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CHAPTER 1

The Limit(s) of the Law


Human Rights and the Emancipation of Sexual
Minorities on the African Continent

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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of sexual minorities in such settings. By posing this question I am not


making an absolute claim that in certain settings, human rights cannot be
effective to advance the struggle for the emancipation of sexual minorities.
I deliberately leave that question open. Instead, I ask whether there are
ways in which one might engage in such discussions and in struggles for
the emancipation of sexual minorities that take cognizance of the history
of human rights and the complex set of power relations within which such
struggles occur? If there are such avenues for strategic engagement, what
might they be? In the remainder of this article, I attempt to answer these
questions.

The prohibition on sexual orientation discrimination in


post-apartheid South Africa and its consequences
When South Africa finally became a democracy in 1994, the legal transi-
tion was facilitated through the adoption of a supreme Constitution that
contained a judicially enforceable Bill of Rights. This Bill of Rights was the
first in the world to contain an explicit, enforceable, prohibition on unfair
sexual orientation discrimination. There are many complex reasons why
the 1994 Constitution (an interim Constitution later replaced by the 1996
Constitution) contained such a provision, including the political dynamics
in the liberation movement and the decisive intervention of powerful lead-
ers.5 In the 20 years since South Africa became a democracy, the South
African Constitutional Court has handed down a string of important judg-
ments affirming the legal equality of all citizens regardless their sexual ori-
entation.6 (It has also used the prohibition against discrimination to strike
down laws and practices discriminating on the basis of race, HIV status,
gender and nationality.) Ultimately this led to the adoption of the Civil
Union Act (Act 17 of 2006) by the South African Parliament, a law that
arguably provides for the legal recognition of same-sex marriage in South
Africa and also purports to extend the same rights and status to same-sex
5 See Pierre de Vos, ‘The “inevitability” of same-sex marriage in democratic South
Africa’, South African Journal on Human Rights  (): –.
6 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice
and Others  () BCLR  (CC); Satchwell v President of the Republic of South
Africa and Another [] ZACC ;  () SA  (CC);  () BCLR  (CC); J and
Another v Director General, Department of Home Affairs, and Others [] ZACC
;  () SA  (CC);  () BCLR  (CC); Du Toit and Another v Minister of
Welfare and Population Development and Others (Lesbian and Gay Equality Project
as amicus curiae) [] ZACC ;  () SA  (CC);  () BCLR  (CC);
Minister of Home Affairs and Another v Fourie and Another (CCT /) [] ZACC
;  () BCLR  (CC);  () SA  (CC) ( December ); Gory v Kolver NO
and Others (CCT/) [] ZACC ;  () SA  (CC);  () BCLR  (CC)
( November ).

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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,

10 Pew Research Centre, ‘The Global Divide on Homosexuality: Greater Acceptance in


More Secular and Affluent Countries’  June , accessed on  July  at http://
www.pewglobal.org////the-global-divide-on-homosexuality/.
11 On this point, see Pierre de Vos, ‘The Constitution made us queer: The sexual orien-
tation clause in the South African Constitution and the emergence of gay and lesbian
identity’, in Sexuality in the Legal Arena, eds. Didi Herman and Carl Stychin (London:
Athlone Press, ), ; Zackie Achmat, ‘Apostles of Civilized Vice’ ‘Immoral prac-
tices’ and ‘unnatural vice’ in South African prisons and compounds –’, Social
Dynamics  (): ; Munro, Brenna M., South Africa and the Dream of Love to
Come: Queer Sexuality and the Struggle for Freedom, (Minnesota: University of
Minnesota Press, ), xiii; and Graeme Reid, How to be a Real Gay: Gay Identities in
Small-town South Africa, (Scottsville: University of KwaZulu-Natal Press, ).
12 A Kelly, ‘Raped and killed for being a lesbian: South Africa ignores “corrective”
attacks’, The Guardian,  March , accessed on  September  at http://www.
theguardian.com/world//mar//eudy-simelane-corrective-rape-south-africa.

