LGBTQI+ rights in the Commonwealth: time for change
20 June saw the beginning of the week-long meeting of leaders of the 54 Commonwealth countries, 35 of which continue to criminalise same-sex relations. This continuing injustice and the violence it enables owes its existence to the colonial legacy that brings Commonwealth states together. The UK government acknowledged its role in introducing homophobic colonial-era legislation at the previous meeting in 2018, but its offer of support to any Commonwealth government wishing to reform its legislation has not led to action. The Commonwealth should ensure it offers LGBTQI+ activists a global safe space, amplify their voices and put its weight behind change.
Leticia Sam knows exactly what she’s talking about when she says that rampant homophobia in many Commonwealth countries – including her country, Uganda – is a major motivator of human rights violations against LGBTQI+ people. The transgender activist and founder of Queer Youth Uganda has been the victim of hate crime campaigns and the mobilisation of violence legitimised by the persistence of legislation criminalising LGBTQI+ people, a legacy of British colonialism.
In 2019 Leticia suffered a violent attack, and although she reported it to the police, little investigation resulted. Although the police claim to have a ‘special LGBT unit’, they do nothing to uphold the rights of LGBTQI+ people – and since homosexuality remains illegal in Uganda, the law is on the police’s side. As a result, violence against LGBTQI+ people continues, including at the hands of the police when people turn to them as a last resort in fear for their lives.
LGBTQI+ activists in dozens of countries in Africa, Asia, the Caribbean and the Pacific have fought this kind of targeted discrimination and violence for decades. They have turned their eyes towards the institution that brings their countries together – the Commonwealth – as a potential platform to make their voices heard, but so far with little success. As their countries’ leaders gather for the Commonwealth Heads of Government Meeting in Kigali, Rwanda from 20 to 25 June, they are once again putting their energies into trying to get political leaders to acknowledge their struggle for rights. But there seem few grounds for optimism.
The Commonwealth agenda
The Commonwealth brings together 54 independent states: 19 in Africa, 13 in the Caribbean and the Americas, 11 in the Pacific, eight in Asia and three in Europe. They vary enormously in size and population, from the biggest, India, to the smallest, Nauru, but almost all are former UK colonies.
Until the 1990s, the Commonwealth agenda largely focused on the struggle to dismantle white minority rule in southern Africa. Since then, the institution has lacked a single unifying element, although it has sought to emphasise democracy. However, many of its member states have seen democratic backsliding and severe declines in the quality of their civic space. Due to the fact that most Commonwealth countries are in the global south, and many are small island states, climate change and sustainable development have also become headline issues.
The organisation’s priorities are established by member states’ leaders who usually meet every two years at the Commonwealth Heads of Government Meeting. Its 25th meeting was held in the UK in 2018. The pandemic then interrupted the schedule but the 26th meeting is now starting and will run until 25 June in Rwanda – a country that did not meet the Commonwealth’s standards of democracy and civic space when it joined in 2009, and certainly does not meet them now, as the government continues its campaign of persecution and violence against civil society activists and journalists.
The Commonwealth Charter, the main expression of the Commonwealth’s aspirations, comes with some glaring gaps. It lays out 15 core values and principles, which include democracy, human rights, gender equality and tolerance, respect and understanding of diversity. It calls for no discrimination based on gender, race, colour, creed, political belief or undefined ‘other grounds’, while its talk of diversity vaguely points at the ‘richness’ of member states’ ‘multiple identities’. Palpably and deliberately missing from this formulation is any mention of sexual and reproductive rights, sexual orientation and gender identity. In the Commonwealth Charter, LGBTQI+ people are erased.
Despite its strong focus on women and youth, the programme of the current Commonwealth Heads of Government Meeting reflects these longstanding biases. LGBTQI+ rights remain off the agenda. LGBTQI+ activists are calling as a first step for the existence of LGBTQI+ people to be acknowledged. They are making their argument by doing essential work in their societies to dismantle the structures that deprive LGBTQI+ people of rights, subject them to discrimination and violence and cut their lives short.
Given the similarities across many Commonwealth countries, there is an opportunity for dialogue and experience-sharing, particularly with countries such as Bahamas, Belize and Trinidad and Tobago, which have taken different routes to decriminalisation.
As a body, the Commonwealth has a majority of countries from the global south, which while it presents its own challenges, also affords the opportunity to discuss and do work around LGBTQI+ rights with respect for each country’s cultural experiences. Within such a space, there is less potential for global north and western countries to be regarded as pushing ‘a foreign agenda’, and it is more likely for honest and difficult conversations about LGBTQI+ inclusion to happen and for collaboration to emerge. The only challenge will be whether the heads of government of these countries are willing to engage in these conversations.
