Eswatini High Court acknowledges LGBTQ+ rights
April 29 ruling upheld decision not to allow group to register
MBABANE, Eswatini — The Eswatini High Court on April 29 heard the case involving an LGBTQ+ rights group’s fight to register in the country.
Eswatini Sexual and Gender Minorities approached the High Court with the support of the Southern Africa Litigation Center to overturn a Registrar of Companies’ ruling that did not allow it to register.
The Registrar of Companies argued that allowing the Eswatini Sexual and Gender Minorities to register would violate the law because same-sex relations are considered illegal in the country. The High Court upheld the decision to deny Eswatini Sexual and Gender Minorities’ registration request, but said no person should be discriminated against because of their gender or sexual orientation.
“Having alluded to the fundamental rights, it is clear that our constitution guarantees the rights irrespective of gender or sex. So that it is safe to say that LGBTs have the rights conferred by Section 14 of the constitution. They have a right to life, liberty, privacy or dignity. They have a right not to be discriminated against or be subjected to inhumane and degrading treatment. They have a right to associate. They have a right to form a company. They have a right to freedom of expression,” reads the High Court ruling. “These rights are inherent in them not by reason of their sexual preferences as LGBTs but as human beings. These rights are, however, subject to the laws as prevailing in the kingdom and which have not been challenged anywhere.”
Southern Africa Litigation Center Executive Director Anneke Meerkotter said the verdict was lax and influenced by populist ideologies.
“The High Court’s judgment is a testimony on the anxiousness of Eswatini courts when dealing with matters relating to freedom of association and expression in the current political context,” said Meerkotter. “The rights to freedom of association and expression are fundamentally important in a democratic society.”
“These rights grant citizens the freedom to voice their views about all aspects of society and provides individuals with opportunities to engage in dialogue with the government, and to obtain information necessary for their protection and development as individuals,” added Meerkotter. “Across the region, courts have emphasized that any limitation of these rights must be rational and proportional. In contrast, the majority opinion exercised mental gymnastics to find against the applicants, despite acknowledging that their rights have been violated. The judgment highlights once again how hard it is for citizens to assert their rights to association and expression in Eswatini’s courts.”
Same-sex relations are prohibited under the common law, which criminalizes sodomy. The penalty for violating the law under which only men are criminalized is unknown.
The law dates back to the British colonial period. Eswatini retained this provision upon independence and continues to criminalize same-sex sex relations today.
According to Section 252(1) of Eswatini’s Constitution, the principles and rules of Roman-Dutch common law that have applied to Eswatini since Feb. 22, 1907, (as those principles and rules existed on Independence Day, Sept. 6, 1968) are applied and enforced as the common law of the country.
LGBTQ+ people in Eswatini regularly face societal discrimination and harassment. As such, most choose to remain in the closet or move to neighboring South Africa.
It remains to be seen whether or not new legislation will be enacted to specifically recognize LGBTQ+ people and protect them from stigma and victimization after the High Court verdict.
Daniel Itai is the Washington Blade’s Africa Correspondent.
Museveni signs Uganda’s Anti-Homosexuality Act
Law calls for death penalty for ‘aggravated homosexuality’
KAMPALA, Uganda — Ugandan President Yoweri Museveni on Monday signed his country’s Anti-Homosexuality Act into law.
MPs in March approved the Anti-Homosexuality Act, but Museveni on April 20 sent it back to Parliament for additional consideration.
Lawmakers earlier this month once again approved the measure without provisions that would have required Ugandans to “report acts of homosexuality” and would have not criminalized LGBTQ+ people simply because of their sexual orientation or gender identity. The second version of the Anti-Homosexuality Act that MPs passed calls for the death penalty for anyone found guilty of “aggravated homosexuality.”
“As the Parliament of Uganda, we have answered the cries of our people. We have legislated to protect the sanctity of family as per Article 31 of the Constitution of Uganda,” said Ugandan Parliament Speaker Anita Among in a statement after Museveni signed the bill. “We have stood strong to defend our culture and aspirations of our people as per objectives 19 and 24 of national objectives and directive principles of state policy.”
Jacqueline Kasha Nabagesara, a Ugandan LGBTQ+ and intersex activist, described Museveni’s decision to sign the Anti-Homosexuality Act as a “dark day for human rights of LGBTQIA+ and allies.”
Anti homosexuality bill signed into law by President. Dark day for human rights of LGBTQIA+ and allies.https://t.co/UD3jvVARdi
— Bombastic Kasha (@KashaJacqueline) May 29, 2023
Human Rights Campaign President Kelley Robinson in a statement condemned the law.
“This new law to restrict the rights of LGBTQ+ Ugandans is by far the most horrific display of bigotry we have seen in recent memory in Uganda, and in all of Africa,” said Robinson. “The Ugandan Parliament should be ashamed of themselves for considering this draconian law that erases the internationally recognized rights of LGBTQ+ Ugandans, and President Museveni should be condemned for not using the full power of his position to stop it. We at the Human Rights Campaign stand in solidarity with human rights defenders and the LGBTQ+ community in Uganda.”
The U.S. President’s Emergency Plan for AIDS Relief, UNAIDS and the Global Fund to Fight AIDS, Tuberculosis and Malaria in a joint statement said they “are deeply concerned about the harmful impact of the Ugandan Anti-Homosexuality Act 2023 on the health of its citizens and its impact on the AIDS response that has been so successful up to now.”
“Uganda’s progress on its HIV response is now in grave jeopardy,” reads the statement. “The Anti-Homosexuality Act 2023 will obstruct health education and the outreach that can help end AIDS as a public health threat. The stigma and discrimination associated with the passage of the act has already led to reduced access to prevention as well as treatment services. Trust, confidentiality and stigma-free engagement are essential for anyone seeking health care. LGBTQI+ people in Uganda increasingly fear for their safety and security, and increasing numbers of people are being discouraged from seeking vital health services for fear of attack, punishment and further marginalization.”
Museveni, with the support of anti-LGBTQ+ evangelicals from the U.S., in 2014 signed a version of the Anti-Homosexuality Act that imposed a life sentence upon anyone found guilty of repeated same-sex sexual acts. The law was known as the “Kill the Gays” bill because it previously contained a death penalty provision.
