Professional Documents
Culture Documents
Pierre de Vos
University of Cape Town
Introduction
It is at best precarious to write about the African continent. There are 47
countries on the African continent, including the disputed territory of
Western Sahara. However, the islands off the coast are also usually listed
as African, bringing the total to 53. It is therefore inaccurate and unwise
to write about Africa as if it is a monolithic entity and as if its inhabit-
ants share a set of attributes and characteristics that bind them together
into one social entity. Nor is it possible to make generalisations about
the attitudes and values of the residents of all the nation states that are
grouped together under the (colonially invented) rubric of ‘Africa’. Neither
is it possible to generalise about the legal systems, and — for the purposes
of this article — the manner in which those of us who experience a phys-
ical and emotional attraction for members of the same sex and act on it1
(whom I refer to as sexual minorities2 in the remainder of this article)
are viewed by the population and how our conduct is regulated by law
in the individual nation states. There are different ‘Africas’ — just as there
1 I deliberately situate myself, the author of the text, as a member of the sexual minority
in order to signal that I am not writing this text as a disinterested bystander. I am a
white, male, South African who views himself as ‘progressive’ and a man who desires
and who has sex with other men and who, while skeptical about invoking constructed
identity categories, nevertheless sometimes self-identifies as gay. By acknowledging this
positionality, I signal that I write from a specific point of view and that this influences
what I write.
2 I use the term emancipation to signal that I believe the struggle against the oppression
of sexual minorities is not only aimed at achieving formal legal equality for all, but has
a far more more comprehensive aim, namely to set sexual minorities free not only from
legal, but also from social, or political restrictions. A person can formally be free when
laws discriminating against her is abolished, while remaining deeply rooted societal
prejudices against same sex love, social practices that assume different sex love as the
norm and same-sex love as aberrant and religious beliefs and practices that legitimise
second class treatment of sexual minorities, can narrow the life chances and opportuni-
ties of that individual to flourish.
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are different ‘Europes’ and different ‘Americas’. For this reason, I contend
that it is important to tread carefully when writing about the emancipation
of sexual minorities on our continent.3 In this article I deliberately focus
on two specific examples — South Africa and Uganda — where reliance
on a human rights discourse and the legal mechanisms associated with
this discourse has (at least formally) yielded dramatically different results.
Although I suspect that the broader points I wish to make may be appli-
cable beyond South Africa and Uganda, I remain keenly aware of both the
conceptual and strategic problems inherent in making sweeping generali-
sations about a continent that is rich in diversity.
In this article my thesis is as follows: in countries where sexual minor-
ities are branded as somehow outside the polity because they are believed
to be (or depicted as) subhuman or as engaged in practices that are alien to
the nation, it can be strategically deeply problematic to invoke the human
rights paradigm to fight for their emancipation. The protection of human
rights matter most to those who have nothing but their mere existence
as human beings to protect them, those who are defined as outside the
polity, as metaphorically or literally stateless.4 However, those of us who
are branded as pigs and dogs, as agents of alien ‘un-African’ beliefs and
practices, and hence as falling outside the definition of the nation or even
the polity, can easily be branded as not deserving of any protection and
thus not covered by human rights protection. Invoking the human rights
discourse and attempting to rely on human rights based mechanisms
to deal with this metaphoric or literal expulsion from the polity can be
ineffectual or, worse, counter-productive. This problem is exacerbated
in countries in which the very idea of human rights can be stigmatized
as part of a neo-colonial project aimed at imposing ‘Western’ values on
the population of a country already devastated by colonial conquest and
continuing globalization. (Often well-meaning) Western donors, Western
governments and Western-based NGOs typically invoke a human rights
paradigm when they challenge attitudes and practices in various countries
on the African continent where sexual minorities are marginalized and
made vulnerable and where they are exposed to legal sanction and violence
by the state or private individuals. However, I ask whether this approach
is strategically the most effective to begin the process of the emancipation
3 The difficulty is exacerbated by the fact that I would have been classified as ‘white’ by
the apartheid state that I am male identified, and that I am a constitutional law scholar,
as it may well be argued that by writing about the topic at all, I am practicing a form of
neo-colonialism.
4 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace, &
Jovanovich, ), .
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couples who enter a civil union marriage or a civil union civil partnership
than the law affords to heterosexual couples under the traditional mar-
riage regime.7 The past twenty years has therefore seen a radical change in
the manner in which the South African law treats sexual minorities. This
has led to a dramatic improvement in the life circumstances of some indi-
viduals who identify themselves as gay or lesbian, especially among middle
class individuals who live in the suburbs of the large cities.
