Commonwealth Africa: LGBTQI+ rights under attack
A backlash against LGBTQI+ rights is underway. In multiple African countries where same-sex relations have long been criminalised, small gains in rights are bringing a disproportionate defensive response by anti-rights forces claiming LGBTQI+ rights are an imported western agenda. The reality is that the criminalisation of same-sex relations is a colonial legacy and it’s the anti-rights backlash that’s lavishly funded by foreign forces, with conservative US foundations promoting identical repressive bills in country after country. Civil society faces the challenge of an increasingly confident, visible and coordinated anti-rights movement. More support is needed for civil society action to defend rights, connect with the public and push back against anti-rights disinformation and hate.
Content warning: this article contains language some may find offensive.
The Ugandan parliament erupted in celebration. The occasion? A punching-down effort to strip LGBTQI+ people, already criminalised and subjected to any number of human rights violations, of their very right to exist.
Homosexuality was already illegal in Uganda. It was hard to imagine things could get any worse for the country’s LGBTQI+ people, but they did. The Anti-Homosexuality Bill 2023, passed on 21 March with near unanimous support, makes the ‘promotion’ of homosexuality and the ‘conspiracy to engage in homosexuality’ very serious crimes.
It imposes jail terms of up to 20 years on people identifying as LGBTQI+ and, most shockingly of all, makes ‘aggravated homosexuality’ – a broad term than includes those considered ‘serial offenders’ – punishable by death. It declares that the rights constitutionally recognised for other Ugandans – from the right to privacy to the civic freedoms of association, peaceful assembly and expression – don’t apply to LGBTQI+ people.
According to its supporters, the law seeks to protect Uganda’s traditional church culture and family values against depravity and promiscuity coming from ‘the west’. It’s a conscious falsification of history: homophobia was imported from the UK during colonial times, riding roughshod over long-established local traditions that were much more accepting of sexual and gender diversity.
A damning colonial legacy
In country after country, typically in the 19th century, British colonial forces established ‘anti-sodomy’ sections of penal codes that many Commonwealth countries retain to this day.
Language from the British law of the time was replicated everywhere, leaving virtually identical laws across countries that often remained untouched following independence. As a result, most Commonwealth countries have continued to criminalise private sexual acts between consenting same-sex adults long after the UK stopped doing so.
Today, same-sex relations remain a criminal offence in 32 out of 56 Commonwealth states, often punishable with harsh penalties of imprisonment: up to 10 years plus hard labour in Jamaica, 14 years in Kenya, 20 years plus flogging in Malaysia and up to life imprisonment in Bangladesh, Guyana, Pakistan, Sierra Leone and Tanzania. In three cases – Brunei, the northern part of Nigeria and now Uganda – same-sex acts between men can potentially mean the death penalty.
Even if such extreme punishments are unlikely to be applied, they have a chilling effect. Criminalisation, even when not fully enforced, enables further rights violations such as arbitrary arrests, blackmail and mob violence. It makes people constantly afraid of being outed and can drive people to suicide.
Only in two Commonwealth countries – Rwanda and Vanuatu – were same-sex relations never criminalised. In others, decriminalisation has come over time. A few – Australia, Canada, Malta and the UK – began processes leading to decriminalisation in the 1960s and 1970s, followed by New Zealand in the 1980s and the Bahamas, Cyprus and South Africa in the 1990s.
Civil society activism brought further gains in the 2010s, starting in Fiji in 2010, with nine more countries following the path of decriminalisation over the following decade: Belize, Botswana, Gabon, India, Lesotho, Mozambique, Nauru, Seychelles and Trinidad and Tobago. Four more, three of them in the Caribbean, followed suit in 2022: Antigua and Barbuda, Barbados, Singapore and St Kitts and Nevis.
The recognition of further rights has evolved more slowly. Only six Commonwealth countries – Australia, Canada, Malta, New Zealand, South Africa and the UK – recognise full equal marriage rights, including adoption rights, for LGBTQI+ people, with a seventh – Cyprus – falling short by recognising civil unions that don’t bring equal rights.
The slow but consistent trend towards decriminalisation, driven by civil society advocacy, has been met with a politically driven anti-rights reaction intent on increasing rather than decreasing punishments. Nowhere has this been more visible than in Commonwealth Africa.
