Africa
South Africa poised to bolster penalties for homophobic attacks, hate speech
Bill awaits approval in Parliament
The South African government is one step closer to ensuring any form of homophobia will be subject to hefty penalties that could include a lengthy prison sentence.
Deputy Justice and Constitutional Development Minister John Jeffery on Nov. 22Ā noted the Prevention and Combatting of Hate Crimes and Hate Speech Bill is now waiting approval in the country’s Parliament. President Cyril Ramaphosa will then sign it into law once it is approved.
First introduced in Parliament in 2018, the bill has been contested on its viability and how it would help protect people in South Africa against hate crimes and hate speech, particularly based on race, ethnicity, gender, sexual orientation or any other form of discrimination.
MPs approved the bill in March and then sent it to the National Council of Provinces, which approved it on Nov. 17. The Justice and Correctional Services Committee approved the NCOP’s recommendations last Wednesday.
“Section 3 of the bill defines a hate crime as an offense committed where the offender is motivated by prejudice or intolerance towards the victim of the crime because of specified characteristics or perceived characteristics of the victim or another person associated with the victim,” reads a Parliament press release about the bill. “These characteristics listed as grounds that could constitute a hate crime include age, albinism, birth, color, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, occupation or trade, political affiliation or conviction, race, religion, sex, which includes intersex or sexual orientation.”
The press release further notes Section 4 of the bill defines hate speech “as the intentional publishing or communicating of anything that can incite harm or promote hate based on grounds, including, among others, age, sexual orientation and race.”
“The bill also provides for penalties such as fines, imprisonment or both for those who are convicted of the offenses,” it reads.
Access Chapter 2, a South African LGBTQ rights organization, meanwhile, has now become the first LGBTQ-led law clinic in the country. The Legal Practice Council last week officially registered the group.
Although South Africa is the only African country that protects same-sex sexual relations in its constitution, there has been a surge in anti-gay attacks ā kidnappings, hate speech, rape and killings ā over the last few years. This trend has prompted many people who identify as LGBTQ to be cautious about disclosing their sexual orientation.
Gerbrandt van Heerden of the Center For Risk Analysis, a market research firm, says there is an urgent need to better equip society, law enforcement agencies and other sectors to fight homophobic attacks.
“Officials such as police, teachers, judges and magistrates should receive proper training and resources regarding LGBT issues,” said van Heerden. “Sexuality and sexual health should be included as a subject in the healthcare worker curriculum so that professionals in the field will in future have sufficient skills to manage LGBT patients properly, and be more knowledgeable about their specific healthcare needs.”
Van Heerden added companies and employers should receive guidance that helps them understand a hostile-free workplace for LGBTQ people can improve productivity and output and attract talent. Van Heerden also said official data, such as that in the national Census, should include trans South Africans and other members of the LGBTQ community.
“Doing so will demonstrate how serious South Africa and its policymakers are in cherishing and respecting the countryās progressive constitution,” said van Heerden.
Kenya
Kenyan court awards two gay men $31K
Couple subjected to genital examination, given HIV tests after āunnatural sexā arrest
A Kenyan court has awarded two gay men charged with āunnatural sexā for engaging in consensual sexual relations a total of Sh4 million ($31,000) in compensation.
This is after the Magistrates Court in the coastal city of Mombasa ruled the authorities violated the menās rights in obtaining evidence.
During the arrest, the two men were forcefully subjected to genital examination and HIV tests against their constitutional rights to privacy and the rights of an arrested person, including being allowed to speak with a lawyer.
Section 162 of Kenya’s penal code criminalizes consensual same-sex relations with a 14-year jail term. Prosecutors wanted the court to find the two gay men, who were arrested in 2021, guilty of the offence.
In a ruling issued on Oct. 24, the court, while awarding each of the men Sh2 million ($15,600) in compensation, faulted prosecutorsā unlawful extraction of evidence.
The Center for Minority Rights and Strategic Litigation, a local LGBTQ rights organization, last year petitioned the court not to admit the evidence for having been obtained unlawfully, to stop the hearing, and for the accused to be compensated.
In the petition, CMRSL cited infringement on the gay menās right to human dignity: A ban on cruel, inhuman, or degrading treatment, the rights to privacy and a fair trial, rights of an arrested person, and violation of their freedom and security as the constitution and international law mandates.
āThis provision (Section 162 of the penal code) has historically been used by the State to target and harass LGBTQ+ persons based on their gender identity and sexual orientation,ā CMRSL Legal Manager Michael Kioko told the Washington Blade.
The High Court in 2019 declined to decriminalize sections of the penal code that ban homosexuality in response to queer rights organizationsā petition that argued the State cannot criminalize consensual same-sex sexual relations between adults. The constitutionality of laws that criminalize homosexuality is still contested in the appeals court, based on the argument they infringe on the rights to privacy and human dignity.
CMRSL termed the latest ruling āa crucial step toward dignity and human rights for allā while noting that the case was critical in its legal representation efforts to protect the fundamental rights of queer people in Kenya.Ā
The Oct. 24 decision affirms the Mombasa appeals court’s 2018 ruling that struck down the use of forced anal testing in homosexuality cases by terming it as unlawful. Kenyaās National Gay and Lesbian Human Rights Commission brought the case.
