Know Your Rights: Legal Knowledge and the Pursuit of LGBT Litigation in Africa

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Abstract

This research questions why LGBT social movements in Africa choose to legally mobilize and make civil rights claims in court. The well-documented political homophobia across Africa presents a hard tactical choice to LGBT-focused organizations: keep a low profile, focusing on socially appropriate issues such as public health work, or make themselves visible to combat anti-LGBT policies and rhetoric through the legal system. I argue that domestic LGBT organizations in Africa are more likely to engage in strategic litigation if they are made up of individuals who have been educated in a human rights-based understanding of LGBT issues. This education in rights comes from exposure to Western discourse, including a) experience in HIV/AIDS-related activism, which began to use a rights-based approach decades earlier and helped to give rise to the LGBT movement in Africa, or b) formal legal education that, as a result of colonialism in Africa, is based heavily on Western law. Knowledge of rights-based claims increases efficacy in the ability of courts to address LGBT rights violations, therefore making the visibility of engaging in litigation worthwhile. Through case studies of two LGBT organizations engaging in strategic litigation in Africa, the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) and the National Gay and Lesbian Human Rights Commission in Kenya (NGLHRC), I show how individuals within these organizations gained experience in rights-based claims prior to joining, and how this understanding influenced their decisions to pursue litigation. This research aims to contribute to knowledge about how sexual and gender minority movements in the Global South pursue their own rights, pushing back against the notion that Western donors to their cause are in charge of their agendas; these movements in the South are influenced by the West, but in a manner that encourages individual learning and application to their own contexts. In a broader sense, this research also aims to contribute to the literature on the use of “pro-democratic judicial lawfare,” a strategy by civil society actors to challenge autocratic decisions by their governments (Gloppen et al., 2023). The use of strategic litigation by LGBT organizations in Africa to contest homophobic actions by their governments, which have been successful, is a way that minority groups who have been left out of the political process previously can utilize the judiciary to renovate their rights. This exhibits that there are still viable avenues for the protection of minority rights in democracies, despite the regional and global trends of democratic retrenchment.

Author

• Sean Givnish, George Washington University