In April 2022, the Centre for Human Rights (CHR) and the Centre for Sexualities, AIDS, and Gender (CSA&G) at the University of Pretoria together with the Center for Gender Studies and Feminist Futures (CGS) and the Center for Conflict Studies (CCS) at the Philipps-University Marburg launched the first edition of the Pretoria-Marburg Queer Conversations. The conversations come from common interests in work on LGBTIQ+ and queer identities among the centres.
This six-event series, themed Scholarly and Activist Perspectives on LGBTIQ+ Lived Realities in Africa, creates a monthly space for in-depth discussions that bring together scholars and LGBTQI+ activists.
The third event of the series focused on The Colonial Legacies of Anti-LGBTIQ+ Rights in African States. It was led by Monica Tabengwa, a lawyer and researcher from Botswana, who works for Pan-Africa ILGA and Human Rights Watch. She specialises in queer issues in sub-Saharan Africa and was joined by Adrian Jjuko, a Ugandan human rights lawyer, researcher, and activist.
In 2021 Botswana decriminalised same-sex conduct through a court of Appeal judgment. The judges reiterated that these were colonial laws that had been imported into the country with colonisation.
"When we're basically suggesting that before colonisation African culture or Botswana culture at least was fluid enough, and tolerant enough to accept and not penalise people's sexual behaviour or gender identities, and so, when this came in, they somehow managed to get into constitutions, into penal codes, it became coded as laws that basically outlawed sexual behaviour that was considered to be unnatural," says Tabengwa.
She also maintains that colonisation came with fundamentalist Christian views that brought an intolerance to sexuality. With time the intolerance crystallised into what today is believed to be culture. When politicians talk about homosexuality they say it is unAfrican and it is against our culture, yet it is known that African culture cared very little about one's sexuality.
"It was more fluid and tolerant and nobody really had to be penalised in the way that we see penalisation today and so it has crystallised into custom so much that people actually today believe it is our culture instead of a Western import or rather an import that came with colonisation. The sad thing is in Africa, for instance, we have about over 30 countries, criminalising same-sex conduct and most of these are Commonwealth countries, which means that they are British colonies," says Tabengwa.
Tabengwa points to the complex relationship between countries that experienced colonial violence and former colonial powers and how that impacts on the recognition of queer rights. Colonialism and the rejection of its legacies has translated into a feeling that the movement to remove those imposed laws is once again an attempt by Western countries to force their ideas on the African continent. She points to a double contrast. There is a sense that even though it came with the West "we believe it so much that it's ours and then we have people saying we must decriminalise, we must remove these laws, but the anti-colonisation sentiment feels like now what is coming from the west is ... people saying we must accept homosexuality."
Tabengwa also points to the role of American evangelicals funding African organisations to support these very conservative values around family, tradition, and culture. That basically supports the binaries and does not agree that Africans can be fluid and have various kinds of families. In Botswana, for instance, you cannot say a family is a man his wife, and children, you will leave out 75% of the population, because there is such a diversity that a very narrow definition of family cannot work. And so all of these the fundamentalism that's coming with anti-LGBTQI sentiments, is really entrenching, even more, the intolerance that was brought about by colonisation.
"I think criminalisation is one of the biggest legacies that has really been damaging to Africans. You see people being denied certain rights that they are normally entitled to. There is nothing in any of the many constitutions that says you can't be registered because you are registering an LGBT organisation, but because of that criminalisation, whenever NGOs apply for registration or legal recognition, people always refer back to that criminalisation because, of course, the intolerance is there. It's already believed that if these people cannot be allowed to exist, or coexist and have access or the rights - registration is one of them. And we've seen in many countries, people being denied registration," said Tabengwa.
Ghana is already criminalising same-sex acts based on that colonial legacy from the British. They are reportedly trying to expand the criminalisation to include many other aspects just really to deny even more rights for LGBTQI persons. In addition, there are other ways that the colonisation has come in various other smaller ways of ensuring that sexuality is controlled or just gender identity in their small ways of controlling these. There are laws on sex work, for instance, laws on loitering. These laws seem small, but in many ways, because it's so difficult sometimes to be able to charge people with same-sex conduct because it happens in private, countries tend to pick on these little laws.
Tabengwa says poverty contributes to LGBTQI persons not being able to finish education or really not being able to access jobs, and other socio-economic rights. Poverty affects LGBTQI communities quite disproportionately and so they tend to work in the informal sector, which means they're more likely to be involved in sex work for instance or to be homeless, and when they are homeless, they're likely to be picked up.
"In Uganda for instance, when Covid-19 started, some LGBTI young persons were all together in a shelter, and they were raided and arrested and kept in detention for more than a month, and what happens when they are in detentions, They are given anal examinations, they are denied the ARVs, they are denied all kinds of things, they don't have money to bail themselves out. They cannot pay the bribes that are expected out of them and so it just becomes a vicious circle of really continuous human rights abuses and so really I mean, I think at the roots of all of this is the criminalisation and intolerance that came with colonisation," Tabengwa says.
Jjuko says the continued legacy, the continued aspects of colonialism that continue with us as African is too very important, especially in the areas around gender, and sexuality, the African elite still sees themselves through European lenses and standards. So we hate what white people consider to be substandard, what they consider to be unacceptable.
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"We have African values or European standards, and all that we seem to be doing to a particular extent. Africa seems to be frozen in history, at a point in time, the British, for example, moved away from the standard they had in the past around same-sex relations. They changed their penal codes, they changed their own laws, and we never seem to have moved beyond that. So with white standards, we don't want white standards as they change. We have white standards up a certain level at a particular time. That's why African countries still continue to criminalise same-sex relations.
"Right now my colleagues are out there doing police training, the police were trained in a colonial way and they still police the colonial way. Now the actual colonial setup changed from the white people to the elite who are the leaders today in today's Uganda, but the role of the police continues to be the same. So people are seen as not important, as less important, as lesser humans and the LGBTQI people are going to face the yoke of the police. The anal examinations that Monica spoke about are partly a result of the need to humiliate. You are regarded as not so important to society. The arrests that we saw during Covid-19, the beatings, and the suffering that has to be imposed on LGBTQI people come from this kind of colonial policing that we adopted from the colonialists," says Jjuko.
