Botswana recently joined the growing list of African countries that have decriminalized homosexuality. In a unanimous decision, the court ruled to decriminalize same-sex relations. Unfortunately, not long after this much celebrated court ruling, Botswana's government is now seeking to appeal the high court's ruling and reinstate the criminalizing laws.
The court case, which was presented by a university student and a Motswana advocacy group for sexual minorities, challenged the court to repeal section 164 of the penal code that criminalized homosexual relations with up to seven years in jail. The Botswana ruling comes on the heels of a similar case presented before the Kenyan high court in May. Contrary to what many thought would be a new dawn for human rights in Kenya, that court ruled against repealing the penal code, upholding the colonial-era laws that criminalize same-sex relations.
This ruling by Kenya's high court, and now the appeal against Botswana's landmark case, are significant setbacks for LGBT progress in Africa, where homosexuality and gender nonconformity tend to be regarded as "unnatural" Western behaviors that have been imported from abroad, and threaten traditional African cultural values. In reality, laws criminalizing homosexuality were imposed on Africans by the colonial authorities, and some indigenous cultures have historically tended to accept homosexuality as commonplace.
But the framing of LGBT rights as a form of neocolonialism has proven an effective tool for local politicians and religious leaders who wish to prevent progress on the issue - and who often form alliances with foreign religious groups and governments in the process. This dynamic makes it difficult for foreign actors - even popular ones, like President Barack Obama - to visibly promote the rights of sexual minorities in Africa.
A Long Walk to Equality
Thirty-two of the fifty-four African nations still criminalize homosexuality and target gender non-conforming and transgender individuals. Challenging discriminatory legislation against freedom of association and assembly is one of the first stepping stones towards LGBT equality, yet there are still many countries with laws that bar LGBT organizations from official registration.
There has been a recent surge of progress: since 2012, Lesotho, São Tomé and Príncipe, Mozambique, Seychelles, and Angola have all legalized homosexuality, making the majority of Southern African states LGBT-affirming by law.
South Africa remains the pioneer state in this regard: it is still the only African country to legalize same-sex marriage and was the first in the world to have constitutional protection based on sexual orientation. Even in South Africa, however, homophobia is rife. Although decriminalization is a big step in achieving equality for sexual minorities, it is only the beginning. African activists at the forefront of this work recognize that the courts are not the end of the struggle, but they serve as a significant factor in protecting sexual minorities.
An Unreceptive Sociopolitical Climate
Across the continent, sexual minorities have been forced into displacement by threats of violence, blackmail, unemployment and other forms of social ostracization. While activists across the continent have focused on achieving human rights and legal protections for LGBT citizens, they have yet to make significant inroads against the cultural resistance to advancing LGBT rights. For many Africans, there is a shared sentiment that homosexuality is un-African and against their traditional and cultural values. Many religious leaders and political leaders especially oppose LGBT rights in the name of protecting national values.
While local African activists are paving the way for a more just future for sexual minorities, foreign efforts in support of LGBT rights, though well-intentioned, often undermine progress.
This is largely because many Africans see homosexuality as a Western import. When Obama made stern comments in defense of LGBT rights during his 2015 visit to Kenya, his remarks provoked a severe backlash from local religious and political leaders. Seven hundred Kenyan pastors signed a letter asking him not to come to their country to push 'gay talk'. In similar situations across the continent, Africans have been adamant about foreigners not imposing their beliefs and culture on them, by promoting LGBT equality.
It is in this sociopolitical climate that African activists are working to promote the freedoms of sexual minorities. They argue that it is not homosexuality that is un-African, but in fact homophobia that they inherited from colonial times through their penal codes. Efforts to confront narratives about the 'Africanness' or 'unAfricanness' of homosexuality can be threatened by the intrusions of foreign actors. As seen in the aftermath of Obama's 2015 visit, foreign support of LGBT rights can be appropriated by local politicians and religious leaders to spew homophobic rhetoric, placing LGBT communities in even more vulnerable positions.
An Alternative Foreign Policy Approach
The previous US administration had a robust strategy to support decriminalization efforts globally, however it fell short in some regards. Although appealing to American activists, threats of withholding financial assistance and public chastising of African countries' LGBT stance, such as Obama's address, don't really serve LGBT communities in Africa.
The aid conditionality approach to sexual rights has the potential to create conditions that further the precariousness of LGBT lives, and other marginalized groups who rely on foreign funding for education and healthcare. Furthermore, it excludes the voices of local actors and compromises the potential for civil society to lead its own national movements around sexuality rights.
Earlier this year, the Trump administration announced that it would launch efforts to address the global criminalization of homosexuality. While primarily targeted at putting pressure on Iran, Africa was also on the agenda. Given the Trump administration's track record on LGBT rights, it seems that the administration may be hoping to use the issue as a pretext for applying sanctions. But that approach might do more harm to LGBT communities than good. If local LGBT individuals are blamed for American sanctions or other punitive measures, they may well suffer violence as a result.
Foreign actors meddling into LGBT politics in African countries ought to consider the climate within which African activists are working. Local activists prefer an approach that is more affirming of local bodies (such as the judiciary, and local and regional LGBT organizations), to a punitive aid-conditionality or public condemnation approach.
An aid-based foreign policy approach to championing LGBT rights should instead consider allocating funding to the local and regional organizations and include participation and communication with the activists representing civil society in African countries. For example, ahead of Obama's 2015 visit, one Kenyan LGBT organization suggested that the US should take the posture of directing efforts and support towards regional bodies such as the African Union (AU) that already passed resolution 275, which presents itself as an African stance on condemning violence against sexual and gender minorities.
Momentum for the LGBT movement across the continent has picked up in recent years. Amid repressive legislation and homophobic rhetoric rooted in religious values and anti-Western cultural sentiments, African LGBT activists are the best-placed actors to challenge their local courts and set precedents for future LGBT wins. Foreign actors supporting LGBT rights across the continent will need to listen to the activists on the ground and support their efforts towards decriminalization and greater protection for sexual minorities.
Stephanie Mithika is an Intern with the Africa Center. Follow her on Twitter @steph_mithika.