Legal Developments Emphasizing Human Dignity in the African Anti-Sodomy Law Framework: So Close but Not Far Enough, by Ayobami Ruth Olufemi-White

Posted by ccld201

15 December 2023

Modern courts often invoke dignity when delineating the limits of government power.[1] A unique manifestation of this is the defence of the dignity of LGBTQIA individuals despite the existence of statutes and penal codes that explicitly prohibit both sodomy and same-sex relationships in a broader context. This has led certain national courts in Africa to set some boundaries for state power, preventing further violations of LGBTQIA rights.

Infamous anti-sodomy rulings

Over the past three decades globally and in a few African countries including South Africa, anti-sodomy laws have been found to be an infringement on individual privacy, of LGBTQIA human rights and of dignity. In 1981, the European Court’s ruling in the case of Dudgeon v United Kingdom highlighted North Irish anti-sodomy law violated the right to private and family life under Article 8 of ECHR, but did not use the argument of human dignity.[2] As noted by Laverack, this case marked a key step in decriminalization efforts.[3] However, Canaan Banana, the first president of Zimbabwe, was imprisoned in the late 1990s for engaging in allegedly[4] coerced homosexual behaviour with his employees. On appeal the Supreme Court, Banana v. State,[5] the Court defended the anti-sodomy penal code as constitutional on the grounds of Zimbabwean conservativism on the issue, using the now repealed judgment Bowers v Hardwick (1986), and the lack of political desire to remove the law.[6] Similarly, and infamously, in 2019 in EG v Attorney General,[7] the Kenyan Supreme Court, affirmed that the criminalisation of same-sex relationships did not violate the Petitioners’ right to dignity and privacy as outlined in the Kenyan Constitution [405]. The Court justified its decision by emphasizing that the overarching intent of the Constitution distinctly favoured heterosexual marriage, as exemplified by the explicit provisions of Article 45(2)[8] [405].

Forced examinations, and unlawful arrest of LGBTQIA individuals

Nonetheless in the year preceding this, the Kenyan Court of Appeal ruled unequivocally that the act of forced anal examination of an individual suspected of homosexuality constituted degrading treatment, thereby violating human dignity.^[9] Rightfully recognizing that this disproportionately affected sexual minorities, the court highlighted that the right to privacy, which encompasses protection against unlawful searches of one’s person, is intricately connected to the right to dignity.[10] While these rights and freedoms can be limited, the court emphasised that limitations must be reasonable and justifiable in a democratic society founded on the principles of human dignity, equality, and freedom.[11] Hence, the examination, irrespective of its use to establish the violation of the criminal code, was unconstitutional and unnecessary.

A year later, in Zimbabwe, the ‘gender verification’ examination of a transgender woman was found to violate human dignity in 2019,[12] despite the precedent of Banana v Zimbabwe of 2000 [82]. Ricky Nathanson, a transwoman, was awarded damages from the police after being charged with “criminal nuisance” for wearing female clothing and using a female restroom. The court acknowledged that the forced invasive examinations caused her emotional and post-traumatic stress and violated her dignity because it disregarded her sense of humanity [125]. The Bulawayo High Court reiterated Nathanson’s universally accepted principle that damage awards were intended to vindicate and ‘salvage some kind of dignity for the pain endured’ by Nathanson. Consequently, Nathanson was awarded $400,000 in damages [123].

Freedom of association for LGBTQIA individuals

In recent years, significant legal developments in Botswana and Kenya have underscored the imperative of safeguarding the rights and dignity of LGBTQ+ individuals, particularly in the context of freedom of association and equality. In 2016, the Botswana Court of Appeal in Thato Rammoge and 19 Others affirmed the right of gay activist groups to freedom of association and argued that they ‘are fully entitled in Botswana, as in any other progressive state, to the constitutional protection of their dignity’ [60]. In 2023, Eric Gitari v NGO Coordination Board & 3 others,^{^[13]} the Kenyan Supreme Court, for the same applicant as 2019 case discussed above, also affirmed the right to freedom of association for gay activist groups to register their organisation, reiterating the idea that they still had human dignity regardless of the criminal code [9]. The Kenyan trial court emphasised that the right to freedom of association applies universally to everyone, including homosexual citizens [17]. The court recognized that limiting this right based on sexual orientation would conflict with human dignity, equality, and human rights enshrined in the Constitution [14]. Furthermore, the court emphasised that any attempt to discriminate against individuals or groups based on their sexual orientation was incompatible with the fundamental principles of a free and democratic society [15].

