LGBTI Organising in the African Human Rights System

There has been an increase in interest and debate regarding the status of the human rights of sexual minorities across the world, more so on the African continent, where the debate has become increasingly politicised (van Klinken, 2020). Scholars Tabengwa and Waites note that “Africa has become a battleground in the international conversation over human rights, including homosexuality and gender diversity” (Tabengwa & Waites, 2020). Numerous campaigns have sprung across the continent advocating for repeals of colonial laws criminalising homosexuality and homosexual conduct, at times termed “deviant sexual conduct”. Campaigns often meet violent abuse and state-funded oppression of those perceived as sexual deviants, typically homosexual and transgender persons, as well as their advocates. The rhetoric often employed by politicians and religious leaders across the continent portrays sexual minorities as exogenous and a threat to traditional, African and religious values and ideals.These counternarratives fuel hate and discrimination, polarising communities in a manner that is distinctly divergent from the values of ubuntu, and inherently un-African. 

This essay examines the rhetoric exhausted by these opposing narratives; one that perceives sexuality and gender diversity as “sexual colonialism” and another that perceives it as “deviant sexual conduct”. The essay scrutinises how these narratives interact with or influence the political and legal position of sexual minorities and organisations seeking equality, justice and freedom for LGBTI persons in Africa. Firstly, it  acknowledges the  prominence  LGBTI rights have gotten in public discourse in recent years and the influence this has had on socio-political debate, and then examines the efficacy of human rights mechanisms such as the UN and AU in the promotion and protection of the human rights of the LGBTI community. Critically, while this essay concedes that the safety of the AU as an LGBTI advocacy space is debatable, it asserts that the African Commission is unfortunately, an ineffective advocacy platform, overshadowed by an overbearing Executive Council. In closing, the essay briefly offers opinion on strategies to improve the LGBTI rights campaign in Africa, emphasising the need for regional and global collaboration as a means to create external pressure to influence internal change.

Queering the African 

Uganda’s minister of ethics and integrity, James Nsabo Buturo, the bill was intended to “strengthen the nation’s capacity to deal with emerging internal and external threats to the traditional heterosexual family” and “protect the cherished culture of the people of Uganda…against attempts of sexual rights activists seeking to impose their values of sexual promiscuity on the people of Uganda”

Recent decades have witnessed across the African continent, intense politicisation and debate over the human rights of sexual minorities (van Klinken, 2020). Two dominant narratives dominate the discourse; “sexual colonialism” and the “sexually deviant African” (Devji, 2016). Advocates of the first narrative describe queer sexuality as an un-African colonial legacy and deny the existence of queerness in Africa before colonisation, pathologising queerness as a perversion imposed on and adopted by Africans during imperial rule. A prolific example of this has been the queerphobic rhetoric led by the then President of Zimbabwe, the Late Robert Mugabe, against Gays and Lesbians of Zimbabwe (GALZ). This civil-society organisation led a relatively quiet existence from its inception in the late 1980s until it came to Mugabe’s attention in 1994, at which point he launched a personal vendetta against the organization, exerting political influence and state resources in an all-out war on GALZ, which featured exclusion from book fairs and lengthy propaganda statements made by government on what they termed as a promotion of external values and sexualities foreign to Zimbabwean and African identity (Murray, 1998). The second narrative portrays pre-colonial Africa as a hypersexual society, remedied by the imposition of “white Euro-American sexual norms and gender expressions” (Devji, 2016). Uganda’s Anti-Homosexuality Act is an example of this. Anti-queer laws in Uganda predate colonial rule, yet the present laws criminalising homosexuality in Uganda were introduced during British Imperial rule and later enshrined in the Ugandan Penal Code Act of 1950 (Penal Code). Following a lengthy back and forth review of the 1995 constitution and Penal Code to provide an absolute prohibition on same sex marriage, the Anti-Homosexuality Act was passed in 2014, with the stated purpose of addressing the “defects in existing law” and “fill[ing] the gaps in the provisions of other laws”. According to Uganda’s minister of ethics and integrity, James Nsabo Buturo, the bill was intended to “strengthen the nation’s capacity to deal with emerging internal and external threats to the traditional heterosexual family” and “protect the cherished culture of the people of Uganda…against attempts of sexual rights activists seeking to impose their values of sexual promiscuity on the people of Uganda” (Devji, 2016). Buturo’s position not only reiterates the adoption of the colonial law as protecting traditional heteresexual family ideals against threats such as promiscuity, but also propounds sexual diversity as a threat to Ugandan cultural values. Ironically, this adoption of colonial laws on sexuality reiterates the racist notion of Africans as primitive – so close to nature, ruled by instinct, and culturally unsophisticated, with sexual energies and outlets devoted exclusively to their “natural” purpose: biological reproduction (Murray & Roscoe, 1998).

