Queer lawfare in Africa: Legal strategies in contexts of LGBTIQ+ criminalisation and politicisation

463 Pages·2022·3.264 MB·English

by  Adrian Jjuuko, Siri Gloppen, Alan Msosa, Frans Viljoen

This book focuses on the strategies that activists for LGBTIQ+ Q Queer
equality in Africa deploy to challenge deep seated homophobia and u
transphobia, as well as the politicisation of LGBTIQ+ issues. It is a e
Lawfare
peer-reviewed, edited volume with scholarly contributions from lawyers, e
anthropologists, and LGBTIQ+ activists. It covers different country r
in Africa:
situations – those where equality is taking root, as the case is in South L
a
Africa, Botswana and Mozambique; those where homophobia reigns
Legal strategies in contexts
w
and LGBTIQ+ rights are politicised such as, Ghana, Kenya, Malawi, of LGBTIQ+ criminalisation
and politicisation
Nigeria, Senegal, Uganda, and Zambia; and those where traditional f
a
LGBTIQ+ activism is almost a nonstarter, such as in Ethiopia, Sudan
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and The Gambia. e

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Pretoria University Law Press Vpp
PULP iljoen
www.pulp.up.ac.za en,
ISBN: 978-1-7764116-8-9
Edited by
Adrian Jjuuko, Siri Gloppen,
Alan Msosa and Frans Viljoen
PULP
Queer
lawfare
in Africa:
Legal strategies in contexts
of LGBTIQ+ criminalisation
and politicisation
Edited by
Adrian Jjuuko, Siri Gloppen,
Alan Msosa and Frans Viljoen
2022
Queer lawfare in Africa: Legal strategies in contexts of LGBTIQ+
criminalisation and politicisation
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:
Pinetown Printers, South Africa
To order, contact:
PULP
Faculty of Law
University of Pretoria
South Africa
0002
[email protected]
www.pulp.up.ac.za
Cover design:
DN Ikpo
ISBN: 978-1-7764116-8-9
© The Editors 2022
T
able of conTenTs
Acknowledgments v
Acronyms and abbreviations vi
Introduction
Queer lawfare in Africa: Introduction and theoretical
framework 1
Siri Gloppen, Adrian Jjuuko, Frans Viljoen & Alan Msosa
PART I: LAWFARE IN THE CONTEXT OF
LIBERALISATION AND PROTECTION OF
THE SEXUAL RIGHTS OF
LGBT PEOPLE IN AFRICA
Chapter 1
War by other means: The law and politics of sexual
minority freedom in post-apartheid South Africa 25
Jaco Barnard-Naudé & Pierre de Vos
Chapter 2
Progressive legislation in the context of generalised
conservative public opinion: The case of LGBT rights
in Mozambique 57
Carmeliza Rosário & Camila Gianella
Chapter 3
Queer lawfare in Botswana 81
Monica Tabengwa & Anthony Oluoch
PART II: LAWFARE IN THE CONTEXT
OF ACTIVE POLITICISATION
Chapter 4
Queer lawfare in Kenya: Shifting opportunities for rights
realisation 107
Nicholas Wasonga Orago, Siri Gloppen & Matthew Gichohi
Chapter 5
Court focused lawfare over LGBT rights: The case of
Uganda 145
Adrian Jjuuko & Stella Nyanzi
iii
Chapter 6
LGBT+ rights lawfare in Malawi 183
Alan Msosa & Chrispine Gwalawala Sibande
Chapter 7
Against ‘the order of nature’: Towards the growth of
queer lawfare in Nigeria 205
Ayodele Sogunro
PART III: LAWFARE IN THE CONTEXT OF
RELIGIOUS AND CULTURAL NATIONALISM
Chapter 8
LGBT lawfare in response to heterosexual nationalism
and the retention of the anti-sodomy laws in Zambia 239
Landilani Banda
Chapter 9
LGBTQI+ lawfare in response to the politicisation of
homosexuality in Ghana 275
Ernest Yaw Ako & Amanda Odoi
Chapter 10
Senegal: Mobilising for gay rights in the shadow of
HIV/AIDS 313
Vegard Vibe
Chapter 11
From a ‘crusade to root out homosexuality like malaria’
to a ‘non-issue’: The absence of sexual minority
lawfare in The Gambia 341
Satang Nabaneh
Chapter 12
Digital lawfare and activism by lesbian, gay and
bisexual persons in Ethiopia 377
Getnet Tadele & Woldekidan Amde
Chapter 13
Activism from the closet: Fear of a double backlash
against a nascent queer movement in Sudan 405
Liv Tønnessen, Samia al-Nagar & Samah Khalaf Allah
Conclusion
The kaleidoscope of queer lawfare in Africa 437
Adrian Jjuuko, Frans Viljoen, Siri Gloppen & Alan Msosa
iv
a
cknowledgmenTs
We appreciate all those who contributed to ensure that this book sees the
light of day.
This book is a project of LawTransform (the Chr. Michelsen Institute
– University of Bergen Centre on Law & Social Transformation), Bergen,
Norway, together with the Centre for Human Rights, University of
Pretoria. The idea for the book emerged at a conference at the University of
Pretoria in 2015 where the editors, chapter authors and other stakeholders
met to discuss the status of LGBTIQ+ lawfare in Africa. Special thanks
go to the participants at that conference for shaping the ideas that led to
this book.
All contributions were subjected to double-blind peer-review. To all
