Fellow Prof. Dr. Stephen Brown in conversation with Prof. Dr. Thoko Kaime
Abstract
- Abstract
- In this episode, Cluster fellow Prof. Dr. Stephen Brown from the University of Ottawa talks with his host Prof. Dr. Thoko Kaime about the situation of the LGBTQ community on the African continent and his project "Strategic Litigation and the Decriminalization of Homosexuality in Africa" which he is currently working on during his fellowship at the Cluster of Excellence.
Description
- Transcript
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Speaker 1: Cluster Conversations, a podcast by Africa Multiple.
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Speaker 1: Hello everybody and welcome to our podcast discussion on LGBT rights in Africa. My name is Stephen Brown. I'm a professor of political science at the University of Ottawa in Canada. And this year I am spending at the University of Bayreuth at the Africa Multiple cluster. And I'm working on this issue and I'm here today to talk about it with my host whose name is Togo and he will now introduce himself.
Speaker 2: Okay, I'm Togo Kaime and I'm Professor of African Legal Studies at Bayreuth. And it's been a pleasure welcoming you to Bayreuth, Steven. And yeah, working together on this topic. And I look forward to our conversation in this podcast on various topics relating to LGBTQ plus protection on the continent.
Speaker 1: So why don't we start with the issue of the topic and how touchy it is. You've organized a speaker series. You called it one of several intractable problems in Africa. Several people say that, you know, LGBT plus rights or LGBT is un-African. Homosexuality is un-African. Transgender is un-African. And in fact some people in the West use that as well. Usually right-wing people saying, oh, you know, we shouldn't impose our culture on Africa and therefore want to turn a blind eye to human rights abuses in many countries. So maybe you could say a few words about that.
Speaker 2: Yeah, this is the age-old question whether homosexuality is African. And the argument goes that practices that we describe as being homosexual somehow are not African. My response to this has always been to sometimes make jokes, but in a serious way to convey a certain message. I mean there are Africans that are homosexual. We know them. They say they are homosexual. So if we say homosexual is un-African, then who are these people? If we exclude them from this being or existence as Africans. So as a matter of fact, just looking at the facts themselves, I think we can contend with this particular issue. But on a more serious point, this claim has been made many, many times to impose a very conservative and often political view that is espoused by certain elites about how sexualities on the continent should be. It doesn't take so much to actually find out that many types of sexualities have existed on the continent. One just has to ask, you know, the right questions. And in relation to this, I would go into our etymology. Words do not exist unless there is a reason for it. You know, you go into almost every culture on the continent. They have a word for homosexual or being gay or same-sex relationships. Why? Why would you have that if homosexuality is un-African? So it means that in the worldview of Africans, homosexuality exists. The...
Speaker 1: What the debate misses is the fact that criminalization of same-sex relationships is actually colonial. It's something that was imposed. But then we have internalized these impositions to such an extent that we want to exclude, you know, those of our citizens that identify in this way from the enjoyment of their respective rights. So, for me, this is an interesting question only insofar as it reveals the politics of those that make these kinds of claims because the evidence is very simple to access. There are homosexual people on the continent. They identify as such. Some are not allowed to identify openly, but we know that they exist. That's the first thing. And then just look at our languages. Why do they have these artifacts? Have these also been transported from the West? It's the colonial laws that have made this a contentious area of human rights protection. Yeah, I've spoken too much, but maybe you also have a perspective as an outsider looking at this question.
Speaker 2: Yeah, I mean obviously as an outsider, I have a different sense of authority or a different capacity to speak on this issue. But yes, and I mean I agree with everything you say obviously. And there is sort of oral history and anthropological work from pre-colonial times that shows that there were female husbands and boy wives. And I would add that also in many African cultures, there's a kind of third gender or gender non-binary gender that's often linked to spirituality and healing. You know, in South Africa, sangoma or... So that kind of figure exists in very many African cultures. So, I mean, the modern label for that, you know, would be transgender or non-binary, but I'm not too hung up on labels. It's just a recognition that sexual and gender minorities have existed for a very long time. And that yes, colonialism erased it. And colonialism brought with it, in most cases in Africa, Christianity and sort of the values of those times, so Victorian values, Victorian morality. And because so many of the African cultures were not, their languages were not written down, traditions were oral history, it was easier to erase this history. And to the point where many Africans think they're being anti-colonial by resisting LGBT rights. But other people would argue that actually recognizing sexual and gender diversity is a form of decolonization.
