INTERNATIONAL LAW POSITION ON DECRIMINALISATION OF HOMOSEXUALITY

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Background and problem statement

Gays and lesbians have been in the news in Africa in recent times due to their sexual orientation.1 They have been the topic of public controversy and political discussions, as well as decisions in courts.2 Reports from Kenya, Namibia, Zimbabwe and Uganda have shown that political leaders in these countries have condemned gays and lesbians in extremely strong terms.3 They have harshly criticised their lifestyle and their conduct.4 They have called for their arrest, deportation, imprisonment and even their elimination.5 There have been recent attacks on gays and lesbians in Zimbabwe. It has been reported that President Mugabe referred to gays and lesbians as being „worse than dogs and pigs‟.6 He urged members of his political party to tie up homosexuals and bring them to the police to be arrested.7 During the Zimbabwean international book fair in August 1995, President Mugabe also stated that: I find it extremely outrageous and repugnant to my human conscience that such immoral and repulsive organisations, like those of homosexuals who offend both against the law of nature and the morals of religious beliefs espoused by our society, should have any advocates in our midst and even elsewhere in the world.8 Gays and lesbians in Kenya and Uganda have not been spared either. The former Kenyan President Daniel Arap Moi and his Ugandan counterpart Yoweri Museveni have expressed similar views regarding homosexuals. In 1999, President Museveni ordered the arrest of suspected homosexuals.9 President Daniel Arap Moi condemned homosexuality as against Christianity and African culture.10 Homosexuals in most African countries have been treated as a criminal class.11 According to a Human Rights Watch report, Kenya and Uganda are among 38 African countries that have criminalised consensual same-sex sexual activity between adults.12 These laws are derived from European models.13 The sodomy laws are used as a powerful tool for prosecuting individuals based on actual or perceived sexual orientation.14 The law serves as a reason for action against sexual minorities.15 The consequences of sodomy laws stretch beyond their direct application in the criminal justice system.16 Their existence in statute books gives legitimacy to anti- homosexuality campaigns that African political leaders have launched in the past, thus encouraging violence and discrimination against sexual minorities perpetrated by both government officials and private individuals such as community and family members.17 Anti-homosexuality laws have had severe direct consequences on the rights of homosexuals in Africa.18 They have been subjected to hate speech, physically assaulted, harassed by police and civilians, in some instances remanded in prison for indefinite periods, convicted or even murdered.19 It is worth noting that even in countries that do not have anti-sodomy laws in their statute books; the rights of sexual minorities are not guaranteed. In South Africa, for instance, lesbians are still subject to so called „corrective‟ rape and other forms of sexual violence as a 2011 Human Rights Watch report has indicated.20 However, the existence of these laws codify and legitimize a general attitude of homophobia thereby leading to routine human rights violations against the LGBTI community in Africa. These laws serve as justification for the discrimination, harassment, stigmatisation and marginalisation suffered by homosexuals.22 Social services providers such as The AIDS Support Organisation (TASO) use these laws to explain why they do not provide services to gays and lesbians.23 Governments also use them to administer punishment to those who attempt to support the LGBTI community.24 More often than not government officials and leaders of non- governmental organisations (NGOs) have incorrectly believed that being homosexual is in itself is a crime, despite the fact that only the act of sodomy is what amounts to a criminal offence.25 The discrimination and marginalisation of homosexuals in Africa have resulted in questions regarding homosexuality reaching courts for determination. Judges in different countries have taken different approaches to the question of constitutional and legal protection for homosexuals. These approaches are partly determined by relevant provisions of the particular national constitution. Section 9(3) of the South African Constitution prohibits discrimination on the basis of sexual orientation. This has guided the Constitutional Court in stating that gays and lesbians have a right to equality, privacy and human dignity.26 In Uganda, by contrast, the Constitutional Court held that criminal penalties against consensual same-sex sexual acts do not constitute discrimination under the Ugandan Constitution. Constitution does not list sexual orientation as a ground upon which discrimination is prohibited. In Kenya, the courts have not yet had a chance to hand down a decision on whether sodomy laws amount to discrimination on one of the prohibited grounds under article 27(4) of the Kenyan Constitution.28 The controversy about the place of homosexuality in African society and whether the law should protect gays and lesbians against unfair discrimination raises real and important questions for us as Africans. Who are we as a people, and what kind of society do we wish to live in? To whom, and to which groups, does our concept of African humanity extend? Is the attitude of Africans accommodative of the gay and lesbian community? Is African society large and generous enough to include variant minority groups like gays and lesbians within it, as it should be? In terms of the place of homosexuals in Kenya and Uganda, the public and legal debate in both countries raises fundamental questions about the role of the law including the Constitution in social transformation, and what grounds of differentiation and discrimination between people should be considered legitimate and constitutional.

