Criminalization of lesbian, gay, bisexual, transgender and intersex people (LGBTI) and MSM in Africa8
Same sex practices are illegal in thirty-eight African countries. There are an increasing number of countries trying to either introduce such laws or increase the penalty when the law exists already. Penal code provisions are increasingly being used to arrest, detain, blackmail and silence MSM across Africa. Laws are being applied because LGBTI communities are more visible;
access to justice, legal aid and legal assistance are limited. When arrested, it is often difficult to secure legal representation for LGBTI people and MSM. Lawyers are often ignorant about LGBTI rights. Access to justice is compromised by homophobia and ignorance, exemplified by the views of some prominent political leaders (Presidents Nujoma of Namibia, Mugabe of Zimbabwe and Zuma of South Africa).
Some laws are overtly discriminatory, such as laws criminalizing same-sex practices between adults (e.g.
Botswana, Malawi). In some countries, laws relating to public decency, vagrancy, public order or idleness are enforced against MSM (e.g. Mozambique, Nigeria). An example of the impact of these laws is the arrest and
detention of the couple in Malawi in 2010. We are seeing frequent harassment of LGBTI people and their defenders (e.g. targeting of organizations by police in Senegal and Malawi).
There is very limited solidarity and support from other movements. In Ghana, a prominent women’s rights organization argued for criminalization of same-sex practices in a constitutional review. In Malawi, the Law Society thanked the police for the sodomy arrests.
HIV-related services targeting MSM and transgender people are unavailable in mainstream healthcare facilities in Africa.
Discrimination is often rooted in ignorance. People perceive homosexuality as un-African, un-Christian and a ‘white’ disease. Many Africans are unaware that sex between men occurs in the community. There is a perception that neo-colonial agendas are informing the claims of those advocating for homosexual rights and this represents a threat to national sovereignty. Communities are concerned that homosexual rights agendas are mostly about redefining marriage and adoption and represent a threat to orthodox understandings of the family. It is also perceived that advocates for homosexual rights (including donors who threaten cuts to aid funding if homosexual rights are violated) are pushing for special rights for a small minority when mainstream issues, such as the rights of women and girls and economic development, are yet to be addressed.
8 Mr Joel Nana, African Men for Sexual Health and Rights (AMSHeR).
“Decriminalization is a
Sex between men has been decriminalized in India as a result of litigation based on constitutional rights. LGBTI issues are complex – it is never just about the law, so this litigation-based approach may not work in the African context. In India, the approach was successful because of unique circumstances: a culture of litigation; a body of jurisprudence to build a case on; an understanding of the issues among the judiciary; an organized community to be the public face of the litigation, to initiate the legal process and make the claims; and voices of tolerance from those who supported decriminalization in the broader community.
In the African context, a range of interventions are required to create a more enabling environment including ‘know your rights’ campaigns, documentation of and redress for specific rights violations, legal aid, and work with a broad range of partners (e.g. national human rights institutions, sexual and reproductive health organizations, mainstream human rights and HIV organizations). In Senegal, the national human rights institution initially denied that men arrested for sodomy offences had experienced human rights violations on the grounds that these men are criminals. Strategic partnerships and participation are important at the national level through national HIV commissions and Country Coordinating Mechanisms of the Global Fund to Fight AIDS, Tuberculosis and Malaria.
Africa is experiencing a growing movement of strong activism for LGBTI rights, and involved organizations have adopted a regional strategy with a focus on building capacity and increasing visibility at country and regional level. Examples of progress in 2010-2011 include:
1. Support of African states for the 2011 Resolution on Sexual Orientation and Gender Identity of the United Nations Human Rights Commission;
2. The establishment of a committee on the rights of people living with HIV and vulnerable communities (including MSM) by the African Commission on Human and People’s Rights;
3. Advocacy successes in Uganda (retraction of the Anti-homosexuality Bill) and Malawi (Presidential pardon of sodomy offences);
4. In Senegal, nine year sentences for homosexual acts were overturned; and
5. African Men for Sexual Health and Rights (AMSHeR) is arguing with some success for inclusion of MSM issues in national strategic plans and proposals to the Global Fund.
There is still a preference of funders to focus on less controversial programmatic areas (such as condom programs) rather than human rights advocacy. When funders are prepared to provide support for rights-related initiatives, it is often only for strategic litigation. This can be unhelpful or even damaging if inappropriate cases are packaged as strategic litigation to please funders.
Priority actions include: building bridges with other movements (e.g. sex workers) to work on broader issues of discrimination and abusive policing practices; supporting and participating in work at the regional level; and increasing support to community-led interventions. Work at the regional level is crucial because in many cases there are no country-level organizations to provide advocacy at the national level. Regional organizations provide a space for advocates to share lessons and learn from each other. Funding from the Ford Foundation has been essential to sustain the regional work of the advocacy group AMSHeR since it was established two years ago.
