There are multitudes of articles, blogs and opinion pieces on this subject. Similarly, human rights interventions and hearts hoping for meaningful change in their lives. Unlike just the common aspirations for development, prosperity or achievement; there is a certain African demographic that is seeking something additional that is far more simple but complex. Seeking the kind of comfort that allows one to feel free among others: in expression, simply living and in emotion. Although it sounds simple, but it is hard to reach for many who have to hide their truths from family and friends. This ‘simple’ cannot be easily understood because of the privilege of fitting in. Whether one fits in due to economic standing, attributes of looks or being educated; there are liberties and freedoms not all people can enjoy, even if they have these components for fitting in. The rights of those of non-conforming sexual orientation have been brought before Kenyan courts. A country whose leader previously said “gay rights are not a priority”. I can relate with this because such rights do not exist. There is no international law or Constitutional statute that specifies ‘gay rights’. The same can be said for the court petition in Botswana. More importantly, the rights to equality, privacy, protection from discrimination and dignified treatment are all relevant and applicable to heterosexuals just as homosexuals. The removal of provisions prohibiting same-sex relations or decriminalisation is aligning these rights universally within the respective countries. These rights, along with many others; are not unique to a specific demographic but all individuals as entrenched in both Kenyan and Botswana courts.
I do not speak on behalf of or as a representative, but merely add my voice from observation and my own corner of knowledge. The court petitions reflect how the law can be an avenue for effecting change. The kind of change that takes away the risk of persecution and state-sponsored injustice. However, I must note a change in law does not necessarily change the circumstances or social landscape of acceptance. It does however ensure a new path towards protecting the interests of a community often marginalised and subjected to injustice. A perfect example is in South Africa’s liberal laws that protect and enable the rights but do not prevent rampant injustices against people with non-normative sexual orientation, along with a wide spectrum of other demographics that are marginalised. Despite these advancements in law, many people find themselves subjected to violence, hate speech, sexual abuse and family/societal rejection. I am afraid to use the term sexual minorities because there is no proof that they are a minority. Those who are marginalised could only be a fraction or could be a significant number as many hide due to intolerance and injustices. A lot of instances where people are targeted is when their sexuality is assumed. Stereotypes and attributes related to femininity among men and masculinity among women induce these assumptions and in turn, injustice. The risk of losing your life, facing an angry mob, being disowned by those close to you and losing your job can all be experienced in one go. It is a challenge for many silenced people.
I will not delve into the dynamics of politics of privilege, power or patriarchy. However, these court petitions mean more to the larger system than that of an individual. The implications of legislative change mean that there are increased possibilities for marginalised people to secure service delivery and exercise their freedoms, free from stigma and discrimination or persecution. There will no longer be a legally justified reason for bias, impediment or intolerance. This leaves culture, religion and other systems to influence these injustices with impunity. This reflects why there is a need to go beyond decriminalisation. The risk of persecution is eliminated but not that of discrimination, violence or other injustices without remedy. The situation begs for protection and prohibitions that impede the promotion of human rights for marginalised people. It would also be prudent to mention how it is not just society that would be left behind; but also subsections of the marginalised. There are issues of variant sex characteristics and gender identity and/or expression that are often conflated with issues of sexual orientation (particularly same-sex relations). Neglecting these other issues would advance the cause of some and leave others behind.
I have met many individuals more concerned for the ability to secure livelihood and to freely express themselves within their spaces of comfort at home or with friends. They couldn’t be bothered with larger issues of systematic injustice or socialisation. Normally in these instances these individuals would have certain provisions of privilege that allow them to be tolerated or accepted within their spaces of engagement. The link between the systematic issues and the individual is often far or difficult to identify but it is important to acknowledge both. Chances are the privileged have access to the social elite that can influence changes in policy. This would allow for marginalised individuals to be seen beyond the limitations of moral virtue, taboo or populism. The same can be achieved through decriminalisation, albeit in law rather than society. Complimentary advocacy work is always useful to ensure visibility, support from allies and encourage more civic action. Although public discourse is variant at a domestic level, the region is certainly experiencing change.
Many experts believe the cases in Botswana and Kenya can have a/some ripple effect in the region. I support this if court decisions were to keep the legal status quo as is. However, if decriminalisation were to occur through the courts; there might be backlash and unintended consequences to the lived experiences of the community. Even worse, there could be further regression in the grossly oppressive African nations where replicable efforts would be stifled – regardless of outcomes. One example of this is with the African Commission on Human and People’s Rights; where the Coalition of African Lesbians’ observer status was rescinded due to political pressure from the African Union Heads of State. It highlights how the law or democratic institutions can always be influenced by politics. This is prevalent across the region. Court cases carry the hopes of many seeking resolution or remedy. I see this in the same way that an individual can take out insurance cover for a possible loss. It mitigates the possibility and magnitude of harm but does not take it away. In an ideal world, I can only imagine a scenario where Botswana judges would be able to exchange views with their Kenyan counterparts since there is some time for both to deliver judgements. More practically, I see courts being conscious of their contexts and the political dynamics. Whether they will conform to international law and be progressive is yet to be seen, but a responsibility lies with Human Rights Defenders to ensure the communities they serve and represent are prepared and ready for any of the outcomes.
The communities affected remain the bearers of rights and how they are fulfilled. The uptake, assertion and defence for their rights is far more important than any outcome. Too many lives have been lost and costly sacrifices made. If anyone thinks they are unaffected, or even worse; negatively affected by progressive outcomes of these court petitions, then there is a need for deep reflection. Too many social justice movements have taught us that true liberation and freedoms lie in the inclusion and consideration of all. Africa is at a critical point in the human rights of all people. Corruption, harmful practices and the policing of bodies divert from the co-creation of meaningful solutions that will address our development challenges. Amazing work has been done by many and I am privileged to see first-hand at how great and unwavering Human Rights Defenders continue to fight the many struggles we face. We need to rally behind those who are struggling now, as we will never know who will be next in conflict with the law, state, environment, ideology, economy or majority.
Dumi is a human rights defender, feminist and radical researcher. PhD (Law) candidate, Fellow of the Chartered Institute of Management Accountants and independent consultant for state shadow reports, participatory human rights research and grassroots civic action. IG: dumi.activist / www.dumisogatsha.com / gatshadumiso(at)yahoo.com.