TABLE OF CONTENTS :

• DECLARATION
• DEDICATION
• ACKNOWLEDGMENT
• ACRONYMS AND ABBREVIATIONS
• SUMMARY OF THE THESIS
• LIST OF KEY TERMS
• TABLE OF CONTENTS
• CHAPTER ONE INTRODUCTION TO THE THESIS
  • 1.1 Background and problem statement
  • 1.2 Objective of the study and research questions
  • 1.3 Significance of the study
  • 1.4 Research methodology
  • 1.5 Literature review
  • 1.6 Limitations of the study
  • 1.7 Structure
• CHAPTER TWO UNDERSTANDING OF HOMOSEXUALITY IN AFRICA
  • 2.1 Introduction
  • 2.2 Terminologies
    • 2.2.1 Sexual orientation
    • 2.2.2 Sexual minorities
    • 2.2.3 Gay, lesbian, bisexual and transgender
    • 2.2.4 Criminalisation and decriminalisation
    • 2.2.5 Sodomy
  • 2.3 Homosexuality as a concept, an identity and sexual conduct
    • 2.3.1 Evolution of homosexuality as a concept
    • 2.3.2 Legal construction of homosexuality
  • 2.4 The justifications for the criminalisation of homosexuality in Africa
    • 2.4.1 Homosexuality as a personal choice
    • 2.4.2 Homosexuality as immoral and going against religious values
    • 2.4.3 Homosexuality as a threat to African culture
  • 2.5 Impact of colonialism on homosexuality in Africa
  • 2.6 Conclusion
• CHAPTER THREE INTERNATIONAL LAW POSITION ON DECRIMINALISATION OF HOMOSEXUALITY
  • 3.1 Introduction
  • 3.2 International practice: interpretation and application
    • 3.2.1 Non-discrimination
    • 3.2.2 Sexual orientation as a prohibited ground
    • 3.2.3 Sexual orientation at the UN level: Decisions and General Comments
    • 3.2.4 Sexual orientation at the UN level: State Reporting and Concluding observations
    • 3.2.5 Sexual orientation at the UN level: Communications to HRC
    • 3.2.6 Sexual orientation at the UN level: Resolutions and special mechanisms
  • 3.3 Sexual orientation at regional level
    • 3.3.1 Sexual orientation: the European system
    • 3.3.2 Sexual orientation: the Inter-American system
    • 3.3.3 Sexual orientation: the African human rights system
  • 3.4 Right to privacy
    • 3.4.1 Right to privacy at the UN level
  • 3.5 Right to privacy at the regional level
    • 3.5.1 Right to privacy in the European human rights system
    • 3.5.2 Right to privacy in the Inter-American human rights system
    • 3.5.3 Right to privacy in the African human rights system
    • 3.5.4 Is the right to privacy limited?
  • 3.6 International human rights bodies: Rationales for protecting homosexuals
  • 3.6.1 Homosexuals as a special minority class
  • 3.6.2 Homosexuals as a harmless group in society
  • 3.7 Conclusion
• CHAPTER FOUR DECRIMINALISING HOMOSEXUALITY IN SOUTH AFRICA
  • 4.1 Introduction
  • 4.2 History of sodomy laws in South Africa
  • 4.3 Origin of the sexual orientation provision
  • 4.4 Factors that led to the inclusion of the sexual orientation provision
    • 4.4.1 Historical reasons
    • 4.4.2 International legal precedent
    • 4.4.3 Ideological factors
    • 4.4.4 Constrained constitutional drafting process
    • 4.5 Declaring sodomy laws unconstitutional
    • 4.5.1 The dignity-equality argument
    • 4.5.2 The privacy argument