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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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As I pointed out in the introduction, it is difficult and politically prob-


lematic to make sweeping generalizations about attitudes on our conti-
nent. But even within a specific country where surveys show that intol-
erance is high, it is problematic to assume that all members of the sexual
minority experience extreme forms of prejudice. The intersectionality of
race, gender, class, sexuality, ethnicity, nationality and other markers of
identity18 and the interplay between such factors render any generaliza-
tion about individuals solely based on their sexual orientation (however
this concept might be defined) meaningless. In this regard, it is important
to emphasize that not all people in all parts of the continent who experi-
ence same sex desire or act on it embrace a monolithic Western-style gay,
trans, bisexual or lesbian identity. However, with this caution in mind, I
contend that — as is the case in South Africa — there is a vast gap between
the promise held out by human rights principles relating to sexual ori-
entation discrimination and the lived reality of many sexual minorities.
This gap between the promise of equality contained in the South African
Constitution and in international human rights treaties, on the one hand,
and the lived reality of sexual minorities on the other, in certain instances
stem from the widespread fear, hatred, ignorance and prejudice of vast
sections of the population of a country. This is exacerbated where the
condemnatory attitudes are reflected in discriminatory legislation that
clashes directly with human rights guarantees contained in some domestic
Constitutions and in international human rights law treaties. For example,
Uganda signed and ratified the Covenant on Civil and Political Rights on
21 June 1995, yet in 2014 its Parliament adopted a law that imposed heavier
criminal sanctions against same-sex sexual acts in contravention of its
international human rights obligations. Although the Ugandan Supreme
Court invalidated this law on technical grounds19 I nevertheless believe

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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it fruitful to examine the Ugandan legislation to illustrate the yawning


gap between what that country’s international human rights obligations
require regarding the legal regulation of same-sex desire and the actions
of its government.20

The case study of Uganda: Criminalizing ‘Western style


homosexuality’
The Ugandan ‘Anti-Homosexuality Act’ is — from a legal perspec-
tive — quite a peculiar document. The Act is conceptually odd for several
reasons, most notably because it conflates same-sex acts with the status
of ‘homosexuality’. It is not difficult to see why, for political reasons, the
Act refers extensively to homosexuality and homosexuals when it means
to refer to same-sex sexual acts and intimacies. Homosexuality has polit-
ically been presented in Uganda as a proxy for all the geopolitical and
moral evils besetting the nation. Thus President Yoweri Museveni has pre-
sented ‘homosexuality’ as a Western import into Uganda and blamed it
for derailing economic and spiritual advancement, darkening the future
of the nation.21 Moreover, several politicians have depicted ‘homosexuals’
(equated with same-sex sexual acts and intimacy) as existing beyond the
borders of citizenship or even humanity and thus not capable of being
bearers of rights. Ironically, as pointed out above it is precisely at that
moment when human beings are no longer ‘citizens’ or are regarded as
‘subhuman’ that their human rights become crucial.22
The import of this becomes clear when looking at the specific provisions
of the Act. The Act defines a ‘homosexual’ to mean ‘a person who engages
or attempts to engage in same gender sexual activity’ and ‘homosexuality’
as same gender or same-sex sexual acts (section 1). Given the obviously
constructed nature of gender (as opposed to sex which is supposedly based
on biological characteristics) it is unclear how a judge will be able to decide
what the ‘gender’ of an accused person or their sexual partner is. The con-
ceptual confusion — if one accepts that generally accepted categories of sex

ugandan-court-invalidates-anti-gay-law////fc-a-e--
dabe_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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import.25 After all, the notion of homosexuality only arose in Europe


towards the second half of the nineteenth century, and it is hard to contest
the claim that a monolithic, universal homosexual identity did not exist
on the African continent prior to the colonial encounter of dispossession
and oppression.26 In this manner, the Act can be presented as targeting
the Western imported notion of ‘homosexuality’ in Uganda, something
that purportedly sullies the ‘purity’ of the nation. It thus promotes the
discourse that those who champion the rights of sexual minorities are
engaged in a neo-colonial project which aims to impose ‘depraved’ and
‘un-African’ values on the people of Uganda.
The Anti-Homosexuality Act further states that a person who attempts
to commit the offence of homosexuality commits a felony and is liable,
on conviction, to imprisonment for seven years (section 4). This means a
person who attempts to kiss or caress another person ‘with the intention
to commit the crime of homosexuality’ could be found guilty of a crime
and must be sentenced to 7 years imprisonment. The Act also states that a
‘victim’ of homosexuality cannot be penalised for any crime committed as
a direct result of his or her involvement in homosexuality (section 5).27 The
section provides an incentive for one of the parties to same-sex conduct to
testify against the other party by providing indemnity to him or her on the
basis that he or she was the ‘victim’ of the so called ‘homosexual act’. This
section does two things: first, it allows one of the two parties to a sexual
act to protect themselves against prosecution by claiming to be the victim,
which renders it more likely that one person will testify against another.
Second, it exposes individuals who engage in same-sex sexual activity to
assault and worse: where one person assaults or kills another person and
alleges that the victim of the assault tried to have sex with him or her, this
may provide a complete defence to that assault or murder and could render
the aggressor innocent. It is a legal provision that endangers the lives of
every Ugandan who experiences or acts on same-sex sexual desire or is

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.’

