10 Dec COVID-19 and Africa Symposium: The Intersection of LGBT Rights in Africa and the COVID-19 Pandemic
[Keaton Kidist Allen-Gessesse is a Johannesburg-based human rights lawyer with a focus on gender and sexual rights in Africa.]
As with all crises, it is the most marginalized amongst us who have disproportionately suffered the dire consequences of this global pandemic. The world has watched in horror as internal migrants walked thousands of kilometers across India, African-Americans died of COVID-19 at frighteningly higher death rates, indigenous communities across the Americas were deprived of necessary medical resources by their governments, and women in nearly every country faced an onslaught of gender-based violence.
It is clear that this pandemic has deepened and exposed the human rights violations to which these populations were already subjected. However, the impact of the pandemic on LGBT communities has been glaringly absent from most media coverage. African queer peoples already experience a unique set of violence and oppressions often in silence and with virtually no societal and governmental sympathy. Unsurprisingly, the COVID-19 pandemic has exacerbated the human rights plight of queer peoples in various African countries to dangerous new levels of isolation, stigma, abuse and violence.
Prior to the COVID-19 pandemic, the LGBT community in Africa already faced incredibly high levels of violence; 28 sub-Saharan countries still criminalize consensual same-sex conduct – an enduring relic of colonialism – and such laws are used as a justification to assault, ostracize, demonize, and discriminate against LGBT people. During times of crisis, the LGBT community is an easy scapegoat to justify bad fortune. Since the start of the pandemic, queer communities in various countries, including Nigeria, Liberia, Uganda and Senegal have been blamed for bringing COVID-19 to their nations as God’s revenge for their homosexuality. In a joint statement, UNAIDS and MPact expressed “extreme concern” about queer people being blamed and abused, and urged governments to protect the human rights of LGBT people.
Public acts of violence: authorities abuse of power
Law enforcement across many African countries provides no avenue for protection for LGBT persons, as the police are often notorious for facilitating state-based harassment of queer people under the guise of enforcing criminal laws sanctioning same-sex relations. New emergency powers, which many states have adopted and enforced to respond to the COVID-19 pandemic, have only intensified states’ abuse of queer Africans.
Uganda, for example, graphically illustrated this eagerness to abuse its LGBT community early on in the pandemic. On 29 March 2020, shortly after lockdown began, the Ugandan police used the pandemic as a cover to gratuitously target LGBT people by raiding the Children of the Sun Foundation, an LGBT homeless shelter near Kampala. The police, army and even the municipal mayor collectively berated the young men and women for their perceived sexual orientation and gender identity. Video footage shows the mayor beating the shelter residents with a cane while lambasting them for being homosexuals. The police proceeded to arrest and detain 20 homeless residents of the shelter for supposedly committing a “negligent act likely to spread disease or infection” due to living in the shelter. While tied together, the group was publicly marched to the police station and then denied their right to legal representation when officials refused their lawyers physical or telephonic access to their clients, again under the pretext of COVID-19 public health measures.
For more than 40 days, the queer detainees were denied bail and access to their lawyers while detained in crowded conditions; there were complaints that, while in detention, they were subjected to torture. The prosecutor finally dropped the charges and the magistrate court ordered the release of the group on 18 May 2020. The acts of the Ugandan state violated numerous human rights protections guaranteed under the ICCPR and African Charter on Human and Peoples Rights as well as the Ugandan Constitution, to be free from discrimination, arbitrary arrest and detention, and cruel, inhuman and degrading treatment. This was such a blatant targeting of Uganda’s LGBT population, that the UN Working Group on Arbitrary Detention and UN Independent Experts issued a joint statement expressing serious concern about the authorities’ abuse of emergency power to persecute queer people and urging them to release the detainees.
While in certain circumstances international human rights law allows for some rights to be limited – like many other purported COVID-19 response measures implemented in relation to LGBT persons – Uganda’s raid of the shelter did not meet the standard of serving the legitimate aim of protecting public health and the ensuing deprivation of liberty was disproportionate and seemingly not in pursuit of any specific public health interest. Human rights lawyers from a Ugandan LGBT advocacy organization, Human Rights Awareness and Promotion Forum (HRAPF), represented the queer young homeless individuals in litigation to vindicate their infringed rights.