International organisations should maintain lines of communication with local organisations such as J-FLAG and TransWave Jamaica, which works on trans health and wellbeing, to develop an informed understanding of LGBTQI+ issues in the Jamaican context and use their various platforms to share that understanding with a wide range of actors. It would also be useful for them to assist in forging partnerships among organisations and movements in places like Jamaica and other parts of the world and offer support to ensure that the Jamaican movement is sustained.
LGBTQI+ rights in Commonwealth states
There is much work to be done. A majority of Commonwealth countries continue to criminalise private sexual acts between consenting same-sex adults: they remain a criminal offence in 35 out of 54 Commonwealth states.
Countries that criminalise same-sex relations impose 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, Barbados, Guyana, Pakistan, Sierra Leone, Tanzania and Uganda. In two cases – Brunei and the northern part of Nigeria – male homosexuality can be punished with the death penalty; even if such extreme punishments are unlikely to be applied, the prospect of them has a definite chilling effect. In several countries, including Ghana, Nigeria and Uganda, politically driven campaigns are trying to increase rather than decrease penalties for homosexuality.
While decriminalisation does not by any means signify the end of discrimination and violence against LGBTQI+ people, criminalisation – even when not fully enforced – enables rights violations such as arbitrary arrests and emboldens anti-rights forces to take the law into their own hands.
The Kenyan government recognises the existence of queer people in the country. However, there are still regressive laws in place that threaten the existence of the queer movement, such as Sections 162-165 of the Penal Code, which discriminate against consensual same-sex relationships and criminalise those who live on the proceeds of sex work, limiting the independence of LGBTQI+ sex workers in Kenya.
Additionally, queer people and collectives face restrictions on their freedoms of association and peaceful assembly, as the government shies away from registering queer collectives and the police typically use excessive force to disrupt queer parades.
The government has not put in place mechanisms to address homophobia. The burden to do so has been left to civil society. Queer survivors of deliberate homophobic attacks have been denied justice by a judicial system built upon cis hate and in violation of the provisions to integrate LGBTQI+ community members as equal participants in the Kenyan development process. No progress can be achieved if a section of the population continues to be excluded on the basis of prejudiced perceptions.
Stephen Okwany, Talanta Africa, Kenya
Nigerian LGBTQI+ people are marginalised. They experience gross violations of their rights because of their sexual orientation or gender identity, including extortion perpetrated by state actors such as the police and military as well as non-state forces such as local boys, landlords and bosses. Other violations include blackmail, mob attacks, assault and battery.
Nigerian laws discriminate against LGBTQI+ people. Two major laws criminalise LGBTQI+ people: the Criminal Code Act and the 2013 Same Sex Marriage (Prohibition) Act. Under these laws LGBTQI+ people are not allowed to get married or carry out their advocacy activities. In addition, their way of life is not considered to be normal because it goes against social norms. As a result of these laws, members of our communities are arrested and their rights systematically violated by the police.
A few states, such as Lagos, also have local laws that criminalise LGBTQI+ people. In the past year Queercity Media has recorded two murders of LGBTQI+ people that were clearly linked to homophobia. In response to these we have held a nationwide digital campaign
It is very unfortunate that we have not seen any form of government response in these cases, or any other hate crime committed on the basis of sexual orientation or gender identity. Instead, rights violations against the Nigerian LGBTQI+ community have only increased. For example, a recently proposed cross-dressers bill further targets and aids the targeting of queer people.
Only in two Commonwealth countries – Rwanda and Vanuatu – were same-sex relations never criminalised. In the remaining 17, decriminalisation has come over time. Only 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.
Activism brought further gains in the 2010s, starting in Fiji in 2010, with eight more countries following the path of decriminalisation over the following decade: Belize, Botswana, India, Lesotho, Mozambique, Nauru, Seychelles and Trinidad and Tobago. Some countries have fallen short of decriminalisation but have at least extended some protections against discrimination, particularly regarding employment.
The process of overturning the sodomy laws contained in Section 53 of the Criminal Code started with a preliminary assessment that guided the development of the University of the West Indies’ Rights Advocacy Project (URAP) led by Tracy Robinson, whose group initiated my case in 2010. In 2011 we worked with Human Dignity Trust, which joined as interested party, to engage on international treaty obligations.
In 2007, a conversation started at a meeting in Santo Domingo in the Dominican Republic, organised by the Caribbean Vulnerable Communities Coalition. URAP engaged by email and Viper Messenger, with additional regional conferences to flesh out legal arguments. The process identified Lisa Shoman as local Senior Counsel and Chris Hamel Smith, who argued the case in 2013.
