LGBT+ backlash and backsliding in Africa: how do we stop the wave?

Written by: Tshepo Kgositau, Global Equality Caucus Regional Manager for Africa

On 28 February 2024, the Parliament of Ghana passed the “Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill” with little opposition. This bill, if approved by the president, increases criminal penalties for consensual same-sex activity and criminalises individuals and organisations who advocate for the rights of LGBT+ people.

Much like the draconian Anti-Homosexuality Act of Uganda that passed into law last year, the bill criminalises failure of citizens to report LGBT+ people to the authorities and compels people to report anyone who speaks positively or shares pro-LGBT content, such as on social media.

These laws have been linked to increasing violence targeted at LGBT+ people across the region. Since the March 2023 passing of the Ugandan law and the recent Ghanaian bill, local organisations have registered an increase in mob violence on LGBT+ communities; arrests and detention of LBGT+ activists; loss of employment; closing down of LGBT+ civil society groups; clampdowns on services provided to LGBT+ people, including HIV/AIDS services; families and friends disowning LGBT+ people and rendering them homeless; and targeted attacks on LGBT+ people at schools and universities.

Under international human rights law agreements and commitments, countries are required to safeguard the rights of people regardless of their gender or sexual orientation. The Convention on the Elimination of all Forms of Discrimination Against Women, the African Charter on Human and Peoples’ Rights, and the International Covenant on Civil and Political Rights - all signed by numerous African countries including Ghana and Uganda - protect the rights to integrity, dignity and security of the person, as well as freedoms of speech & expression, freedom of association & assembly, academic freedom, freedom of conscience, equal treatment before and by the law, and non-discrimination.

This current legal backsliding and societal backlash against LGBT+ people across Africa is a dereliction of duty on the above commitments and is a point of fear, worry and stress for various human rights advocates given that the trend is gaining momentum.

The outlook is not hopeful across East, Central and West Africa. Parliamentary discussions of similar laws are accelerating in places like Kenya, Burundi, Nigeria and Gabon. This is all the more troubling given that just 10 years ago, the African Union passed the monumental Resolution 275 on the “prevention and remedy of violence towards LGBT+ Africans” - and more recently Resolution 552 on the “protection of intersex people’s rights” in 2023 – all which show an acknowledgement of the existence of diversity within Africa.

We can however be comforted by recent legal developments in Southern Africa. In 2021, the Botswana Court of Appeal upheld a lower court 2019 decision to decriminalise consensual same-sex conduct. In 2017, Botswana recorded court wins for transgender people when two transgender cases seeking legal gender recognition were granted by the High Courts, thereby adding to countries like South Africa that have legal recognition and provisions for transgender and intersex people. Angola’s new penal code, revised from 1886, came into effect in January 2021 and no longer criminalises same-sex conduct. Recently in 2023, Mauritius joined other Southern African countries like South Africa, Botswana, Lesotho, Mozambique, Seychelles and Angola that have decriminalised consensual same-sex activity.

We are also seeing growing sympathy and sensitivity towards LGBT+ people within the Southern Africa region as seen with the handing down of a 10 year sentence on a hate-motivated rape case of a lesbian woman in Eswatini in 2023; there is the political buy-in and will to advance legal gender recognition applications for transgender people by the office of the Deputy Speaker of parliament in Lesotho; and the Supreme Court of Namibia handed down a monumental decision directing the government to recognise same-sex marriages registered outside of the country in 2023. 

Despite successful litigation it remains a harsh reality that legislators can still enact ever more stringent laws against LGBT+ people, and the contagion is now reaching countries where backlash has not been strong in the past. In Namibia, legislators reformed the Marriage Act to make it even more inaccessible to LGBT+ people in or wishing to enter into marriages following the Supreme Court ruling. Lawmakers in Botswana have resisted reforming the penal code despite the Court decriminalising homosexuality, and have not implemented a gender recognition policy or law despite the transgender court victories in 2017. South Africa, long seen as a leader on LGBT+ rights in the region, still has not passed a Hate Crimes & Hate Speech Bill first introduced in 2016, and the former president has recently expressed contempt for same-sex marriage - legal in the country since 2006.

Activists in Southern Africa are growing worried that countries like Zambia, Namibia and Malawi may be next to follow in the footsteps of Uganda and Ghana. The need for a collective effort by pro-LGBT+ legislators to translate some of the court wins for LGBT+ people into law and policy change could not be more critical.

At our ‘African Legislators for Equality’ event last year, the Global Equality Caucus launched a regional legislators’ network to help prevent backsliding on LGBT+ rights spilling into Southern Africa. Such networks of legislators who are like minded in the goal of advancing equality for all are very necessary platforms through which sustained change can be attained. There is need to have pro-LGBT+ legislators speak to their peers across the region about accountability on international, pan-African and national human rights commitments and standards, and we are proud to be facilitating these vital conversations.

Southern Africa needs more investment to fireproof it against this current wave of backlash and backsliding on human rights commitments, as it is the region with a growing body of case law, jurisprudence and developments on the protection of LGBT+ people’s rights. The role and power of legislators - for good or for ill - could not be made any more clear than the current wave of backlash and backsliding on LGBT+ people’s rights in Africa.