Speaker 1: Yes, very much, very much. And this is for me the enduring frustration that I have with colonialism, that most of these normative frameworks that were transported are so difficult to dislodge even in favor of more human rights friendly practices that are embedded within our local cultures. We'll speak a little bit more about these pathways to LGBTIQ protection later in this podcast. But it's this enduring persistence that colonial law has across the continent that I see as a major impediment to protection in this area.
Speaker 2: So maybe we can talk a little bit about the process of overturning these colonial laws.
Speaker 1: Yes.
Speaker 2: So I have a particular interest in this topic. And there are countries like Botswana where... Actually let me just back up a little bit. So much what we hear about Africa are the bad things. We hear about terrible laws that get passed in places like Uganda, one that's currently been being debated in Ghana, where there are extremely harsh penalties for being gay, for knowing someone who's gay and not reporting them to the police, for publicly saying that it's okay to be gay or LGBT. And we hear stories about activists being murdered.
Speaker 1: More recently in Kenya.
Speaker 2: Yeah. And this...
Speaker 1: sort of gives a certain image of the state of LGBT rights in Africa. But there's also the opposite trend. So many countries have actually legalized homosexuality. Uh Lusophone African countries, Portuguese-speaking African countries, have sort of in a top-down kind of way just sort of changed their laws like Mozambique, Angola and a few others. They just reformed their criminal codes and just did away with the the um the the the laws that that prohibited same-sex relations. In other countries, um there have been some court cases. So strategic litigation where people take um a case to a court and work their way up through appeals. And in Botswana, for instance, they actually succeeded in getting the colonial-era law against homosexuality overturned. And this was approved on appeal. Um so so this is a very interesting way to to get rid of these laws based on national constitutions which protect privacy, protect dignity, protect people from non-discrimination, all of which apply to to these laws. So it's not surprising that these laws get overturned in in a certain sense. But it doesn't always work. In Kenya, it failed. And um in uh it's going to be appealed so it it actually might succeed in in the near future. Um You're a human rights lawyer, you're a law professor, you focus on on human rights. Um you've been doing some work on Malawi. Yes. And the use of courts. So maybe you could tell us a little bit about that.
Speaker 2: Yeah. So this area gives me uh a lot of hope. And this is because most of uh these former uh British uh colonies adopted uh a common law system um of judicial reasoning. And what it means is that uh the courts are almost constantly in conversation with each other. So for uh cases uh like the one you referred to uh from Botswana um where decriminalization was mandated by the court uh looking at provisions of the constitution that are very similar to other provisions in Malawi, in Zambia, Lesotho, you know, all these uh African nations that have got bills of rights. It means that the judges uh when these cases are presented before them will have to have a look at what the courts in these jurisdictions have decided uh to influence or inform their uh their decisions. Uh so that kind of judicial conversation for me uh is uh very, very important. I know that um we've had a conservative bent across uh many of these jurisdictions, but things are changing. And because of the training of uh the judges and all of that, I think uh we have more opportunity for change uh through this uh judicial uh judicial strategy. So strategic uh litigation, yes, there have been some fails, but I think uh in the end we'll see um jurisprudence uh uh actually confirming uh what is correct at international law. Um and again, that's another point. Most of these jurisdictions actually uh put primacy uh for international law. So it means that international human rights uh instruments uh protections that focus specifically uh on LGBTQI plus um minorities uh will also take precedence in the constitution.
Speaker 1: There's also the African Charter.
Speaker 2: Yes, I was, yes. Ah okay. Yes. So here uh things are not so certain because uh we uh must also look at the realpolitik of the commission uh that has got the responsibility um of ensuring that uh states are keeping to their obligations uh within the charter. Um but these this is our premier uh human rights uh institution. Uh it works alongside the African Court uh on Human Rights. A lot of their cases.
