing Western or hav­ing a for­eign agenda. So, to have a court in the Global South, and from a coun­try as im­por­tant as In­dia, de­cide on this in this way is re­ally cru­cial. It shows that these old colo­nial laws have no place in our so­ci­eties.”

Cur­rently be­fore the high court in Gaborone is a case chal­leng­ing the con­sti­tu­tion­al­ity of pro­vi­sions that crim­i­nalise same-sex sex­ual acts be­tween con­sent­ing adults. Sec­tion 164 of the coun­try’s pe­nal code car­ries with it a max­i­mum sen­tence of seven years’ im­pris­on­ment for “car­nal knowl­edge of any per­son against the or­der of na­ture”.

The South­ern Africa Lit­i­ga­tion Cen­tre is rep­re­sent­ing the ap­pli­cant in his ar­gu­ment that “con­tin­ued crim­i­nal­i­sa­tion of con­sen­sual same­sex sex­ual re­la­tion­ships vi­o­lates his ba­sic con­sti­tu­tional rights”.

Tash­will Ester­huizen, the cen­tre’s LGBT and sex worker rights pro­gramme lawyer, says the le­gal team is “cur­rently still study­ing the [In­dian] judg­ment to see how [we] will use it to sup­ple­ment any­thing in our cur­rent heads of ar­gu­ment”.

He adds, how­ever, that “we are hop­ing the In­dia case would demon­strate to the Botswana courts that, glob­ally, at­ti­tudes to­wards LGBT peo­ple have sig­nif­i­cantly soft­ened — and that re­spect­ing LGBT rights would en­hance the di­ver­sity of our na­tions”.

Bradley For­tuin, of Botswana’s queer rights or­gan­i­sa­tion, Le­gabibo, says the In­dian court’s de­ci­sion “gave us hope with our case … it could be the spark we need”.

“With the In­dia de­ci­sion, every­one there was so happy. We feel like it is our turn now,” says For­tuin.

Gay aban­don: In­dian mem­bers and sup­port­ers of the LGBT com­mu­nity cel­e­brate the Supreme Court de­ci­sion, which also stated that queer peo­ple are owed an apol­ogy by so­ci­ety for deny­ing them equal rights. Photo: Chan­dan Khanna/AFP

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