Three Ways Forward: The Present and Future State of Homosexuality Legislation in Africa

Abstract

This Article examines the three diverse ways nations in Africa are engaged in legislating homosexuality and same-sex relations. Much of the international community has focused on Uganda's Anti-Homosexuality Bill, commonly described as the 'Kill the Gays' bill, which for a time included a provision permitting the death penalty for certain forms of 'aggravated homosexuality.' This focus on the death penalty aspect of the legislation has obscured a discussion of a similarly insidious aspect of the legislation - the criminalization of pro-gay activism and the providing of 'aid or assistance' to LGBT persons. This criminal penalty, the first of its kind in the world, serves as a dangerous model for other countries attempting to legislate against homosexuality. This paper serves to contextualize the Uganda statute, and compare it with 2012 legislation in Malawi, which would decriminalize same-sex activity, and Zimbabwe, where an attempt to enshrine gay rights in the constitution led instead to blowback from antigay activists and resulted in the inclusion of an antigay amendment in the country's new draft constitution. Each of these laws serves as a model for pro-LGBT and antigay activists attempting to legislate sexual orientation and activity in Africa. Ultimately, this Article concludes that each measure will serve as a model for different constituencies: Uganda's for antigay legislators attempting to corral public sentiment against homosexuality into legislative power; Malawi's for pro-LGBT grassroots organizations and sympathetic political leaders; and Zimbabwe's for international LGBT organizations providing strategic advice for ways to move legislation forward on the continent.