This has been an almost schizophrenic week in the history of gay rights in Africa — and the courts have been at the centre of it.
In Kenya, conservative Muslims — an estimated 10% of the population is Muslim — protested outside the supreme court on Friday, complaining about its recent decision that will allow official registration of the National Gay & Lesbian Human Rights Commission (NGLHRC). The judgment found it unconstitutional to deny the organisation the right to associate on the basis of its members’ sexual orientation.
The apex court further ruled that freedom of association is a human right that everyone should enjoy, regardless of whether the views they promote are popular.
This was the third time Kenyan judges had found in favour of NGLHRC registration, but the decision had been appealed up to the supreme court.
During the demonstration, under the slogan “Repent and resign”, protesters called for the judges who ruled in favour of the organisation to be removed from office.
In response, a gay advocacy group has launched high court action against the police for allowing homophobic protests “whenever court rulings favour the LGBTQ community”.
The constitution has to be given a ‘generous and purposive interpretation’, especially when interpreting provisions that enshrine fundamental rights
An ‘innate attribute of identity’
And in Mauritius last week, judges of the supreme court delivered a significant decision decriminalising gay sex. The judges were deciding an application by a gay man, Abdool Ah Seek, supported by an NGO that campaigns against homophobia.
The court was asked to find that the section of the penal code criminalising anal sex between consenting male adults in private is unconstitutional, as it breaches various constitutional rights. In its decision, the court found that the law violates the right against discrimination; the judges held that they therefore didn’t need to consider whether the code is also in breach of other rights.
In their unusual response to the application, lawyers for the state said the government has already made legal changes to prevent discrimination against gay people in relation to employment and education, among other things. It has plans to change the contested section of the penal code, they said, but has not yet done so because it is a “highly sensitive issue” in Mauritius and the changes would only be introduced when parliament meets “the necessary conditions favourable to its adoption”.
The constitution bars discrimination based on “sex” and a key section of the judgment considers whether “sex” should be read to include “sexual orientation”.
The court considered judgments from several other countries, including South Africa where the constitution includes in its list of prohibited grounds for discrimination both gender and sexual orientation. The framers of the South African constitution included both as they “wanted to avoid any doubt” about the issue, said the Mauritian court.
The judges held that, in the Mauritian constitution, sex should be read to include “sexual orientation” for several reasons, one being that the constitution has to be given a “generous and purposive interpretation”, especially when interpreting provisions that enshrine fundamental rights.
They also held that the disputed section doesn’t reflect “any indigenous Mauritian values” but was inherited “as part of our colonial history from Britain”, which had imposed the law on Mauritius as well as other colonies. But while homosexual consensual acts in private were decriminalised in England as long ago as 1967, the Mauritian penal code has not changed.
As it stands, the code effectively criminalises “the only mode of sexual expression” available to gay men. This in turn effectively criminalises someone’s sexual orientation, an “innate attribute” of identity over which a person “has no choice”.
The choice of a sexual partner “cannot be the basis of discrimination”, said the court, “and it is not for the state to make such a choice” for people.
As for the state’s hesitation about changing the law because of the current sociocultural and religious fabric of Mauritian society, the judges noted that the country is a “secular state”, and that freedom of conscience is a constitutional right.
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