The U.S. subsequently cut aid to Uganda and imposed a travel ban against officials who carried out human rights abuses. Uganda’s Constitutional Court later struck down the 2014 Anti-Homosexuality Act on a technicality.
The U.S. last month postponed a meeting on the PEPFAR’s work in Uganda in order to assess the potential impact the Anti-Homosexuality Act will have on it. Jessica Stern, the special U.S. envoy for the promotion of LGBTQ+ and intersex rights, and other American officials have said the Biden-Harris administration is considering “the potential impact of the Anti-Homosexuality Act on U.S. foreign assistance.”
“The United States is deeply troubled by Uganda’s passage of the Anti-Homosexuality Act, a law that undermines the human rights, prosperity and welfare of all Ugandans,” said Secretary of State Antony Blinken in a statement. “Uganda’s failure to safeguard the human rights of LGBTQI+ persons is part of a broader degradation of human rights protections that puts Ugandan citizens at risk and damages the country’s reputation as a destination for investment, development, tourism and refugees.”
Blinken said the U.S. “urges the government of Uganda to refrain from implementing laws that undermine human rights.”
“In the context of the serious concerns conveyed by President Biden, I am announcing today that the Department of State will develop mechanisms to support the rights of LGBTQI+ individuals in Uganda and to promote accountability for Ugandan officials and other individuals responsible for, or complicit in, abusing their human rights,” added Blinken. “I have also directed the department to update our travel guidance to American citizens and to U.S. businesses as well as to consider deploying existing visa restrictions tools against Ugandan officials and other individuals for abuse of universal human rights, including the human rights of LGBTQI+ persons.”
Nabagesera and Sexual Minorities Uganda Executive Director Frank Mugisha are among those who challenged the Anti-Homosexuality Act in the Ugandan Constitutional Court after Museveni signed it.
Intersex Kenyans see significant gains under landmark law
MPs approved statute last year
NAIROBI, Kenya — The push for intersex people to enjoy equal rights as Kenya’s third sex has recorded significant gains since a landmark law took effect last July.
Intersex people arrested for breaking the law can now be presented in court as intersex, since prosecutors have adopted the special ‘I’ sex marker for the group in charging documents.
This addresses the problem of authorities identifying intersex people for trial that became public in 2006 when police officers could not tell the sex of a detainee they perceived as a man who had been accused of a violent robbery. They had strip-searched him.
The gains noted in the latest report by the country’s Intersex Persons Implementation Coordination Committee also note the inclusion of intersex concepts in Kenya’s new education curriculum for awareness.
The IPICC falls under the purview of Kenya’s National Commission on Human Rights.
Intersex awareness in schools for recognition and capacity building in the future targets adolescents at the junior secondary level where they are educated on the reproductive system.
Veronica Mwangi, the IPICC’s head of secretariat who spoke to Washington Blade, commended the Office of the Director of Public Prosecutions for introducing the ‘I’ sex marker for intersex people in charging documents.
“We have made gains in the criminal justice but we should not go back to the tendencies where intersex persons only require a lot of attention when it comes to crime. It is a misconception that misses the map,” she said.
Citing a proposed Intersex Persons Bill 2023 currently undergoing public comment before being presented for debate in Parliament, Mwangi believes it envisages more benefits to intersex people.
For instance, the bill proposes access to more comprehensive medical attention for intersex people during surgeries and expensive medical examinations like Karyotype, a DNA and hormonal composition test that costs between $900-$1,000.
The bill would also require medical insurance providers to come up with an affordable, unique package that addresses the needs of intersex people by taking into account the reality of their lived experiences.
“The reality of the matter is you may give birth to an intersex child as a girl but later it turns out to be a boy. Hence the medical package that was given to the girl may not apply to the boy,” Mwangi said.
She added the medical insurance policy should be capable of responding to such changes, since intersex people will always have medical needs that keep shifting.
The bill would also allow intersex people to change their sex marker at any time to reflect their new status after undergoing a comprehensive medical examination and a medical certificate to prove it. The measure would also demand the government to recognize intersex people as a vulnerable group, such as those living with disabilities, women, young people and orphans, in order to more easily access social protection programs.
It would further require employers to consider intersex people for employment and the Kenya Examination Council to support the registration of intersex people’s’ academic documents that indicate their name has changed because of a legal sex change.
The Civil Registration Services, a government agency that documenting all births and deaths, has already been working closely with IPICC to change names on the birth certificates of intersex people to reflect their correct sex for easier access to public services.
Kenya became the first African country to grant equal rights and recognition to intersex people in 2022. It is also the first nation on the continent and the second in the world after Australia to count intersex people in a Census in 2019.
The survey showed 1,524 Kenyans were intersex.
After many years of marginalization and discrimination, the IPICC progress report states that several intersex people for the first time were involved in monitoring Kenya’s August 2022 general election as observers. Other intersex people subjected themselves to the electoral process to be nominated or elected as county assembly representatives, the lowest electoral position, including one in the Kenyan capital of Nairobi.
“This was a bold move and a big achievement because, for the first time in Kenya, intersex persons came out and tested the waters in politics,” Mwangi said.
She cited stigma and fear among intersex people in presenting conflicting documents about their sex to the electoral commission for clearance as the cause of staying away from politics before the enactment of the law that recognizes them. Mwangi urged intersex people to come out and take advance of available opportunities and assistance, since most of them don’t and it becomes hard to reach them.
Since the landmark law came into force in July last year; several psychosocial support groups for intersex persons, their parents and caregivers have been established in the country to offer any necessary assistance that includes counselling. The IPICC has also created a database of intersex people, a text message service and a toll-free number to report cases of discrimination and to advocate on their behalf.
Oct. 26, 2022, also marked the first official event that commemorated Intersex Awareness Day in Kenya.
White House IDAHOBiT statement acknowledges LGBTQ+ rights advances, setbacks
World Health Organization declassified homosexuality as mental disorder on May 17, 1990
WASHINGTON — The Biden-Harris administration on Wednesday used the International Day Against Homophobia, Biphobia and Transphobia to reiterate its support of LGBTQ+ and intersex rights.