    • 4.5.3 The decisions from foreign jurisdictions
  • 4.6 Critical assessment of the Constitutional Court decision
  • 4.7 Conclusion
• CHAPTER FIVE DECRIMINALISATION OF HOMOSEXUALITY IN KENYA: THE PROSPECTS AND CHALLENGES
  • 5.1 Introduction
  • 5.2 History of section 162 of the Penal Code
  • 5.3 Current status of homosexuality in Kenya
  • 5.4 The Constitution of Kenya,
  • 5.5 Constitutional potential for decriminalisation of same-sex sexual conduct
    • 5.5.1 The constitutional of the state to respect the rights of vulnerable and marginalised
    • 5.5.2 Human dignity
    • 5.5.3 Equality and non-discrimination
    • 5.5.4 Right to privacy
    • 5.5.5 Incorporation of international law
  • 5.6 Limitation of the rights analysis
  • 5.7 Conclusion
• CHAPTER SIX DECRIMINALISATION OF HOMOSEXUALITY IN UGANDA: WHAT IS THE PRESENT POSITION?
  • 6.1 Introduction
  • 6.2 History of sodomy laws in Uganda
  • 6.3 Current legal status of homosexuality in Uganda
  • 6.4 Current predicament of homosexuals in Uganda
  • 6.5 Views of the Ugandan society on homosexuality
  • 6.6 Step-by-step approach to decriminalisation
  • 6.7 Constitutional potential to invalidate sodomy laws in Uganda
    • 6.7.1 Locus standi before the Constitutional Court
    • 6.7.2 Equality and non-discrimination
    • 6.7.3 The right to privacy
    • 6.7.4 The right to human dignity
    • 6.7.5 Right to culture
    • 6.7.6 Limitation of rights analysis
  • 6.8 Conclusion
• CHAPTER SEVEN DECRIMINALISATION OF HOMOSEXUALITY: COMPARING KENYA, SOUTH AFRICA AND UGANDA
  • 7.1 Introduction
  • 7.2 Equality clauses as a tool for the decriminalisation of homosexuality
  • 7.3 Application of the right to equality in other jurisdictions
    • 7.3.1 Prohibited grounds of discrimination: open list versus closed list approach
    • 7.3.2 Invoking the equality provisions in Kenya and Uganda
    • 7.3.3 The sex discrimination argument
    • 7.3.4 The exclusion of sexual orientation from the Kenyan and Ugandan Constitutions
  • 7.4 The right to privacy
  • 7.5 The right to dignity
  • 7.6 The influence of international and foreign law
  • 7.7 The role of courts in the fight against criminalisation
  • 7.8 The role of political and legal culture in decriminalisation of homosexuality
  • 7.9 The role of Parliament in the fight against criminalisation
  • 7.10 The role of civil society in the fight against criminalisation
  • 7.11 Conclusion
• CHAPTER EIGHT CONCLUSION, LESSONS AND RECOMMENDATIONS
  • 8.1 Introduction
  • 8.2 Justifications for the criminalisation of homosexuality in Africa
  • 8.3 International and regional human rights law
  • 8.4 Differences in the wording of the equality clauses
  • 8.7 Specific recommendations
    • 8.7.2 To the Kenyan and Ugandan Parliaments
    • 8.7.3 To the political class
    • 8.7.4 To the Government
    • 8.7.5 To the CSOs
    • 8.7.6 To the gay and lesbian community
    • 8.7.7 To the African Commission and UN Human Rights Council
  • 8.8 Implementation strategy
  • BIBLIOGRAPHY

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