Growing number of anti-gay laws highlight Africa’s steady human rights regression

Criminalisation of consensual same-sex sexual acts in Africa. (Source: ILGA World Database, supplied by ISS Today)

By Ottilia Anna Maunganidze and Chelsea Cohen

27 Sep 2023

In the upsurge of laws and policies targeting homosexuality, the plight of victims is often forgotten.

In most of Africa — 33 out of 55 countries — homosexuality is a crime punishable by imprisonment. This year alone, six states (Kenya, Ghana, Namibia, Niger, Tanzania and Uganda) have taken steps to tighten their anti-homosexuality laws, and others could follow suit.

This is the largest number of countries pushing for these laws in recent years. The trend contrasts with the decision by Angola (2021) and Gabon (2020) to decriminalise consensual sex between adults of the same sex. The current shift suggests that Africa is regressing.

Criminalisation of consensual same-sex sexual acts in Africa. (Source: ILGA World Database, supplied by ISS Today)

Several international policies recognise the impact of discrimination against the lesbian, gay, bisexual, transgender, queer, intersex, asexual and others (LGBTQIA+) community. One is the UN Human Rights Council Resolution 41/18 on the protection against violence and discrimination on sexual orientation and gender identity. Another, which is legally binding, is the African Charter on Human and Peoples’ Rights. Article 2 provides for the right to equality of all, and protects against discrimination based on sex or other status.

However, the African Union (AU) has no official position on whether this includes sexual orientation, and the African Commission on Human and Peoples’ Rights hasn’t been consistent on the issue. The commission affirmed that Article 2 included all people and gave observer status to the Coalition of African Lesbians. But it later rejected applications based on the organisations’ sexual and gender identity. Other AU organs have interpreted Article 2 to exclude LGBTQIA+ people, and several member states seem to agree.

Uganda passed the Anti-Homosexuality Act (2023) in May. The law includes the death penalty for “aggravated homosexuality”, which includes sex with people under 18 or the involvement of an HIV-positive person. It penalises the “promotion of homosexuality” with 20 years’ imprisonment, targeting activities such as persuading, advertising, financing, providing spaces, and operating organisations “promoting homosexuality”.

Read more in Daily Maverick: What it’s like to be Ugandan and queer when your country turns against your identity

The most far-reaching provision is Article 14 on the “duty to report acts of homosexuality”. It creates the obligation to contact the police about any “reasonable suspicion that a person has committed or intends to commit” acts of homosexuality or any other offence under the law.

The new act also criminalises medical care for homosexuals, accommodating or representing them in court. Any media organisations that share information on LGBTQIA+ issues can be fined up to 1 billion Ugandan shillings (approximately $250,000) and a 10-year licence revocation.

Meanwhile, Ghana’s Parliament in July unanimously approved a bill that increases penalties and creates new offences that criminalise LGBTQIA+ people. In the same month, Namibia’s National Council passed two bills to define “spouse” as “a man and a woman” in a union of two people of the opposite sex. The bill seeks to reverse a Supreme Court judgment that recognises same-sex marriages performed abroad between a Namibian citizen and a foreign spouse as legal.

In Niger, the Presidential Communication Office announced that the new Penal Code included punishment for consensual same-sex sexual acts. This follows a declaration by the country’s then-president to criminalise organisations convening, hosting or funding ‘gay clubs’ or advocating for LGBTQIA+ rights. Tanzania’s Parliament is debating further criminalising consensual same-sex sexual acts despite the current penal code already providing for life imprisonment.

In Kenya, two National Assembly processes aim to tighten anti-gay laws. The Family Protection Bill (2023) seeks to amend the definition of ‘family’ in the constitution and impose harsher penalties for consensual same-sex sexual acts. The second process is a motion to prohibit the discussion, publication and dissemination of LGBTQ+ information, even though the Supreme Court reaffirmed the rights of lesbian, gay, bisexual, transsexual and queer people to associate and form non-governmental organisations.

‘Un-African’

While many of these laws originate from the colonial era, political, religious and traditional leaders create systems that exclude sexual and gender minorities. They argue that homosexuality is ‘un-African,’ despite research and historical accounts detailing homosexual behaviour in pre-colonial African societies.

Since at least the early 2000s, across Africa, some of those stoking the issue are United States evangelical organisations. OpenDemocracy reports that close to $50-million was provided to African governments to develop laws and policies against sexual and reproductive rights. In Uganda, nearly $20-million was used to support the government in developing laws, including the Anti-Homosexuality Act.

Homophobic public sentiments prevail across much of Africa, and some politicians use this to score political points. In Burundi, President Évariste Ndayishimiye urged citizens to “curse those who indulge in homosexuality”. Similar views were expressed in Kenya, where leaders have become excessively vocal on the matter.

Although some countries, such as Angola and South Africa, have decriminalised homosexuality, without complementary laws against discrimination, societal prejudices remain pervasive. In Uganda for example, a human rights activist warned that the law was being used to extort people.

LGBTQIA+ people rarely get the sexual and reproductive healthcare they need due partly to homophobic laws, as they fear being singled out and discriminated against. This can influence people’s mental health, with trauma, anxiety and depression being more common in LGBTQIA+ people than in the general population. Social isolation and low self-esteem are prevalent, and LGBTQIA+ people often live alone, increasing the risk of suicidal ideation.

The lack of safety and security protections exposes LGBTQIA+ people to violence from their communities, with little recourse. Anti-LGBTQIA+ policies, laws and practices also raise the risk of violent hate crimes.

However, there are glimmers of hope in some parts of Africa. In Cabo Verde, an anti-discrimination law with added protections for the LGBTQIA+ community is being considered. And people persecuted based on their sexuality can still seek asylum in South Africa.

Seychelles, Lesotho, Botswana and most recently Angola, have decriminalised same-sex relationships. Other African countries should learn from them, and choose inclusion and respect for human rights over exposing vulnerable people to greater harm. DM

Ottilia Anna Maunganidze, Head of Special Projects and Chelsea Cohen, Researcher, Institute for Security Studies (ISS) Pretoria.

First published by ISS Today.

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‘Un-African’