“Everyone is entitled to be treated with dignity and equality — no matter whom they love, or how they identify,” said President Joe Biden in a statement the White House released. “On the International Day Against Homophobia, Biphobia, and Transphobia, we reaffirm our commitment to this ongoing work and stand with lesbian, gay, bisexual, Transgender, queer, and intersex (LGBTQI+) people around the world.”
IDAHOBiT commemorates the World Health Organization’s declassification of homosexuality as a mental disorder on May 17, 1990.
“More than 30 years ago today, thanks to the tireless advocacy of LGBTQI+ activists the World Health Organization took the long overdue step of declassifying ‘homosexuality’ as a mental health disorder,” said Biden. “Since then, we’ve seen real progress — including a powerful movement for LGBTQI+ liberation, more protections for LGBTQI+ people, and more spaces that recognize and affirm that our diversity is our strength. But sadly, we continue to see reminders of how much work remains.”
Biden in his statement notes consensual same-sex sexual relations remain criminalized in more than 60 countries around the world. Biden also points out that some governments still consider LGBTQ+ and intersex people mentally ill and support so-called conversion therapy.
“Right here at home, violent attacks on LGBTQI+ individuals and community spaces have risen dramatically, and more than 600 hateful laws have been introduced this year targeting the LGBTQI+ community, particularly youth,” said Biden.
“All of us have a responsibility to speak out and stand up against hate and violence in any form,” added Biden. “When the rights of any group or individual are under attack, it endangers our own freedom, and the freedom of people everywhere. So today, let us join together across our country — and around the world — to stand with the LGBTQI+ community. Let us renew our work to combat homophobia, biphobia, and transphobia — and put an end to the harmful violence and discrimination that stems from it.”
Secretary of State Antony Blinken echoed Biden in his own IDAHOBiT statement.
“As we mark this year’s IDAHOBiT, the United States reaffirms our commitment to exposing the harm conversion therapy practices cause to LGBTQI+ persons,” said Blinken. “We reaffirm the importance of ensuring access to evidence-based healthcare without discrimination or stigma regardless of sexual orientation, gender identity or expression, or sex characteristics. We recommit to opposing the criminalization of LGBTQI+ status or conduct, which can drive the pathologizing of LGBTQI+ persons and the practice of so-called conversion therapy. We confirm that conversion therapy practices are inconsistent with U.S. nondiscrimination policies and ineligible for support through taxpayer-funded foreign assistance grants and contracts.”
UNAIDS in its IDAHOBiT statement notes criminalization laws “hurt the public health of everyone, costing lives.” U.N. Secretary-General António Guterres on Wednesday acknowledged discrimination and violence based on sexual orientation and gender identity remains commonplace around the world.
“In every corner of the world, LGBTQI+ people continue to face violence, persecution, hate speech, injustice and even outright murder,” said Guterres. “Each assault on LGBTQI+ people is an assault on human rights and the values we hold dear.”
In every corner of the world, LGBTQI+ people continue to face violence, persecution, hate speech, injustice and even outright murder.
Each assault on LGBTQI+ people is an assault on human rights and the values we hold dear.
We cannot and will not move backwards.
— António Guterres (@antonioguterres) May 17, 2023
The U.N. LGBTI Core Group, a group of U.N. countries that have pledged to support LGBTQ+ and intersex rights, on Wednesday held an event in support of Transgender rights. Advocacy groups in the U.S. and around the world also acknowledged IDAHOBiT.
“We stand in solidarity with Afghan LGBTI people; advocating for love, acceptance and equal rights,” said the Afghan LGBT Organization on Instagram. “Let’s keep fighting together for a more inclusive and tolerant world.”
Rightify Ghana in its IDAHOBiT comments noted the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill in the country’s Parliament that would, among other things, fully criminalize LGBTQ+ and intersex people and anyone who advocates for them.
Reportar sin Miedo, the Washington Blade’s media partner in Honduras, reported activists organized an IDAHOBiT march in Tegucigalpa, the country’s capital.
🚨Comienza la movilización en #Tegucigalpa, en conmemoración al #DiaContraLaLGTBIfobia 🏳️🌈🏳️⚧️
🧵Aquí te mostramos la galería: 👇🏼
Cobertura: @KateO_06 pic.twitter.com/ES8oiHV1tU
— Reportar Sin Miedo (@ReportarsinMied) May 17, 2023
Cuba’s National Center for Sexual Education on May 13 organized a march with the theme “socialism yes, homophobia no” in which LGBTQ+ and intersex activists who do not work with CENESEX or its director, Mariela Castro, did not participate. Sydney Gay and Lesbian Mardi Gras organizers on Wednesday urged Australians to sign a petition that calls upon lawmakers to enact hate crimes laws.
“There are no national laws and at the state level, SA (South Australia), WA (Western Australia) and VIC (Victoria) have no laws protecting the LGBTIQ+ community from hate speech and vilification,” reads the petition. “With attacks on the rise, especially against the trans community, there is urgent need for stronger measures to protect the community.”
Human Rights Campaign Director of Global Partnership Jean Freedberg on Tuesday told the Washington Blade during a telephone interview that IDAHOBiT is a day “when we really focus on the situation of LGBTQ+ people around the world and focus on the violence and discrimination that people continue to experience in their daily lives.”
“Every year we join with people in the United States and around the world to raise up our voices, to shine light on the issues that we all face and to look at ways that we can, as a global community, work together to keep striving forward, to protect our community for the future from harm, to lift up who we are and to keep moving forward to ensure dignity and respect for all LGBTQ+ people around the world,” said Freedberg.
Namibia Supreme Court rules government must recognize same-sex marriages performed abroad
Plaintiff couples sought spousal immigration rights
WINDHOEK, Namibia — A landmark ruling the Supreme Court of Namibia issued on Tuesday ruled that same-sex marriages conducted outside the southern African country should be recognized by the Namibian government.
Two same-sex couples have emerged victorious in their fight for the recognition of their marriages conducted outside Namibia in a ruling that paves the way for equal rights and spousal immigration benefits for same-sex couples in the country.
The joint cases, initially brought before the court in March, involved South African national Daniel Digashu who is married to Namibian citizen Johann Potgieter, and German national Anita Seiler-Lilles, who is married to Namibian citizen Anette Seiler.