Gay Marriage Recognition

More significantly, the same year in Namibia, despite the illegality of sodomy, the Supreme Court ruled in favour of recognising same-sex marriages conducted outside the country.^[14] The court held that the differential treatment of same-sex spouses violated their constitutional rights to equality and dignity. According to the court, dignity is a measure of individual societal treatment, particularly with respect to discrimination [122]. Subsequently, ‘treating some as automatically having less value than others not only cause pain and distress to that person but also violates his or her dignity as a human being’ [132]. Dignity is evaluated by measuring the result of discrimination on the victims, the reason for the discrimination, the victims’ social status, how their rights and interests have been impacted, and how much their sense of self-worth and respect has been damaged[124]. Consequently, based on this assessment, the court held that the differentiation between same-sex and heterosexual marriages has a deep and potentially devastating effect on individuals like the applicants, who are in same-sex marriages [123]. They were denied the right to cohabit in Namibia with their spouses under regulations, forcing them to seek permits for residence or employment, which are often provisional and precarious [123]. This discrimination infringed on their dignity due to unequal and unfair treatment based on their sexuality [124].

Fundamental Faults in the Anti-Sodomy and Pro Dignity Approach

This approach, although innovative, has foundational issues. First, criminalising something that is not criminal is immoral.[15] From a legal perspective, Mainga Ja’s dissenting opinion correctly highlights the absence of legal recognition for same-sex marriages conducted in Namibia and the technical illegality of male-sex relations, noting that the court decision is “putting the cart before the horse”^[16] to base such recognition on common law principles without prior statutory provisions. Similarly, the Kenyan and Zimbabwean courts’ rulings prevent, via the common law, the examination of LGBTQIA individuals for evidence of anal sex or to determine their sexual anatomy, without dismantling the laws empowers the police to do so. This raises a fundamental question: does the judiciary have the legal right to dismantle such law?

In Digashu, Mainga Ja’s dissent argued that legislatures should handle this issue. Indeed, several countries have repealed these laws, including Cape Verde (2004), Lesotho (2012), São Tomé and Príncipe (2012), Mozambique (2015), the Seychelles (2016) and Angola (2020). However, in respect of LGBTQIA rights, a problem that plagues democracies, globally and in in Africa in particular, is the tyranny of a majority. Nevertheless, there is a global precedent for the judiciary, as Dupré identifies, using dignity to protect people who have historically been denied it based on their identities.[17] South Africa Supreme Court exemplifies this approach in cases like Fourie and others. In 2004, Ghaidan, the UK Supreme Court prioritised the dignity and rights of minorities, irrespective of public opinion, and expanded the reading of the Rent Act to civil partnerships, at the time the only legally recognised union for same-sex couples.^[18]

Given the widespread homophobia in post-colonial Africa, should the legislatures fail to uphold the universal equity and dignity of all Africans, it becomes imperative for the judiciary to step in and fulfil the dignity promise. As this post has discussed, they have started doing so in a remarkably converging and effective manner.

Ayobami Olufemi-White is an University of Exeter Alumna who graduated with a First Class LLB in 2023, Recipient of Peter English Dissertation Prize. She is currently a Barrister Student at the Nigerian Law School and LLM Candidate focusing on International Law, International Human Rights Law, International Relations, Dignity Law and Critical Race Theory.

[1] Erin Daly, ‘The Evolution of the Species’ in Erin Daly and Aharon Barak (eds), Dignity Rights: Courts, Constitutions, and the Worth of the Human Person (Democracy, Citizenship, and Constitutionalism) (OUP 2020) 131.

[2] Dudgeon v United Kingdom, 22 October 1981, Application no. 7525/76.

[3] Peter J Laverack, ‘The indignity of exclusion: LGBT rights, human dignity and the living tree of human rights’ (2019) 2 European Human Rights Law Review 172.

[4] His wife argued it was consensual.

[5] Banana v State, Supreme Court of Zimbabwe [2000] 4 LRC 621.

[6] Ibid. 622.

[7] EG and 7 others v Attorney General; DKM and 9 others (Interested Parties); Katiba Institute and another (Amicus Curiae) (2019) KLR 1.

[8] Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.

[9] COI and another v Chief Magistrate Ukunda Law Courts & 4 others [2018] eKLR 1, 7.

[10] Ibid. 7.

[11] Ibid.

[12] Nathanson v Mteliso & Ors.[2019] ZWBHC 135.

[13] Eric Gitari v NGO Coordination Board & 3 others [2023] KESC 17 (KLR)

[14] Digashu and Another v GRN and Others; Seiler-Lilles and Another v GRN and Others [2023] NASC 1.

[15] V. Tadros, ‘Wrongness and Criminalization’ in A. Marmor (ed.), The Companion to Philosophy of Law (Abingdon: Routledge 2012) 172.