10
T h e L i m i t(s) of t h e L aw

alleged by others to experience or to have acted on such desire. The section


thus places the ‘homosexual’ beyond the protection of the law and renders
his or her life not worth protecting. The ‘homosexual’, having been defined
as somebody who threatens the nation by wishing to import ‘foreign’,
Western notions of ‘homosexuality’ into the nation, is placed beyond the
scope of the laws of the country and in effect becomes a non-citizen.
In the light of the discussion of the Ugandan Anti-Homosexuality Act
in this section, I now turn to the difficulties associated with invoking a
human rights discourse to challenge the discrimination, persecution and
oppression of sexual minorities across the continent.

Problematising human rights discourse in post-colonial


settings
Human rights as neo-colonial imposition
As the legal progress in South Africa over the past twenty years have shown,
human rights mechanisms can — in certain circumstances and under
certain conditions — act as powerful and effective tools in the struggle
for the emancipation of sexual minorities. The gradual state-by-state
court-led legalization of same-sex marriage in the United States presents
another example of how general human rights principles can sometimes
be deployed in the struggle for the emancipation of sexual minorities. But
conditions are not always conducive for the effective deployment of human
rights to fight this necessary and urgent battle. In considering the effec-
tiveness of human rights in post-colonial settings, the broader political
dynamic must be considered. Colonialism has wrought devastation across
the African continent. Through the subjugation of peoples, colonial powers
set themselves up as ‘civilising agents’ in opposition to indigenous peoples
who had to be depicted as ‘uncivilised’, even ‘savage’. Given the colonial
history of most of the African continent, talk of human rights based chal-
lenges to beliefs and practices that are depicted (often wrongly) as pro-
foundly African themselves can be branded as part of the neo-colonial
project to denigrate Africans as ‘savages’ in need of Western-led enlight-
enment in the form of respect for forms of human rights. The danger then
arises that those who defend the rights of sexual minorities can be depicted
and dismissed as patronizing, meddlesome, wannabe ‘saviours’ of the sup-
posed victims on the receiving end of ‘African savagery’.28 In this polit-
ical context, it becomes strategically and politically difficult (one may ask

28 M. Mutua, Human Rights: A Political and Cultural Critique (Chicago: University of


Pennsylvania Press, ), .

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C on t e st e d I n t i m ac i e s

whether it also becomes ethically problematic) to invoke the human rights


discourse in the fight against the oppression of sexual minorities.
The way in which politicians and the general population of countries
on the continent that discriminate against sexual minorities are depicted
in some parts of the Western media (relying on arguments that a specific
country is violating the rights of sexual minorities) and by some human
rights activists fighting against the oppression of sexual minorities may
reinforce perceptions that demands to respect the rights of sexual minori-
ties is part of a neo-colonial project and are inherently racist. This dynamic
is not only at play when the human rights discourse is invoked to chal-
lenge discrimination against sexual minorities, but it remains one of the
most potent arguments against the deployment of human rights in defence
of sexual minorities. In this view, the human rights corpus falls within
the historical continuum of the Eurocentric colonial project, in which
actors are cast into superior and subordinate positions.29 Mutua uses an
extended metaphor to make this point, arguing that a ‘grand narrative’
underlying the entire human rights discourse invoked by international
organisations and Western governments is one that pits ‘savages, on the
one hand, against victims and saviors, on the other.30 In this grand narra-
tive, international organisations and Western governments play the role of
patronising ‘savior’ (much as Western governments did during the process
of colonization) of a minority of victims (members of the sexual minority).
Western governments and international organisations (and, one can add,
Western media outlets) thus depict African governments and the majority
of their citizens as ‘savages’ who do not respect the most basic rights of
their fellow citizens and need to be reprimanded and corrected by Western
governments and non-governmental organisations in order to help protect
the innocent victims of this ‘barbarism’. After the adoption of the Anti-
Homosexuality Act in Uganda the US imposed sanctions on that coun-
try.31 The Ugandan government responded defiantly to the move. When
invoked in this manner, human rights can be stigmatised as in essence
representing a set of normative commitments that neatly dovetail with the
arrogant and superior attitudes of many in the West towards African gov-
ernments and the citizens of African countries.