While both narratives deviate on views of the origins of sexual diversity in Africa, both convene to manifest themselves to varying degrees, in laws and practices relating to queer identities in Africa. The rhetoric often precedes legal and political action not only to criminalise and persecute sexual minorities, but also thwart advocacy for LGBTI human rights, as witnessed by the criminalisation of homosexuality through the Anti-homosexuality bill in Uganda (Amnesty International UK, 2018) and upholding of similar laws by the courts in Kenya (BBC, 2019).

This sentiment is commonplace across the continent, often paired with the portrayal of sexual minorities as a shocking fraction of the population, divergent from the cultural and religious fabric of society, not worthy of legal protection. In 1998, a government commission was established in Botswana to review all laws affecting the status of women, a process which raised expectations among the LGBTI community that discriminatory laws against queer women would get repealed. Instead, the ruling BDP told the media that the party could not even debate homosexuality as it would shock the Botswana nation (Long (2003) as cited by Tabengwa & Nicol, (2013). Though Botswana essentially rescinded this sentiment later in court rulings to repeal the criminalisation of homosexuality and to allow transgender persons the right to self-determination, this framing of sexual minorities has been one of the most significant challenges to the protection of LGBTI rights in Africa. It is also a tactic commonly employed by political and religious leaders, under the guise of protecting and preserving African values and identities and to challenge foreign dominance. It is what Ugandan scholar Adrian Jjuuko (cited in van Klinken, 2020) calls the “rise of the conservative streak of Pan-Africanism”.

The irony of this anti-queer Pan-Africanist narrative is, it is founded on socially contstructed notions of African authenticity and reflective of colonialist discourse about African sexuality, depicting African sexuality as fundamentally heterosexual. The laws defended in this debate are themselves inherited from British colonial legislature that spread across the colonies from 1860 onwards (Han & O’Mahoney, 2018). 

By commissioning this logic to resist what they perceive as Western imperialism in the form of the “gay rights agenda” (van Klinken, 2020), Pan-Africanist spokespersons are themselves presenting a form of cultural amnesia. Thus systematically ignoring anthropological and historical evidence of sexual diversity in societies across the continent, past and present, documented by scholars such as Murray, (1998), Tabengwa & Nicol, (2013). 

This autochthonous culturalization of queerphobia has no purpose in contemporary Africa, serving only to polarise communities and hinder social development, inducing dread, panic and exclusion. Consequentially, this form of sexual politics that frames sexual diversity as exogenous depreciates the work of queer organisations and denies LGBTI persons a claim to their African identity, construing them as radically ‘other’ of the Muntu – the African libidinal heterosexual subject naturally inclined to heterosexual relations, (Ndjio cited by van Klinken, 2020).

…popular and ideological representations of liberal democracy treat its promise of rights and empowerment for the individual as a fait accompli. This comes with a tendency to minimise the power of society, social structures, communal and cultural solidarities by assuming the nation-state both as the best form of political organisation and also as an encroachment on the autonomy of the individual.

