May 14, 2003

I. Introduction

A.  Summary

In the mid-1990s, South Africa emerged from decades of oppression, during which equality had been both a rallying cry and a remote dream, and wrestled with the question of how to turn the slogan into a reality for its peoples.

At the same time, politicians elsewhere in southern Africa¾facing shrinking public support and the threat of electoral defeat¾began exploring how to make inequality a powerful slogan in itself.  One leader discovered a potential target and a vituperative language that struck a responsive chord among his people. Others followed suit.   They have echoed and reinforced one another across borders and over time¾scapegoating one group of people for their countries' difficulties, and explicitly excluding "homosexuals" from constitutional protections granted to their other citizens.

Southern Africa is burdened by poverty and political uncertainty, and devastated by higher rates of HIV/AIDS (human immunodeficieny virus/acquired immunodeficiency syndrome) infection than any other region in the world.  Yet in some countries, politicians, instead of directly addressing those issues, have made calls to persecute and cast out homosexuals (or "gays and lesbians," "sodomists," or "sexual perverts") commonplace.  Robert Mugabe, president of Zimbabwe, popularized those calls through widely publicized statements, reiterated regularly since 1995. "We don't believe they [gay men and lesbians] have any rights at all," he said, "It cannot be right for human rights groups to dehumanize us to the status of beasts."  Mugabe justifies his intolerance with the claim that homosexuality is "un-African," describing it as a disease "coming from so-called developed nations."

Sam Nujoma, president of Namibia, took up the cry almost immediately. According to an official statement by Nujoma's party,

Most of ardent supporters of this perverts [sic] are Europeans who imagine themselves to be the bulwark of civilization and enlightenment... we made sacrifices for the liberation of this country and we are not going to allow individuals with alien practices such as homosexuality to destroy the social fabric of our society.

We are convinced that homosexuality is not a natural and objective form of moral history but a hideous deviation of decrepit and inhuman sordid behavior.... Homosexuality deserves a severe contempt and disdain from the Namibian people and should be uprooted totally as a practice.

Politicians in Zambia in 1998 outdid one another in condemning the only homosexual man in the entire country who had dared to "come out" to the press.   Botswana not only clung to its colonial-era criminalization of  male homosexual acts, but in 1998 broadened it to punish women having sex with women. The leaders of other countries have joined the chorus, with President Yoweri Museveni of Uganda declaring in 1999 that "I have told the CID [Criminal Investigations Department] to look for homosexuals, lock them up and charge them."

In this report, Human Rights Watch and the International Gay and Lesbian Human Rights Commission (IGLHRC) document and analyze the impact of state-sponsored homophobia in Zimbabwe, Namibia, Zambia, and Botswana.   The report shows how these attacks attempt to create an atmosphere of intolerance in which governments can erode the basic principles of human rights, and individuals can abuse others with impunity.  It contrasts these to the different situation in South Africa, where the constitution has promised an end to discrimination based on sexual orientation-but where a lack of will as well as foresight has kept these promises short of fulfillment.

As this report documents, the verbal attacks by political leaders have often led to persecution and violence.  In Zimbabwe and Namibia, in particular, public vilification has set off police harassment of those who break norms for sexual conduct and gender expression.  Official crackdowns have frequently followed politicians' statements.  People have been detained and tortured by police, or abused by prison guards.  

Throughout the region, neighbors, strangers, and families have also joined in the violence.  In the communities where they live, men and women accused of homosexuality have been assaulted and often driven underground. Some have been expelled from schools or jobs, or chased from hospitals or homes.  Some have been driven into exile.  Some have committed suicide.

In Botswana, Namibia, Zambia, and Zimbabwe, laws criminalizing consensual homosexual conduct¾so-called "sodomy laws"¾enable many of these abuses.  Such laws violate international protections of the right to privacy, and protections against discrimination.  Yet basic freedoms of association, assembly, and expression are also under threat.  In all four countries, civil-society organizations have been denied legal status or threatened with closure because they defended homosexuals.  Publications have been censored; peaceful gatherings have been harassed or denied protection.

In many countries, however, civil society has remained silent about these violations-including organizations dedicated to the defense of human rights.  Namibia and Botswana have revealed exceptions; there, feminist activists and human rights defenders, as well as leaders of some Christian churches, have spoken out against intolerance. In many places, however, tenuous organizations of gays and lesbians, identifying by the names that politicians use against them, have been left to defend themselves as best they can. 

