by Lucy Mathieson
Ex Coordinator, Human Rights Advocacy Programme
Commonwealth Human Rights Initiative ( CHRI):
When, during March 2009, Bruce Golding Prime Minister of Jamaica, dubbed by Time Magazine as the “Most Homophobic Place on Earth”, stated that "[w]e are not going to yield to the pressure, whether that pressure comes from individual organisations, individuals, whether that pressure comes from foreign governments or groups of countries, to liberalise the laws as it relates to buggery", it reinforced the marginalisation of human rights defenders (HRDs) in Jamaica who advocate for equal rights free from discrimination based on sexual preference. Jamaica is not alone in this respect. Eleven Caribbean Commonwealth nations have legislation criminalising consensual same-sex sexual acts including Antigua and Barbuda, Barbados, Bahamas, Belize, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, St. Vincent and the Grenadines, and Trinidad and Tobago. HRDs in these nations working to promote lesbian, gay, bisexual, transgender and intersex (LGBTI) rights and bring change to the outdated legislation face hostility from authorities, limitations to freedom of expression and of the press, homophobic violence, denial of access to services and are forced to work clandestinely due to homophobic mob attacks. This is not solely a regional dilemma. Many other Commonwealth jurisdictions also maintain equivalent sections of these old colonial law as a means to harass, prosecute and persecute LGBTI organisations and individuals.
The influence of importing Victorian morality to the colonies is clear in the spread of laws across Africa, Asia and the Caribbeans. However New Zealand (in 1986), Australia (state by state and territory by territory), Hong Kong (in 1990, before the colony was returned to China), and Fiji (by a 2005 high court decision) have put that legacy, and the sodomy law, behind them. England and Wales decriminalised most consensual homosexual conduct in 1967. That came too late for the majority of Britain’s colonies which won independence in the 1950s and 1960s. With sodomy laws still in place judges and public figures have in recent decades, defended them as citadels of nationhood and cultural authenticity while at the same time complaining that homosexuality comes from the colonising West. They forget it was the West that introduced the first laws enabling governments to forbid and repress it.
The overlapping relationship of colonial and post-colonial identity formation is perhaps best illustrated from within Commonwealth African nations. In Buganda (the former Kingdom of Uganda) in 1886, the Kabaka (King) Mwanga, executed more than 30 of his pages within his royal court, apparently for refusing sex with him following their conversion to Christianity. The “reinscribing of certain corporeal intimacies between King and subject as sex (homosexual sex), in tandem with the more usual suspects (trade and Christianity), effectively delegitimised local political institutions” (Hoad, “African Intimacies: race, homosexuality and globalization”). These events created new forms of African agency and facilitated the implementation of colonial rule. A century later, the controversy arose around the “un-Africanness” of homosexuality, prompted perhaps with the 1995 event in Zimbabwe, where Mugabe expelled GALZ (Gays and Lesbians of Zimbabwe) from a Zimbabwe International Book Fair. Calling homosexuals “sodomists” [sic] and “sexual perverts” the President banned their exhibition.
He then went on to make his notorious pronouncement: “If dogs and pigs don’t do it, why must human beings? Can human beings be human beings if they do worse than pigs?” His statement was then widely echoed through similar pronouncements in Kenya (September 1999), Uganda (July 1998) and Namibia (1996).
President Mugabe’s abhorrent statement marks a strong intervention in this terrain, where imperial legacies and African/Caribbean/Asian/Pacific authenticities struggle to imagine the relationships between themselves as a normative and exclusive framework and “homosexuality”. Multiple exclusions enable the debate on the relationship often made between lesbian and gay identity to Western imperialism.
In the 1990s, leaders also began discovering the political advantages of promoting homophobia. Besides Robert Mugabe in Zimbabwe who devoted whole speeches to denouncing homosexuals, Ugandan government officials regularly menace LGBTI groups; and in The Gambia, in 2008, the president vowed to “cut off the heads” of homosexuals. In South Africa the lack of political will to enforce laws legalising homosexuality also has ripple effects across the continent.