In the face of this widespread populist version of Pan-Africanist rhetoric that denies LGBTI persons their citizenship, human rights and dignity, African LGBTI activists and communities have developed counternarratives to reclaim their agency, through a progressive Pan-Africanist lens (van Klinken, 2020). The success of these narratives, employs the same themes of democracy and liberalism, exploited by queerphobic Pan-Africanists, connecting these to African ideals such as unity and harmony, which are at the core of African identity. Ubuntu (also, Botho), the African concept of humanity, is one such ideology. It is difficult to explain in English, but ubuntu is popularised by the lexicon, “I am because you are”, a philosophy that all human life is connected. Activists across the continent have employed this philosophy of interconnected identities and collective agency for decades; it was a crucial component of the liberalisation campaigns that led to the independence of many African states, and the formation of regional institutions such as the African Union. Keevy (2009), however, disputes the use of ubuntu for the purpose of developing LGBTI advocacy and illustrates a point made by Nyamnjoh (2004), regarding assumptions of agency and human rights in the postcolonial liberal democratic state. Keevy notes instead, that shared values throughout sub-Saharan Africa regard homosexuality as un-African and alien to African culture, and as such, values such as ubuntu, are not the best tools to advocate for the rights of sexual minorities. This reading of ubuntu, therefore cautions that it must not be assumed that LGBTI organisations in Africa have access to similar advocacy spaces as their heterosexual counterparts within bodies such as the African Union, which idealise the heteronormative.

Nyamnjoh (2004) addresses this competing rhetoric of agency, asserting that popular and ideological representations of liberal democracy treat its promise of rights and empowerment for the individual as a fait accompli. This comes with a tendency to minimise the power of society, social structures, communal and cultural solidarities by assuming the nation-state both as the best form of political organisation and also as an encroachment on the autonomy of the individual. Assumed legal rights and political choices for the individual are automatically associated with economic, cultural and social opportunities, often packaged as though availability were synonymous with affordability (Nyamnjoh, 2004). “It seldom occurs”, Nyamnjoh notes, “that proponents of this doctrine distinguish between their rhetoric of rights and the reality of indignities that make self-determination an illusion for most”.

Understandably, scholars are divided on the centering of ubuntu in the rights campaign. As Keevy (2009) rightly points out, this philosophy has not previously protected sexual minorities, which makes its centering in modern campaigns contentious. Nyamnjoh elucidates this as the resistance of African modernity to external ideas of democracy, which challenge the collective agency promoted by regional 

institutions such as the African Union. Cultures, according to Nyamnjoh, tend to distance themselves from ‘liberalism gone wild’, primarily when the rhetoric of rights induces disunity and double standards. He goes on to explicate that discussions of democracy in contemporary Africa impair understanding of the interconnectedness of peoples, cultures and communities, when they insist narrowly on individual rights, freedoms and aspirations (Nyamnjoh, 2004).

For rights campaigns to be successful, it is instrumental that the objective they aim to achieve is placed in the context of the whole, illustrating how framing parts of the society as exogenous, for example, impedes on collective democracy. It is essential to note the sense of community that reigns across the African continent, which is engendered by the philosophy of ubuntu, and which this essay argues, cannot be divorced from any successful campaign for equality and protection of sexual minorities.This essay concurs with this application of African value ideals, such as ubuntu, at the centre of sexual minority rights campaigns in Africa. A form of “Queering the African”, in order to access, occupy and expand safe spaces to advocate for LGBTI advocacy in Africa.

Sexual Minority Rights in the African Human Rights System

Despite the Commission’s outward activity, it has been plagued by criticism, including its jurisprudence (Bekker, 2013), inefficiency and lack of coherent strategy (Viljoen, 2007). There have also been allegations that the Commission, preoccupied with attaining amicable resolutions to complaints brought to its attention, and its deferential attitude to states, allows states to evade accountability

While there have been several campaigns across the continent to promote and protect the right of sexual minorities, these have been met by varying degrees of abuse and dissent, including state-sanctioned violence and attacks on these minorities and non-state actors advocating for equality, under the guise of protecting African ideals from Western imperialism and propagation of the “gay agenda”. This section elucidates the position of the African Human Rights system, as established by the African Charter, regarding the rights of sexual minorities on the continent, which deviates from the political manipulation of African ideologies noted in the preceding section.

