Hailed as a landmark ruling, the Supreme Court of India’s recent decriminalisation of same-sex relations is being seen by African queer rights activists as “the spark [they] need” to push for the scrapping of similar laws in Africa.
In their unanimous decision to decriminalise section 377 of the Indian Penal Code —which punished those in same-sex relations by up to 10 years’ imprisonment — the Supreme Court judges call it “irrational, arbitrary and incomprehensible as it fetters the right to equality for [the] LGBT [lesbian, gay, bisexual and transgender] community… [the] LGBT community possesses [the] same equality as other citizens.”
It adds: “Members of LGBT community members and their family members are owed an apology from society for being denied equal rights over the years.”
A Human Rights Watch report by Alok Gupta, titled This Alien Legacy — The Origins of “Sodomy” Laws in British Colonialism, says that section 377 was “a model law” introduced in Britain in 1861, which was then exported to its colonies.
The report argues that many of the countries that outlaw same-sex relations do so “because they once were British colonies”.
“They brought in the legislation … because they thought ‘native’ cultures did not punish ‘perverse’ sex enough. Section 377 was … a colonial attempt to set standards of behaviour, both to reform the colonised and to protect the colonisers against moral lapses.
“It was also the first colonial ‘sodomy law’ integrated into a penal code … Its influence stretched across Asia, the Pacific Islands and Africa — almost everywhere the British imperial flag flew.”
The list of African countries that inherited versions of this law include Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia and Zimbabwe.
“[Section 377] was where it all started,” says Alan Msosa, a Malawian academic at York University in Canada, where he is researching human rights and same-sex relations in Malawi.
Section 153 of the Malawi Penal Code punishes “any person who has carnal knowledge of any person against the order of nature; or permits a male person to have carnal knowledge of him or her against the order of nature” with up to 14 years’ imprisonment, “with or without corporal punishment”.
Describing the Indian court’s decision as “historic and a landmark ruling”, Msosa says: “We were all following that case very closely. And the most important thing to come out of that decision is that, actually, these laws can be ordered down. It shows that decriminalisation can happen in the former British colonies.”
Indian lesbian, gay, bisexual, transgender activists have long protested the colonial-era criminalisation of same-sex relations, which previously could be punished by up to 10 years in prison. The Supreme Court in India recently overturned the law. (Manjunath Kiran/AFP)
Msosa adds that the Indian case offers African queer rights activists lessons in how to push for equality when approaching courts.
“One of the core arguments that conservatives raise is that decriminalising will give a free pass for any same-sex activity, including that which is nonconsensual,” he says. “More so, they instil fear that it will be promoting same-sex acts between adults and minors. So this case reminds us as activists that, when we make our submissions, we should make that distinction clear. This case shows that, when that argument is made clear, there is a higher chance — or it is at least possible — that decriminalisation can be successful.”
Calling the Indian ruling “a milestone”, Ruth Muganzi, programmes director at the Ugandan-based queer media platform kuchutimes.com, echoes Msosa’s sentiments.
“There are a lot of lessons we can learn here in Uganda from that case. Because if you look at where the process for them started, it wasn’t easy. They had to fight a lot on all fronts.
“In Uganda, we still have a long way to go in fighting discrimination itself. But their victory gives us a lot of lessons and hope.”
Muganzi adds that, since the ruling in India, “small pockets of activists have started talking about what it means for us. Having a fellow former colony strike down their law, which we [also] inherited, gives us a precedent. It gives the LGBT community here in Uganda a stepping stone, knowing that, if it can be struck down in former colonies, then it can be done for us [too].”
For now, though, the primary focus, she says, “is basically just how do we continue the struggle against discrimination before we go ahead [in] tackling a big case like decriminalisation. But we’re taking notes from other countries like Kenya.”
Kari Mugo is operations manager at Kenya’s National Gay and Lesbian Human Rights Commission, which is petitioning the country’s high court to repeal sections of the country’s penal code that punishes same-sex relations by up to 14 years’ imprisonment.
Although the hearings are over, Mugo says that “the court itself said it was aware of [the Indian] decision as part of its judicial review and that it understood that it did affect some of the submissions made during the case. Although we can’t add anything to our arguments, the fact that the court is aware of this ruling is promising.
“Reading the judgment from the India court and seeing the same issues that we are highlighting — that these are archaic, colonial laws and that there needs to be room in any democracy for equality — was very validating to read,” she says, adding that the ruling “brought it closer to home”.
“So often, we get accused of being Western or having a foreign agenda. So, to have a court in the Global South, and from a country as important as India, decide on this in this way is really crucial. It shows that these old colonial laws have no place in our societies.”
Currently before the high court in Gaborone is a case challenging the constitutionality of provisions that criminalise same-sex sexual acts between consenting adults. Section 164 of the country’s penal code carries with it a maximum sentence of seven years’ imprisonment for “carnal knowledge of any person against the order of nature”.
The Southern Africa Litigation Centre is representing the applicant in his argument that “continued criminalisation of consensual same-sex sexual relationships violates his basic constitutional rights”.
Tashwill Esterhuizen, the centre’s LGBT and sex worker rights programme lawyer, saysthe legal team is “currently still studying
the [Indian] judgment to see how [we] will use it to supplement anything in our current heads of argument”.
He adds, however, that “we are hoping the India case would demonstrate to the Botswana courts that, globally, attitudes towards LGBT people have significantly softened — and that respecting LGBT rights would enhance the diversity of our nations”.
Bradley Fortuin, of Botswana’s queer rights organisation,Legabibo, says the Indian court’s decision “gave us hope with our case … it could be the spark we need”.
“With the India decision, everyone there was so happy. We feel like it is our turn now,” saysFortuin.
Carl Collison is the Other Foundation’s Rainbow Fellow at the Mail &Guardian