Meanwhile, we submitted reports for Belize’s Universal Periodic Review at the United Nations Human Rights Council to test the government’s response to the challenge to the sodomy laws. We also resorted to thematic hearings at the Inter-American Commission on Human Rights. The response of the government was that it needed a ‘political mandate’. We worked with the subcommittee for policy and legislation of the National AIDS Commission to monitor legislative opportunities and gauge the position of the government and the prime minister. We knew the government would not significantly fight the process.
In late 2010 we filed a challenge to Section 53 and a fight with the group of churches ensued. UNIBAM’s role was eventually reduced to that of an interested party, with the churches relegated to the same role, and I remained as the sole claimant.
We did not have a communications strategy, so we developed one. Nor did we have a security strategy, but we got help from the Human Dignity Trust. We participated in around 300 media interviews, collectively, over the years. The process included the derailment of the government’s revised national gender policy of 2013, with hundreds protesting across the country. Also, in Jamaica, 25,000 people protested to demand the removal of Professor Brendon Bain, an expert witness in my case in support of the churches, from his job at the University of the West Indies.
The case was heard by the Supreme Court in May 2013. We submitted personal experiences of discrimination and tried to strike out the churches, but we failed. Three years later, on 10 August 2016, the judge ruled in our favour, establishing that Section 53 was unconstitutional, which effectively decriminalised consensual same-sex activity held in private by consenting adults.
The Attorney General launched a partial appeal focused on the freedom of expression and non-discrimination on the grounds of ‘sex’, but the Court of Appeal’s judgment was reaffirmed in December 2019, with the expectation that the sodomy law had to be modified by parliament after the Court reaffirmed its unconstitutionality. Over time, the political tone changed: from claiming a political mandate was needed to change our sodomy law, to supporting 15 out of 17 Universal Periodic Review recommendations on LGBTQI+ rights in 2018. We are now waiting for parliament to modify the law as per the instruction of the Court of Appeal.
The recognition of further rights has evolved still more slowly. Only six Commonwealth countries – Australia, Canada, Malta, New Zealand, South Africa and the UK – recognise equal and full marriage rights, including adoption rights, for LGBTQI+ people, with a seventh – Cyprus – falling short by recognising civil unions that do not come with equal rights.
Public campaigning and advocacy for same-sex marriage is ongoing in every country where criminalisation has been overturned. But even when gains come, they bring backlash. This was seen recently in the British overseas territory of Bermuda, where same-sex marriage was recognised only to then be taken away by a judicial offensive driven by anti-rights forces.
We have made a lot of progress. When we started litigating for same-sex marriage, polls showed a slight majority of Bermudians were against it, and within five years, when same-sex marriage became legal, a clear majority supported it.
But this progress was met with backlash, particularly by organisations such as Preserve Marriage, which grew markedly since the early days of the public debate on marriage equality. They are well-organised and well-funded and are reacting quite violently to the evidence that public perceptions on all LGBTQI+ issues is increasingly more accepting.
In March 2022, Bermuda’s highest judicial body, the Privy Council’s Judicial Committee, sided with the government of Bermuda, stating that it may regulate and restrict marriage licences only to unions between a man and a woman. According to the judgement, this does not violate the Bermudian Constitution. It would have violated the Human Rights Act of 1981 if the Bermuda Government had not amended it to allow discrimination on grounds of sexual orientation.
This judgement reversed previous decisions that starting in 2017 made it possible for same-sex couples to get legally married in Bermuda. As a result, a right that we as a community enjoyed for four years was stripped away.
A new legacy for future generations?
The exclusion of LGBTQI+ people is not only an injustice shared by most Commonwealth member states; it’s one that owes its existence to the colonial legacy that brings the states together.
While the Commonwealth arguably seeks to address many aspects of the damning legacy of the British Empire, such as systematic exploitation and under-development that has left many of its countries poor and vulnerable to global shocks, it still seems unwilling to confront this particular piece of colonial heritage.
In country after country, typically in the 19th century, British colonial forces established so-called ‘anti-sodomy’ sections of the penal code that many Commonwealth countries retain to this day. They took language wholesale from British law of the time and replicated it, leaving virtually identical laws across multiple countries. Running roughshod over long-established local traditions that were often more accepting of diversity in sexual orientation and gender identity, homophobia was imported and with the force of the law behind it took strong roots. In many cases the law has not been decolonised, and LGBTQI+ activists in many Commonwealth countries face systematic accusations that they are trying to corrupt national traditions and culture by importing ‘foreign perversions’ and ‘western values’.