The African Human Rights system is grounded in the African Charter on Human and Peoples Rights, also known as the Banjul Charter, which was adopted in 1981. The Charter expounds the rights recognised in the African Human Rights system and establishes the African Commission on Human and People’s Rights’ (African Commission), a quasi-judicial body with the mandate to promote and protect human rights in Africa (Bekker, 2013). The Commission’s mandate also includes interpretation of the Charter at the request of states, AU organisations, or African Organisations recognised by the AU (Article 45), such as NGOs making a case against states violating human rights that they perceive to be enshrined in the Charter (Bekker, 2013).

It is supplemented by several protocols, including the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (African Women’s Protocol) and the Protocol to the African Charter on the establishment of the African Court on Human and People’s Rights. A separate charter in the rights of the child also exists. The continent-wide African human rights system has operated under the AU since the African Charter, and all other human rights instruments adopted under the auspices of the AU (Jjuuko, 2017).

Sub-regional regional economic communities such as; the Economic Community of West African States (ECOWAS), East African Community (EAC) and the Southern African Development Community (SADC), strengthen the African Human Rights system. Jjuuko (2017), observes that though these are economic blocs, based on treaties among various states, each is founded on the principle of protecting human rights, with established bodies mandated to enforce the conformation of member states to these founding principles. The African Commission has also enlisted the support of NGOs and national human rights institutes (NHRIs) to promote awareness of the Charter and its mandate across the continent, acknowledging that it cannot achieve this on its own (Viljoen, 2007). 

Despite the Commission’s outward activity, it has been plagued by criticism, including its jurisprudence (Bekker, 2013), inefficiency and lack of coherent strategy (Viljoen, 2007). There have also been allegations that the Commission, preoccupied with attaining amicable resolutions to complaints brought to its attention, and its deferential attitude to states, allows states to evade accountability. Viljoen also notes a lack of transparency by the African Commission, an absence of genuine dialogue between the Commission and states, coupled with a failure to adopt publicly available concluding observations of its reports. 

LGBTI Rights in the African Charter

The African Charter is the leading human rights instrument of the African human rights system and lays down all the rights that are recognised within this system; all other instruments refer to it. There is no mention of LGBTI rights in the African Charter. According to Jjuuko (2017), this is not an indication of omission but instead indicates that all rights enshrined in the Charter apply to LGBTI persons, just as they do to any other person.

The timing of the Charter’s adaptation speaks extensively to its intentions to establish equality for all. Jjuuko observes that the Charter was adopted on the heels of some of the bloodiest armed struggles against colonialism, which had portrayed African peoples and states as inferior to their European colonists (Jjuuko, 2017). The adoption also coincided with the end of some bitter dictatorships on the continent. The Charter sought to empower citizens of the continent who had been disempowered and disenfranchised by these experiences, as well as promote equality for all. Overall, the Charter aims to protect and promote equality of all Africans, regardless of sexual orientation or gender identity, directly oppositional to the political and religious ideology employed to promote homophobic and transphobic sentiment across the continent.

This objective of the African Charter; to promote and protect the human rights of all, is engendered within the international human rights instruments that inspire it. These include the UN Charter, as well as the Universal Declaration of Human Rights (UDHR, also UNDHR), which have been interpreted to protect LGBTI rights. In the African Charter’s preamble, it indicates an intention to complement, rather than replace the UN human rights system, directly recognising the UN Charter, as well as the UDHR (Organisation of African Unity (OAU), 1981). The Charter reiterates this commitment to international instruments in Articles 60 and 61, requiring the African Commission to draw inspiration from international law on human and peoples rights, including other African instruments, the UN Charter, the UDHR and other UN instruments. The Articles further urge the African Commission to take into consideration only practices that are consistent with international norms on human and people’s rights.