The couples aimed to access essential spousal immigration rights, including permanent residence and employment authorization.
Both couples expressed relief following the ruling.
“I feel like a huge weight has been lifted off of our shoulders. I feel that I can continue with life now, in a sense,” Digashu said. “I cannot explain just how relieved I am that we won’t have to make plans to leave. Now we can stop for a moment and breathe, and take things easy and just know that we are home and there is no potential of being forced to leave.”
For her part, Seiler said after a sleepless night in anticipation of the ruling, she and her wife look forward to celebrating a dream come true.
“We are married and we promised each other that we will stay together no matter what and that promise we’ve upheld through this fight for this recognition of our marriage,” Seiler said. “We would’ve stayed together no matter what but we can stay together here in this beautiful country and we can make it our home country. That was Anita’s biggest wish and that’s my wish as well, and now this wish comes true. It’s so incredible.”
The Supreme Court’s ruling challenged a previous precedent set by the Immigration Selection Board. While acknowledging the binding nature of the precedent, the court asserted that it can depart from its own decisions if they are proven to be clearly wrong.
The court ruled that the Home Affairs and Immigration Ministry’s refusal to recognize same-sex marriages validly concluded outside Namibia violates the constitutional rights of the affected parties.
Furthermore, the court emphasized that the rights to dignity and equality are interconnected, and the denial of recognition for same-sex marriages undermines these fundamental principles. It reaffirmed the principle that if a marriage is lawfully concluded in accordance with the requirements of a foreign jurisdiction, it should be recognized in Namibia.
This ruling represents a significant milestone in the fight for LGBTQ+ and intersex rights in Namibia. By expanding the interpretation of the term “spouse” in the Immigration Control Act to include same-sex spouses legally married in other countries, the court has taken a crucial step toward achieving equality and inclusivity.
One of the five judges who heard the two appeals dissented from the majority ruling.
He argued that Namibia is under no obligation to recognize marriages that are inconsistent with its policies and laws, emphasizing the traditional understanding of marriage and the protection of heteronormative family life.
The dissenting opinion highlights the ongoing divisions and complexities surrounding the issue of marriage equality in the country. While it underscores the need for continued dialogue and debate, the majority decision in favor of recognizing same-sex marriages highlights the importance of constitutional rights and the principle of equality.
Southern African Litigation Center Executive Director Anneke Meerkotter commended the court’s decision.
“The Namibian Supreme Court has set an important example, interpreting legislation in accordance with the core principles of constitutional interpretation and independent adjudication, thus avoiding irrelevant considerations relating to public opinion and unfounded allegations raised by the government about public policy,” Meerkotter said. “Instead, the court steered the argument back to the history of discrimination in Africa and the necessary constitutional reforms that emphasized transition to dignity and equality without discrimination.”
Speaking on what the ruling means for the LGBTQ+ and intersex community in Namibia, Seiler said it provides hope and inspiration not only to the couples involved but also to the broader community in Namibia and on the continent.
“We know that we fought this battle not only for us. In the beginning we were fighting it for us, but then we realized it’s not only for us, it’s for other people as well. I’m glad that we did it, that we fought this fight,” she said.
Both Seiler and Digashu said the support of the LGBTQ+ and intersex community and its allies has been a pillar of strength over the 6-year battle with the courts.
“It has always been about the community because we deserve to have it all without being put down or being told this is not allowed. So, I think this is a big win for the community as a whole. It’s not about us, or just our families. It’s for absolutely everyone!” Digashu said.
Omar van Reenen, co-founder of Equal Namibia, a youth-led social movement for equality, said the ruling has strengthened the promise of equality and freedom from discrimination in the country.
“The Supreme Court really made a resounding decision. It just feels like our existence matters — that we belong and that our human dignity matters,” he said. “The Supreme Court … has upheld the most important thing today and that is the constitution’s promise that everyone is equal before the law and that the rights enshrined in our preamble reign supreme, and equality prevails.”
As the Supreme Court is the highest court in Namibia, decisions made in this court are binding on all other courts in the country unless it is reversed by the Supreme Court itself or is contradicted if Parliament passes a law that is enacted.
Man convicted of violating Tanzania sodomy law, sentenced to 30 years in prison
Muharami Hassan Nayonga arrested on April 13
KILWA, Tanzania — A Tanzanian man was last month sentenced to 30 years in prison after a court convicted him of violating the country’s sodomy law.
According to LGBT VOICE Tanzania, an LGBTQ+ and intersex rights organization, the Kilwa District Court sentenced Muharami Hassan Nayonga to 30 years in prison after it convicted him of violating Sections 154 and 157 of the country’s Penal Code that criminalize so-called unnatural offenses and “indecent practices between males.”
LGBT VOICE Tanzania said Nayonga was a security guard who lived in Masoko Ward. He was arrested on April 13 “after he used his phone to persuade a young man known as Zalafi Selemani to be intimate with him.”
“After the arrest, Muharami was examined by health professionals who found that he had engaged and engages in unnatural sex,” said LGBT VOICE Tanzania. “He was then brought to court and confessed his crimes where he was sentenced to 30 years in prison by the Resident Magistrate of the Court, Carolina Mtui, under case number 27 of 2023.”
LGBT VOICE Tanzania accused the country’s government of violating Nayonga’s human rights.
“Using Sections 154 and 157 of the Penal Code to persecute LGBTQIA people is a violation of human rights and a violation of the Constitution of the United Republic of Tanzania,” said LGBT VOICE Tanzania.
There have been consistent reports of discrimination and violence against LGBTQ+ and intersex Tanzanians in recent years. These include murder, assault, harassment and denial of basic rights and services.
The Health Ministry in 2016 prohibited community-based organizations from conducting outreach on HIV prevention to men who have sex with men and other key populations, based on the pretext that such organizations are engaged in the promotion of homosexuality. The ministry also closed drop-in centers that provided HIV testing and other services to key populations. International organizations ran many of these centers, and the government accused them of promoting homosexuality.
The ministry also banned the distribution of lubricant.
A crackdown against LGBTQ+ and intersex Tanzanians has been underway since 2018; with reports of raids, mass arrests, arbitrary detention and forced anal examinations.