29 Mutua, Human Rights, –.


30 Mutua, Human Rights, .
31 P. Baker, ‘Uganda: Anti-Gay Law Draws Sanctions’,  June , New York Times
accessed on  February  at http://www.nytimes.com////world/africa/
uganda-anti-gay-law-draws-sanctions.html?_r=.

12
T h e L i m i t(s) of t h e L aw

‘Homosexuals’ depicted as other, ‘un-African’


Another implication of the rhetoric that same-sex sexual desire and acts
are ‘un-African’ closely tracks the anti-colonial nationalists attitudes that
understandably prevail, especially among elites, in many post-colonial
African countries. By invoking the existence of a uniform and coherent
national identity — often ironically centred around the geographical state
whose borders were imposed by colonial powers — political elites often
assert that same-sex desire and practice and the possible identity associ-
ated with such practices and desires are irreconcilable with this national
identity. Gay men and lesbians, in this view, ‘do not belong, they become
“squatters” in society, and therefore need to be displaced’.32 By presenting
those who experience same sex sexual desire and act on it as individuals
to whom no rights accrue, (some) African leaders and the majority of the
populations (or at the least a majority of its elites) of some African coun-
tries in effect withdraw citizenship rights from sexual minorities on the
basis of a preferred gender identity. Where such arguments take firm root,
it has a profound negative effect on the ability to invoke successfully human
rights protection to challenge legal and other forms of discrimination,
marginalization and oppression of sexual minorities. As human rights pri-
marily (although not exclusively) attach to citizens and as sexual minor-
ities are defined not only as being outside the nation but as demanding
to be included in the nation (thus threatening the idealised purity of the
nation), the rhetorical move allows opponents of sexual equality to argue
that sexual minorities are not worthy of (and not entitled to) legal protec-
tion or of human concern. In fact, the very life and continued existence
of the nation depends on fighting any attempts by sexual minorities to be
included in the nation and to be protected by ‘human rights’. Much like
the US government defined individuals it incarcerates at Guantanamo Bay
as ‘enemy combatants’ and thus as falling outside the protection of both
domestic US laws and international human rights provisions, the ‘homo-
sexual’, defined as being outside the nation and an enemy of the nation
can be depicted as falling outside the protection of domestic laws and the
protection that would normally afforded by international human rights
treaties.

The struggle for emancipation: what is to be done?


By asking questions about the wisdom of relying exclusively on a human
rights paradigm to fight for the emancipation of sexual minorities on the
32 V. Reddy, ‘Perverts and sodomites: Homophobia as hate speech in Africa’, Southern
African Linguistics and Applied Language Studies  (): .

13
C on t e st e d I n t i m ac i e s

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, ).

14
T h e L i m i t(s) of t h e L aw

Recognising that our struggle is as much a struggle about the past


and not just about the present, academics and activists need to do far
more work to uncover and make known the evidence of the existence
of same-sex sexual love in various parts of our continent well before our
present. Moving away from the problematic earlier scholarship of Western
anthropologists who tried to understand the evidence through a par-
ticular Western lens — as if practices of same-sex love in a particular part
of our continent at a particular time could be easily understood as fitting
into the patterns of modern day homosexuality in New York, Paris or
London — academics and activists from our continent need to study and
write about particular past practices of same-sex activity and love through
a far more particularised lens, focusing on what is known about the social
and political context in which such practices occurred.
Perhaps most difficult would be the need for activists and academics to
find ways of talking about those of us who experience and act on same-sex
love that would help to restore our citizenship without perpetuating the
trope of ‘victim’, waiting to be rescued by the Western ‘saviour’ wielding
a toolkit of human rights. Exploring an ethics of recognition and recog-
nising that the emancipation of sexual minorities require multidimen-
sional strategies, what is also needed, I contend, is for African queers to
talk about our queer lives in ways that focus on the particularity of our
experiences.34 Avoiding the trap of always trying to fit our experiences
neatly into a Western master narrative of the ‘homosexual’ discovering his
or her sexuality, struggling with this sexuality, then triumphantly coming
out of the closet as a fully formed and proud ‘homosexual’, the multipli-
cation of such particularised narratives about the lives of sexual minori-
ties might begin to open up political, cultural and social spaces in which
we may be recognised as individuals, as members of our communities, as
brothers and sisters and sons and daughters and friends and not as symbols
of an imagined Western form of decadence.35 Should we not begin to think
about and to imagine ways of being queer in this world that does not neatly
mirror the examples of our brothers and sisters elsewhere? By focusing on
particularity, on individual narratives and by refusing the simplistic adop-
tion of a universal homosexual identity, I am not contending that members
of the sexual minority on our continent do not participate in global notions
of what it means to be gay or lesbian (or queer) and sometimes deploy such