Uganda has pioneered regression. An Anti-Homosexuality Bill – dubbed the ‘Kill the Gays Bill’ for including the death penalty – was first introduced in 2009. In a somewhat milder version – the death penalty was replaced by life imprisonment – it was passed in December 2013 and signed into law by President Yoweri Museveni in February 2014.
This law was subjected to legal challenges and ultimately struck down by the Constitutional Court on procedural grounds, since it had been passed without the required number of members of parliament present. Another anti-LGBTQI+ initiative, the Sexual Offences Bill, was passed in May 2021, and this time it was Museveni who rejected it, arguing that it covered provisions already catered for in the Penal Code. Both times, the substance of what was being proposed remained unquestioned.
Civil society under attack
Even before the latest law was passed, hate crimes against LGBTQI+ people in Uganda sharply increased, fuelled by the dehumanising narrative underlying the legislative push. The way towards the bill was paved by vilification and restrictions of LGBTQI+ activism. This included the suspension, in August 2022, of a prominent civil society organisation (CSO), Sexual Minorities Uganda (SMUG), on the grounds that it wasn’t registered. This is true: SMUG wasn’t registered because, since its formation in 2012, its applications were rejected by the NGO Bureau, the regulatory body for CSOs, on the basis that its name was ‘undesirable and un-registrable’.
SMUG’s head Frank Mugisha argued the suspension was the result of ‘a clear witch-hunt rooted in systematic homophobia that is fuelled by anti-gay and anti-gender movements’.
Before SMUG’s suspension, the police and other authorities had repeatedly harassed its members and staff. In May, two of its employees were arrested while reporting on attacks on its office. They were charged with ‘promotion of homosexuality and recruitment of people into homosexuality’ and held for four days. Police then launched investigations into three more SMUG employees, including Mugisha, for ‘recruitment to homosexuality’. In June, SMUG discovered that the NGO Bureau had placed its office under surveillance following a police directive.
In early April, the first Inter-Parliamentary Conference on Family Values and Sovereignty was held in Entebbe, Uganda, under the theme ‘Protecting African Culture and Family Values’. In a speech to participating politicians from at least 22 African states, Museveni called on his counterparts to lead the world in rejecting the ‘promotion of homosexuality’, which he described as a vice, a deviation ‘more dangerous than drugs’ and a threat to the survival of the human race.
The meeting brought together numerous Christian fundamentalist, anti-rights hate groups and pseudo-experts from around the world, including conservative US foundations, some of the biggest funders of the global anti-LGBTQI+ movement. It isn’t African LGBTQI+ activism being promoted by the west – it’s hatred that’s receiving lavish foreign funding.
At the meeting, much was spoken about the alleged causes of homosexuality, the ‘rehabilitation treatments’ available – ‘conversion therapies’ United Nations (UN) human rights experts consider akin to torture – and the need to stop the spread of the ‘disease’.
Emboldened by the praise of his supposed moral leadership, President Museveni vowed not to tolerate any further ‘gay propaganda’ in Uganda, assured there would be no comprehensive sex education in Ugandan schools, promised to engage with Ugandan legislators to put up the best regulations possible to ‘protect children from homosexuality’, and warned the west to stop ‘giving lectures’ to Africans now colonialism is long over.
Ominously, legislators from several other African states praised Uganda’s leadership and inspiration and signalled they would follow suit. That’s particularly true for Ghana and Kenya.
Ghana doubles down
In Ghana, a draconian anti-LGBTQI+ bill, officially called the ‘Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill’, was introduced to the National Assembly in June 2021. As with its Ugandan counterpart, it has been traced back to US-funded anti-rights organisations.
While not yet passed, the bill has already fostered a rise in human rights violations against LGBTQI+ people, including online harassment, blackmail, forced evictions, mob attacks, arbitrary arrests, gang rapes and other acts of sexual violence. It’s come in backlash to attempts by LGBTQI+ organisations and activists to try to assert some visibility in public life, including the opening of a community centre that was quickly shut down in 2021.
