CONCLUSIONS: POSI TIONS ON C RIMI NALIZATION AND

219 Dakar from Africa's gay capital to centre of homophobia” http://www.afrol.com/features/36319

220 Pell Gaudio, 2009, op cit.

221 See infra, Chapter two on the uses of hypocrisy.

with Christianity though, it would be a mistake to see the increased conservatism only as an expression of foreign influence. African social and cultural trends are important on their own account. HIV / AIDS has also strengthened the conservatism of recent decades. Since the 1970s, Islam in Nigeria has gained adherents due to its opposition to corruption and “immorality” in the face of a loss of credibility by government.

Opposition to liberal acceptance of homosexuality fits in with this general conservatism of the movement. As with Christianity, conservative movements should be distinguished from extremist ones, such as the murderous Boko Haram organization.

A more tolerant approach to same sex relations can be found in practice. Thus Dakar, which was reportedly well-known as the “gay capital” of West Africa until recent times has become noticeably more conservative. Written reports referring to “goorjigeen” or

“gordigen” (now considered to be a pejorative word) in Dakar go back to early colonial times, with writings by French authors on the subject. European observers writing in the 1930s reported a lack of social consequences for homosexual activity, though noting religious sanctions in the form of the refusal of Muslim burial. Male prostitution seems to have been common. Very high levels of tolerance, and even a high percentage of both males and females admitting to having had same sex experiences was noted in a scientific study in the 1970s. Likewise, there are well-documented accounts of tolerance of same-sex subcultures among Hausa men in Northern Nigeria. Reports say that the tolerant attitudes began to disappear in the past decade with the growth in power and influence of religious fundamentalism.²¹⁹²²⁰ A number of factors have contributed to this, possibly including the more visible and explicit international activism for LGBTI rights that arose in the same period.²²¹ The same pattern was seen in Sudan, where older people report a significant tolerance of LGBTI people until the introduction of strict Islamic government in the 1980s.

Senegal’s law against homosexuality (forbidding immodest acts with individuals of the same sex with a penalty of up to five years imprisonment) dates from the post-independence period, and not to the Islamic revivalism of recent decades. Nevertheless, both politicians and fundamentalist Islamic clerics were quick to invoke Islamic values and the threat posed to them by a supposed incursion of western decadence. The law forbidding homosexual acts was thus apparently unused and almost forgotten until recent years. Activists in Kenya noted that rights work among LGBTI is more difficult in Muslim dominated coastal areas than in Nairobi. This cannot be attributed solely to religious factors, as Nairobi is a cosmopolitan city. It is perhaps to be expected that people will continue to turn primarily to religion as a source of authority and law for as long as states fail to establish credibility. Nevertheless, religious people should also be aware of the dangers of a crude politicization of their faith and a mobilization of it in the service of prejudice, and even hatred.

3.9 CONCLUSIONS: POSI TIONS ON C RIMI NALIZATION AND

222 See Safra website, and sources there. Western based Islamic scholars who challenge traditional interpretations include Scott Siraj al-Haqq Kugle and Kecia Ali.

223 http://www.law.emory.edu/aannaim/pdfiles/heresy.pdf

224 See for example John 18:36 “My Kingdom is not of this world”, or Matthew 22:21 “Render unto Cæsar the things that are Cæsar’s and unto God the things that are God’s”.

POSSIBLE WAY S FORWARD

It is important that other voices and interpretations within the Islamic schools begin to be heard, though there is no doubt that, as with Christianity, this is a long term project.²²²

While there thus are particular differences of doctrine and of the origin of the actors promoting religious conservatism, there are more similarities than differences between Christian and Muslim contexts in dealing with the issue of sexual minorities in Africa.

There are similar issues of competition at stake, with a fear that “softness” will see the emergence of others ready to take up more extreme positions and recruit members. It is not only in UN meetings and resolutions that a rare Christian –Muslim unity emerges on this issue, but in national statements like those referred to in Kenya, Nigeria and Uganda, as well as in bursts of local rage like that described below in Mtwapa in Kenya.