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.

15
C on t e st e d I n t i m ac i e s

identities strategically in order to advance their own emancipation and to


claim their dignity. For example, Nyanzi relates the dramatic manner in
which individuals invoked the trope of the gay pride march in Uganda as
an active form of resistance against state repression. As she explains:
‘Wearing army-style camouflage pants, I marched alongside male
bodies wearing stylish stilettos, bikini bras, flashy facial makeup, and
gomesi, or delicate miniskirts. Beside us, female bodies stomped majes-
tically, wearing mustaches, cologne, and kanzu, or boxer shorts, flashing
above low-cut pants. The sexy bodies of drag queens gyrated, twirled, and
pulsated rhythmically to local beats. Queen Bad Black, in a lacy scarlet
bra and green kaffiyeh over boxer shorts, danced barefoot on the dust
path. Dancing seductively, Princess Nature Raymond, whose hairy chest
was sprayed with thick paint, wore only boxer shorts and knee-high socks
in rainbow colors. Sister Kelly Daniels’s breasts were covered only with
rainbow squares worn above a rainbow sarong. Donning men’s pants
under a black kanzu with a diagonal rainbow ribbon, Pepe, a trans man
and longtime activist for LGBTIQ rights in Uganda, operated a camera.’36
Moreover, the struggle towards the emancipation of those of us who
experience same-sex desire and act on it does not occur in a vacuum. There
is a danger that such a struggle will ignore the fact that attitudes towards
sexual minorities and the regulation of same-sex sexual conduct reflects
broader anxieties about gender roles in a society. The fact that the Ugandan
Anti-Homosexuality Act defines ‘homosexuality’ in terms of gender roles
remind us that patriarchal concerns about the blurring of gender roles and
the challenge to male power remains one of the underlying dynamics that
spur on the rhetoric and the legal regulation of same-sex acts. Those of us
who engage in struggles for the emancipation of sexual minorities may
therefore profitably make common cause with gender and feminist activ-
ists across the continent to challenge patriarchal attitudes and structures
and the laws that entrench or perpetuate them.

Bibliography
Achmat, Zackie. ‘Apostles of Civilized Vice’ ‘Immoral practices’ and ‘unnatural
vice’ in South African prisons and compounds 1890–1920’. Social Dynamics 19
(1993): 92–110.
Anti-Homosexuality Act, 2014, accessed on 3 June 2014 at https://hivos.org/sites/
default/files/the_ugandan_anti-homosexuality_act_2014.pdf.
Arendt, Hannah. The Origins of Totalitarianism. New York: Harcourt, Brace,
and Jovanovich, 1973.

