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Protecting the Human Rights of Sexual Minorities in Contemporary Africa See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/315755719 Protecting the human rights of sexual minorities in contemporary Africa Book · April 2017 CITATION READS 1 471 1 author: Sylvie Namwase University of Copenhagen 4 PUBLICATIONS 2 CITATIONS SEE PROFILE Some of the authors of this publication are also working on these related projects: Children and former child soldiers as victims and perpetrators of international crimes View project Use of force laws in riot control and crimes against humanity under the ICC Statute View project All content following this page was uploaded by Sylvie Namwase on 03 April 2017. The user has requested enhancement of the downloaded file. Protecting the human rights of S E X U A L M I N O R I T I E S in contemporary Africa Sylvie Namwase & Adrian Jjuuko (editors) 2017 Protecting the human rights of sexual minorities in contemporary Africa Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: BusinessPrint, Pretoria To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 86 610 6668 [email protected] www.pulp.up.ac.za Cover: Yolanda Booyzen, Centre for Human Rights ISBN: 978-1-920538-60-6 © 2017 TABLE OF CONTENTS Acknowledgments v Preface vi Abbreviations and acronyms ix Contributors x List of laws xiv List of cases xvii PART I: INTRODUCTION Sexual minorities’ rights in Africa: What does it 1 mean to be human; and who gets to decide? 2 Sylvie Namwase, Adrian Jjuuko and Ivy Nyarango PART II: REGULATION OF SEXUAL ORIENTATION IN PRE-COLONIAL AFRICA A triple heritage of sexuality? Regulation of sexual 2 orientation in Africa in historical perspective 14 John Osogo Ambani PART III: COUNTRY CONTEXTS Culture versus homosexuality: Can a right ‘from’ 3 culture be claimed in Ugandan courts? 52 Sylvie Namwase Decriminalisation of homosexuality in Kenya: 4 The prospects and challenges 79 Seth Muchuma Wekesa Somewhere over the rainbow: The continued 5 struggle for the realisation of lesbian and gay rights in South Africa 109 Ella Scheepers and Ishtar Lakhani First class Constitution, second class citizen: 6 Exploring the adoption of the third-gender category in South Africa 128 Busisiwe Deyi The suppression of sexual minority rights: 7 A case study of Zimbabwe 151 Esau Mandipa A psycho-legal reflection on issues surrounding 8 the LGBTI community in Mauritius 159 Roopanand Amar Mahadew and Darsheenee Singh Raumnauth iii The legal status of sexual minorities in 9 Mozambique 183 Emerson Lopes The status of LGBTI rights in Botswana and its 10 implications for social justice 190 Lame Charmaine Olebile Human rights and the criminalisation of 11 same-sex relationships in Nigeria: A critique of the Same-Sex Marriage (Prohibition) Act 203 Victor Oluwasina Ayeni Protecting same-sex rights in Nigeria: Case note 12 on Teriah Joseph Ebah v Federal Government of Nigeria 238 Azubike Chinwuba Onuora-Oguno The status of sexual minority rights in Cameroon 245 13 Michel Togue PART IV: THE AFRICAN HUMAN RIGHTS SYSTEM The protection and promotion of LGBTI rights 14 in the African regional human rights system: Opportunities and challenges 260 Adrian Jjuuko Bibliography 301 iv ACKNOWLEDGMENTS Our sincere appreciation goes to all who helped to put this book together, in particular to our mentors and advisors at Makerere University’s Faculty of Law and the Centre for Human Rights at the University of Pretoria who aided with reviewing some of the articles: Dr Rose Nakayi, Dr Kabumba Busingye, Dr Adem Kassie and Dr Stella Nyanzi, we appreciate the time you made for us! We wish to especially thank Mrs Monica Twesime Kirya who helped to shape the final output of the book and Prof Magnus Killander who aided in its initial stages. Special thanks also go to Ms Ivy Nyarango who contributed to shaping the concept of the book and to Ms Joaninne Nanyange who helped to proofread the final manuscript as well as the many anonymous peer reviewers. Gratitude also goes to the Norwegian Government, through its Embassy in Pretoria, South Africa, for supporting the colloquium and this publication. Thanks also go to Ford Foundation for their contribution and Prof Sylvia Tamale who opened up this door for us, we are eternally grateful for this rare opportunity. Special thanks also go to Prof Frans Viljoen and the Centre for Human Rights at the University of Pretoria for organising a colloquium on sexual minorities’ rights in Africa where the various authors were able to share their work and build further on their ideas. Prof Viljoen supported and encouraged us to go through with this work, and we are honoured to have him write the preface to this book. v PREFACE This collection of essays