By Luke Malone for Vocativ
Legal rulings in three African countries are being billed as a turning point for LGBT rights in certain parts of the continent.
The three wins, which came in the past eight months, were in countries where same-sex sexual activity is outlawed. Legal experts say the victories “represent significant progress on human rights for lesbian, gay, bisexual and transgender (LGBT) people and have broader implications with regard to countries’ obligations to uphold basic rights” of those who live in the margins.
The first case was that of LEGABIBO, a LGBT rights group in Botswana that was denied in 2012 the right to formally register their organization, according to an article co-authored by Human Rigths Watch’s Graeme Reid and Anneke Meerkotter of the Southern Africa Litigation Centre. The group was told that allowing its registration would be “incompatible with, peace, welfare or good order in Botswana.” However, the Botswana High Court overturned that ruling in November, stating that denying registration “violated the applicants’ rights to freedom of expression, freedom of association, and freedom of assembly.”
The ruling included a distinction between sexual behavior and identity, allowing groups to “organize around the rights of LGBT people” in a country where same-sex acts attract a seven-year prison sentence.
An April ruling in Kenya similarly stated that the government cannot refuse to register the National Gay and Lesbian Human Rights Commission on moral grounds. Like Botswana, same-sex relations in Kenya can also yield a prison sentence—up to 21 years in this instance. The Kenyan judgement also made it clear that while one could be prosecuted for engaging in same-sex sex, one can not legally be punished just for identifying as gay.
“The laws will have practical effects because the organizations can then register as LGBT organizations, to register openly, so they can do practical things that organizations do like open bank accounts in their name, receive funding in their name, open offices, enter into lease agreements, all the things that come with formal recognition as an NGO,” Reid told Vocativ.
The third case Reid and Meerkotter highlight is that of Paul Kasonkomona, a Zambian activist who was arrested in 2013 for publicly stating that the rights of the LGBT community and sex workers should be acknowledged and protected. The Zambian High Court upheld an acquittal by the Magistrate’s Court in May, when the magistrate said that Kasonkomona wasn’t promoting homosexual behavior, but advocating for existing homosexuals. Such freedom of expression, he stated, is protected by the Zambian Constitution.
“The significance of these cases is that the laws are very specific, they outlaw particular sexual practices. It’s not illegal to be gay, as such, they don’t outlaw identities, so that’s also what these cases are asserting,” Reid said. “I think that’s very important because even though these laws are seldom if ever enforced, either in Kenya or Botswana—although there is a case currently in Kenya—they have very negative effects: people are subject to blackmail, to extortion, and people are under the impression that they are criminals under the law. These court victories are important to opening up that space.”
While there is plenty to be done in order to ensure that the rights of LGBT citizens are upheld throughout the region, Reid says that by looking at these cases together, one can see that the rights movement is gaining traction. He points to other developments, like Mozambique’s recent decriminalization of homosexuality, and the African Commission on Human and People’s Rights resolution condemning violence against LGBT people, as further evidence.
“There is a much more visible LGBT community—much more vocal, much more organized—and in some sense there is a response to that with increased condemnation from government officials,” Reid said. “In that way, you can see it as a measure of success of the movement.”