It is difficult to track the number of incidents of arrests of LGBTI people and MSM, but they are frequent, and people are often sentenced to terms of imprisonment. When AMSHeR is made aware of specific cases, the strategy is to exert pressure from different angles including international political pressure. In Senegal, AMSHeR used religious leaders.
AMSHeR also argue that by arresting MSM the justice sector is undermining the work of the health sector, which uses donor funds to target MSM in HIV prevention. Ultimately when AMSHeR intervenes, most cases result in early release. Sometimes this is the result of an acquittal, sometimes the defendant is released on bail and the trial is discontinued. But the laws remain on the statute books.
Criminalization: USA9
There is a proliferation of HIV exposure laws in the USA and an HIV crisis in prisons. Laws and law enforcement have a disproportionate impact on African Americans living with HIV.
Most civil rights law draws on the concept of the right to privacy that was developed in the 1960s through case law on contraception, in the 1970s through abortion case law, and as a result of the 2003 case that struck down sodomy laws as unconstitutional (Lawrence v.
Texas).
Populations that have not benefited from the concept of the right to privacy include LGBTI communities, sex workers, low-income women of color who engage in survival sex work, and people living with HIV.
Although privacy jurisprudence has established a right to contraception, police nonetheless use the fact that a person has condoms on their person as evidence of intent to engage in sex work.
In Louisiana, people accused of sex work have been charged under the Prostitution Statute or the Crimes Against Nature Statute (CANS). Police and prosecutors have had discretion to determine which statute to use when charging persons accused of sex work, with significantly different consequences for the person charged. Under CANS, the offence of
“unnatural carnal copulation” (defined as oral and anal sex), is a felony with heavy penalties. People who are convicted under this provision are placed on the public sex offender register. Conversely, an offence under the Prostitution Statute (which encompasses all sexual penetration), is not a felony and does not result in registration of the offender on the public sex offender registry. Notably, 40% of the people listed on the Orleans sex offender registry are people convicted under this sodomy statute. 76% of people convicted under CANS are women, 80% of whom are African American.
The CANS provision has been interpreted as outlawing all unnatural carnal copulation for money and has been applied to sex workers including low-income African American women, transgender women and MSM. Although sodomy laws in other states are considered unconstitutional, the state of Louisiana has continued to enforce the CANS law against sex workers. The sex offender register, which includes the convicted person’s name and photo, represents a disproportionate and ongoing penalty for sex workers convicted under the CANS law. Offenders are required to advise local schools and businesses of their registration
9 Mr. Alexis Agathocleous, Center for Constitutional Rights, and Ms. Davida Finger, Loyola University.
on the register and carry a card that identifies them as a sex offender. Registration creates barriers to access treatment, housing and employment.
In particular, registration on the sex offender register restricts access to accommodation.
Housing services are reluctant to provide housing to people on the sex offender register. In the context of the post Hurricane Katrina housing shortage and associated increases in rental prices, it can be extremely difficult for persons convicted under the CANS provision to secure housing. Successful advocacy has required long term and meaningful collaboration and partnerships with non-profit organizations and lawmakers.
The sex offender register was adopted in the early 1990s. Local police and sheriffs share data with state police, who send data to federal authorities. Information on the national register is available internationally.
A strategy was implemented to challenge the CANS law using litigation, advocacy and media. A federal civil rights lawsuit was lodged against the Governor of Louisiana, the police department, and other state actors. The claim demanded penalties to be reduced, an end to registering offenders, and removal of offenders from the registry. Advocacy involved work with community groups and lawmakers to promote understanding of the injustice of the situation and the need for a coherent policy framework. Work with media resulted in a newspaper editorial calling for repeal of the law.
A new law signed in 2011 addresses many of the problems created by the CANS law. The new law was enacted as a result of litigation in the case of Doe v. Jindal and eliminates the requirement that sex work offenders be registered on the sex offender register. However, the new law applies only to convictions after August 2011. The litigation was a successful collaboration between community organizations and legal advocates. Lawyers are awaiting a decision on whether sex workers convicted under the CANS law prior to August 2011 can be removed from the sex offender register.
Louisiana has very high HIV rates. 75% of newly diagnosed HIV cases are African Americans. Causes include lack of access to condoms, a widespread lack of sex education and health education generally, and the role of some evangelical churches in Southern states which perpetuate some of the stigma. Socio-historic determinants include the history of poverty, racism and gender issues that are amplified in Southern regions of USA.
Louisiana criminalizes HIV exposure regardless of intent and has legislation prohibiting sex education in schools and clinics. Sterilization and drug testing of welfare recipients has been proposed. Criminalization of exposure to HIV results in sex workers and people living with HIV being placed on the sex offender register, which compounds social and economic disadvantage.
Southern Africa: criminalization of sex work
It was noted that there is a similar intersection of issues relating to housing, employment and race that affect HIV vulnerability in Southern Africa, as in Southern USA.
