The position of LGBTQ communities, in terms of legal status, protection from discrimination and societal acceptance, varies greatly across the southern African region, from the progressive provisions laid out in South Africa’s Constitution to the ongoing state-sanctioned homophobic rhetoric of political leaders, and punitive laws, in countries such as Zimbabwe, Zambia and Malawi.
LGBTQ communities across southern Africa continue to be subjected to discrimination, harassment and violence while the attitudes and legislative agendas of governments across the region, with regard to safeguarding LGBTQ rights, has been characterised by continuous inconsistency and backpedalling. Instead of moving towards enforcing the laws and mechanisms needed to protect people, homophobic and transphobic attitudes continue to flourish and are often perpetuated and validated by state institutions and people in positions of power and influence.
In recent weeks CCELAT has sought the views of scholars and alumni who are advocates of LGBTQ rights in the region, conducting a series of discussions for a podcast series. Drawing on their academic research as well as their professional and personal experiences, scholars highlighted pertinent issues facing LGBTQ communities ranging from legal ambiguities, public health provisions and entrenched societal homophobia. They also shared their hopes for a path to a brighter future, where sexual orientation and gender identity are no longer grounds for discrimination or marginalisation.
Nkosinathi Thema (LLB Law, University of the Western Cape) chose to pursue legal studies as a means of challenging the status quo and defending the rights of marginalised communities.
He highlights the gap between rhetoric and reality in terms of the realisation of LGBTQ rights in South Africa, where people are not sufficiently educated about their rights, as enshrined in the Constitution. He also highlights the paradox between South Africa’s progressive domestic laws and the country’s continual reluctance to stand by these principles and support LGBTQ rights through its relatively influential position on the African continent and on the international stage.
“Although South Africa has many laws centred around human rights and human dignity, the benefits of these laws often fail to filter down to the communities. It is often left to advocacy groups to take up the fight to educate communities, and tackle commonly held misconceptions about LGBTQ people, which is a task that should really be undertaken by the government…. As a result [of this government inaction], hatred continues to be ingrained within the psyche of many people.
It is also ironic that despite our progressive laws, when SA goes to international institutions such as the United Nations they’ll go there and vote against any resolutions that seek to support the cause of LGBTQ people in South Africa or in the African continent. Despite our influence on the continent, we are not using our voice to speak out against the victimisation of minority groups.”
Alan Msosa (PhD Human Rights, University of Essex) is a prominent human rights activist in Malawi, working at the AIDS and Rights alliance for Southern Africa, where he played a significant role in opposing state-sponsored homophobic laws, policies and practices in the context of the HIV/AIDS epidemic.
Alan addresses the deep-rooted and complex legal and societal structures that help perpetuate homophobic attitudes in Malawi, and what more needs to be done to challenge this, specifically in relation to mobilising grassroots movements and engaging political and religious leaders.
"The existence of these [punitive] laws relates to the negative attitude that many Malawians have against homosexuality. A lot of people feel that it is legitimate for them to freely exercise negative attitudes towards the LGBT community…Recent research found that more than 90% of Malawians would be uncomfortable to have a homosexual neighbour.
Religious leaders are hugely influential, and [many] condemn homosexuality on the basis that it is sinful according to religious teaching. It is important that we engage with them and highlight that religion can co-exist with sexual or gender differences, remembering that the cardinal teaching of religion is of love and compassion.
What gives me hope, is that we now have faces and names [of activists] involved in grassroots movements, whereas before they were hidden. These people are helping to change the narrative.”
Busisiwe Deyi (LLM Human Rights Law, SOAS) has worked as a legal researcher and regional coordinator for Gender DynamiX, an organisation that advances, promotes and defends the rights of trans and gender nonconforming persons in South Africa, Africa and globally. She has also worked as a researcher for the Legal Resources Centre, South Africa's largest public interest law firm.
Busi highlights how South African law is still rooted in cisgendered and hetero-normative ideological foundations and the legal complications that this engenders for LGBTQ people. She argues that while LGBTQ South Africans do enjoy strong protection of their individual rights before the court, not enough has been done to tackle entrenched structures of privilege, patriarchy and restrictive notions of romantic and sexual relationships.
“The fundamental understanding with regards to how rights are claimed, currently focuses on the rights of the individual… rather than examining the material circumstances that enable the continuation of discrimination towards certain groups of people… and allows them to be dehumanised.
We need to understand why our society is so invested in heterosexuality… and why people seen as non-procreative are so devalued. We need to reconfigure our understandings around sexuality to allow for a much broader, open-ended, understanding of relationships.
The law is not the primary space where change is brought about as the law tends to confirm societal values… but technology and social media has been a really important platform… for people to express themselves and challenge binary thinking. The more these dialogues happen, the more likely it is that the laws will begin to reflect them.”