South Africa presents a different example.  The principle of equality and non-discrimination embodied in the country's 1996 constitution sees a source of strength in the diversity of a country with eleven official languages, innumerable religious institutions, and uncounted and often contradictory cultural traditions.  The constitution vows in its preamble to "heal the divisions of the past" and to "lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law."  It creates institutions as well as protections toward this goal, striving to accommodate difference while defusing violence.

Profound economic inequalities transect South Africa; racial, ideological, and sexual violence persists; the few who can obtain AIDS drugs live, while millions prepare to die.  While steps taken by the government to address these divisions have been important, they remain inadequate.  In this report, we show the persistence of community prejudice and violence.  We document how, in the absence of clear state action to implement it, the constitution's Equality Clause remains inaccessible and unfulfilled for lesbians and gay men living in townships and rural areas.  We examine the foot-dragging of political leaders in changing laws, and in creating mechanisms for enforcement and remedy. Silence and inaction endanger the constitution's promise. 

Yet other states still refuse even to make such a promise.

B.  Contexts: HIV/AIDS, Inequality, Identity

A number of contexts need to be understood as a background to the spread of state-sponsored homophobia in the region.

The first is the intersection of sexuality with the massive, overwhelming, and mounting HIV/AIDS pandemic. The disease has already claimed over 21 million lives in sub-Saharan Africa, and the southern African countries in which this research was conducted are the global epicenter of the crisis.  The epidemic is so widespread in the region-about one in four adults is infected in most of these countries, in Botswana more than one in three-that every sexually active person may be considered a member of a high-risk group.  The proximity of death is a fact of life in every country discussed here.  Many people interviewed in this report have already died of AIDS.

As the Appendix to this report shows, social prejudice and criminal penalties against certain kinds of sexual conduct long antedate the appearance of AIDS.  Yet the pandemic and the attendant atmosphere of fear give states and societies additional incentives to control and punish non-conforming sexualities¾while making that repression doubly destructive.

Although the predominant means of HIV transmission in southern Africa is heterosexual sexual activity, many segments of society still associate AIDS with "homosexuals."  This can compound the marginalization of many people living with HIV/AIDS, who face additional stigma through the presumption that they have practiced prohibited sex.  Meanwhile, those who endure discrimination for engaging in homosexual activity may find they are presumed as well to be both victims of AIDS and its "carriers." Men who have sex with men, and women who have sex with women, often fear the social and legal consequences of seeking testing or  treatment. 

On a larger scale, the burgeoning epidemic has arguably hardened opposition to repealing sodomy laws, though this is difficult to document when both HIV/AIDS and same-sex conduct are so shrouded in silence and stigma. The social devastation which AIDS brings¾the collapse of family and community structures¾is sometimes blamed on a "homosexuality" encroaching from beyond national borders.  Fears enveloping HIV have certainly contributed to repressing discussion of, and education about, sexual health and sexual rights.

The history of responses to the AIDS pandemic shows that any national HIV/AIDS prevention effort hoping for success should work respectfully with communities made vulnerable by their sexual conduct or orientation, and should protect their human rights as a priority.  Unless they can openly and safely seek and gain access to HIV/AIDS prevention services and information, men who have sex with men and women who have sex with women are at particular risk in the epidemic.  The rhetoric of discrimination documented in this report is an acute threat to the anti-AIDS efforts these countries have mounted.

A second context is the uneasy course of democratization in the region.

The struggle against colonialism and white minority rule lasted longer in southern Africa than almost anywhere else in the continent. Though Zambia and Botswana achieved independence from Britain in 1964 and 1966 respectively, and Portugal relinquished Angola and Mozambique in 1975, Zimbabwe held its first all-race elections only in 1980, Namibia in 1990, and South Africa in 1994.  Progress has been made toward establishing democratic processes and institutions in all these countries, but it has been uneven and uncertain.  The accomplishment of South Africa¾not only in holding free elections, but in undertaking a wholesale transformation of the repressive apparatus of the colonial state¾remains virtually unique.

In Zimbabwe in particular, President Mugabe presides over a dissolving economy and a deep popular demand for democracy.  Gays and lesbians have served him as a scapegoat for the first and a sideshow from the second.  Mugabe speaks of his country's gays and lesbians as both servants and symbol of forces outside Zimbabwe, and outside Africa, threatening the cultural integrity and welfare of his country.  He sees them as vanguard of, and metaphor for, a neo-colonial invasion. 