The video “From behind the shadows” was shown, which depicts the human impact of the criminalization of sex work in Harare, Zimbabwe. Sex workers are mostly charged with loitering under the Criminal Procedure Act. Sex workers either pay a bribe or provide sex to
police to avoid prosecution. They are prone to being abused, raped and assaulted. The stigma associated with sex work means police assume they are guilty and should be detained and abused. Sex workers are difficult to reach: stigma is a barrier to HIV prevention and rights protection.
Discussion
Governments should not interfere in private sexual matters between consenting adults.
Governments should be secular rather than impose religious moral values.
Decriminalization requires changing the mindsets of lawyers and policymakers regarding LGBTI communities and sex workers.
In Africa, decriminalization is very important, but is not our first battle. Protection is the utmost goal in LGBTI advocacy. Access to services that offer protection is fundamental and can happen in advance of decriminalization.
It is helpful to characterize the need for sex education and to eliminate homophobia as public health issues. In some African countries, clinicians are often willing to provide services to MSM. In Uganda, clinicians went to parliament to argue the public health reasons to oppose the Anti-Homosexuality Bill.
In Zimbabwe, sex workers prefer anonymity rather than legal representation. Many do not want to jeopardize their relationship with police. Sex workers find it more expedient to negotiate directly with the police, which may mean tacit acceptance of rights violations (extortion and sexual assault). In Louisiana it was possible to file the lawsuit anonymously.
Creating demand from communities for litigation involves tackling stigma.
Collating case data to provide evidence of trends to present to legislators and policy makers is important. Advocates need to highlight inconsistencies such as lack of alignment between policies of the justice sector, which punishes MSM and drives communities underground, and the health sector, which is urging MSM to come forward and access health services (e.g. MSM in Senegal).
The USA is resistant to international human rights laws and mechanisms. There is increasing interest from civil rights communities to mobilize new tools, although US jurisprudence is seen as unassailable. There is often an arrogant reluctance within the USA to look to the international community for new approaches and mechanisms for promoting human rights.
Louisiana is an anomaly; no other state criminalizes solicitation of sodomy. Thirty-four states have statutes criminalizing HIV exposure, which triggers sex offender registration requirements. The criminal law is used in pernicious ways to prosecute people spitting at police or a prison officer, although there is no basis in science for such prosecutions. In Louisiana, conversations with church leaders were important to explain the life situation and lack of life choices of sex workers and to generate empathy. Stories told by women affected by the law helped to bring the community together around the issue. It is important as
‘movement lawyers’ to ask communities what their demands and priorities are before litigating.
In many states of the USA, convicted felons lose the right to vote while in prison and for a period post-release. In reality, due to the disproportionate number of African Americans and Latinos in prison, this takes voting power away from African-Americans and Latinos.
Community organizing and litigation are addressing and changing these laws state by state.
Advocates in different regions could benefit from comparative research on the concept of the criminalization of unnatural acts, and research on how the legal system addresses sex workers, injecting drug users and MSM – looking at issues relating to evidence, police conduct, duration of detention and penalties. The police and judiciary may respond if they know that advocates and researchers are monitoring their conduct. Using evidence-based research, a judgment in Lebanon held that sex between men in private is not an ‘unnatural’
act for the purposes of Lebanese law.
Some religious leaders in the MENA region acknowledge in private that MSM have full rights to health and privacy, notwithstanding that the conduct of sex between men remains sinful according to religious doctrine. Whereas in Arab communities, privacy is respected by culture, in sub-Saharan Africa culture is not individualist and privacy is less well protected or understood.
In the Arab states, 40 years ago sex work was not criminalized. In Egypt there was no tradition to criminalize sex work until fear of the spread of STIs led to application of criminal laws.
In MENA countries where there is no specific sodomy offence, police rely on sex work offences to arrest MSM. Police also rely on invasive anal examinations as ‘proof of homosexuality.’ The medical profession needs to be held accountable for producing medical reports that purport to provide evidence of male homosexual acts, but which have no scientific basis. Such conduct is a clear violation of medical ethics. Police and judiciary consider prostitution to include homosexual acts; possession of condoms is used as evidence of a misdemeanor. Men are detained and monitored after release. Under strict Sharia law, male homosexual acts can be punished with a death sentence. The rise of religious fundamentalism means that we may see explicit criminalization of homosexual acts and harsher penalties.
In El Salvador, sex workers organized themselves to resist abuses. In Argentina, sex workers formed a labor union and there is now a network promoting the rights of sex workers in Latin America and the Caribbean that has submitted a proposal to the Global Fund. There is also a regional LGBTI association. Regional networks can supply leadership to progress national issues.
Criminalization of HIV transmission in Brazil has involved three courts cases that found people living with HIV guilty of attempted murder with cruel intention.