3 . 9 . 1 RELI G I ON AN D T HE SEC ULAR ST AT E

In some contexts religious leaders can argue – often quite correctly – that the rights of LGBTI persons is far from the most urgent of human rights issues in Africa. Where matters are brought to a head as in Uganda, mainstream religious organizations will have to make their positions clear on criminalization. That they, with the exception of the Catholic Archbishop, failed to address the clear dangers posed by the AHB contains a clear warning. It points to a serious need to engage African religious leaders on the relationship between faiths and the secular state. Religions benefit from the Bills of Rights contained in most African constitutions. There is a danger that they see the freedom of religion only as guaranteeing some form of fairness among different religions, and not as imposing a responsibility on all of them to refrain from persecuting the dissenters that are rejected by most of them.

Fundamentally, this would involve the construction of the state on non-religious values, where faith is a choice like many others – albeit one of absolute importance for people - rather than an indispensable pillar of the nation. While Islamic doctrine does not provide a clear basis for the separation of religion and state, the scholar Abdullahi An Na’im has urged Muslims to accept that the secular state is in the interest of believers, so that faith is based on sincere conviction rather than compulsion.²²³ Unlike many states in the Middle East, most predominantly Muslim African countries are secular republics rather than states founded explicitly on Islam. This important difference is a vital plank for dialogue. Beyond Africa, Turkey and Indonesia are leading examples.

Christians in Anglophone Africa – politicians as well as religious leaders - need to fully absorb and defend this principle. In predominantly Christian countries, quotations from the words of Jesus in the Bible give support to this separation.²²⁴“

3 . 9 . 2 PROT EC T I ON OF T HE F AMI LY

What unites most Anglicans, Evangelicals and Muslims, and perhaps many Catholics as well (explaining their lukewarm commitment to the Vatican position on decriminalization) is that they see decriminalization as the first step down a slippery slope that will inevitably be followed by increased visibility and acceptability of LGBTI, and then by ever expanding demands for equal treatment, leading to same-sex marriage and a kind of modern moral neutrality exemplified by liberalism.

A key point of dialogue with mainstream religious people in Africa must take place on the issue of protection of the family. In order to create a middle ground where dialogue is possible, LGBTI and human rights activists, as well as western donors who provide funding and support, must work to strengthen dialogue on the protection of the family.

Thus, convincing arguments - and people who can deliver them – to the effect that decriminalization will not lead to a weakening or destruction of the family are perhaps the most important that can be made on this issue in Africa. Arguments imported from the West will be of only limited use. African political and social dialogues on these issues – with broad participation -- are a necessity. Nevertheless, the threat to the family posed by homosexuality or transgender persons may be more symbolic than real. In most African countries (with the exception of Uganda and perhaps Cameroon), mainstream religious communities do not call for active legal repression of homosexual behaviour. They are more concerned with the symbolic value of the law and to deny LGBTI people the freedom to organize that would come with decriminalization. LGBTI activists and those committed to a secular state must challenge religious leaders to stand on their faith and not rely on the criminal law to impose their values on society.

African LGBTI people can rightly show themselves as upholders of the family in many cases. They can also argue that criminalization is doing more harm than good to families.

Human rights principles demand that a measure that limits important freedoms must be subject to tests of necessity and proportionality. Limits on the freedom of consenting adults – especially in such a private and important area as sexuality – should be rigorously scrutinized. Proponents should be asked to show that criminalization achieves an alleged goal of protecting (a particular model of) the family, and that it is necessary and proportionate to this end. As discussed in Chapters 6 and 7, criminalization has already failed this test at the UN Human Rights Committee, but African societies will need to have this discussion for themselves.

225 Notes from meeting with senior representatives of the Ministry for Foreign Affairs of an African country, Copenhagen 2011. Names and country withheld but in the possession of the author.

CHAPTER 4

4 POLITICS

This chapter distinguishes a number of tendencies to be found in African politics on SOGI issues and the law and on the responses to these contexts by a number of western donor countries. The main focus is on countries where laws criminalizing same-sex acts are in place. Policies on HIV / AIDS are discussed in chapter six.

It is important to remember that many African countries where same sex acts are illegal were not themselves the architects of sodomy legislation, and that securing majorities to change the law is no easy matter. We need also to remember that internationally, social change on this issue has not been led by politicians (South Africa is an exception).

Where it has occurred, change has most often come through activism, culture and social influences, only later leading to changes in the law. In many cases, it makes no more sense to “blame” politicians than other members of society for the existence of sodomy laws.