I recently had the honour of being selected by my faculty (KULeuven Law) to attend the Advanced Human Rights Course on Sexual Minority Rights in Africa at the Centre for Human Rights of the University of Pretoria. This year’s course was not only theoretical, it was also intertwined with a Queer Literary Festival and gripping personal journeys that ensured that participants could feel and see what the impact is of (a lack of) dignifying LGBTQ+ policy in countries. This is especially necessary for those who work or study in fields where they are advocates of the LGBTQ+ community, without being a part of it itself. Such as myself.
As I had read of the debate of the ‘unAfricanness of homosexuality’, the impact of customary laws in African countries, the sodomy laws that still loom as an inheritance of the colonial penal laws and the role of religion; I was even more intrigued to hear from experts active on the continent of Africa within this field.
Our first day focused on queer exploration. The very first panel of our course comprised of Mmeyi Mosehla, Justice Edwin Cameron of the Constitutional Court of South Africa, Siseko Kumalo and Virginia Magwaza. The tone was set by them as they didn’t shy away from delving into intricate sub-topics such as how coming out is a political act that challenges heteronormativity, the added layers of difficulty when coming out as young Black people, how the conversation of coming out is one of privilege especially as coming out can lead to homelessness, mental illness or death. The vulnerable position of lesbian women within the LGBTQ+ movement and the problems regarding corrective rape were also discussed. Even within the LGBTQ+ movement it is also important to note that the discussion can be very male-oriented, leaving lesbian women at the margins. Justice Edwin Cameron broadened the debate by speaking of his journey in becoming a HIV/AIDS activist when he experienced how his own socio-economic status allowed enabled him to have access to the necessary treatment to survive.
The African Human Rights system
The second day was all about sexual orientation, gender identity, regional and international human rights law. Alongside the presentation on minority rights under the European Convention on Human Rights, there was also a focus on an LGBT+ inclusive interpretation of the SDG’s and sexual orientation and gender identity rights in the UN.
Professor Frans Viljoen, director of the Centre for Human Rights, enlightened us on sexual minority rights and the politics of the African Human Rights system. He gave us an insight on the African Unions stance on LGBTQ+ rights, the African Commission and the African Court on Human and Peoples’ Rights. Basic principles and common knowledge of the fight for LGBTQ+ rights within the African continent such as Resolution 275 of the African Commission and the revoking of the observer status of the Coalition of African Lesbians (CAL) by the African Commission were explained in a very clear and concise manner to us. This was a particularly enriching experience for me as I had not had the opportunity to delve into the African legal system within my own curricula up to date.
‘Homosexuality is unAfrican’
During my personal research on this topic I was very intrigued by the debate of the ‘unAfricanness of homosexuality’ and how this trope that has now been adopted by homophobic African presidents to further their anti-LGBTQ+ agenda. I was hoping to learn more on how this could be debunked in academic and activist spaces. The third day focusing on queer resistance offered me the answer to this burning interest. The critique of the conversations regarding LGBTQ+ rights becoming solely NGO-led, and less movement-led was made. Another point that was made was how queerness is always reduced to sex, especially by those in power who have an anti-LGBTQ+ rhetoric. Regarding research on pre-colonial African societies, it is worthy to note that gender was not a primary organizing principle in African society and that social categories were less rigid and more fluid. This focus on gender was introduced during colonial rule. With the steadily growing knowledge of pre-colonial African communities through research in academia, there is also the process of ‘queering the archive’ that has taken place. This refers to the process of queer theory making its way into legal theory and other fields in the academic world. Queering the archive has also heightened the tension between academics and activists as many activists don’t necessarily have the means to enter into the academic world where research about their own realities is being done, leading to the exclusion of many people who are pivotal in the movement.
Freedom is indivisible
Specific to South Africa and the recent apartheid history, there is a continuum between the past criminalization of cross-race relationships and the ongoing criminalization of same-sex relationships. As Desmond Tutu said, freedom is indivisible. He was able to influence Mandela through pointing out that hatred of homosexual people would not necessarily free Black people as our struggles are all interlinked. This, alongside the hard work of LGBTQ+ activists, ensured that the LGBTQ+ community was mentioned as a group of people that should not be discriminated against in the South African constitution.
Intersex advocacy was also touched upon. Personal accounts of intersex people at the course showed the problems with issues of self-determination of intersex children as many of them have complex and life-defining medical surgery at very young ages without their consent. This surgery is done to ‘normalise’ the child, but what exactly is normal and who decides what is normal? Many intersex persons have the feeling of doctors doing experiments on them, which is also psychologically haunting. Intersex genital mutilation is therefore very closely linked to female genital mutilation. This causes for intersex advocacy to operate from a place of depathologization. The scientific and medical field are not immune from reproducing the same systems we see in society. Due to patriarchy, many intersex children were assigned the male gender at birth (sometimes after very invasive surgery). This fragment reaffirmed that there is a need for a human rights approach to the field of medicine and the notion that assigning a gender to a child doesn’t always require surgery was very clear. There is strong advocacy to move the age of consent for surgery to an age that the child is old enough to decide for itself.
Is decriminalisation of homosexuality the end goal?
The decriminalization of homosexuality seemed like the most urgent cause to me, or so I thought upon arrival to this course. The course enlightened me on strategic litigation and its capacity to create long-term social change in favour of LGBTQ+ persons in Africa. As was pointed out, decriminalization is not the be-all and end-all of the LGBTQ+ cause on the African continent. The penal laws can change, but society needs to undergo an even greater change. This is where the world of strategic litigation comes in: bringing carefully selected cases to court to advance the broader cause of the movement. There is no one solution. South Africa chose the constitutional way for the plight of the LGBTQ+ community, other African countries are taking the judicial or legislative advocacy route. In some states, it is better to use judicial wins to open up discussions within society as a whole, or to engage with state officials. Achieving decriminalization of homosexuality is noteworthy, but the fight against discrimination of LGBTQ+ persons in labour law, in the health sector and other societal areas should not be forgotten.
This course affirmed to me the necessity of a human rights approach in all aspects of society, from the medical field to the employment sector. Above all, this course enriched my knowledge and made me understand that solutions for worldwide problems such as the lack of heeding of human rights for sexual minorities needs different approaches according to the place in the world. A western approach can be enriching, but not necessarily one that should be applied to all other peoples on this planet. As a law student, it is necessary to understand the plight of the people that we claim to be advocates of. It is the only way to ensure the unconditional inclusion of vulnerable groups in our all-encompassing field of study.