According to Daniel Marari, a human rights lawyer and researcher, most Tanzanians strongly oppose LGBTQ+ and intersex rights on the assumption that non-traditional sexual orientation or gender identity is ungodly and immoral.
“While acknowledging the presence of LGBT people in the Tanzanian society, many anti-LGBT actors find it easy to demonize the issue as un-African, and a western invention as there is no such thing as a right to homosexuality. Those who are quick to condemn homosexuality hardly bother to reflect on the scientific aspects of sexual orientation or gender identity,” said Marari.
Marari also stressed LGBTQ+ and intersex Tanzanians are not asking for any special rights but basic human rights like every other citizen.
“What LGBT people are asking for is the fulfillment of the Constitutional promise of equality and there is nothing specifically western about that. Tanzania has ratified international and regional treaties guaranteeing basic rights including the right of minorities and vulnerable groups and it is time it lives up to its promises,” said Marari. “There is no doubt that the criminalization of private consensual homosexual acts between adults affects the private lives of LGBT people as they cannot express their sexual or gender identity without being liable to prosecution.”
“Even where there is justification to restrict homosexual relationships so as to protect special groups like children or other vulnerable persons from sexual abuse, just as heterosexual relationships can be restricted on the same grounds, that argument would not justify all-inclusive criminal sanctions where persons involved are consenting adults,” added Marari.
Consensual same-sex sexual relations remain prohibited in Tanzania, and anyone convicted under the country’s sodomy law faces up to life in prison.
Daniel Itai is the Washington Blade’s Africa Correspondent.
Eswatini Supreme Court hears LGBTQ+ rights case
Advocacy group hopes to legally register
MBABANE, Eswatini — Eswatini Sexual and Gender Minorities, an LGBTQ+ and intersex rights group, is hopeful the country’s Registrar of Companies will allow it to register after the Supreme Court heard its case on May 5.
The Registrar of Companies in 2019 first denied Eswatini Sexual and Gender Minorities’s request on grounds the organization advocates for LGBTQ+ and intersex rights that are illegal.
Consensual same-sex sexual activity is prohibited under common law, which criminalizes sodomy. The law, however, has never been enforced, but Emaswati who identify as LGBTQ+ or intersex still face discrimination.
Eswatini Sexual and Gender Minorities in 2020 approached the Supreme Court with the case. The Supreme Court dismissed it in 2022, but Eswatini Sexual and Gender Minorities appealed the ruling.
Closing arguments in the case took place on May 5.
“There is no law in Eswatini that prohibits the LGBTI+ community from identifying. Nothing is criminal about that. Don’t we have in this country an association of ex-prisoners? Isn’t the Registrar not scared that the ex-prisoners association includes rapists and murderers who will share ideas but is afraid of the LGBTI+ community? How is that association legal and ESGM is not? Homosexuality was not outlawed by the constitution and therefore the refusal to register ESGM is clearly a rights infringement,” said Eswatini Sexual and Gender Minorities in a statement.
The Supreme Court has not said when it will issue its ruling.
Eswatini’s government has not forbidden Pride celebrations or obstructed their planning, even though it continues to oppose LGBTQ+ and intersex rights.
Rock of Hope, an LGBTQ+ and intersex rights organization, in 2018 organized Eswatini’s first Pride event.
The country is the continent’s last absolute monarchy, which has been under King Mswati III’s rule since 1986 when he was 18. Eswatini is deeply rooted in traditional and customary practices, which are mostly patriarchal, that do not include the LGBTQ+ and intersex community.
According to Gerbrandt van Heerden, an African researcher, historical evidence in many instances dispels the notion that LGBTQ+ and intersex people, as well as non-traditional gender expressions and identities, are alien to African culture.
“Whether it is the elite pushing the gay rights are un-African narrative out of pure ignorance, or whether power-hungry politicians dance to the tune of the people they govern in order to remain popular with the electorate, there is no question that categorizing same-sex attraction as a foreign concept and a form of neo-colonialism serves as a major obstacle to LGBTI rights on the continent,” said van Heerden.
Van Heerden also noted that in order for there to be less stigmatization of LGBTQ+ and intersex people, there should be more awareness of the LGBTQ+ and intersex community.
“Debunking the idea that LGBTI people are un-African is another powerful tool to further LGBTI rights on the continent. It all boils down to education,” said van Heerden. “Studies have shown that tolerance for gay people is highest among educated Africans. LGBTI people are among the most vilified groups on the continent today, but simply paging through the history.”
Although the government and many Emaswati only see LGBTQ+ and intersex rights organizations as advocacy groups, they play a pivotal role in ensuring the community’s health.
Eswatini Sexual and Gender Minorities and Rock of Hope have been working to ensure LGBTQ+ and intersex Emaswati receive access to health care without discrimination.
The Rock of Hope last month on Rainbow Health Day provided free medical care to the country’s LGBTQ+ and intersex community. This care included COVID-19 vaccinations, HIV testing and counseling, psycho social support, TB and STI screenings, free condoms and lubricant distribution, among other things.
Indian government makes case against marriage equality
Landmark Supreme Court oral arguments to end on May 10
NEW DELHI — While India’s national capital, New Delhi, was facing a heat wave on April 26, oral arguments in a case that could extend marriage rights to same-sex couples resumed in the country’s Supreme Court.
Solicitor General Tushar Mehta argued on behalf of the Indian government.
“This court is dealing with a very complex subject having a profound social impact,” said Mehta, who is the country’s second-highest legal official. “All the questions in this case must be left to the Parliament.”
Mehta, while arguing before a 5-judge panel headed by Chief Justice Dhananjaya Yeshwant Chandrachud, said the court in Navtej Singh Johar v. Union of India recognized the right to one’s sexual orientation. Mehta further said the real question is who will determine what constitutes marriage and between who.
Navtej Singh Johar v. Union of India was the historic Supreme Court ruling that decriminalized homosexuality in the country in 2018.
Mehta, while arguing for the government, said there would be several unintended consequences for several laws is the Supreme Court rules in favor of marriage equality. He argued Parliament and civil society groups would need to debate the issue.