The appeals court verdict stemmed from a 2015 case where police in Mombasa obtained a court order to force two gay men to undergo anal examinations and HIV testing at a local clinic after authorities arrested them and charged them with unnatural sex.
NGLHRC, in challenging the court order, argued forced anal examinations are cruel, inhuman, degrading, and breached local and international medical ethics and human rights.
The latest ruling exonerating the two gay men from prosecution is among numerous cases in which CMRSL has represented queer people in court to defend and protect LGBTQ rights in the country.
The case against a gay man in Mombasa charged with an unnatural act (a same-sex affair) and represented by CMRSL in court saw the matter dropped last September. The court last June acquitted transgender women in Lamu charged with committing gross indecent acts between males against provisions of the penal code.
CMRSL represented the trans women.
The group has deployed community paralegals and field monitors to monitor, document, and report queer rights violations.
āThey (field monitors) work closely with LGBTQ+ community paralegals to link survivors to justice by providing legal support and connecting those to pro bono lawyers and legal aid services,ā Kioko said. āOn average, our monitors handle around 10 cases each month, ensuring that violations are addressed and survivors receive the necessary legal pathways to seek justice.ā
CMRSL in partnership with several queer lobby groups, is also challenging the Kenya Films Classification Board in court for banning a movie titled āI Am Samuelā on the pretext it contained gay scenes that violate Kenyan law.
The Kenya Films Classification Board in 2018 also banned the āRafikiā because it contains lesbian-specific content. Petitioners who challenged the ban in court argue the decision violates freedom of expression and other constitutional provisions.
Ghana
Ghanaian cardinal reiterates support of LGBTQ people
Country’s Supreme Court considering challenge of anti-LGBTQ law
A Catholic cardinal in Ghana has reiterated his support for LGBTQ people.
Peter Turkson has been vocal against the criminalization of LGBTQ people, advocates, and organizations. He is also among the few African cardinals who have supported the Fiducia Supplicans (Supplicating Trust) document that Pope Francis released last year.
The document offers a narrow set of conditions under which a priest or deacon can offer a blessing to a same-sex couple or unmarried heterosexual couples.
In an interview with TV3 News, a Ghanaian television station, Turkson expressed his grave concerns over the Human Sexual Rights and Family Values Bill currently before the Supreme Court.
The bill, among other things, would further criminalize LGBTQ people and make advocacy on their behalf illegal.
Lawmakers in February approved the measure. President Nana Akufo-Addo has said he will not sign it until the Supreme Court issues its ruling.
Turkson said homosexuality is not new to Ghanaian culture and those who identify as LGBTQ should be treated like any other person.
“Who controls how one is born? And if one is born this way, how does it in itself constitute a crime? You criminalize them for what,” he asked.
Turkson also said there should be respect for diverse views, urging against the criminalization of identity.
Father Peter Knox from the Jesuit Institute in South Africa said there is an almost what he described as a neurotic denial of the fact there are African people who are attracted to people of the same sex.
āThe fact that people of the same sex enter into a permanent, loving, supportive, stable, fruitful relationships is beyond the imagination of many Africans. The very notion runs contrary to what many theologians and pastors claim is African culture,ā said Knox.
Knox also questioned why homosexuality is regarded as a Western concept, noting South Africa offers asylum to many LGBTQ Africans who are fleeing persecution from their countries of origin.
āFor decades South Africa has recognized the refugee status of people who are persecuted or whose lives are endangered because of their sexual orientation,” he noted. “For those who do not try to make it to Europe, South Africa is often a second-best destination.”
Knox noted one South African parish has a support group for LGBTQ parishioners.
“It is noteworthy that none of the members of the group are so-called Europeans. They all come from African countries,” he said. “One also hopes for more prophetic protection of a severely marginalized group on this continent.”
Cardinal Maurice Piat of Mauritius, along withĀ Turkson, is the only other of the continent’s 22 Catholic cardinals who hasĀ spoken publicly in support of LGBTQ people. Non-Catholic officials in Africa have largely dismissed Francis’s document.
Cardinal Stephen Ameyu, archbishop of Juba in South Sudan, has said the church’s role is to respond to sinners with mercy. He questioned the blessings of same-sex marriages last December during a press conference at a Christmas event.
“The church takes mercy first. Thatās why sometimes we are concerned about people who are criminals, people who have killed people. We turn to them in mercy,” said Ameyu. “So, the state of life that somebody lives does not exclude one from the concern of the church. Be merciful to others provide services to others who need the services, and the church can do a lot in order to convince people in their state of sins to come back to the church and be converted.”
Francis in 2023 visited South Sudan and the Democratic Republic of Congo.
Kenya
Petition demands Kenyan government stop discriminating against queer asylum seekers
Refugee Affairs Commissioner John Buruguās recent comments criticized
The queer community in Kenya has condemned the governmentās policy of discriminating against LGBTQ asylum seekers, and has launched a petition that challenges it.