If passed, the law would punish public shows of affection between people of the same sex, or involving someone who doesn’t conform to their gender assigned at birth, with up to a year in prison. Same-sex intercourse would bring a five-year sentence, and the production, procurement or distribution of material ‘promoting homosexuality’ would mean 10 years.
The law would also ban the provision of gender-affirming healthcare, same-sex marriage and marriage for anyone who has had gender affirmation surgery, as well as the teaching of anything related to sexual or gender diversity to children. It would effectively disband all LGBTQI+ CSOs, as supporting them, even by allowing them to take part in a physical or virtual event, would be severely punished.
The bill passed its first reading in August 2021 and the Committee on Constitutional, Legal and Parliamentary Affairs started public hearings in November. Most political parties, with the lone exception of the Liberal Party of Ghana, announced their support. The Ghanaian Anglican Church and churches and organisations of other Christian denominations are also enthusiastically behind it.
Kenya’s moral panic
In Kenya, on the basis that same-sex relations are illegal, LGBTQI+ activism is criminalised and activists are harassed. In July 2022, four LGBTQI+ activists were arrested for ‘illegally assembling’ when a meeting they were part of was raided by police. The venue hosted other meetings, but the authorities focused on this one, demanding a permit and declaring it illegal.
In an interview last September, newly elected President William Ruto said that LGBTQI+ matters weren’t a big issue in Kenya. When asked about previous hateful remarks, he said that although ‘we respect everybody’, homosexuality ‘is not agreeable’. That same month, the Kenya Film Classification Board decided that since same-sex relations are illegal, all movies with LGBTQI+ content are forbidden in Kenya.
The freedoms we fight for are for all Kenyans, and not only for the LGBTQI+ community.
LGBTQI+ activists continue to be murdered with impunity. In January 2023, 25-year-old Edwin Chiloba was killed.
In February, following a meeting with faith-based organisations, the Education Cabinet Secretary announced a plan to set up chaplaincies in schools to address concerns about ‘the spread of LGBTQ+ practices’.
Around the same time, the Supreme Court issued a ruling in favour of an LGBTQI+ association that the government had refused to register, putting an end to a decade-long legal battle by affirming the right to freedom of association without discrimination.
Voices from the frontlines
Ivy Werimba is Communications and Advocacy Officer at galck+, a national coalition of Kenyan LGBTQI+ organisations.
The Supreme Court’s decision was highly significant. This decision sets an important precedent for future cases involving discrimination against marginalised communities and underscores the importance of the judiciary in upholding the rule of law and protecting human rights. It was the first of its kind by the Supreme Court of Kenya. We applaud their decision to uphold the Constitution.
There has been a lot of backlash from various societal leaders and there is now a Family Protection Bill that’s been created and awaiting being gazetted. This bill, which closely resembles the anti-homosexuality bills of Ghana, Nigeria and Uganda, has given fodder to the opposition, which is rallying support for it online and continuing to spread misinformation and disinformation by tying it to other issues that political leaders refuse to address, such as the poor economy, the rise in teenage pregnancies and alcohol abuse, election violence and election violations, widespread corruption and unrest in secondary schools.
Violence and discrimination against LGBTQI+ people in Kenya are a harsh reality. Despite claims that sexual orientation and gender identity are non-issues, LGBTQI+ people in Kenya experience stigma, discrimination, physical and verbal abuse, assault, harassment, eviction from their homes, loss of their jobs, suspension or expulsion from school and many other rights violations that significantly affect their wellbeing and quality of life.
Through its existence and work, the LGBTQI+ community in Kenya continues to challenge conformity to societal norms that expect men to be courageous and women to be homemakers.
There have been significant milestones in establishing laws and policies that support gender equality and social inclusion. However, several factors – including limited resources, weak links among ministries and between the national and county levels, negative pervasive norms and attitudes about inclusion – hinder the effective implementation of laws and policies.
Despite all these tribulations, we use our work and our spaces to push back on these norms and celebrate the limited but important progress made on the rights of LGBTQI+ people in Kenya over the last 10 years. This has largely been obtained through victories in court, where Kenyan activists have challenged criminalising provisions and the treatment of LGBTQI+ people and organisations. This includes a case that established that the use of forced anal exams is illegal, a case that upheld the right of LGBTQI+ people to form and register organisations and a case that upheld the right to change gender on legal documents. The Family Protection Bill threatens to destroy all this progress and so our work continues to be a reminder that the freedoms we fight for are for all Kenyans, and not only for the LGBTQI+ community.