Mehta said that there is no stigma and legislative policy is clear in the Transgenders Act, where it is widely defined to include all genders. Mehta appealed to the Supreme Court to leave the matter of marriage equality to Parliament and argued the court may not be in a position to address the multiple situations that will arise because of adjudication.
“If they (LGBTQ) have a right how will it be regulated?,” asked Mehta. There are several shades of the spectrum. It is not just gays, lesbians, etc.”
Mehta also spoke about different genders.
He argued that if LGBTQ+ people are given recognition, that is unidentified, it may not correspond with Indian laws and it would be impossible to reconcile through a judgment. Mehta also referenced the Dobbs v. Jackson Women’s Health Organization ruling in the U.S. that struck down the Roe v. Wade decision, but Chandrachud said the American Supreme Court ruling that determined a woman has no autonomy over her own body was the wrong judgment.
“We credit ourselves that we have gone far ahead than these, especially Dobbs v. Jackson Women’s Health Organization,” said Chandrachud. “For socially complex issues, leave it to the legislature, that point is well taken.”
Mehta argued India’s Special Marriage Act is for regulating interfaith and inter-caste marriages, but the law was always intended for heterosexual couples and not for same sex couples.
Justice Shripathi Ravindra Bhat immediately intervened and asked Mehta whether there was a marriage equality law anywhere in the world. He further said that perhaps there was no foundation for such a marriage to be recognized by law in 1956.
Mehta replied there was neither permissive nor prohibitive operation of law in India until 1956. Mehta on the hearing’s sixth day gave a bizarre example to support his argument.
He asked the court to imagine a situation of incest. Chandrachud argued the example is far-fetched and sexual orientation, and autonomy cannot be exercised in all aspects of marriage.
“It cannot be argued that sexual orientation is so strong that incest be allowed,” said Chandrachud.
Mehta also argued that extending marriage rights to same-sex couples would impact other laws that specifically address heterosexual marriages. He said that issues would arise across the country, and further highlighted it would be difficult to determine who the wife would be in a lesbian marriage and how she would receive rights — spousal support if she has no financial means to support herself and alimony in the case of divorce.
Justice Pamidighantam Sri Narasimha agreed and said it would be an impossible thing to do.
Chandrachud, while hearing Mehta’s argument, noted three points that Mehta was trying to highlight: Adjudication would require substantial rewriting of Indian law, judicial interference in public policy and interference in personal law. The court cannot avoid the interplay between the Special Marriage Act and personal law.
Personal laws in India regulate marriage, divorce and child adoption for different religions. Hindus under personal laws have the Hindus Marriage Act of 1955, Muslims have the Muslim Personal Law (Shariat) Application Act of 1937, and Christians have the Indian Christian Marriage Act of 1872.
The Supreme Court also noted that extending marriage rights to same-sex couples falls under Parliament’s domain, but the court’s goal is to ensure ways to grant legal rights, social and other benefits to same sex couples without the label of marriage.
Mehta during Wednesday’s hearing shocked the country when he said the government is ready to address marriage rights for same-sex couples by forming a committee that a Cabinet secretary will head.
“(The) issue was some genuine human concerns, and discussion was if something can be done administratively,” said Mehta.
Chandrachud quickly suggested that Attorney General R. Venkataraman and Mehta should meet with the plaintiffs’ lawyers to frame the issue.
“The conceptual domain requires legislative changes, and it is completely beyond our domain,” said Chandrachud. “So we have to see how we frame the conceptual doctrine. Somethings can be done administratively, something can be changed by subordinate legislation, and the third is recognition for the same sex marriage. So we are saying we will decide this issue as a concept, but the govt taking one step forward will be to recognize the cohabitation of same sex couples, which will be a big step.”
Venkataramani began his arguments before the Supreme Court once Mehta concluded.
Venkataramani said that Special Marriage Act is only a law about the institution of marriage and does not create the institution of marriage itself, and that is why it is not discriminatory legislation. Lawyer Rakesh Dwivedi argued on behalf of one of the litigants who opposes marriage equality, and questioned whether there is a fundamental right to marriage in India.
“Is there fundamental right to recognition of marriage?,” asked Dwivedi, while arguing against marriage equality. “Is there a fundamental right to equality in the marriage of heterosexuals? can this be made permissible by the variety of amendments?”
Bhat asked Dwivedi whether the word spouse diminishes the meaning of husband and wife.
“We say I take you as a husband and take you as a wife,” said Dwivedi. “How can we say I take you as my spouse.”
Dwivedi also argued that the case requires social accommodation, and Parliament is in the position to decide how to take the step, when to take it and what lays ahead. He argued that India’s social fabric would break apart if the Supreme Court rules in favor of marriage equality.
Homosexuality is ‘offensive’ to Indian values
A group of former judges, former Indian Police Services officers, and former bureaucrats wrote an open letter to Indian President Droupadi Murmu. They asked her to intervene in order to “save” Indian cultural traditions, religious tenets and social values.
“If we revise the law to make same-sex union rational, acceptable, or moral, it will open the doors to same-sex culture. Our society and culture do not accept same-sex behavioral institution because it is offensive to our values, besides being irrational and unnatural,” the letter reads. “It is widely appreciated that same-sex relationship cannot create long-term or stable institutions; and if they are allowed to adopt children, they cannot maintain stable and long-lasting relationships with their families, parents, relatives and partners. The health and future of such children will be severely compromised.”
The Supreme Court Bar Association in an April 28 resolution said it was highly inappropriate of the Bar Council of India to oppose the marriage equality hearing, because the Supreme Court has the right to decide whether it should adjudicate the issue or leave it to Parliament.
The Washington Blade on April 24 reported that the Bar Council of India, a statutory body that regulates legal practices and education in the country, held a joint meeting with all of the country’s state Bar Councils and passed a resolution concerning marriage equality. The Bar Council of India has requested the Supreme Court leave the issue of marriage equality for legislative consideration.
The Supreme Court will resume hearing on May 10 for final arguments from Mehta and additional considerations from the plaintiffs.
Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion.
Ugandan MPs approve revised Anti-Homosexuality Bill
Measure still contains death penalty provision
KAMPALA, Uganda — Ugandan lawmakers on Tuesday approved a revised version of their country’s Anti-Homosexuality Bill that still calls for the death penalty for anyone found guilty of “aggravated homosexuality.”