contains papers that have first been presented at a colloquium on sexual minority rights in Africa, which took place at the Centre for Human Rights, Pretoria, in December 2014. This event was made possible with the generous support of the Government of the Kingdom of Norway, through its Embassy in South Africa. These papers were subsequently peer-reviewed and reworked. The target audiences of this edited volume are scholars and students, as well as practitioners, government officials and all other role players who may have an impact on the rights of sexual minorities in Africa. Writing the preface of this publication is a distinct privilege and makes me particularly proud. First, its thematic focus is on homosexuality in Africa. This has long been a neglected topic. (See, however, DP Amory ‘Homosexuality’ in Africa: Issues and debates (1997) 25 Issue: A Journal of Opinion 5). Despite some recent developments (see eg S Tamale (ed) African sexualities: A reader (Pambazuka Press, 2011), and S Tamale and J Bennett (eds) Research in gender and sexualities in African contexts (CODESRIA, 2016), African scholarship and academia (outside South Africa) have largely neglected this as an area for research, writing and teaching. In this volume, fourteen essays focus on aspects of homosexuality, covering a wide rage of countries from across the continent. Second, the disciplinary prism through which this topic is viewed is the legal. Its engagement is with law and rights. Issues of sexual orientation and gender identity in Africa have mostly inspired anthropologists and historians, in the early phases of engagement on the issue, and later on, sociologists, scholars of religious studies and other social scientists. With the rise of HIV incidence across the continent, and insights into the vulnerability to infection of particularly men having sex with men, public health perspectives were increasingly being brought to bear into this thematic domain (see eg M Epprecht Heterosexual Africa?: The history of an idea from the age of exploration to the age of AIDS (Ohio University Press, 2008)). However, celebrating a legal lens does not seek to invite or support a narrow legalistic or law-dominated discourse, but aims to at least include it as part of the conversation. Doing so adds dimensions of obligation and accountability. Third, the editors and authors and contributors are African. The situation in nine countries (Botswana, Cameroon, Kenya, Mauritius, Mozambique, Nigeria, South Africa, Uganda and Zimbabwe) is reviewed; while other contributions are more regional in their perspective. This makes this publication one of the most comprehensive collections of African voices on this topic. African voices have largely been silent in the fledgling discourse on sexual minorities in Africa, which has been dominated by Western scholars. Early examples of writers who ventured into this terrain are: S O Murray and W Roscoe (eds) Boy-wives and female husbands: Studies of African homosexualities (St. Martin's Press, 1998); and SO Murray and W Roscoe (eds) Islamic homosexualities: Culture, history, and vi literature (New York University Press, 1997). Murray and Roscoe are both Americans, the one an anthropologist and sociologist, the other an author and activist. Another prominent author and scholar is Marc Epprecht, who spent some time in Zimbabwe as teacher and lecturer. This dominance is unfortunate, as it reinforces perceptions and protestations that homosexuality is ‘un-African’. The editors and, for the most part, the authors of this edited volume are also graduates of the Master’s programme in Human Rights and Democratisation in Africa (HRDA), which has been presented by the Centre for Human Rights, University of Pretoria since 2000. Sylvie Namwase completed the HRDA in 2011, and Adrian Jjuuko in 2013. In the ambit of this programme, the Centre in 2010 started to present a one-week short course on the topic of sexual minority rights in Africa. In this short course, Master’s students are joined by other participants, including Judges, government officials, members of national human rights institutions, leaders in civil society and academics, from all over Africa. This course, supported by the Government of Flanders, is now a firm part of the Centre’s annual calendar of activities. The Centre’s work in this domain has subsequently been expanded to the establishment of a Sexual Orientation and Gender Identity and Expression (SOGIE) Unit. In 2016, the Centre instituted scholarships for gay, lesbian, bisexual, transgender and intersex students attending the HRDA programme, supported by the Government of the Kingdom of the Netherlands, through its Embassy in South Africa.
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