But the dramatic legal victories have not eradicated widespread preju-
dice against men and women who experience same-sex sexual and emo-
tional desire. Such prejudice remains deeply embedded among the majority
of South African citizens.8 (Prejudice based on race, sex, gender, HIV
status, nationality, disability, religion and the like has also not been eradi-
cated in South Africa, despite the constitutional prohibition against unfair
discrimination based on these grounds.) A 2008 study surveying social
attitudes in South Africa confirmed that the legal advances made with the
assistance of the powerful anti-discrimination clause in the South African
Constitution has not led to a dramatic change in the entrenched negative
attitudes towards sexual minorities. Despite the legal gains, the number
of respondents in South Africa who indicated their belief that ‘homosex-
uality’ is ‘always wrong’ only declined marginally from 84 in 2003 to
82 in 2007.9 A Pew Research Centre survey (asking a different research
question) published in 2013 found that 61 of South Africans surveyed
believed that ‘homosexuality’ should never be accepted with little change
7 The Civil Union Act allows for both heterosexual and same-sex couples to enter into
a ‘Civil Union’, but a Civil Union is defined as the ‘voluntary union of two persons
who are both years of age or older, which is solemnised and registered by way of
either marriage or a civil partnership, in accordance with the procedures prescribed
in this Act, to the exclusion, while it lasts, of all others’. For a critique of the racial and
gender dimensions of the Civil Union Act see Elsje Bonthuys ‘Race and Gender in the
Civil Union Act’, South African Journal on Human Rights (): –. Bothuys
argues that the Civil Union Act strengthens the position of civil marriage as the ideal
for all other relationships and implies that other forms of marriage, in particular cus-
tomary marriage, are inflexible and incapable of accommodating same-sex couples.
She also questions the premise of the Act based on a global gay identity that does not
accord with the identities or practices of many African people who have same-sex rela-
tionships. Further, she argues that the acceptance of same-sex practices within African
communities is often conditional upon the adoption of very stereotypically patriarchal
roles and identities within these relationships. This is similar to the way in which the
Civil Union Act reserves legal recognition for those same-sex relationships that mimic
marriage.
8 B. Roberts and V. Reddy, ‘Pride and Prejudice: Public Attitudes Towards Homo-
sexuality’, HSRC Review . (November ): –, accessed on July at http://
www.hsrc.ac.za/HSRC_Review_Article-.phtml.
9 Roberts and Reddy, ‘Pride and Prejudice’, .
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from previous years.10 There might be conceptual problems with the con-
flation of the concept of ‘homosexuality’ with that of same-sex sexual acts
or desire implicit in the surveys quoted because of the particular Western
roots of the notion of a homosexual identity. As homosexual identity is
historically contingent, it may be impossible to invoke homosexual iden-
tity in South Africa as a monolithic, stable and fixed concept that mirrors
that of the ‘average’ gay man or lesbian living in New York, Sydney or
London, if such an ‘average gay man or lesbian’ exists.11 Despite the var-
iations in the survey results and despite the conceptual difficulties with
such surveys in the South African context, what is clear is that the gap
between the promise of sexual equality contained in the South African
Constitution and the attitudes of a majority of South Africans about sexual
minorities remains large. While the prohibition on unfair sexual orienta-
tion discrimination contained in the Constitution has thus led to signif-
icant legal changes, and while — in formal legal terms — it has led to the
eradication of discriminatory measures against those of us who experience
same-sex desire or act on it, these legal victories have not radically altered
the lived experience of sexual minorities in South Africa. (Once again,
these legal advances impact differently on different people, depending on
other factors such as the person’s class, race, gender and whether he or she
lives in a rural or urban setting.) Acts of violence and discrimination, most
notably the notorious phenomenon of ‘corrective’ rape, directed at certain
members of sexual minorities are well documented.12
South Africa is not the only country on the continent where there
appears to be a gap between the legal status of sexual minorities and their
lived reality. Apart from South Africa, same-sex sexual acts are also legal in
Benin, Burkina Faso, Cape Verde, Congo, Chad, Cote d’Ivoire, Democratic
Republic of Congo, Djibouti, Equatorial Guinea, Gabon, Guinea-Bissau,
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Madagascar, Mali, Niger, Rwanda and Sao Tome & Principe.13 This does
not mean that the South African context is not dramatically different:
