Homosexuality v. homophobia, which is criminal?

Author: Joelle Dountio
PhD candidate, Faculty of Law, University of Pretoria

Religion, traditional cultural beliefs and law are all used by humans to fuel hatred, stigma, and discrimination towards homosexuals. The rights to equality, non-discrimination and freedom from torture, cruel, inhuman and degrading treatment as upheld by the International Bill of Rights and other human rights instruments are, for the most part, all recognised in the constitutions and other national laws of most African countries.  However, 36 of the 54 African countries have punitive laws on homosexuality. Meanwhile, homosexuality is a sexual orientation and a prohibited ground for discrimination under international human rights law (Toonen v. Australia).

Historically, religion has been used to justify some of the worst atrocities committed against human beings. Some of these atrocities include: slavery, the holocaust, apartheid, racism and terrorism. Today, the Bible is used to justify homophobia based on the famous kingdoms of Sodom and Gomorrah. The question I ask is, does the Bible really mean that we should kill these people as is happening today? And even if it does mean this, what about other practices for which the Bible says people should be killed? This Bible says married women who have sexual relations outside their marriage should be killed. The Bible says we should sell all we have and give the money to the poor. The Bible says we should not make carved images of anything in heaven. Why do Christians not apply these? Apparently man chooses to follow only those sections of the Bible which suit him and enable him to meet his selfish goal irrespective of the consequences to others. Is this not hypocrisy?

Africans consider tradition highly, even when the practices involved are cruel and inhumane. Consider female genital mutilation, twin murder, albino and child murder for witchcraft, and forced early marriage for girls. All of these practices either are, or used to be, condoned by African traditions. However, due to widespread human rights advocacy, some of these practices have been, or are being, abolished. The fact that these beliefs and practices constitute violations of fundamental freedoms and human rights should make Africans reconsider whether some of these beliefs are worthy of practicing today, particularly when they are used to fuel hatred against their fellow human beings.

Law, religion and traditional beliefs, as the main drivers of homophobia, have more far-reaching negative consequences on society than homosexuality itself, particularly in the context of the fight against HIV/AIDS. Law, religion and tradition are used to fuel homophobia, and serve as justification for violations of homosexuals’ rights in different forms.  Homosexuals are arrested by the police, subjected to inhuman cruel and degrading treatment such as forced anal tests for purposes of obtaining evidence. In some cases parades and workshops on the rights of homosexuals are invaded by police and homophobes, in violation of their civil and political rights like the right to freedom of association.

As a result, a general atmosphere of insecurity for homosexuals prevails, causing them to shun health-care services even when they need them. Considering that the HIV prevalence rate in men who have sex with men (MSMs) is always higher than in heterosexuals, and that more than half of MSMs also have female partners, this is dangerous for the general fight against HIV/AIDS. Homophobia also leads to the murder of homosexuals and auto-stigmatisation among homosexuals themselves, sometimes resulting in suicide. Homophobia fuels so-called ‘corrective rapes’, sometimes organised by family members of persons suspected of homosexuality and which sometimes lead to HIV transmission. Moreover, the punitive laws against homosexuality tend to target the less privileged of society. Several homosexual sex workers report that their services are sometimes sought by highly placed state officials and ministers in their countries. These ministers never appear in court on charges of homosexuality. In addition in some countries, some of these laws spare lesbians as the laws speak specifically to sodomy. This points to the fact that these laws sometimes have no real basis, and/or were tailored to meet particular personal objectives.

As President Paul Kagame of Rwanda said when a bill to criminalise homosexuality was introduced in the Rwandan parliament, homosexuality does not cause hunger, poverty or any other problem faced by Africans. The point here is not to encourage people to engage in homosexuality, but for people to understand that people should not be punished for their sexual orientation. Even if homosexuality is a choice, as some say, no one has the right to violate the right to privacy of others. Sexual practices of consenting adults in the confines of their bedroom should not attract sanctions. Strangely enough, health-care service providers today report that several married women report being sodomised by their husbands.

African countries must therefore decriminalise homosexuality, sensitise members of society on homosexuality and integrate homosexuals in national plans of action on the fight against HIV/AIDS.

About the Author:
Joelle Dountio holds a Masters Degree in International Trade Law from University of the Western Cape. Her research interests include Intellectual property rights and human rights, particularly the right to health and access to medicines, paying particular attention to HIV/AIDS, tropical disease and most at risk populations like sexual minorities and indigenous communities.