Sexuality and gender are loaded questions in every country and culture, involving as they do the ways in which societies define and reproduce themselves. That cultural weight can also make them convenient issues for states to exploit, in the effort to impose some semblance of political unity on fractious populations-and for politicians to employ, in the quest to preserve power.

Zimbabwe's economic unraveling, the collapse of its public health system, and its political instability are real disasters. In translating them into the terms of a culture war, however, Mugabe's only success is in changing the subject.  In a characteristic speech in 2000, he attacked the United Kingdom (U.K.), which had condemned his policy of land seizures, accusing it of opposing Zimbabwe because he personally opposed homosexuality.  "We are against this homosexuality," he said, "and we as chiefs in Zimbabwe should fight against such Western practices and respect our culture."  And he concluded: "These economic woes will come and go.  So let us unite against the enemy."

When Mugabe's attacks on homosexuals began, the human rights community in Zimbabwe¾with a few exceptions¾failed to respond.  Some voiced fear that defending a marginal group in a hostile environment would devastate their work; others refused to see the attacks as relevant to their work as rights activists. 

Yet the techniques Mugabe explored in vilifying lesbians and gays-depicting them as a group outside the scope of rights, stoking public fear and loathing, and eroding the rule of law-have since found new victims. Mugabe has attacked peaceful political opposition both through trumped-up legal charges and extralegal violence. He has supported the extrajudicial seizure of land, and has incited and defended violence against both the white farm owners and their African employees. He has undermined the independence of the judiciary; he has conducted, and triumphed in, an election in which intimidation was rampant.  Increasingly, state policy in Zimbabwe has been voiced in demagogic speeches, not in democratic law, and carried out not by delegated agents but by armed gangs.  

President Nujoma of Namibia has described gays and lesbians in terms as violent as any Mugabe used.  Yet, by contrast to Zimbabwe, civil society stood up to President Nujoma from the start.  Human rights organizations in Namibia immediately analyzed and answered attacks on gays and lesbians as a challenge to the principles of rights.   The National Society for Human Rights in Windhoek described Nujoma's rhetoric as an indication of emerging authoritarianism in Namibia. "The move appears to be a tip of an insidious, much wider and protracted strategy spearheaded by and or run from State House and such campaigns are apparently aimed at stemming the tide of a rapidly growing civil society in Namibia," the organization said.

The official vilification of groups within Namibian society has also progressed beyond homosexuals.  Nujoma has attacked independent media, political opposition leaders, women's rights activists, and foreigners.  The small but vigorous human rights organizations within Namibia, however, continue to condemn both Nujoma's outbursts and the social divisions they incite.

Zambia-where a coalition of trade unions, intellectuals, and activists displaced the almost three decades-old Kaunda government, only to find that its successor showed the same authoritarian tendencies-provides another illustration.  The administration of Frederick Chiluba (1991-2001), implementing deeply unpopular economic policies, found the Mugabe model an attractive prescription for boosting its flagging support.  Demonizing homosexuals-to which it devoted several months in 1998-provided a useful distraction, and a convenient way of gaining political credit with both Christian churches and rural traditionalists.  Yet it confirmed an indifference to rights protections that steadily characterized how the government answeredother challenges to its political control.

These examples are telling. They reiterate that an assault launched against one group may signal an erosion of the rights of others.  Yet they also suggest that the stigma attached to sexual nonconformity can be a test of democratic process¾a measure of the latitude it offers political as well as personal dissent.  The condition of the most vulnerable people and the most marginalized identities in a society should serve as a barometer of its openness and civic maturity. 

For Zimbabwe's government, verbal fusillades against homosexuals proved the opening shots in a violent campaign against all independent social movements and any organized opposition. Meanwhile, for Namibia's NGOs, defending homosexuals was not a "private" issue but a crux and condition for defending civil society itself.  That government and those organizations grasped the same insight.  Affirming the equality of lesbian, gay, bisexual, and transgender people means negating the state's claim to ironclad control over the person, as well as over what can appear or be expressed in the public sphere.  It is a step toward developing African democracy.

A third context for this report involves the question of identity¾of where terms such as "gay" and "lesbian" come from, and what, in an African context, they may mean.

Unable to protect their populations against the public health disaster generated by HIV/AIDS, as well as political and economic crisis, southern African governments have fallen back on the language of protecting "cultural authenticity." Ironically, the quest for such "authenticity" often takes up the tools of colonial oppression.  Politicians in Zimbabwe, Zambia, Botswana, and Namibia all defend archaic sodomy laws as bulwarks of integrity against Western incursions.

