Nothing new under the sun: LGBTQI+ rights as human rights

OPINION Rosa Ojwang 29 July 2022

I advocate for LGBTQI+ rights because I am a black, African woman, who has benefitted from the historical social justice movements, particularly, the Civil Rights and Feminist struggles for equality. I understand my history, and I choose not to merely benefit from the sweat, tears, and sacrifice of prior generations. I aim to use my current privileges to support as an ally the causes of other minority groups, in whose shoes I would be currently walking in, if someone in history had not championed mine and given me the liberation and freedoms that I currently enjoy.

The “African Perspective”: Un-African, Unnatural, Ungodly

The struggle of the LGBTQI+ communities in Africa for the recognition of their rights is often challenged by paradoxical claims. The loudest criticisms are that LGBTQI+ rights are un-African and their sexual actions unnatural and ungodly, as they do not lead to reproduction.[1] Such sentiments emanate from countries where premarital births are on a steady increase,[2] thereby showing that at the very least, there is a significant number of people who are enjoying premarital sex. Traditional African societies expressly prohibited such sexual liberty, through customs and taboos. As such, the increase of premarital births shows an attitudinal shift in the society regarding adherence to traditional social norms on sex and reproduction. So why are the LGBTQI+ policed through traditional norms that are not binding to all heterosexuals? Moreover, the dominant religions in African states, that is, Christianity and Islam, also consider premarital sex as the sin of fornication. However, the mere ungodliness of fornication has not inspired contemporary legislation to penalize such acts, and as such, sexual acts of the LGBTQI+ should not be discriminatorily penalized in Penal Codes.

Indeed, advocates for LGBTQI+ rights can easily debunk current counterarguments, if given a voice or platform in the African discourse on LGBTQI+ rights. For instance, anthropological and historical perspectives show that the current homophobic stipulations in the Penal Codes or other Statutes in many African countries were a product of colonialism, and not African traditions.[3] Moreover, the argument that the LGBTQI+ live unnatural lives because they do not reproduce within such unions presupposes that all members of the African society have to lead sexually active lives and reproduce, which is far from the reality. There are natural conditions that can lead to a lack of reproduction, such as barrenness, and celibacy, especially to dedicate oneself to a higher calling. However, no one would criminalize barrenness, or a choice to refrain from reproducing. In a world that has one too, many children existing in orphanages and in streets, and in dire need of a loving family to adopt them, the need for increased reproduction is the least of our social concerns. Also, due to advancements in science, the LGBTQI+ can still reproduce to continue their lineages, for instance, through surrogacy.

LGBTQI+ Rights and Human Rights As Separate

The doublethink that occurs within the social justice movements in Africa when it comes to LGBTQI+ rights is astounding. George Orwell defines doublethink as, “To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it.”[4] To advocate for LGBTQI+ rights necessitates debunking instances of doublespeak, to show that there are no cogent reasons in the society for criminalizing sexual activities of members of the LGBTQI+ community, and denying them other rights. The fear of the unknown is a powerful component of such non-progressive laws. For any person who has been in a minority group, be it as a black African woman, youth, or ethnic minority, to assert that LGBTQI+ rights are not human rights presupposes that they only champion social justice movements whenever it suits them, and not because they believe in the morality of their claims. The dangerous aspect of such contradictory assertions is the oblivion of proponents of anti-human rights discourse, to the history of the social justice movement, and the potential impacts. In a world where a particular social majority determines which rights are moral and legal, everyone is at risk of oppression, and if you think that it could never be you, reconsider your stand in light of the US Supreme Court overturning the decision in Roe v Wade.[5] Yes, the law is a powerful tool to police your body, and your choice of a partner.

Moreover, many African states recognize in their constitutions that religion and the state should be separate, and as such, laws should not solely criminalize LGBTQI+ acts, merely because they are against the moral code of a particular religion. Even if some evidence could be adduced to show that some African societies limited LGBTQI+ rights, one must warn against the perception that whatever is traditional is consequently of a superior moral character. Indeed, some repugnant social practices were not deemed as immoral at different points in history, albeit they were later expunged from laws. For instance, the western colonial powers that initiated the penal criminalization of homosexual acts in many African states, later legalized them in their countries. Similarly, we must show that the African legal systems are capable of growing, responding to the changes in the society, and adhering to the international obligations that they opt for, such as non-discrimination on grounds such as gender or sexual preference.

Family and Reproductive Rights in Africa

So, are LGBTQI+ rights human rights? To answer this question, one ought to ask what special rights the LGBTQI+ community advocates for within the African context. There is no unique right that the LGBTQI+ community seeks, which do other members of society not yet enjoy. As such, if members of the LGBTQI+ community are not allowed the freedom of choice of a partner and to love whomever they choose, why is everyone else entitled to such a right? If certain consensual acts are prohibited by the law, why are heterosexuals also not policed to determine whether they do not engage in similar acts in private, or why then are the LGBTQI+ discriminatorily singled out and targeted. If only people from the opposite sex are legally permitted to marry, is there space for other forms of unions in Africa, a continent characterized by a decreasing number of legal unions? Must the law not only define, but also limit whom we deem as family?

I am an advocate for LGBTQI+ rights because I do not want to live in a world where my next and thereby, I have no freedom of choice, especially as pertains to private and consensual activities that I engage in. I do not want the law to police whom I love, and whom I marry, because I know of the potential dangers of such a stance. There are great strides that have been made by the feminist movement in the promotion of equality and freedom of choice, which should motivate us all to recognize that the laws pertaining to sex and marriage should be regularly revised. Anyone who has experienced true love in this fickle world would wish it upon every human, in whichever person they find it; and they would not seek to restrict such happiness. Laws should correspond to the social developments that occur, as people progressively aim to improve the lives and plight of all humans. Although the society may take more time to recognize it, the law should respect and represent what is evident: LGBTQI+ rights are human rights.

Rosa Ojwang is an advocate of the High Court of Kenya, an LL.M candidate at the University of Dar es Salaam, School of Law, and an alumna of the University of Nairobi.  She is also currently a Partner at RNO & Associates. 

[1] Louise Vincent and Simon Howell, ‘Unnatural”, “un-African” and “ungodly”: Homophobic Discourse in Democratic South Africa’ (2014) 17 Sexualities 4, 473.

[2] Emily Smith-Greenaway, ‘Premarital childbearing in sub-Saharan Africa: Can investing in women’s education offset disadvantages for children?’ (2016) 2 SSM-Population Health, 166.

[3] Susan Haskins, ‘The influence of Roman laws regarding same-sex acts on homophobia in Africa’ (2014) 14 African Human Rights Law Journal 2, 395.

[4] George Orwell, 1984 (first published 1949, Secker & Warburg) 20.

[5] Case No 19–1392 Dobbs, State Health Officer of The Mississippi Department of Health, Et Al. v Jackson Women’s Health Organization et al. (2022) US Supreme Court.