The community, through an All Out petition drive, accuses Kenyaās Department of Refugee Services of putting queer asylum seekers at more risk of āpersecution, violence, and exploitationā by not recognizing them as afflicted refugees.
The action is in response to Refugee Affairs Commissioner John Buruguās comments in an interview last month where he said Kenya would not consider persecution based on sexual orientation or gender identity as a direct pass to asylum.
Burugu during a telephone interview said āwe are not interested in anyoneās sexual identity,ā and his department will not be convinced that persecution based on sexual orientation or gender identity is sufficient grounds for admission as an asylum seeker or refugee.
The Kenya 2021 Refugees Act, which governs Buruguās department in the admission of refugees and asylum seekers in the country, does not explicitly recognize queer people among vulnerable individuals fleeing persecution. The law only recognizes refugees or asylum seekers as people who are persecuted based on race, religion, nationality, political opinion, or membership of a social group.
Opposition MP George Kalumaās proposed anti-homosexuality law also seeks the expulsion of LGBTQ refugees and asylum seekers from Kenya.
āDecision-makers like the Department of Refugee Services and UNHCR Kenya are failing to uphold international human rights standards while the media and major NGOs remain silent,ā reads the petition.
It notes the exclusion of LGBTQ refugees has left the majority of them vulnerable to more trauma and isolation.
They can wait up to a decade for the department to issue a decision on their asylum applications. It typically takes 12 months to process asylum applications in Kenya.
The petitioners note this delay has also increased violence, discrimination, and persecution of queer asylum seekers by the public and government authorities without any legal protection.
āHistorically, Kenya provided refuge for LGBTQ+ people fleeing danger, but the situation has worsened dramatically since 2017,ā reads the petition. āFrom 2017, the government refused to process LGBTQ+ asylum claims, forcing over 400 people to flee to South Sudan in search of safety.ā
This change is due to the U.N. Refugee Agencyās handing over the processing of asylum applications in Kenya to the government under the Department of Refugee Services in 2016.
UNHCR has admitted to slowing the processing of queer asylum seekersā applications since surrendering the duty to the Kenyan government. It has asked the Department of Refugee Services to resolve the problem.
More than 200 people have signed the petition, which organizers hope to present to Kenyan and international human rights bodies that include UNHCR Kenya, the Department of Refugee Service, the Kenya Human Rights Commission, the National Gay and Lesbian Human Rights Commission, and the Refugee Consortium of Kenya. Other groups include the UNHCR High Commissioner in Geneva, U.N. Secretary-General AntĆ³nio Guterres, Amnesty International, the International Organization for Migration, and the Church World Service.
The petitioners want the bodies to ātake immediate actionā to protect LGBTQ asylum seekers in Kenya against discrimination and exclusion, noting it not only violates queer peoplesā basic human rights, but disregards Nairobiās obligations under international law, including the 1951 Refugee Convention.
āAs key decision-makers, you have the power to reverse this exclusion and ensure that the LGBTQ+ asylum seekers are protected from harm and granted the rights they are due,ā reads the petition.
There are more than an estimated 1,000 LGBTQ refugees in Kenya. Many queer people ā especially from Uganda ā continue to flee to Kenya in the wake of the enactment of the countryās Anti-Homosexuality Act in 2023.
The petitioners want queer asylum seekers recognized for admission and their applications expedited like other refugees and their concerns over discrimination and violence addressed.
āThe Department of Refugee Services should officially retract the discriminatory statement made by the DRS commissioner, which excluded LGBTQ+ individuals from protection under the refugee mandate,ā reads the petition.
The petitioners also want queer people represented in the Global Refugee Forum and the Refugee Working Groups to have their voices heard and needs addressed in global decision-making processes.
The Center for Minority Rights and Strategic Litigation, a Kenyan LGBTQ rights group, described Buruguās sentiments as ādeeply concerning, regrettable, and against the law.ā
CMRSL Legal Manager Michael Kioko told the Washington Blade the organization has received many complaints from queer refugees and asylum seekers about homophobic discrimination and other violations in the country. The Department of Refugee Services and UNHCR Kenya, he said, took no action to address them.
āThe DRS commissioner is obligated under Section 21 of the Refugees Act to ensure measures are taken to protect asylum seekers who have been traumatized or require special protection. This includes LGBTIQ+ refugees in Kenya,ā Kioko said.
He noted this directive is also in line with the 1951 Geneva Convention on the Status of Refugees to which Kenya is a signatory, and applicable under Article 2(6) of the constitution.
āIt is imperative that the Department of Refugee Services adheres to its obligations under the Refugees Act and the Constitution to protect LGBTIQ+ refugees,ā Kioko said. āTheir safety must be prioritized, especially in light of the increasing violence and discrimination that LGBTIQ+ persons in Kenya are facing.ā
Kioko added Kenyan courts have ruled queer people are members of a social group the Refugees Act recognizes for admission as refugees in cases of persecution, and LGBTQ asylum seekers cannot be excluded.
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