The debate on sexual minority rights in Africa: A comparative analysis of the situation in South Africa, Uganda, Malawi and Botswana'

Abstract

Gays, lesbians,2 and laws that criminalise homosexuality3 in Africa have been the subject of heated public debate in recent times.a Criminalisation and attempts at re-criminalisation of homosexuality in some African countries have generated a lot of debate on the issue.s The central theme in these debates has been the justification and maintenance of sodomy laws, as against the argument for the repeal of these laws because it violates the rights of gays and lesbians. According to Human Rights Watch, more than 80 countries in the world criminalise consensual same sex sexual activity between adults in private.6 lt is estimated that there are about 38 countries that criminalise homosexuality in Africa, accounting for almost half of the countries that criminalise homosexuality in the world. The sodomy laws in many African countries were inherited from the colonial masters of these countries.s The provisions in the Penal Codes of Botswana,e Malawilo and Uganda" were inherited from the British, who colonised these countries. Uganda has made attempts at re-criminalising homosexuality with the death penalty as the maximum penalty for'aggravated homosexuality'.12 The ramifications of these sodomy laws for the rights of gays and lesbians in Africa have been very grave. Gays and lesbians in Africa have been subjected to hate speech, harassed by police and civilians, physically assaulted; and in some instances remanded in prison custody for indefinite periods, convicted, or even murdered.lt Even after their deaths, there is still violence against sexual minorities.la Separate considerations or a combination of them may motivate the verbal and physical attacks on gays and lesbians, but it is submitted that even though the non existence of sodomy laws in a country does not guarantee the protection of sexual minority rights, the existence of sodomy laws embolden'perpetrators' to launch these attacks. As stated earlier, there are two diametrically opposed view points on the debate. One school of thought thinks that homosexuality should be criminalised and supports sodomy laws. Some even think that the current sodomy laws that exist in their countries are not punitive enough and support calls for re-criminalisation of homosexuality.ls The other school of thought maintains that sodomy laws violate the rights of sexual minorities and are a violation of the international obligations of countries that maintain these laws.' Four countries have been selected as the focus of this study. Malawi, Uganda, and Botswana have a colonial inheritance of sodomy lawsl7 that have generated some debate for varied reasons. Botswana and Malawi have invoked their laws in cases before their courts.'8 Uganda has made attempts at re criminalising its 'sodomy' laws and has also attracted some amount of debate. These countries are not the only 'hot spots' of the homosexual debate in Africa, but they are examples of recent developments that offer an interesting insight into the debate. South Africa is the fourth country. lt brings an interesting aspect to the debate as well, which may be of relevance to contrast with what pertains in the three other countries above. South Africa recognises the rights of sexual minorities and offers them protection in its constitution.le South Africa's history, which is different from that of the three countries, may have informed this situation, but the interest in South Africa is not so much of its history but the comprehensive jurisprudence and debate it has generated over the years.2o This study makes no pretence at settling this debate but hopes to contribute to it by unpacking the arguments of both sides in the light of international human rights law, and makes suggestions on the way forward.