In April 2022, the Centre for Human Rights (CHR) and the Centre for Sexualities, AIDS, and Gender (CSA&G) at the University of Pretoria together with the Center for Gender Studies and Feminist Futures (CGS) and the Center for Conflict Studies (CCS) at the Philipps-University Marburg launched the first edition of the Pretoria-Marburg Queer Conversations. The conversations come from common interests in work on LGBTQI+ and queer identities among the centres.
This six-event series, themed Scholarly and Activist Perspectives on LGBTIQ+ Lived Realities in Africa, creates a monthly space for in-depth discussions that bring together scholars and LGBTQI+ activists.
On September 8, at the sixth event of the series focusing on Prospects and Challenges for Transnational Activism to Advance LGBTIQ+ Rights in Africa – Njeri Gateru, who works for the National Gay and Lesbian Human Rights Commission in Kenya and Keval Harie, the director of the gay and lesbian memory and action archives GALA based at the University of the Witwatersrand Johannesburg in South Africa led a conversation on strategic litigation and activism within the LGBTQI+ communities.
Most African countries have a similar colonial past, and colonial histories, and because of that and other factors, they end up with similar types of legal landscapes and similar types of cultural, religious and political rhetoric, that surrounds the work that LGBTQI+ activists do and the lives that they live.
“Within the conversation of strategic litigation it’s been very clear what solidarity has looked like, for different countries working on specific issues, for example, in Kenya when were litigating around decriminalization, we had not only technical support from different countries, we actually had people traveling from Kampala, Gaborone, Johannesburg to come and attend court sessions, to sit with lawyers and activists to talk about the case … We drew a lot of strength from people flying in from Lagos to celebrate within the little means that we were making, and that was really important. I think that truly reinforces the belief that we have in our community and in the work that we do, and the people that we surround ourselves with”, says Gateru.
According to Harie, GALA is an archive that has an incredible historical repository or collection, which speaks to kind of lived experiences of queer life in South Africa and more. They are looking to engage with organisations and partners all across the continent in terms of really uncovering queer history and their objective stems from speaking against a narrative of homosexuality being unAfrican, which is heard all across the continent.
“I think in that sense, there’s already this thread of commonality in which the work that we’re doing all across the continent or activists are doing all across the continent is really pushing against that narrative”, says Harie.
In terms of the work that Gala has done and experienced, he thinks it’s important to acknowledge that within the South African environment, a lot of the work perhaps, in terms of strategic litigation has happened in the past and yet the country still faces huge challenges like violence, particularly against the LGBTQI+ community. Over the last two years, South Africa has had 26 murders or hate crimes of LGBTQI+ individuals. The country has progressive legislation yet many changes have not been seen particularly in the protection and safety of the LGBTQI+ community.
According to Gateru, one key thing that Africans will continue to see is shared opposition. There’s a direct line between who’s opposing efforts in Kenya, Tanzania, Uganda and across East Africa. There’s a direct line to the ways that the political rhetoric is expressed and how it’s framed.
“Our President, William Ruto in response to a question about homosexuality in Kenya and his administration just basically mirrored language that says something to the effect that homosexuality is a non-issue, which sounds harmless, but isn’t really harmless … The moment that we’re classified as a non-issue then we’re not considered in anything within the Kenya Bureau of Statistics, in HIV programming, in access to our rights. I think it’s been useful for us to continue to sit together. It’s been useful for us to contextualise issues as they arise not only within our countries, but then even within the surrounding countries”, says Gateru.
Because the LGBTQI+ community faces so much shared opposition, Gateru thinks the onus is on the community to have conversations that transcend their national programming, and domestic programming.
“I think in our conversation about what challenges have looked like, one would be resourcing, that our opposition is so well resourced and well structured. It’s literally in churches and on TV, and we are these little organisations, who, because of scarcity, to some extent, work on very specific issues within very specific localities”, adds Gateru.
According to Harie, one of the successful forms of activism that really took place during apartheid, was student movements all across the globe, really pushing their governments and showing solidarity. He feels like it is harder for activists nowadays to really create this network of global solidarity because often it’s really co-opted into very fancy technical armchair activism like posting on Instagram. Social media campaigns have some level of importance, but it really doesn’t have the same gravitas as activists being able to communicate with younger individuals or movements in various places.
“Thinking about how our campaigns for example strategic litigation, there’s an element of advocacy that also engages with communities like broadening the ways in which we’re thinking about the activism, so that it’s kind of taking on this multi-pronged approach, which I know is challenging because often our organisations are so small. It’s like, how do we do all of the things all at once? But I think that’s potentially where there are opportunities for solidarity and the ways in which we can change some of the work that we’re doing”, adds Harie.
According to Gateru, strategic litigation is one of those really visible initiatives and one specifically where outcomes can be harvested quickly. It’s a very direct linkage between judicial precedence in Botswana that’s used in Kenya and vice versa.
“I remember reading the decision at the High Court, with the Botswana registration case, referencing the Kenyan registration case that at that point, had been positively decided on by the High Court in Kenya. I think one of those low hanging fruit in terms of trying to show the direct advantages and the direct linkages within trial transnational activism and within that setup of combining efforts. I think also with the litigation around forced anal examinations. I think this is one of those archaic practices that we’ve seen being practiced in Tunisia, Libya, West Africa, in Tanzania. The threat of it in Tanzania, the threat of it and the practice of it in Uganda, and in Kenya as well, and Kenya sort of begun litigating around this issue just off chance, literally it was a situation where we had to apply for a stay of prosecutions because of the criminal case and grant to the Constitutional Court”, says Gateru.
One of the strategies of strategic litigation is that it’s very useful as judges tend to listen to their peers and colleagues and they don’t necessarily want to be embarrassed in terms of their own legal thinking, which is why it’s creating this huge body of like African jurisprudence.