MPs in March approved the Anti-Homosexuality Bill, but President Yoweri Museveni on April 20 sent it back to Parliament for additional consideration.
The Legal and Parliamentary Sectoral Committee in an April 28 report notes Museveni specifically argued the law “should be clear so that what is being criminalized is not the state of one having a deviant proclivity, but rather the actions of one acting on the deviance or promoting the same.”
The committee report also indicates Museveni argued the provision of the law that specifically required Ugandans to “report acts of homosexuality” created “unnecessary contradictions and duties which pose implementation challenges and conflicts in society.”
The updated version of the Anti-Homosexuality Bill that lawmakers approved on Tuesday contains the aforementioned recommendations. The death penalty provision remains, even though Museveni advised lawmakers to repeal it from the original measure.
“This legislation is very, very draconian and extreme,” said Frank Mugisha, executive director of Sexual Minorities Uganda, a Ugandan LGBTQ+ and intersex rights group, during an interview on “The Rachel Maddow Show” on Monday. “It is here to erase the entire existance of an LGBTQ person in Uganda, but it also radicalizes Ugandans into hatred of the LGBTQ community and we’re already seeing that happening.”
Museveni in 2014 signed a version of the Anti-Homosexuality Bill that imposed a life sentence upon anyone found guilty of repeated same-sex sexual acts. The law was known as the “Kill the Gays” bill because it previously contained a death penalty provision.
The U.S. subsequently cut aid to Uganda and imposed a travel ban against officials who carried out human rights abuses. Uganda’s Constitutional Court later struck down the 2014 Anti-Homosexuality Bill on a technicality.
White House Press Secretary Karine Jean-Pierre and Victor Madrigal-Borloz, the independent U.N. expert on LGBTQ+ and intersex issues, are among those who have sharply criticized the measure.
Jessica Stern, the special U.S. envoy for the promotion of LGBTQ+ and intersex rights abroad, last month during a panel with four Ugandan activists the Center for Strategic and International Studies hosted said the Biden-Harris administration is “investing the potential impact of the Anti-Homosexuality Bill on U.S. foreign assistance.” American officials last week postponed a meeting on the President’s Emergency Plan for AIDS Relief’s work in Uganda in order to assess the potential impact the Anti-Homosexuality Bill will have on it.
Activists and their supporters have also sharply criticized Family Watch International, an Arizona-based group the Southern Poverty Law Center has designated as a hate group, and other anti-LGBTQ groups from the U.S. that have cultivated strong ties with Ugandan lawmakers behind the bill.
Kenyan anti-homosexuality bill would expel LGBTQ+ refugees
Kakuma and Dadaab refugee camps are located in the country
NAIROBI, Kenya — Refugees and asylum seekers who identify as LGBTQ+ would be expelled from Kenya under a proposed anti-homosexuality law.
The Family Protection Bill, 2023, that would criminalize homosexuality with a life sentence, is currently under consideration by a parliamentary committee.
The measure, which opposition MP Peter Kaluma has sponsored, proposes changes to Kenya’s Penal Code that prohibits consensual same-sex relations with a 14-year prison term. The lawmaker notes that homosexuality, same-sex marriages and other so-called unnatural sexual acts go against “public morality” that threaten the family unit under Article 45 of Kenya’s constitution, which recognizes marriage as between people of the opposite sex.
“The bill contains miscellaneous provisions that allow the expulsion of refugees and asylum seekers who breach the law, contains provisions for psychotherapy and rehabilitation of offenders and consequential amendments to other acts of Parliament,” the proposed law reads.
Kenya hosts more than half a million refugees in its Kakuma and Dadaab camps from neighboring nations: Burundi, Somalia, South Sudan, Ethiopia, Uganda and the Democratic Republic of Congo that face long-standing conflicts and insecurity.
Kenya is also the only East African nation that has been accepting LGBTQ+ refugees and asylum seekers without questioning the individuals’ sexual orientation. This is despite rampant cases of homophobia in the country and some LGBTQ+ refugees complaining about discrimination, violent attacks and destruction of their property by other refugees and residents.
Several LGBTQ human rights groups, including the Organization for Refuge, Asylum and Migration, have released a report on violations the LGBTQ+ people face in Kakuma, which is one of the world’s largest refugee camps.
The U.N. Refugee Agency in Kenya in March 2021 issued a statement in response to homophobic attacks on LGBTQ+ refugees in Kenyan camps by assuring its commitment to their safety.
The move to curb homosexuality in Kenya through the new law comes barely three months after more than 300 LGBTQ+ refugees at Kakuma camp launched an online signature collection initiative to petition the authorities to stop discrimination, torture and mistreatment.
In the petition, the group decries rampant incidents of brutal attacks in the camp that have left them with “deep wounds and scars” that often result in disability and death for some victims.
“As refugees who have sought safety and refuge from conflict and persecution, we should not have to endure further suffering and discrimination within the confines of the camp. Yet, this is the reality for many of us,” reads the petition.
The group also laments police brutality and mistreatment, even though they are supposed to protect them like other refugees regardless of their sexual orientation.
“This has led to a climate of fear and insecurity within the camp, where we are unable to live freely and openly as members of the LGBTIQ+ community. We are tired of living in fear and we demand an end to these injustices,” it reads.
The proposed Family Protection Bill, 2023, has sparked mixed reactions from Kenyans, with some supporting it and others opposing it for infringing and undermining other people’s rights.
“A very human plea to a Kenyan MP who’s pushing an agenda of hate against a section of Kenyans. I live for the day we’ll see all humans as persons deserving to be treated with dignity and love, and not be victimized for who they are, how they live, and who they love,” Lukoye Atwoli, a celebrated Kenyan scientist and dean, said.
He argued that it is not his or anyone’s duty to police consenting adults in a consensual same-sex relationship. The MP who sponsored the Family Protection Bill, 2023, however, holds that whatever consenting adults in same-sex relationships do in private affects the entire society.
“Same-sex sexual acts and unions are sterile by nature,” Kaluma said. “If tolerated or supported and propagated, would lead to the extinction of the human race.”