At the same time, institutional change offers signs of hope. Some NGOs and national human rights institutions (NHRIs) have slowly moved to address issues of sexual orientation and gender identity. Independent rights groups in Kenya and members of the Kenyan National Human Rights Commission have spoken in defence of LGBTI people there. Also promising is the slow integration, in a few countries such as Uganda, of sexuality and sexual-rights issues into legal education.
The combination of an intensely repressive environment in families, communities, and public places, and antiquated laws on sexuality that are still enforced, keeps people underground—and sometimes kills those who emerge.
Post-independence democratic governments have shown deep resistance to any suggestion of repeal of sodomy laws. Indeed, the repeal of these draconian codes appears to be more controversial than their imposition. As a result organizations are unable to operate openly, jobs and homes lost, and police refuse to protect people against day-to-day violence. While such governments do not go around arresting people who are suspected to be gay, a climate of fear and intolerance prevails.
Reported religious values and fears of “open[ing] the door to homosexuality, bestiality, child abuse and every form of sexual perversion being enshrined in the highest law of this land,” justify essentially discriminatory legislation. Even where decriminalisation has occurred or is discussed, such as recently in the Delhi High Court Judgment in Naz Foundation v. Union of India, delivered on 2 July 2009, the argument for decriminalisation is often based formatively around health considerations, such as making HIV/AIDS treatment more accessible to LGBTI people. Whilst arguments can be raised as to why the universality of human rights should not be at the core of such arguments, the Delhi Judgment did go on to base its ratio on constitutional morality as opposed to popular or public morality, triggering an understandably euphoric and wonderful celebratory response from the LGBTI community, as well as from the wider activist community.
In Jamaica there have been some initial signs that it may soften its approach. Jamaica's ruling party elected the nation's first female Prime Minister, Portia Simpson Miller, a progressive, who gay-rights supporters hope will eventually move to decriminalise homosexuality. However, even if the repeal of sodomy laws is achieved there is still a range of other provisions, such as moral policing of public behaviour, which enables police abuse, as has occurred in the Dominican Republic. In such situations, the hard fact remains that sexual cleansing is just as real as ethnic cleansing. These kinds of "cleansings" are bound up in questions of purity and dominance. It is all about cleansing the "other" wherever it is found. And it is about making the "other", in this case, the homosexual person, the so-called enemy of the state, the family and the individual. Borders are of no consequence.
And, this was true two years ago at CHOGM 2007, where a Ugandan LGBTI group was forced out of the People’s Space at the People’s Forum and were beaten with sticks by plain-clothed police officers. Foreign visitors to CHOGM and the People’s Space, including committed Commonwealth activists who attempted to intervene, were also excluded from the Space. Now, some two years later, CHOGM 2009 is rapidly approaching and its theme, including that of “equitable partnership”, raises the question of partnership with whom and inclusive of whose concerns, particularly when a sector of Commonwealth civil society will at the very least be constructively excluded?
The positions of gay and lesbian Africans/Asians/Caribbeans (and to a certain extent Pacific Islanders) are not easily articulable in the confrontation, precisely because questions of sexuality are used to police both national and racial authenticity. And, this is exactly why there is a need to enforce the universality of human rights.
Homophobia and heterosexism are core aspects of patriarchy used through the control of sexuality, the assertion of identity, exclusion and the perpetuation of gender roles to gain retain and mobiles political power
Criminalising LGBTI people ensures they remain vulnerable as they seek to break out form their seclusion and invisibility. But outdated laws also repress those engaged in the defense of human rights globally as the laws are in direct contradiction with human rights law – particularly, the right to privacy, the right to freedom of association, freedom of expression, and the right to freedom from discrimination. The presence of such laws also justifies hate and provides the legal basis for abusing one section and creates a culture of impunity via which all those promoting human rights or in dissent from the mainstreat are targeted.
LGBTI persons are a part of the Commonwealth, they are a part of each of the 53 Commonwealth nations. The Judiciary in all Commonwealth jurisdictions must follow the lead shown in the recent New Delhi High Court Judgment, and become institutions committed to the protection of those who “might be despised by a majoritarian logic” – by respecting the universality of human rights. Implicit within this stance must be the creation of protected space for LGBTI groups and their defenders if the concept of equitable partnerships is even to be considered a possibility within the Commonwealth, let alone the Commonwealth Peoples Forum.
November 26, 2009