unlike in the countries listed, in South Africa discrimination is outlawed
by the supreme Constitution and laws that discriminate have been declared
invalid. This legal regime does not always protect everyone who lives in
South Africa, given the historical inequities of apartheid, but many white
men who engage in same-sex practices and identify as gay now have access
to the financial resources to render themselves far more visible and to insu-
late themselves from much of the violence and discrimination experienced
by other sexual minorities in the country.14 While accurate data about atti-
tudes regarding same-sex sexual desire and acts in these countries are not
available, anecdotal evidence suggest and some academic authors assert
that same-sex sexual acts are widely frowned upon by a majority of people
across the continent and that the absence of legal regulation does not reflect
general acceptance of sexual minorities.15 The fact that some same sex acts
are criminalised in the majority of countries on the continent, despite the
fact that such criminalisation contravenes the provisions of the Covenant
of Civil and Political Rights, an international human rights treaty that has
been signed and ratified by governments across the continent, provides
further evidence of the gap that exists between the guarantees contained
in widely accepted human rights treaties, on the one hand, and the prac-
tices of states and the beliefs of the majority of the population in that state,
on the other.16 The existence of this gap is not surprising. A 2014 study
by the Pew Research Centre found extraordinarily high degrees of intol-
erance towards ‘homosexuality’ in parts of the continent. When asked
whether they personally believed that ‘homosexuality’ is morally accept-
able, morally unacceptable, or is it not a moral issue, 98 of respondents
in Ghana, 95 of respondents in Egypt, 93 of respondents in Uganda and
88 of respondents in Kenya and 68 of respondents in Senegal indicated
that they believed it was always morally unacceptable.17
13 L. P. Itaborahy and J. Zhu, State-Sponsored Homophobia: A world survey of laws.
(ILGA, ), .
14 See also Neville Hoad, ‘Between the White Man’s Burden and the White Man’s Disease:
Tracking Lesbian and gay Human Rights in Southern Africa’, GLQ: A Journal of
Lesbian and Gay Studies (): .
15 See B. Kennedy, ‘Homosexuals in the Periphery: Gay and Lesbian Rights in Developing
Africa’, Paper Nebraska Anthropologist (): .
16 See, for instance, Toonen v. Australia, Communication No. /, U.N. Doc CCPR/
C//D// ().
17 See the Pew Research Centre, ‘Global Views on Homosexuality’, April , accessed
on June at http://www.pewglobal.org////global-morality/table/homo-
sexuality/. The surveys quoted are not without its difficulties as they rely on the notion
of ‘homosexuality’ and do not engage with questions of same sex desire and same sex
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acts which are not brought under the rubric of this moniker. It must be noted that
such surveys do not accurately capture the complex nature of attitudes towards sexual
minorities. In many countries in Africa there appears to be a de facto ‘culture of toler-
ance (or indifference) to same-sex sexuality’ despite the sometimes harsh laws and elite
homophobic rhetoric, see Marc Epprecht ‘Sexual Minorities, Human Rights and Public
Health Strategies in Africa’, African Affairs, (): –. As long as same-sex
sexuality is expressed in private and take ‘place under the umbrella of heteropatriarchal
constructions of family, faith, and African identity’ some societies are willing to turn a
blind eye (Epprecht ).
18 See Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex’, University
of Chicago Legal Forum (); and Kimberlé Crenshaw, ‘Mapping the Margins:
Intersectionality, Identity Politics, and Violence against Women of Color’, Stanford Law
Review (): –.
19 R. Muhumuza, ‘Ugandan court invalidates anti-gay law’, August , Washington
Post accessed on November at http://www.washingtonpost.com/world/
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ugandan-court-invalidates-anti-gay-law////fc-a-e--
dabe_story.html.
20 There have been renewed attempts to re-introduce the Anti-Homosexuality Bill (or
another version of it) in the Ugandan legislature. This suggests that despite the tac-
tical victory in the court, this will be short-lived. See ‘Uganda seeks to re-introduce
anti-gay Bill’, accessed on February at http://allafrica.com/view/group/main/
main/id/.html.
21 R. Hodes, ‘Uganda throws a party to celebrate passing of anti-gay law’, The Guardian
April , accessed on July http://www.theguardian.com/world//apr//
uganda-celebrates-anti-gay-law.
22 Arendt, Origins, .
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and gender are distinct — may be a rejection of the western imposed tax-
onomies of sex and gender; it suggests an investment in the idea that sex
and gender are both biologically determined and are thus interchangeable.
In this view, sex equals gender and both are biologically determined and
fixed.