This is an edited extract of our conversation with Ivy. Read the full interview here.
The ruling was met with swift backlash from evangelical churches and conservative politicians decrying the recognition of the rights of ‘paedophiles’ to organise. Ruto denounced it as ‘unacceptable’, and the Anglican Archbishop of Kenya called on ‘people of faith and the Christian family’ to take a stand for ‘a moral society based on values’ and against an allegedly diabolical foreign-funded agenda.
While the attorney-general announced the government would challenge the ruling and put the matter up for public consultation, an opposition politician, Peter Kaluma, vowed to table a bill to increase penalties for homosexuality. LGBTQI+ people were to be punished for daring to win a rare victory.
Dubbed the Family Protection Bill, Kaluma’s initiative seeks to criminalise ‘homosexuality, same-sex marriages and LGBTQ behavior’ and the ‘promotion, recruitment, funding of homosexuality and LGBTQ behavior’, and to ban ‘sexual health and sexual health rights and education’ throughout school. It explicitly seeks to repress rights, including freedoms of association, peaceful assembly and expression, of LGBTQI+ people and organisations.
According to Kenyan activists, the precise wording used pointed to the replication of a template prepared by Family Watch International, a US anti-rights group that played a starring role at the Inter-Parliamentary Conference in Entebbe.
Soon as I saw that list, I knew he'd been with a US far-right group. No way Kaluma came up with that wording; man's even used "sex assigned at birth"—those are not his words, he's just the vehicle. That doesn't mean he's not culpable, he is; but white people are running the show. https://t.co/ktkaqQZt80— Lone traveller in a sea of familiar faces (@yvonnewabai) April 8, 2023
Wanted: rights-based solidarity
As with its predecessors and counterparts in other countries, Uganda’s Anti-Homosexuality Bill has been firmly rejected by activists and the international human rights community. Global civil society coalitions, foreign diplomats and UN representatives, including the High Commissioner for Human Rights, condemned the bill as a blatant violation of human rights and urged Museveni not to sign it into law. Solidarity demonstrations were held in several countries, including Canada and South Africa. Court challenges in Uganda and in the African human rights system are sure to follow.
PROUD of our team in #SouthAfrica who took to the streets to lead protests against Uganda's anti homosexuality agenda. To our family in Uganda–those in danger for loving who you love & for being your true selves, we stand with you, you're not alone 💜🌈#stopthehate #loveislove pic.twitter.com/KylZX6wkGT— Safe Place International (@safeplaceintl) April 7, 2023
But it’s not enough. Anti-rights groups are increasingly confident, more visible, more highly coordinated and better resourced than ever. They’re shaping public narratives, including through disinformation and manipulation, and sowing hatred and division. They’re winning support because their narratives resonate with some people. They’re helped by their close connections with political power, enabling them to achieve growing influence. They’re networking with each other and forging common narratives and campaigns, sharing strategies and resources internationally and working in international arenas.
Anti-rights groups have learned from the tactics of the international human rights movement and are using these to their advantage. Now the pro-rights camp must match them in organisation, coordination and communications. Effective responses must be adequately resourced.
Comforting words for embattled LGBTQI+ activists won’t suffice. It’s time for expressions of concern to be backed with greater support for civil society action to defend rights, connect with and convince the public and push back against disinformation and hate. The alternative is for a whole generation of LGBTQI+ people – in Ghana, Kenya, Uganda and the other countries ready to follow their example – to live lives of misery and silence, foreigners in their own countries.
OUR CALLS FOR ACTION
The government of Uganda must review and reform or repeal all laws and policies that discriminate against LGBTQI+ people, including the 2023 Anti-Homosexuality Bill.
The governments of Ghana, Kenya and Uganda must stop criminalising LGBTQI+ people and guarantee freedoms of association, peaceful assembly and expression for LGBTQI+ activists and organisations.
LGBTQI+ groups in African countries that have decriminalised same-sex relations and advanced rights should support their peers in more restrictive environments.
Cover photo by Phil Magakoe/AFP via Getty Images