One of the best predictors of whether a country criminalizes homosexuality is whether it is a member of the Commonwealth. In 36 out of 53 Commonwealth countries, sexual acts in private between two consenting adults of the same sex are illegal. In most cases, the laws against homosexuality — especially male — and the ill-defined acts of sodomy, buggery, and “crimes against nature” were inherited from British colonial penal codes and maintained after independence. The organization could therefore play an important role in decriminalization and promoting more generally the rights of lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals in the association’s member states. Sadly, it is refusing to even mention the issue.
These laws force LGBTI individuals to live secret lives and subject them to blackmail and imprisonment. Several Commonwealth countries allow for the death penalty, including Brunei, Pakistan, and some Nigerian states. Even when not enforced, the laws promote stigmatization and violence, justify discrimination, and otherwise prevent people from realizing their full human potential. Many LGBTI individuals’ lives are at risk, forcing them to leave their communities and even their home countries.
In the lead-up to the recent Commonwealth Heads of Government Meeting at Windsor Castle, LGBTI activists pressed the summit host, British Prime Minister Theresa May, to include LGBTI rights on the agenda. Canadian Prime Minister Justin Trudeau met with LGBTI activists while in London before the summit, and he and UK Foreign Secretary Boris Johnson promised to raise the matter at the meeting. According to The Guardian, May said at a press conference that “she ‘deeply regrets’ Britain’s historical legacy of anti-gay laws across the Commonwealth” and “urged the Commonwealth nations to overhaul ‘outdated’, colonial-era legislation.”
The issue, however, was not mentioned once in the summit’s 12-page final communiqué, despite numerous references to other forms of human rights. What explains this conspicuous decision to ignore the issue? There were no doubt deep disagreements on the matter. Many Commonwealth leaders may personally oppose the criminalization of homosexuality, but are unwilling to take a public stand in favour of decriminalization. The Commonwealth’s Charter commits its members to the promotion and respect of human rights “for all without discrimination on any grounds.” However, because of a lack of principled leadership, the Commonwealth itself won’t be playing a positive role in promoting the fundamental rights of its hundred million or more LGBTI citizens.
It is important to remember that countries such as Canada and the United States have also often refused to act proactively to legislate LGBTI rights domestically, leaving it to the judiciary to define and enforce them. Sodomy laws in the United States were abolished as recently as 2003, struck down by a Supreme Court ruling. In Canada, after the Charter of Rights and Freedoms was adopted in 1982, it was the courts that forced the government to prevent discrimination on the basis of sexual orientation and gender identity. Although Prime Minister Jean Chrétien later bragged about bringing same-sex marriage to Canada, he had long opposed it and was in fact compelled to introduce legislation by the Supreme Court. Obviously, court decisions can give politicians cover for enacting controversial reforms.
Legal challenges may thus be the best way forward for the decriminalization of same-sex activities in many Commonwealth countries. A few weeks ago, a High Court judge in Trinidad and Tobago ruled that the country’s sodomy law was unconstitutional, following a similar decision in Belize in 2016. Further important decisions on LGBTI rights are expected later this year in Botswana, India, Kenya, and Namibia, among other countries, prompting Human Rights Watch researcher Neela Ghosal to call 2018 “the year of the courts.”
A few Commonwealth country legislatures have actually decriminalized homosexuality over the past few years, including in Mozambique, Nauru, and the Seychelles. However, they are the exceptions. In a recent interview, Kenyan President Uhuru Kenyatta refused to discuss his own views on homosexuality, arguing instead that the issue “is of no importance to the people of Kenya.” Ghanaian President Nana Akufo-Addo stated that decriminalization in his country was “bound to happen,” but only after public opinion shifts. Other countries such as Uganda and Nigeria have recently strengthened their longstanding anti-homosexuality legislation or expressed their intent to do so. More, such as Tanzania, might soon follow.
Political leaders of Commonwealth countries, especially in Africa, often portray LGBTI rights as a Western imposition and cite Christian beliefs to justify persecution. Ironically, they are ignoring the fact that both discriminatory legislation and the Bible were actually introduced by the British colonizers, whereas multiple forms of homosexual behaviour existed in precolonial times.
Lecturing foreign leaders on LGBTI issues and threatening to withhold foreign aid are not especially productive strategies for advancing LGBTI rights and can even be counterproductive. Still, more can be done to promote and protect equal rights. Parallel to the London summit, UK Home Secretary Amber Rudd announced a special British fund of £5.6 million (about CDN$10 million) to support LGBTI and gender equality in Commonwealth countries, although it is unclear what proportion of the funding will go to LBGTI rights and how much will actually be provided to organizations in developing countries, rather than UK-based NGOs.
In recent years, Canada has become more active in the realm of international LGBTI rights. With the country’s most pro-LGBTI prime minister ever and a Feminist International Assistance Policy that identifies sexual orientation and gender identity as sources of discrimination and marginalization, the time is ripe for Canada to create a special fund to support LGBTI equality, not limited to a legal approach and not just in the Commonwealth. Such a fund would help human rights activists pursue their own strategies to further LGBTI rights, based on local conditions and priorities, and in doing so help empower these local actors themselves.