In June 2020, the High Court of Uganda affirmed that the state violated the arrested group’s constitutional right to liberty and right to a fair trial by denying access to their legal representatives, for which each detainee was awarded monetary damages. HRAPF and the concerned LGBT people continue to pursue accountability in domestic fora for the human rights abuses they endured during lockdown. In July, they filed a suit in the Ugandan High Court “seeking redress against the actions of torture, inhuman and degrading treatment, discrimination and violation of privacy perpetrated” by the mayor and prison officials.
Private acts of violence: unsafe even at home
Queer African communities are not only at increased risk of state abuse during the pandemic, but also of a surge of private acts of violence during stay-at-home orders. With the onset of lockdowns, African LGBT persons abruptly lost access to the safe havens they created for themselves at community centres, nightclubs, cafes, NGOs and universities as these spaces closed physical operations and university students had to vacate campus to return home. However, home is rarely a refuge for queer individuals, as family and/or community rejection and abuse are commonplace.
The Director of Gays and Lesbian Association of Zimbabwe, for example, laments that mental health challenges have increased, and the queer community has been left more vulnerable since the closure of drop-in-centres, which provided psychological and “recreational services”.
With the abrupt disappearance of social networks, a queer Kenyan woman, as another example, reported that “it feels like we are all just struggling to stay alive”. Increasing mental health breakdowns and suicide attempts with little to no recourse or support have been a global trend for LGBT persons during lockdowns. Isolation in close quarters with often unaccepting family members has exacerbated queer people’s anxiety, triggering painful memories and depression, hopelessness and suicidal ideation. For example, the advocacy officer for OutRight Namibia reported that the organization’s health and wellness officer “has been inundated with calls in the past week alone, especially from people feeling suicidal.”
Insufficient attention and inadequate accountability
While the pandemic-induced increase in violence against women has received international attention, the domestic and community abuse that queer people experience is largely invisible in the media. Abused LGBT persons in Africa are commonly denied protection or recourse due to the hostile attitudes of law enforcement.
Historically, states could not be held responsible for the acts of non-state actors under international human rights law, and thus, domestic and community abuse of queer people was beyond the realm of state concern. Yet, during the last 30 years, developments in international human rights law have established that states have a positive human rights duty to act with due diligence to allow all people to live free of violence. The African Commission on Human and Peoples’ Rights (African Commission) has affirmed this “due diligence” principle by which a state may be held responsible for the violence committed by private persons “due to its lack of due diligence to prevent the [human rights] violation or for not taking the necessary steps to provide the victims with reparation”.
Prior to the COVID-19 pandemic, African states were already notoriously violating the due diligence principle in relation to the violence meted out against queer people, and the pandemic has, unfortunately, exacerbated this private abuse. In South Africa, Thembi, a homeless, transwoman sex-worker in Cape Town was rounded up with hundreds of other homeless individuals and forced to stay in a temporary government shelter during lockdown. There, she faced daily transphobic verbal abuse from fellow residents. Eventually, the verbal abuse escalated into a brutal physical attack on Thembi, while the security staff simply looked on. Kenyan LGBT activists have similarly spoken out about a substantial increase in attacks on queer Kenyans since the start of the lockdown, with the Gay and Lesbian Coalition of Kenya receiving reports of 10 attacks per month.
From Zimbabwe to Kenya, LGBT advocates are documenting and raising awareness about the increased human rights abuses occurring during the pandemic. But the onus to protect this marginalized population does not, and should not, fall solely on the shoulders of human rights activists. By intervening to hold the state accountable for such violations, the Ugandan High Court unequivocally upheld the universality of human rights protections, regardless of sexual orientation and gender identity. However, not all victims of state and private abuse have access to litigation or judicial redress. Regional human rights mechanisms, particularly the African Commission, should use this opportunity to call for the explicit protection of Africa’s queer communities, further elaborate on the legal obligations of its member states, and/or finally adjudicate a sexual orientation, gender identity case in order to set a strong precedent for the continent and beyond.