Instead of providing a platform to LGBTQI+ activists, the Commonwealth, as an intergovernmental organisation, remains at the behest of its member states’ governments, leaving the institution often timid about upsetting those that find it useful to keep criminalising homosexuality.
Commonwealth states should work together since most have the same codes that criminalise LGBTQI+ people, dating back to the colonial era. So many years later, they are still making daily life miserable for LGBTQI+ people in the countries that are part of the Commonwealth. I think member countries should use the various organs of the Commonwealth to provide a platform for LGBTQI+ voices. Those that have decriminalised same-sex relations should support those fighting toward that goal.
The international community fighting for similar causes should also use their platforms to raise awareness on the kind of struggles we are facing. Their mobilisation will hopefully pressure our governments to create policies that will benefit all members of society regardless of their gender identity or sexual orientation.
Time after time, LGBTQI+ activists from Commonwealth countries have called for this long-neglected issue to be put on the agenda of the Commonwealth Heads of Government Meeting. Some windows of opportunity have opened in recent years, at least when the meeting has been held in countries with relatively open civic space and existing legal respect for LGBTQI+ rights.
The process of opening up the debate hasn’t been easy. In 2007, when the Commonwealth Heads of Government Meeting was held in Kampala, Uganda, activists trying to speak out for their rights were physically harassed by local security forces.
In 2011, an organisation aimed at promoting decriminalisation throughout the Commonwealth, the Kaleidoscope Trust, was established in London, where the Commonwealth is headquartered, to advocate with UK officials to bring up LGBTQI+ issues with Commonwealth counterparts. That year, for the first time ever, the Commonwealth’s then-head, Secretary-General Kamalesh Sharma, spoke out against discrimination against LGBTQI+ people as contradicting the Commonwealth’s shared values.
Discussion of LGBTQI+ rights was also brought up for the first time at the 2011 Commonwealth Heads of Government Meeting in Perth, Australia, through the joint efforts of Australia, Canada, New Zealand and the UK. But most states rejected the proposal to publish an expert investigation with recommendations on decriminalisation.
Following in Sharma’s footsteps, upon taking office, current Secretary-General Patricia Scotland committed to devoting the first two years of her tenure to promoting decriminalisation – but also suggested the need to work on creating consensus as a way forward. Consensus remains lacking.
In advance of the 2015 meeting, held in Malta, a UK minister announced she would chair a roundtable on LGBTQI+ issues at the event, and Malta’s prime minister urged member states to remove anti-LGBTQI+ legislation. In 2017 the Commonwealth gave its first accreditation to an LGBTQI+ organisation, the Commonwealth Equality Network, allowing it to participate in Commonwealth meetings.
In preparation for the 2018 meeting in the UK, a campaign mobilised under the #CommonEquality hashtag, gathering over 100,000 signatures, to demand a focus on LGBTQI+ rights and decriminalisation, as well as an official apology from the UK for introducing homophobia to the countries it had ruled over.
Before the meeting, UK ministers and senior officials signalled support for LGBTQI+ rights, including the proposal of withholding aid from countries that blatantly violate LGBTQI+ rights. High-level UK advocacy was recognised as a factor in decriminalisation in the Seychelles. As the meeting proceeded, then-UK Prime Minister Theresa May publicly expressed regret that most laws still criminalising LGBTQI+ people in Commonwealth countries were a direct legacy of British colonialism and offered support to any government wanting to reform its legislation.
But in practice, not much change followed, and then the COVID-19 pandemic struck, offering just another excuse not to act on LGBTQI+ issues, even though discrimination and violence increased under the pandemic.
Four years on from the UK’s historic recognition of responsibility, the time has come for the Commonwealth and its leading members to act. The Commonwealth must commit to holding its peak meetings in countries with relatively open civic space where people are free to mobilise and advocate for LGBTQI+ rights. It must make space in its platforms and processes for the participation of LGBTQI+ activists from member states, and particularly from countries where they are most denied their rights – offering them the safe space at the global level that they are denied domestically. The Commonwealth must hand LGBTQI+ activists the mic, amplify their voices and put its weight behind change.
OUR CALLS FOR ACTION
The Commonwealth must ensure a global safe space for LGBTQI+ activists to advocate for their rights.
Commonwealth states that have decriminalised same-sex relations should advocate towards their fellow states to follow the same path.
LGBTQI+ groups in countries that have decriminalised same-sex relations and claimed rights should work together to support their peers in more restrictive environments.
Cover photo by Jack Taylor/Getty Images