The legislator joined other anti-LGBTQ+ African MPs in Kampala, Uganda, early this month to champion so-called family values. They demanded fresh scrutiny and repeal of international laws used by individuals and organizations that push the “anti-African cultural agenda.”
The proposed Kenyan law seeks to limit several constitutional rights and freedoms in restricting LGBTQ+ practices and associated activities in the country.
It would impose a jail term of not less than five years on people found guilty of assembling, picketing, promoting, or supporting LGBTQ+-specific activities. The bill also seeks to limit the right to information by restricting the media from publishing or broadcasting LGBTQ+-specific content and would ban the recognition or registration of any LGBTQ+ group or organization in Kenya.
This provision is in response to the Kenyan Supreme Court’s controversial ruling in February that allowed the National Gay and Lesbian Human Rights Commission to register a non-governmental organization.
The ruling attracted criticism from religious leaders and government officials including President William Ruto, who has instructed the attorney general to challenge the court’s decision for violating the country’s laws and morality.
With the Family Protection Bill, 2023, the country now joins Uganda whose MPs in March passed a bill that would criminalize anyone who identifies as LGBTQ+ with life imprisonment amid international criticism. President Yoweri Museveni has returned it to Parliament for further consideration before he signs it.
Embattled U.S. Rep. George Santos (R-N.Y.) last month introduced a bill that would ban U.S. foreign aid to countries that criminalize LGBTQ+ people.
Activists protest Uganda’s Anti-Homosexuality Act outside country’s D.C. embassy
Bill contains death penalty provision for ‘aggravated homosexuality’
WASHINGTON — Dozens of LGBTQ+ and intersex rights activists gathered outside the Ugandan embassy in Northwest D.C. on Tuesday and demanded President Yoweri Museveni not sign his country’s Anti-Homosexuality Act.
The protesters chanted “Museveni, hear us now, we are queer and trans and proud” and “human rights, not hate. Museveni kill the bill” as they stood in front of the embassy on 16th Street, N.W., near Military Road.
Health GAP (Global Access Project) Executive Director Asia Russell, Prevention Access Campaign Global Policy Advocacy Director Michael Ighodaro, Treatment Action Group Government Relations and Policy Associate Kendall Martinez-Wright and Green Leadership Trust Executive Director Emira Woods spoke. Human Rights Campaign Senior International Policy Associate Andrea Gillespie and RFK Human Rights Senior Vice President of Programs and Legal Strategy Wade McMullen, Council for Global Equality Policy Advocate Ian Lekus and Planned Parenthood Federation of America Senior Director of Global Communications Crister DelaCruz are among those who attended the protest.
“We are here today because there is a rising tide of hate that has come from the U.S., exported by religious fundamentalists to countries like Uganda and beyond,” said Russell. “On March 21, Uganda’s Parliament passed a hateful bill that was co-authored with fundamentalist evangelicals in the United States.”
Russell specifically mentioned Family Watch International, an Arizona-based group the Southern Poverty Law Center has designated as a hate group.
“That hatred, which is profoundly un-Ugandan, profoundly un-African, is now threatening the lives of millions of people in Uganda and beyond: People who are queer, Trans, people who are defending basic freedoms and liberties, the people who queer people love, their families and essentially everybody who loves freedom in the country of Uganda,” said Russell.
“LGBTQ, trans individuals in Uganda and various parts of Africa and also here in the United States of America are experiencing flat out hate. We come here today to take a stand and to denounce this death sentence. We take a stand for all African LGBTQIA+ individuals in Uganda, from the small villages to the big city of Kampala to tell President Museveni enough is enough.”
Martinez-Wright noted the Anti-Homosexuality Act “will hamper the already struggling efforts in terms of eradicating HIV.” Martinez-Wright also said “LGBTQ, trans individuals in Uganda and various parts of Africa and also here in the United States of America are experiencing flat out hate.”
“We come here today to take a stand and to denounce this death sentence,” said Martinez-Wright. “We take a stand for all African LGBTQIA+ individuals in Uganda, from the small villages to the big city of Kampala to tell President Museveni enough is enough.”
Ighodaro and Woods echoed Martinez-Wright.
“We’re here to say no to Uganda and Museveni,” said Woods, who is from Liberia. “We’re here today to say no to the forces that are running for office at local and national levels in the United States.”
“We are here to say no to the U.K. and the U.S. foreign aid that has also propped up the very anti-homophobic groups that are behind and pushing this legislation in Uganda, in Kenya, in Liberia, in the United States,” added Woods. “We say no to this global fight to turn back the clock.”
Protests also took place in New York, London, New Delhi and other cities around the world as part of an “Emergency Day of Action” against the Anti-Homosexuality Act that, among other things, would impose the death penalty for “aggravated homosexuality” and require Ugandans to report LGBTQ+-specific activities to authorities.
“As an organization committed to strengthening and advancing sexual and reproductive health care rights and access around the world, Planned Parenthood Global stands in solidarity with the LGBTQI+ community in Uganda and human rights for all,” said Lori Adelman, vice president of Planned Parenthood Global’s Global Connect program, on Tuesday in a press release. “For over 50 years we have backed brave partners in the advancement of bold and courageous social justice movements and leaders, including Uganda.”
Museveni on April 20 sent the Anti-Homosexuality Act back to Parliament for additional consideration before he signs it.
White House Press Secretary Karine Jean-Pierre and Victor Madrigal-Borloz, the independent U.N. expert on LGBTQ+ and intersex issues, are among those who have sharply criticized the measure. Jessica Stern, the special U.S. envoy for the promotion of LGBTQ+ and intersex rights abroad, earlier this month during a panel with four Ugandan activists the Center for Strategic and International Studies hosted said the Biden-Harris administration is “investing the potential impact of the Anti-Homosexuality Act on U.S. foreign assistance.”
“If this bill is signed into law, it will be an action-forcing event,” said Stern.
State Department Vedant Patel on Tuesday during a press briefing declined to comment on whether the U.S. will cut aid to Uganda if Museveni signs the Anti-Homosexuality Act. Patel, however, did note to the Blade the State Department has “spoken quite clearly about the legislation broadly.”
“We have been clear that we believe that any legislation that reduces or retracts the basic human rights for those of the LGBTQI+ community is something that we certainly would take issue on,” said Patel.
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