Yet the laws themselves are alien to any "African culture."  They are colonial importations-brought in by British and Dutch settlers, modeled on European codes, but enforced with particular intensity against "native" sexual conduct which colonials, always both prurient and puritanical, saw as exotically unrestrained. 

And arguably, it is the Mugabes and Nujomas of southern Africa, purveyors of the idea that homosexuality is "un-African," who have helped create the identity of the "homosexual" in the region. 

Terminologies for sexual conduct and experience are multifarious. (A glossary of some key terms as we employ them can be found at the beginning of this report.) Many common terms are of surprisingly recent coinage.  And clearly many such labels would neither be recognized nor accepted by all the people they are intended to describe-or by all the people who face discrimination because of the description.  Many men who have sex with men, in Africa or elsewhere, might not even know the terms "homosexual" or "gay."  A biological woman in Zambia who regularly wears men's clothing may consider herself a "hermaphrodite" or a man-and might reject the term "transgender" with incomprehension. 

This is more than a matter of translation.  The concept of "sexual orientation"-as a way for people to cement a public identity built around the sex of the person for whom they feel desire-is unfamiliar to many cultures.  In some situations, including many studied in this report, women may think of themselves instead in terms of how they correspond or not to "feminine" codes of conduct or appearance.  In some situations, including many studied in this report, men may similarly see their looks or dress or mannerisms as defining them more than their desires-or may see the sexual role they play (as penetrator or penetrated partner in a sex act) as more significant than the sex of their desired object.

 It is clear that homosexual conduct-desire for, and erotic acts or emotional relationships between, people of the same sex-has always existed throughout Africa, as everywhere in the world.  Yet homosexual identity, and the concept of "sexual orientation," have not.  Those concepts (as Michel Foucault affirmed, and historians have detailed) developed in particular, Western contexts-as ways of interpreting the fact of homosexual conduct, and attaching individual as well as social meaning to it. 

This does not mean that people who adopt the label "homosexual" in non-Western cultural settings are somehow "inauthentic." No one receives an identity-social or familial, as "son" or "chief," for instance-in pristine and undiluted form from society or tradition; it always takes on personal and internal meanings, as well as shadings from the social surroundings and the historical moment.   Similarly, people who identify as "homosexual" or "gay" or "lesbian" in a cultural situation where the term is new do not merely adopt an unbroken set of imported associations. They creatively adapt the term and its meaning to their own conditions and their cultural inheritance. 

The rhetoric of a Mugabe or a Nujoma has given many men and women experiencing same-sex desire in Zimbabwe or Namibia a name for themselves.  They do not take the terms "homosexual" or "lesbian" or "gay" from a foreign cadre of cultural corrupters; they take it from the words of their political leaders.  In this sense, Mugabe and Nujoma are indeed "promoters" of "homosexuality" in their societies. 

Yet the people who assume this identity and name use them for purposes rooted in their own place and time. In particular, in interviews with numerous men and women throughout southern Africa, it became evident that many  defined their sexual and emotional desires, and the intricacy of identity based on those desires, not as a matter of "sexual orientation," but rather as one of gender.  They experienced themselves as defined not so much by whom they desired, as by how they appeared and acted. 

Men attracted to men, and women attracted to women, built their identities less around that erotic need itself than around their crossing of culturally stipulated boundaries between masculinity and femininity.  Their self-images derived from defying convention and asserting uniqueness by flouting, in their everyday dress and conduct, expectations of what a "man" or "woman" should be.  They deployed terms such as "gay" or "lesbian" strategically, as ways of becoming recognizable and visible to one another (and, sometimes, to the international community) and creating a subculture where people could turn for safety and self-defense. Yet many believed that they faced discrimination and hatred not because people imagined, and loathed, what they did sexually-but because people looked at them and saw a man refusing to be a "man," or a woman refusing to be a "woman." 

That the identity means something different does not make the discrimination less real.  As IGLHRC has elsewhere written,

Any group identity is subject to contest and continual redefinition; yet arguments, whether external or internal to the group, about the meanings of key terms in no way mitigate the reality of hatred or the ubiquity of unequal treatment.  Racism is no less dangerous because the meaning of "race" has been questioned or reconfigured by scientific or political discourses.  Anti-Semitism does not abate because Jews and anti-Semites alike may argue the definition of a Jew….  The fluidity of identity neither constrains prejudice, nor palliates it.