the reviewers of the different chapters of the book, we say thank you for
the time and for the dedicated reviews of the different chapters.
Special appreciation also goes to the different participants at the annual
Bergen Exchanges on Law and Social Transformation who have listened
to presentations of draft chapters and made input into the structure and
contents of the book.
Finally, the editors acknowledge the Norwegian Research Council for
providing the funds for putting together this book and the Centre on Law and
Social Transformation at the University of Bergen (through the projects:
‘Sexual and Reproductive Rights Lawfare Global Battles’#230839; and
‘Political Determinants of Sexual and Reproductive Health in Africa’
#248159) for coordinating the project.
v
a
cronymns and abbreviaTions
ACHPR African Commission on Human and Peoples’ Rights
ACN Action Congress of Nigeria
AHA Anti-Homosexuality Act (Uganda)
AHB Anti-Homosexuality Bill (Uganda)
ANC African National Congress (South Africa)
APRC Alliance for Patriotic Reorientation and Construction
(The Gambia)
ART antiretroviral therapy
ASDSSA Alteration of Sex Description and Sex Status Act
(South Africa)
AU African Union
CAC Corporate Affairs Commission (Nigeria)
CEDAW Committee on the Elimination of Discrimination
Against Women
CHRAJ Commission on Human Rights and Administrative
Justice (Ghana)
CFRN Constitution of the Federal Republic of Nigeria
CNLS Conseil National De Lutte Contre le Sida (Senegal)
COSF Children of the Sun Foundation (Uganda)
COVID-19 Corona Virus Disease 2019
CRC Constitutional Review Commission (Botswana)
CREAW Centre for Rights Education and Awareness for
Women (Kenya)
CSCHRCL Civil Society Coalition on Human Rights and
Constitutional Law (Uganda)
DRZ Dette Resources Zambia
EACJ East African Court of Justice
EFCZ Evangelical Churches Fellowship of Zambia
vi
EOC Equal Opportunities Commission (Uganda)
FARUG Freedom and Roam Uganda
FSW female sex workers
GALAG Gay and Lesbian Association of Ghana
GALCK Gay and Lesbian Coalition of Kenya
GASA Gay Association of South Africa
GLOW Gay and Lesbian Organisation of the Witwatersrand
(South Africa)
HIV/AIDS Human Immunodeficiency Virus/Acquired Immune
Deficiency Syndrome
HRAPF Human Rights Awareness and Promotion Forum
(Uganda)
HRC UN Human Rights Committee
ICASA International Conference on AIDS and STIs in Africa
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and
Cultural Rights
ILGA International Lesbian and Gay Association
IRCC Inter-Religious Council of Uganda
KNEC Kenya National Examination Council
LAMBDA Mozambican Association for the Defense of Sexual
Minorities
LC Local Council
LDH Human Rights League (Mozambique)
LEGABIBO Lesbians, Gays, and Bisexuals of Botswana
LEGATRA Lesbian, Gay, Bisexual and Transgender Association
(Zambia)
LGB lesbian, gay and bisexual
LGBT lesbian, gay, bisexual and trans
LGBT+ lesbian, gay, bisexual and trans +
LGBTI lesbian, gay, bisexual, trans and intersex
vii
LGBTIQA lesbian, gay, bisexual, trans, intersex, queer and
asexual
LGBTIQ+ lesbian, gay, bisexual, transgender, intersex, queer+
LIZ Lotus Identity Zambia
MARPI Most At Risk Populations Initiative (Uganda)
MSM men who have sex with men
NAC National HIV/AIDS Council (Zambia)
NCAHSAU National Coalition Against Homosexuality & Sexual
Abuses Uganda
NCGLE National Coalition for Gay and Lesbian Equality
(South Afrtica)
NGLHRC National Gay and Lesbian Human Rights
Commission (Kenya)
NGOs non-governmental organisations
NHRC National Human Rights Commission (The Gambia)
NHRI national human rights institution
OAU Organisation of African Unity
PULP Pretoria University Law Press
RCN Research Council of Norway
SAHRC South African Human Rights Commission
SOGI sexual orientation and gender identity
SSMPA Same Sex Marriage (Prohibition) Act (Nigeria)
SALC Southern Africa Litigation Centre
SMUG Sexual Minorities Uganda
STIs sexually transmitted infections
TBZ Transbantu Association of Zambia
TEA Transgender Education and Advocacy (Kenya)
TRRC Truth, Reconciliation and Reparations Commission
(The Gambia)
UCLT Uganda Centre for Law and Social Transformation
UGANET Uganda Network on Ethics, Law and HIV/AIDS
UHRC Uganda Human Rights Commission
UNAIDS Joint United Nations Programme on HIV/AIDS
viii
UNIP United National Independence Party (Zambia)
UNSG United Nations Secretary General
UPR Universal Periodic Review
URSB Uganda Registration Services Bureau
USA United States of America
WHER Women’s Health and Equal Rights Initiative
WFD Westminster Foundation for Democracy
WMA Minority Women in Action (Kenya)
ZMIT Zambia Independent Monitoring Team
ZHRC Zambia Human Rights Commission
ix