Section 2 of the Act states that a person commits the ‘offence of homo-
sexuality’ not only if he or she actually engages in sex with somebody
of the same sex (or gender) but also if he or she ‘touches another person
with the intention of committing the act of homosexuality’. ‘Touching’ is
defined as including touching with any part of the body, with anything
else, through anything. This means that kissing, fondling, caressing ‘with
the intention of proceeding to have sex with somebody else of the same sex’
(or gender), is a crime.23 If convicted, the person must be sentenced to life
imprisonment. The law could thus require a court to sentence a person to
life imprisonment for kissing or touching another person. It is important
to note that the wording of the Act focuses on the crime of ‘homosexu-
ality’, conflating same-sex sexual acts with the identity of being a ‘homo-
sexual’. Furthermore, the Act states that a person who purports to contract
a marriage with another person of the same sex commits the ‘offence of
homosexuality’ and shall be liable, on conviction, to imprisonment for life
(section 12).24
The wording is telling because while same-sex sexual acts (the ultimate
target of the legislation) cannot easily be dismissed as a Western import,
it is far easier to dismiss ‘homosexuality’ as an identity as a Western
23 The content of this provision has some common characteristics with apartheid era leg-
islation in South Africa, most notably the ‘men at a party law’ adopted in the late nine-
teen sixties as an Amendment to the then Immorality Act of . Section A() of that
Act stated that: ‘A male person who commits with another male person at a party an
act which is calculated to stimulate sexual passion or to give sexual gratification, shall
be guilty of an offence’. In one notable case in , a conviction under the section was
reversed on appeal by the Supreme Court because the court ruled that ‘a party’ was not
created when a police officer entered a room in a gay bathhouse because the two men in
the room jumped apart when he switched on the light. See Edwin Cameron, ‘Sexual ori-
entation and the Constitution: a test case for human rights’, South African Law Journal
(): –.
24 Section reads as follows:
‘() A person who purports to contract a marriage with another person of the same sex
commits the offence of homosexuality and shall be liable, on conviction, to impris-
onment for life.
() A person or institution commits an offence if that person or institution conducts
a marriage ceremony between persons of the same sex and shall, on conviction, be
liable to imprisonment for a maximum of seven years for individuals or cancella-
tion of licence for an institution.’
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25 See for instance E. Evans-Prichard, ‘Sexual inversion among the Azande’ American
Anthropologist (); G. Herdt, Same Sex, Different Cultures: Exploring Gay and
Lesbian Lives (Boulder: Westview Press, ); and Neville Hoad, African intimacies:
Race, homosexuality, and globalization (Minneapolis: University of Minnesota Press,
).
26 De Vos, ‘The Constitution’, .
27 Section reads as follows:
‘() A victim of homosexuality shall not be penalized for any crime committed as a
direct result of his or her involvement in homosexuality.
() A victim of homosexuality shall be assisted to enable his or her views and con-
cerns to be presented and considered at the appropriate stages of the criminal
proceedings.’
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African continent, I do not mean to suggest that the struggle is not impor-
tant and that there is no need to address the plight of various sexual minor-
ities in various countries on our continent. On the contrary, I believe that
this struggle is a defining one. The question raised by this article is rather
in terms of strategy: What are the most astute ways in which the struggle
could be waged most effectively? Is it exclusively through the deployment
of the human rights discourse, or are there other ways of countering the
powerful rhetorical moves of those who resist the idea that sexual minori-
ties are entitled to be treated with equal concern and respect?
There are no easy answers to these questions. It may well be — as sug-
gested above — that in a certain context, at certain political moments, in
particular settings, the deployment of a human rights framework may be
the (or one of the) most effective means through which to wage the struggle
for the emancipation of sexual minorities. But in other contexts, where
the political and legal realities do not provide sufficient space to engage in
an effective human rights based struggle or where such struggle and the
human rights framework used to wage them can be effectively stigmatised
and delegitimised, other strategies may be needed.
My first suggestion is that it may be counter-productive in certain con-
texts for sexual minority activists to invoke (and to organise around) a
Western-style homosexual identity — as if all men who have sex with men
and all women who have sex with women across the continent can neatly
be fitted into the category of ‘homosexual’. Focusing on feelings and prac-
tices — rather than on what may be stereotyped and delegitimised as a
Western imposed universal homosexual identity — and individualising
struggles against the legal criminalisation of such practices and feelings
may open possibilities and political spaces not otherwise available in a
specific context. Often this struggle will be fought over the meaning of
the past and its legacies as it will be about the significance of the present.
As I contended above, one of the most potent arguments deployed against
same-sex love on our continent is that it is un-African, not part of African
tradition, and hence a Western imposition, a form of colonial disposses-
sion and destruction of a mythical past. However, it is far more difficult
to contend that same-sex acts did not occur among Africans before the
colonial encounter than to contend that homosexuality was not known on
the continent before that encounter.33
33 Excellent recent scholarship has emerged doing exactly this. See Marc Epprecht,
Hungochani: A History of A Dissident Sexuality in Southern Africa (Montreal: McGill-
Queen’s University Press, ); Ruth Morgan and Saskia Wieringa, Tommy Boys,
Lesbian Men and Ancestral Wives (Johannesburg: Jacana Media, ).
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34 Kay Shaffer and Sidonie Smith, Human Rights and Narrated Lives: The Ethics of
Recognition (New York: Palgrave McMillan, ).
35 Works like Sokari Erkine and Hakima Abbas (eds.) Queer African Reader (Oxford:
Fahamu Book and Pambazuka Press, ) is illustrative of this practice.
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