Speaker 1: On different things have been really, really innovative. You know, this is a commission that wasn't given much chance when it was established and yet has gone on to pronounce so many leading cases on many topics, you know, from socio-economic rights, how we protect socio-economic rights in the constitution, on sustainable development, on rights, rights of disabled peoples, indigenous peoples' rights, pronouncements that are world-leading. So, I am assured that if these cases are ever taken before the Commission or the African Court of Human Rights, we are going to see a very similar approach because I have noticed that in the latest jurisprudence, the Commission is not just writing to the litigants, you know, these are letters to the nations, you know, looking at international law and saying okay, this is how we see these protections in relation to African peoples. And there is no doubt in my mind that the Commission sees our LGBTQI+ citizens. They give them a place, observer status in the proceedings of the Commission and all of that because they know the Commission recognises the urgent need for protection for this, you know. So, strategic litigation, judicial measures within the states themselves, but also these supranational mechanisms that we have within the African human rights system, I think, should give us hope, you know, that we will see better protection emerge in the coming years. Yeah. Yeah. I, okay, so when we have spoken about this topic, I've often asked you about how you see yourself in this space talking about LGBTQI+ rights in Africa being white, you're from Canada. I mean, how do you see your place?
Speaker 2: So that's always a tricky issue. And one way I deal with that is I look at the role of international actors, including Canada. So most of my work for the past twenty five years has been on foreign aid. So I'm looking at the intersection of international and national actors mostly in Africa. And so, I feel that my role is more criticizing my own government or Western governments on what they are doing or not doing or should be doing or shouldn't be doing. Because though I'm in favor of supporting African organizations and individuals in defending their rights, I'm less keen on the kind of bullhorn diplomacy that we've seen in the past, great pronouncements, condemnations. And the problem with that or the problems are many. One is sort of the hierarchy, the lecturing, the patronizing and the sort of the presentation of the West as being evolved and Africa as being more primitive and not being evolved in thinking about things like rights. And that's not a helpful dynamic. But also it's not very effective. So, you know, the more Western countries harangued some Ugandan politicians, the more determined they were to pass their law. And there are some cases where they have influenced outcomes. One was in Malawi. There was a case of an LGBT couple that was sentenced to fourteen years of hard labor for having a traditional betrothal ceremony, which maybe you can tell me, I don't even know if that's legal. I mean, to give them fourteen years of hard labor because they weren't accused of homosexuality. So I'm not sure that the anti-homosexuality law applies. But anyway, they were sentenced. There was a lot of international outcry. The UN Secretary General was visiting Malawi. I think it was Ban Ki-moon. And just before he arrived, the president pardoned them. So that seemed to be like a sign that international pressure was effective. But then what happened is when all the international actors went home and the international media stopped watching, Malawi passed two new laws.
Speaker 1: That further entrenched anti-homosexuality laws and penalties. And I can't remember the details extended it to female homosexuality as well.
Speaker 2: Yes, say two for gender equality purposes.
Speaker 1: Ironically.
Speaker 1: Yeah. So there are several cases like that where international involvement has been ineffective at best and sometimes counterproductive. So I'm trying to think about and write about non-imperialistic ways of supporting LGBT rights in Africa. And to sum it up, I would say just support local groups. Like follow their strategies. If they want things to be said publicly, then you can say things publicly. And if they don't want you to say things publicly because that may endanger their life or for other reasons, it doesn't seem like a good strategy, well then don't. And that's—it's hard for foreign aid donors to do that because they like to claim credit. They like to report back. They like to put things on their website. They like to announce who they supported. If they're going to sponsor a reception for the International Day Against Homophobia, Biphobia and Transphobia, they want to have it at the embassy. They want to have a photographer. And that's not always in the interest of local activists. And so the things I think they should do, they will often be hesitant to do because they want the visibility. They want to be able to claim the credit. You know, I'm Canadian. Canada likes to put the maple leaf and the Canadian flag on things and to claim credit. And so what I would say instead is you have to work with local partners. You have to trust them. Not necessarily give them carte blanche. There has to be some kind of accountability. You have to have some sort of sense whether this group is actually working well or not or you know. But follow their lead. Support them in their strategies. They know the context. They should have ownership. They shouldn't be following the donor's priorities. Money should be given as core funding, not just to fund special activities like a film festival, but money that they can run an office and have a P O box or a phone line or cell phones or something. Pay for their websites and to embed LGBT plus rights in other human rights. So it doesn't—it can't be portrayed as like special rights. Because that's a danger. Because it makes it seem like if the donors only care about the gays or something. But I mean donor countries don't only care about the gays and they don't necessarily care about the gays a whole lot either. But if they care about all marginalized communities, including women who are the majority, then focusing not so much on LGBT rights per se, but on the principles of dignity and privacy and upholding those principles. So I think that's a more productive approach. And so that's where I see my own work coming in as a non-African.