36 Stella Nyazi ‘Queer Pride and Protest: A Reading of the Bodies at Uganda’s First Gay
Beach Pride’, Signs  (): .

16
T h e L i m i t(s) of t h e L aw
Baker, P., Uganda: Anti-Gay Law Draws Sanctions’ 19 June 2014, New York
Times accessed on 16 February 2015 at http://www.nytimes.com/2014/06/20/
world/africa/uganda-anti-gay-law-draws-sanctions.html?_r=0.
Bonthuys, E. ‘Race and Gender in the Civil Union Act’. South African Journal
on Human Rights 23 (2007): 526–542.
Cameron, Edwin. ‘Sexual orientation and the Constitution: a test case for
human rights’. South African Law Journal 110 (2013): 450–472.
CBS News ‘Putin: Russia must “cleanse” itself of homosexuality’ 19 January
2014, accessed on 3 October 2014 at http://www.cbsnews.com/news/
putin-russia-must-cleanse-itself-of-homosexuality/.
De Vos, Pierre. ‘The Constitution made us queer: The sexual orientation clause
in the South African Constitution and the emergence of gay and lesbian iden-
tity’. In Sexuality in the Legal Arena, edited by Carl Stychin and Didi Herman,
194–208. London: Athlone Press, 2000.
—. ‘The “inevitability” of same-sex marriage in democratic South Africa’. South
African Journal on Human Rights 23 (2007), 432–465.
Epprecht, Marc. Hungochani: A History of a Dissident Sexuality in Southern
Africa. Montreal: McGill-Queens University Press, 2004.
—. ‘Sexual Minorities, Human Rights and Public Health Strategies in Africa’.
African Affairs 111 (2012): 223–243.
Erkine, Sokani and Hakima Abbas, eds. Queer African Reader. Oxford: Fahamu
Books and Pambazuka Press, 2013.
Evans-Prichard, E. E. ‘Sexual inversion among the Azande’. American
Anthropologist 72.6 (1970): 1428–1434.
Herdt, G. Same Sex, Different Cultures: Exploring Gay and Lesbian Lives.
Boulder: Westview Press, 1997.
Hodes, R., ‘Uganda throws a party to celebrate passing of anti-gay law’, The
Guardian 2 April 2014, accessed on 3 July 2014 at http://www.theguardian.
com/world/2014/apr/02/uganda-celebrates-anti-gay-law.
Hoad, Neville. ‘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 5 (1999): 559–584.
—. African intimacies: Race, homosexuality, and globalization. Minneapolis:
University of Minnesota Press, 2007.
Itaborahy, L. P. and J. Zhu, State-Sponsored Homophobia: A world survey of
laws. International Lesbian, Gay, Bisexual, Trans and Intersex Association
(ILGA), 2014.
Kelly, A., ‘Raped and killed for being a lesbian: South Africa ignores
“corrective” attacks’ The Guardian 12 March 2009, accessed on 3
September 2014 at http://www.theguardian.com/world/2009/mar/12/
eudy-simelane-corrective-rape-south-africa.
Kennedy, B. ‘Homosexuals in the Periphery: Gay and Lesbian Rights in
Developing Africa’. Nebraska Anthropologist 59 (2006): Paper 21.
Morgan, Ruth, and Saskia Wieringa. Tommy Boys, Lesbian Men and Ancestral
Wives. Johannesburg: Jacana Media, 2005.

17
C on t e st e d I n t i m ac i e s
Munro, Brenna. South Africa and the Dream of Love to Come: Queer Sexuality
and the Struggle for Freedom. Minneapolis: University of Minnesota Press,
2012.
Muhumuza, R., ‘Ugandan court invalidates anti-gay law’, 1 August 2014,
Washington Post accessed on 2 November 2014 at http://www.washington-
post.com/world/ugandan-court-invalidates-anti-gay-law/2014/08/01/1f0467c8–
19a8–11e4–9349–84d4a85be981_story.html.
Mutua, M. Human Rights: A Political and Cultural Critique. Philadelphia:
University of Pennsylvania Press, 2002.
Nyazi, Stella. ‘Queer Pride and Protest: A Reading of the Bodies at Uganda’s
First Gay Beach Pride’. Signs 40 (2014): 36–40.
Pew Research Centre, ‘The Global Divide on Homosexuality: Greater
Acceptance in More Secular and Affluent Countries’ 4 June 2013,
accessed on 5 July 2014 at http://www.pewglobal.org/2013/06/04/
the-global-divide-on-homosexuality/.
Pew Research Centre, ‘Global Views on Homosexuality’, 15 April 2014, accessed
on 20 June 2014 at http://www.pewglobal.org/2014/04/15/global-morality/
table/homosexuality/.
Reddy, V. ‘Perverts and sodomites: Homophobia as hate speech in Africa’.
Southern African Linguistics and Applied Language Studies 20 (2002):
163–175.
Reid, Graeme. How to be a Real Gay: Gay Identities in Small-town South Africa.
Scotsville: University of KwaZulu-Natal Press, 2013.
Roberts, B. and Reddy, V. ‘Pride and Prejudice: Public Attitudes Towards
Homosexuality’. HSRC Review 6.4 (November 2008): 8–11, accessed on 2 July
2014 at http://www.hsrc.ac.za/HSRC_Review_Article-121.phtml.
Shaffer, Kay and Sidonie Smith. Human Rights and Narrated Lives: The Ethics of
Recognition. New York: Palgrave McMillan, 2004.
Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/
C/50/D/488/1992 (1994).

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