Last month during President Obama’s first state visit to Kenya, he declared his fearless and unwavering support of LGBT rights at a globally observed press conference in Nairobi. His message has brought this issue to the forefront of public discussion, and means that, despite President Kenyatta’s dismissals, the persecution of LGBT people in Kenya can no longer be brushed aside as a “non-issue”.
Still today in 2015, there are 78 jurisdictions across the world that criminalise homosexuality; 34 of those are in Africa – over sixty per cent of the total of 54 independent African states. Most of these criminal laws were exports of British colonialism, but in many instances they have taken on a new life, inflamed by religious bigotry, political scapegoating and Western evangelical organisations. Under the Kenyan Penal Code same-sex sexual conduct between consenting adults constitutes a criminal offence, punishable by up to fourteen years in prison.
Yet against this backdrop of a seemingly insurmountable challenge there are glimmers of hope. Local LGBT advocacy groups have had their right to freely associate upheld in court decisions in Kenya and Botswana, and homosexuality was decriminalised through legislative reform in Mozambique in June of this year.
The tide is turning. The international community is resolute that criminalisation cannot remain in the twenty-first century. Not only does criminalisation lead to arbitrary arrests and police intimidation of LGBT people, it also legitimises violence, rape, forced or coerced marriage, harassment, discrimination and exploitation. It forces LGBT people to make the impossible choice between living a lie, ashamed of their own identities, and being actively persecuted if they choose to be true to themselves. Criminalising people on the basis of their identity undermines their fundamental human rights, and the rule of law in criminalising countries.
The condemnation of criminalisation by the international community, by actors like the UN, EU and the United States, is significant. Notably, the African Commission on Human and Peoples’ Rights also last year adopted its first-ever Resolution calling on African States to end all acts of violence and abuse against people on the basis of their sexual orientation or gender identity. We are living in an ever more interconnected world, which allows us to increasingly evolve as a global community through mechanisms like international human rights law, to work towards a world where no one faces persecution. African states, in particular rapidly economically developing countries like Kenya, want to participate in that international community and have a respected voice within it. Their credibility as modern, democratic and outward-looking nations is recognizably diminished as long as they continue to violate people’s human rights on the basis of their sexuality or gender identity.
The fact that President Obama was the one to make this unequivocal criticism, in the forum in which he did, has already had a particular and undeniable resonance; not least because of his personal heritage but also the constructive and diplomatic tone which he employed. It rang especially true that he spoke to his own experience of bigotry when he compared today’s treatment of the LGBT community in Kenya to that of African American people in the USA prior to the civil rights movement. This comparison is not only apt, but it speaks to the collective pain that such legacies leave on marginalised groups long after the fact.
His words, and the similarly strong statements made by the likes of UN Secretary General Ban Ki-moon, Prime Minister David Cameron and the African Commission, provide optimism that although change may happen slowly, it will happen. It is a demonstrable fiction that the desire for LGBT equality is a Western imposition. There are activists all over the African continent standing up against criminalisation and LGBT persecution. The National Gay and Lesbian Human Rights Commission, one of the foremost LGBT rights groups in Kenya, recently fought for and won its right to be registered by the country’s NGO Board through a ruling of the Kenyan High Court. Activists like these are asking for one simple thing: for LGBT people to be able to live as who they are, freely and with dignity, and they are making headway. Since 1990, 31 countries globally have decriminalised homosexuality, and LGBT equality has become the civil rights battle of a generation. States that continue to persecute LGBT people are on the wrong side of history and those on the wrong side of history always lose eventually.
Jonathan Cooper is Chief Executive of the Human Dignity Trust.