Speaker 2: Okay, okay. You've led us very well to what I would like to be our last point. And this focuses on pathways to better protection for LGBTQI+ minorities. What are your thoughts?
Speaker 1: I think many—we need a portfolio approach. We need to do many things at the same time. And as I was just saying, it's up to local human rights defenders to decide what's the priority, what the right mix is and so on. In some cases, strategic litigation might be really effective. But also strategic litigation or court cases aren't only about the merits of the case. Judges don't just look at the law and say this is constitutional yes or no. They're influenced by public opinion. And some judgments actually even say, you know, our citizens are not ready for this. Which as a non-lawyer, I find actually quite strange that that becomes an argument. But so many complementary things can be done to help move along public opinion. That can involve working with journalists to help them present issues of homosexuality or transgender or LGBTI+ rights in a more—I hesitate to say favorable, but I mean at least neutral way—to not be scandalous about it. Working with the police to make sure that people's rights are respected, that you can't arbitrarily detain someone or torture them just because you suspect they may be gay. I think it's worth pointing out that actually almost nobody is ever convicted under anti-homosexuality laws in the sense that it's the sexual act that's illegal and not being gay, not saying you're gay, not advocating gay rights. None of that is illegal in most countries. I mean these new laws might change that. But basically if two people are having sex in private, where's the proof?
Speaker 1: And the fact that individuals can be arrested for suspected homosexuality, well, were they homosexual? Like, did they have homosexual acts all by themselves? Like, they had to have had, you know, a partner. So working with police, also working with religious leaders, in having difficult discussions about what religions actually say, what scripture actually says. Very interestingly, the Pope recently came out and said homosexuality should not be illegal. It's not a crime. He said it's a sin, which, you know, we won't have a theological debate here. But he has said it's not a crime. So even the Pope, the head of the Catholic Church, which is not a staunch defender of LGBTQ plus rights, has said it should not be illegal. So I think work can be done with religious leaders in Muslim-dominated countries as well. I mean, there is a sort of queer theology branch of Islam. So I think productive conversations could be had there. But these are things that take time. You know, maybe a generation. But I mean, if we look at the West and if we look at the changes, even in Canada in my lifetime, just how we've moved from, you know, not allowing LGBT people even to serve in the civil service to having same-sex marriage. Attitudes can change very quickly, in fact.
Speaker 2: Yes, I think so. I agree. And you raise an important point here, in that legitimacy actually requires deep work. You know, going to court, filing papers, yes, I mean, for lawyers, this is really important, crucial work. But it's part of what needs to be done. Difficult or challenging problems of human rights like this require conversations across, you know, the whole spectrum of society. And you can't do this by funding a film festival, for example, or funding this other small piece of work here and there. You can't get traction. So the conversation must bring all society along in their respective fields. And this might be church, it might be in social clubs and all of that. So it's going to take a lot of effort to move this.
Speaker 1: Working with traditional authorities as well, customary authorities, chiefs, could also...
Speaker 2: Because they have more authority than the law recognizes.
Speaker 1: And there might be important traces of oral history in communities that remember the practices that colonial authorities tried to erase basically, and to large extent succeeded.
Speaker 2: Yeah. Okay, great. So...
Speaker 1: So we wrap up here?
Speaker 2: Yeah, I think there's enough work for us to do over the next couple of years. And I hope we realize the protections that are already there, and they just need to be taken. So yeah, it was really nice having this conversation.
Speaker 1: Well, thank you Toko, and thank you to the Africa Cluster at the University of Bayreuth for hosting us, and thank you to our listeners.
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Origins & context
- Title
- Fellow Prof. Dr. Stephen Brown in conversation with Prof. Dr. Thoko Kaime
- Language
- English
- Podcast series
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Cluster Conversations
- Date
- April 21, 2023
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- Extent
- 29 minutes, 25 seconds
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- 5
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