By this reading, the African human rights system complements the international human rights system, rather than diverting from it. The African Charter further illustrates its commitment to equality and non-discrimination in the utilisation of universalist, inclusive language that universally applies to all people, regardless of differences. There is evidence in the Charter’s application of phrases such as; ‘every person’, ‘every individual’, ‘every human being’ or ‘every citizen, and for negative rights, the use of ‘no one’ and in the plural it uses the term ‘all peoples’ (Jjuuko, 2017). The language makes no exclusion of particular groups, or individuals, and is therefore universally applicable to all under the jurisdiction of the African Charter. Individual rights are recognised within the Charter, such as rights to equality; freedom from discrimination; life and integrity of the person; dignity; and liberty and security of the person.

The African Commission and LGBTI Rights in Africa 

The African Charter provides for the creation of the African Commission on Human and People’s Rights (African Commission), charging it with the broad mandate to protect and promote human rights in Africa, including the examination of state party reports and investigating allegations of human rights violations enshrined in the African Charter (Bekker, 2013). 

As with the international human rights system, civil society participation is acknowledged as an essential component in the development of a robust human rights framework. In the case of the African Commission, NGOs are able to participate through a process of accreditation, also known as the granting of observer status. States, on the other hand, who are mostly neglectful of their reporting obligations, are ambivalent and often uncooperative in implementing decisions, recommendations or requests for information (Tabengwa & Waites, 2020: Viljoen, 2007). 

Over the years, the African Commission has made significant progress in its mandate, exceeding initial expectations and illustrating greater independence from the political mechanisms of the AU. Intrinsically, the African Commission became an avenue for LGBTI persons to advocate for legal equality and respite from state persecution.

In the Executive Council’s response to the African Commission’s decision to grant CAL observer status, African values and ideals were manipulated once again to exert political pressure, urging the Commission to, “take into account the fundamental African values, identities and good traditions” of the AU and to withdraw the observer status granted to the CAL

In May 2014, against the backdrop of increasing homophobic and transphobic sentiment sweeping across the continent, the African Commission adopted Resolution 275, it’s first-ever resolution on issues of sexual orientation and gender identity (SOGI). The Resolution 275: Resolution on the Protection against Violence and other Human Rights Violations against Persons on the basis of their Real or Imputed Sexual Orientation or Gender Identity, was adopted at the 55th Session of the African Commission, condemning violence against individuals based on their sexual orientation or gender status, calling upon states to end impunity for such acts of violence (Jjuuko, 2017). Although not legally enforceable against states, Resolution 275 acknowledged and condemned incidents of violence and discrimination against sexual minorities, gender identity and expression – a first in Africa. In addition to Resolution 275, the African Commission had decided to reverse, on reapplication, an earlier rejection to an application for observer status by the Coalition of African Lesbians (CAL), a feminist, pan-African organisation (Tabengwa & Waites, 2020), signalling a new era for LGBTI organisations and enabling their legitimate engagement with the African human right system.

Hailed internationally as a bold, historic move towards achieving gender equality and universal protection of sexual minorities, Resolution 275   set the African Commission on a direct collision course with the African Union Executive Council (AUEC), to whom the African Commission reports. The decision regarding CAL was met with open hostility by the Executive Council, ordering the Commission to consider revoking the organisation’s observer status and recommending changes to the Commission’s accreditation criteria (Tabengwa & Waites, 2020). In the Executive Council’s response to the African Commission’s decision to grant CAL observer status, African values and ideals were manipulated once again to exert political pressure, urging the Commission to, “take into account the fundamental African values, identities and good traditions” of the AU and to withdraw the observer status granted to the CAL (Jjuuko, 2017). For good measure, the Executive Council also threatened to withdraw the African Commission’s already slim funding (Tabengwa & Waites, 2020).

The African Commission had broken rank, and the AUEC’s response was not only a challenge to the Commission’s independence, but if acquiesced, it would bring into question one of the core objectives of the Commission – to interpret the African Charter independently and without political interference and to promote human and peoples rights.

