29 May 2008: Much attention was given recently to the California Supreme Court's decision to overturn the gay marriage ban in that state. While the debate over gay marriage is very much a hot button issue within the United States, it is also important to recognize how much influence domestic laws and court decisions have on international norms and vice versa. When trying to understand issues such as gay rights on the national level, it becomes useful to evaluate the current state of rights protections for homosexuals in the international community.

In terms of the international community as a whole, the situation is fairly bleak. To date, there is not a single international human rights treaty which explicitly protects individuals from discrimination based upon their sexual orientation. In fact, according to associate professor at Golden Gate University Law School Eric C. Christiansen’s 2000 article entitled Ending the Apartheid of the Closet: Sexual Orientation in the South African Constitutional Process, “from a global perspective, torture, incarceration, forcible ‘medical treatment,’ and the death penalty are more common legal responses to homosexuality than rights protection.” While regions such as Europe and North America have made strides towards equality for sexual minorities, many countries—especially predominantly Catholic and Muslim countries—have been hesitant to pass universal protections.

Sub-Saharan Africa is a region that best typifies the broad range of actions national governments have taken in response to international and domestic demands for increased rights and protections for those in the Lesbian, Gay, Bisexual and Transgender (LGBT) community. On the one hand are countries like Kenya, Uganda, and Zimbabwe whose policies reflect the tabooed nature of homosexuality in much of Africa and the repressive response the issue may inspire. On the other hand, South Africa is a leader in the international gay rights movement, being the first country in the world to include a non-discrimination clause which covers sexual orientation in its new constitution drafted in the mid-1990s and now allows gay marriage throughout the country. Both of these reactions reflect significantly different ways in which policies and legal processes can affect popular attitudes and beliefs.

Repression and Exclusion

Unfortunately, in much of sub-Saharan Africa sexual minorities are faced with policies which seek to repress and exclude them from political and social life. Part of this stems from the fact that many Africans view homosexuality as “un-African” and is often seen as being associated with European colonizers who brought the lifestyle with them. Also, many African countries, like many other countries around the world, are heavily influenced by religious traditions which maintain that homosexuality is a sin.

For instance, it was recently reported that many gay Kenyans, because of a combination of legal and religious approbations, live in a state of fear—so much so that they are too frightened to even go to the police to report anti-gay crimes.

Robert Mugabe’s administration in Zimbabwe has infamously carried out a violent campaign against gays and lesbians, passed laws making homosexuality a crime, and encouraged citizens to turn any known homosexuals over to the police. The results of the upcoming run-off election may decide the future for homosexuals in Zimbabwe—the Movement for Democratic Change has already announced that “our vision is to build a Zimbabwe that has sufficient space and comfort for all.”

Many consider Uganda however, to be the current epicenter of the gay rights struggle in Africa. Most of the tension comes from the country’s clergy, who is very public in the decrying of homosexuality. Taken together with Human Rights Watch statements which claim that “President Yoweri Museveni's government routinely threatens and vilifies lesbians and gays and subjects sexual rights activists to harassment,” this makes for a very hostile environment for the estimated 500,000 homosexuals within the country.

Equality and Inclusion

None of this is to say that the picture is totally bleak for Africa’s sexual minorities. On the contrary, South Africa is not only a leader in terms of equality and non-discrimination for homosexuals in sub-Saharan Africa but also for the entire world. The South African case is also a success story for those arguing that political protections and legislations can affect the basic beliefs of a society. When South Africa became the first country in the world in 1996 to write a clause guaranteeing non-discrimination based on sexuality into its constitution, it was initially met with heavy resistance from a population which at that time was infamous for its homophobic sentiments. Over a decade later, however, through the work of politicians, judges, and gay rights activists, South Africa has become a more open and inclusive society and a leader in formal equality on the African continent.

Ironically, it was the country’s history of racial and socioeconomic division which helped to propel it to its current inclusive state. Following the end of the apartheid system in the 1990s, all of South Africa came together to draft a new constitution. In a case of what may reductively be called large-scale positive peer pressure, very few politicians or political parties wanted to give the impression of being exclusionary, given the legacy of apartheid. Taking advantage of this opportunity, the National Coalition for Gay and Lesbian Equality (NCGLE), which was formed in 1994 to represent 65 gay rights organizations, became linked with the African National Congress (ANC) and its calls for racial equality to lobby for a non-discrimination clause in the new document’s Bill of Rights which would include sexual orientation.

Having successfully enshrined formal equality within the constitution, the NBGLE almost immediately brought cases to the courts challenging laws which banned homosexual behavior and clearly discriminated against sexual minorities. By interpreting the new constitution, the presiding judges in these cases helped to swiftly make South Africa a legally hospitable space for homosexuals. This process reached its highest point in 2006 when same-sex marriage was legalized in South Africa, making it one of only 5 countries in the world where the legality of same-sex marriage is universally recognized.

Realizing that legal recognition and support was only half the battle, gay rights groups and NGO’s began to educate society on the provisions of the new constitution and linked its own struggle to that of the poorest South Africans, which has slowly worked to produce a more tolerant society. While some polls have suggested that as much as half of the South African population still feels that homosexuality is immoral, this is still leaps and bounds from where the country was even just 10 years ago.

All in all, a survey of gay rights in sub-Saharan Africa reveals that the region is essentially a microcosm for the rest of the world: a mixed bag. Globally there are some countries and regions which have led the way in protecting sexual minorities, while just as frequently governments have chosen to act with violence and exclusion towards their homosexual citizens. Sub-Saharan Africa represents the extremes on both ends of this spectrum. South Africa, however, also provides the world with an example of how negotiations and formal processes can help to bring about more widespread change within a society.