Human rights violations and sodomy laws in Africa: A study of the discriminatory laws and inhumane legislation and its impact on the health and safety of the LGBTI community within the criminal justice cluster

Julia M Matetoa-Mohapi

doi:10.4102/hts.v77i2.6915

Abstract

From sodomy laws in the apartheid era, to the institutionalisation of section 9 (3); (which is a protection order in the South African Constitution), which prevents total discrimination of persons based on race, gender, and sexual orientation; the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and their health and safety are not guaranteed when imprisoned for any crime that they may have committed. Sodomy was a common law crime in South Africa and despite the protection order South Africa still suffers from the disparaging homophobic tendencies from communities who are unsympathetic to the plight of the LGBTI. Through politics, religion and social aspects in South Africa and the African continent, there are great exclusionary measures. Human rights violations against the LGBTI in Africa has an ominous history including discrimination, persecution and prosecution of the LGBTI community. In most African countries, where being gay or being part of the LGBTI community is regarded as a crime, there is no guarantee that the LGBTI’s physical health and safety will be protected by the penal system when imprisoned. This article aims to look at the anti-gay laws that are still existing in most of the African countries; their discriminatory and inhumane stance and how that stance has an impact on the health and safety of the LGBTI community within the criminal justice cluster and specifically, within the penal system. The article will unpack the homophobic and exclusionary measures created by African countries towards the LGBTI community. The colonial era anti-gay laws are still applied in some African countries wherein these countries claim that homosexuality is un-African and ungodly. It seems to be a confusing stance as Christianity and the Bible were introduced by the colonisers. The article will in addition discuss the policies on the treatment, categorisation and health of prisoners and whether these policies cater for the LGBTI community within the criminal justice cluster. Contribution: Recommendations that will come out of this article will explore possibilities of transformation of legislation, policies and rules such as the United Nations Standard Minimum Rules for the treatment of prisoners that should cater to the needs and the protection of the LGBTI community when incarcerated.

Highlights

Human rights violations of prisoners in general have been depicted throughout history
The aim for the review will be to point out challenges that are created around the LGBTI community when they go through the criminal justice system, as legislation and the antisodomy laws are not favourable to their sexual orientation and this may have a huge impact on their health and well-being when they are locked up in prison
Despite having all legislation to protect the LGBTI community, South Africa still suffers from the disparaging homophobic tendencies from communities who are unsympathetic to the plight of the LGBTI community

Summary

Introduction

Human rights violations of prisoners in general have been depicted throughout history. As early as 1166, Henry II (King of England) gave a directive that gaols (pronounced jails) be constructed at the Assize in Clarendon. This came about in the middle of the 12th century when it was discovered that some countries were without public gaols or prisoners’ cages. As a result of this directive, private prisons were built by prominent individuals who wanted to protect their political aspirations and personal desires. In 1128, the Tower of London, which was originally built in 1066 by William the conqueror, as a fortress for the defence of London, saw its first prisoner by the name of Rennulf Flambard dying in this facility.

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