04 August 2015
JURIST Guest Columnists Anneke Meerkotter of the Southern Africa Litigation Centre and Graeme Reidof Human Rights Watch discuss how recent court rulings in Botswana, Kenya and Zambia illustrate significant progress in human rights in general and in LGBT rights in particular…
In the past eight months, three African court decisions—in Botswana, Kenya and Zambia—have asserted basic freedoms in the face of popular prejudice and discriminatory laws. These cases 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 for marginalized or unpopular groups.
Botswana is one of 36 countries in Africa that outlaw same-sex sexual conduct. In February 2012, activists in Botswana applied to register their organization, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), with the government. The registrar rejected their application on the grounds that Botswana’s constitution does not recognize homosexuals and that the application would contravene the Societies Act, by operating for an “unlawful purpose or other purpose prejudicial to, or incompatible with, peace, welfare or good order in Botswana.”
But more than two years later, in November 2014, LEGABIBO’s persistence paid off when the Botswanan High Court held [PDF] that refusal to register the group was a violation of the applicants’ rights to equal protection of the law and to freedoms of expression, association and assembly. This decision was especially significant as the court emphasized that the laws prohibiting same-sex sexual acts did not criminalize homosexuality per se. Nor did they criminalize advocacy for the reform of these laws.
The court asserted that gay, lesbian and bisexual people have the same rights as anyone else, regardless of laws that criminalize consensual same-sex conduct. In other words the court drew a clear line between identity—who a person is, and practice—what a person does. This is very significant because it helps protect the ability of groups to organize around the rights of LGBT people. The attorney general appealed the decision and the matter will be heard before the Court of Appeal later this year.
The Kenya High Court handed down a similar judgment in April. The NGO Coordination Board, a government body, had refused to register the National Gay and Lesbian Human Rights Commission on moral grounds and because the organization purportedly aimed to promote prohibited acts. The three judges rejected subjective moral convictions and asserted fundamental human rights and the rule of law: “No matter how strongly held moral and religious beliefs may be, they cannot be a basis for limiting rights.”
The judgment strikes a similar tone to the Botswana ruling, emphasizing that, the Penal Code does not criminalize homosexuality, or the state of being homosexual, but only certain sexual acts against the order of nature, and that the Penal Code does not criminalize the right of association of people based on their sexual orientation. The judgment observed that “an interpretation of non-discrimination which excludes people based on their sexual orientation would be in conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.”
In the third case, in May, the Zambian High Court upheld the acquittal of a human rights activist, Paul Kasonkomona. In April 2013 he expressed his opinion—on a privately owned television channel—that the rights of sexual minorities, including LGBT people and sex workers, should be recognized. He was arrested outside the television studio and charged under an obscure and archaic provision of the Penal Code outlawing “soliciting for immoral purposes” in a public place.
Kasonkomona was acquitted [PDF] in the Magistrate’s Court, where the magistrate held that the “accused was exercising his freedom of expression” as provided for in the Zambian Constitution. “What I heard,” said the magistrate, “was that he was advocating for the rights of those already practicing [homosexuality] to be protected.” He posed—and answered—a rhetorical question about whether a person who advocated abolition of the death sentence would be “soliciting for immoral purposes? The answer is no.”
The government appealed the acquittal, but on May 15, the High Court confirmed Kasonkomona’s acquittal and reiterated the ruling of the magistrate, which distinguished between soliciting someone to engage in same-sex sexual acts, a criminal offense in Zambia, and advocating for people’s rights.
The three cases stand in stark contrast to a judgment by the Ugandan High Court in July 2014, in which a judge ruled against four activists who had sued the ethics and integrity minister, Simon Lokodo, for shutting down a February 2012 workshop on advocacy for LGBT rights. The judge ruled that the workshop participants were “promoting” or “inciting” same-sex acts, in a ruling that went so far as to suggest that even distributing condoms to gay and bisexual men would amount to ‘direct or indirect promotion of same-sex practices.”
Each case revolves around the fundamental rights of a marginalized and unpopular minority. The underlying principles affirmed in the three most recent rulings apply more widely. Freedoms of expression and association are fundamental rights provided for in the African Charter on Human and Peoples’ Rights. All too often African human rights defenders are silenced by means of arbitrary, vague or overbroad criminal laws.
It is essential, to protect human rights in general and LGBT rights in particular, to ensure that the rights to freedom of expression and association are protected in national constitutions and legislation and not eroded through politically motivated prosecutions or the threat of prosecutions. It is heartening to see cases in which freedoms of association and expression have trumped archaic laws and popular prejudice. These judgments illustrate that justice can prevail where the judiciary is independent and able to uphold its constitutional mandate to protect human rights.
Anneke Meerkotter is a lawyer and Litigation Director at the Southern Africa Litigation Centre (SALC). She was previously the LGBT and Sex Work Program Lawyer at SALC and has worked on a number of defining LGBT rights cases in Southern Africa. Graeme Reid is the Director of the Lesbian, Gay, Bisexual and Transgender Rights Program. He is an expert on LGBT rights and founding director of the Gay and Lesbian Archives of South Africa.