In 2018, the African Commission eventually crumbled under pressure, adopting the AUEC’s recommended changes to mandate and working methods, as well as withdrawing CAL’s observer status. The decision, though disappointing, came as no surprise to human rights scholars and institutional critics alike, confirming that the African Commission was subservient to the AU’s political machinery and bolstering reports that the AU, mainly the Executive Council, did not wish to see the African Commission become a more effective, forceful and fully independent entity (Bekker, 2013; Tabengwa & Waites, 2020; Viljoen, 2007). Circuitously, this decision sent a clear message not only to CAL and other LGBTI advocacy groups, but to the world, that the African Union is not a safe space for the advocacy of LGBTI persons.

The decision and pressure by the AUEC, severely undermined the African Commission. It also undermined the integrity of the AUEC itself, creating an impression that the heads of state perceived a need to intimidate commissioners serving on the Commission, making them understand that they served at the benevolence of states and their powers could be taken away just as easily as they were bestowed. A need to “put them in their place” (Tabengwa & Waites, 2020). In theory, while commissioners are appointed to the ACPHR through nomination by their governments, their duty is to the ACPHR, and not to heads of state. It cannot be denied however, that this relationship itself creates opportunity for bias, as commissioners may feel a personal obligation to represent national values and interests. This essay proposes, it might be a worthy endeavor therefore, for civil society and activists escalating human rights violations to the ACPHR to consider the impact of this relationship on bias and objectivity of commissioners serving on the African Commission. An instance of this is elucidated in the CAL documentary film The Commission: From Silence to Resistance (2017) where an attendee of the public gallery (Fadzai Muparutsa), remembers a commissioner who had previously voted to grant CAL observer status, withdrew her vote mere hours later, in the public gallery after being allegedly pressured to do so. 

Implications of these decisions go beyond their quasi-judicial value, they also impact on the lived experiences of LGBTI persons in Africa, facing abuse daily, with shrinking space to seek judicial and 

political reprieve.”Common abuses against LGBTI persons in Africa include; rape, denial of education, denial of access to justice, denial of appropriate health services, exclusion from social circles, family denials, exclusion from succession or inheritance, hate speech and in extreme cases; murder. All these are unfortunately not seen as severe violations of human rights, which they would have been if they had been committed against any other category of persons” (Jjuuko, 2017).

While decisions such as these by the AU are certainly dispiriting, they have not spelt the end of the line for LGBTI persons and advocates on the continent. Tabengwa & Waites (2020) opine that while such stances have negatively impacted the achievement of equality for sexual minorities in Africa, other mechanisms have presented alternative opportunities. The UPR and the African Peer Review, at the United Nations Human Rights Council (UNHRC) and African Commission respectively, have presented alternative spaces for dialogue between states and CSOs. Encouragingly, LGBTI NGOs are increasingly utilising these spaces to place human rights violations on the agenda. Most notably, these regional and international human rights mechanisms have become key strategy points to shine the light on state sanctioned human rights violations, underscoring the critical role of NGOs as the fourth estate.

External pressure, Internal results 

In the years following the U-turn made by the African Commission, what has become increasingly evident is the need for African LGBTI rights organisations to explore more innovative means to secure the rights of sexual minorities. This has been made possible, to an extent, through the UPR and African Peer Review. In some cases, this has required approaching these not as SOGI rights, which are themselves often viewed with less priority, but addressing the barriers that the denial of these rights creates in accessing basic rights such as health and education. It is the opinion of this essay that there lies untapped opportunities in widening the African LGBTI rights beyond SOGI rights, a potentially successful endeavour, is to converge the campaign with existing state and mutli-state organisational priorities such as health, education, agriculture and social development.

It would be remiss not to emphasize the immense value that lies in regional and global partnerships, which advocacy groups should also exploit to build external pressure to influence local power structures and achieve equality. In 2013, the Office of the United Nations High Commissioner for Human Rights (OHCHR) launched UN Free & Equal, a “public information campaign aimed at promoting equal rights and fair treatment of LGBTI people” (UN, n.d.). This platform provides free access to resources and materials that are curated by the UN and can be used by advocacy groups to advocate for LGBTI people. 

While education campaigns within the continent itself are crucial to building knowledge and critical mass within the continent, international platforms such as the UN also provide spaces for advocacy groups from within the continent to build external, influential support.

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