In fostering hatred toward people called "gays" and "lesbians," Mugabe and Nujoma also further a suffusive suspicion in which families, neighbors, co-workers, and police are all alert for the tell-tale signs of non-conformity that they equate with guilt.  Gestures become giveaways.  Girls and boys and men and women who fail to adhere to rigid norms dictating how they must walk, talk, dress, and act, find a name waiting for them, an interpretation ready for their idiosyncrasies, and an identity poised to be imposed-one they may or may not wish to claim. In effect, they are condemned as much for their self-expression as for their presumed "sexual orientation."

Where comparable violations of the freedom of expression happen in other contexts, human rights activists respond.  When repressive governments discriminate against women by imposing and enforcing dress codes, we recognize that the freedom of expression is at issue, threatened by unwarranted control of personal choice in how the body is presented and seen.  Yet many human rights activists find their sympathy exhausted when the acts of expression being punished fall outside a gendered norm-when females dress or act in a way which defies general definitions of "femininity," or when males flout a socially imposed codification of manhood. When employers fire them, when the police arrest them, when their communities reject them, the victims themselves are often blamed for wanting to dress and express themselves outside those rigid norms.

This silence leaves the field of public life to the voices of political leaders who incite hatred in order to institutionalize intolerance.  The silence and the ensuing violence must end.

C. Brief Recommendations

The campaign of hate in southern Africa raises basic questions. Those committed to the defence of rights must decide whether the promises in treaties, and the commitments made by civil societies, are in fact universal-or whether marginalization, moral particularism, and stigma can exclude unpopular individuals and groups from their scope.

Amid armed conflict, the HIV/AIDS pandemic, the collapse of health care and educational systems, and inequalities within countries and among continents that defy every principle of social justice, the consequences of political leaders vilifying marginalized groups may seem small.  They are not.  These attacks serve as a political distraction from urgent social and economic needs.  They divert debate away from reaching solutions, toward seeking scapegoats.  They strike at communities' capacity to accommodate diversity and accept change.

Finally, left unchallenged, they subtly but inexorably reduce rights protections back to the level of a popularity contest.  Preaching that dignity is denied those whom a consensus deems despised, they make freedoms depend not on the sense of a shared humanity but on opinion polls.  Discrimination is by definition not directed at those whom a society wholeheartedly embraces and respects. It is aimed at those reviled and rejected, made vulnerable by stigma.  And official intolerance is most dangerous when the contempt for its objects is most generally shared.  State rhetoric then helps make hatred appear an ordinary, accepted, expected part of public life.  Tolerating those first attacks creates a climate in which attacks on human rights escalate and spread.  Politically motivated intolerance toward minorities is often just the initial salvo in an assault on the fundamental principle of equality and respect for the inherent dignity of all human beings.

Southern African leaders must reverse the trend toward division, discrimination, and abuse.  Human Rights Watch and IGLHRC call on states and state officials to:

 

·refrain from statements promoting intolerance and from inciting discrimination and abuse;

·repeal laws, including "sodomy laws," which violate human rights, including the rights to privacy and freedom of expression;

·change or repeal other laws which discriminate on the basis of sexual orientation or gender identity, including laws on rape and domestic violence, or laws which deny access to marriage and related benefits to same-sex couples; and

·enact positive protections against discrimination, including discrimination based on sexual orientation and gender identity.

It is not enough for states to recognize rights.  They must be realized.  Paper protections must be made understandable and accessible even to the most disempowered populations. States, including South Africa, must turn existing constitutional promises into law, policy, and practice. State officials themselves must be trained to implement protections fully and fairly.  Human Rights Watch and IGLHRC call on states to:

·publicize and promote awareness of rights protections and how to use them;

·create and allocate adequate resources to accessible forms of remedy for human rights violations, with mechanisms empowered and informed to address the specific needs of vulnerable populations;

·ensure that legal representation and legal remedy are economically and practically accessible to everyone; and

·train state officials, particularly throughout the criminal justice system, in human rights and non-discrimination, and in sensitivity to gender and to minorities and vulnerable groups.

 

Finally, civil society has responsibilities as well.  The examples of Botswana, Namibia, and South Africa show how human rights activists willing to defend the most marginalized members of society also safeguard the basic institutions of democracy.  The decay of those institutions in Zimbabwe shows the dangers of inaction when intolerance first appears. Human Rights Watch and IGLHRC call on civil society actors, and particularly human rights movements to:

·speak out whenever state officials incite or practice discrimination or abuse; and

·seek out marginalized and stigmatized groups, and work to bring their concerns into the mainstream of human rights and other social movements.

Detailed recommendations can be found at the end of this report.