2023 World Same-Sex Marriage and LGBT Rights Progress – Part 4: Africa and Oceania

Earlier in this series – Part 1: North America | Part 2: Latin America & Caribbean | Part 3: Asia

It was an unusually busy year for LGBT news in Africa in 2023, with one country decriminalizing sodomy, one slowly opening the door to equal marriage, several non-discrimination rulings, and a bunch of countries continuing or extending harsh anti-LGBT crackdowns.

It was quite a bit quieter in Oceania, but we did also see one more country finally decriminalize sodomy there, too.

These were the big news stories of 2023.

Southern Africa

Mauritius: Our one big victory in 2023 was the Supreme Court of Mauritius finally delivering its ruling that the nation’s colonial-era sodomy laws are unconstitutional. Conforming to growing international jurisprudence, the Court found that discrimination based on sexual orientation was sex discrimination, and therefore banned by the constitution. The island state already had laws banning employment discrimination based on sexual orientation.

Namibia: The other big news on the continent came from Namibia, where the courts delivered a series of quite confusing rulings on LGBT rights. First, in May, the Court ruled that the government must recognize foreign same-sex marriages, albeit for immigration purposes only. The same ruling affirmed lower court rulings that the constitution bars discrimination based on sexual orientation. And yet, the limited scope of this ruling means that lots of anti-gay discrimination stands in law, including a general ban on same-sex marriage in Namibia.

Parliament responded by unanimously passing a bill to define marriage as exclusively heterosexual in law, which you’d think would not stand up to the Supreme Court’s ruling. Thus far, the President has refused to sign it, calling for more consultations, but who knows how far that will last?

But in another case, the Supreme Court denied citizenship by descent to the child a same-sex couple who had been born by surrogacy in South Africa. The decision seems to hinge on a technical catch-22 – because the birth wasn’t registered, the child can’t have citizenship. Huh?

Finally, the Supreme Court finally heard a challenge to the nation’s colonial-era sodomy laws, which aren’t even written into code – they’re predominantly based on common law. The Supreme Court has said they’ll deliver their judgement on May 17, 2024 – the International Day Against Homophobia, Biphobia, and Transphobia. So, I wouldn’t fault you if you had an assumption about how they’re going to rule.

South Africa: Parliament gave final passage to a long-delayed hate speech and hate crimes bill that is LGBT-inclusive. It’s still awaiting the President’s signature.

The National Human Rights Commission also ordered schools to stop forcing students to wear school uniforms that don’t match their gender identity.

The government has also introduced a new uniform Marriage Bill, which would harmonize the different marriage laws in the country, fully making same-sex marriage equal, and ending the provision that currently requires a married person who gender transitions to divorce and remarry under the Civil Union Act (the confusingly named current same-sex marriage law). It is still under consultations.

Both Zambia and Lesotho barred LGBT performers from South Africa from entering their countries this year.

Botswana: The government introduced a bill to erase the defunct sodomy law from the Criminal Code, following decriminalization by the courts in 2019. The bill drew anti-LGBT protests, and the Minister of Justice withdrew it after LGBT activists and constitutional experts lobbied, explaining it would be inappropriate for MPs to debate whether to delete a law the courts had already struck down. To be clear, gay sex remains legal in Botswana.

Eswatini: In June, the Eswatini Sexual and Gender Minorities won a victory when the Supreme Court ordered the government to reconsider allowing them to register as a corporation, but the government has still refused, saying that homosexuality is illegal in the tiny kingdom. They went back to court in December seeking redress.

Malawi: An ongoing Supreme Court case seeks to decriminalize sodomy. Actually, it’s two cases combined into one, which unfortunately makes for some bad optics, as one case involves a trans woman who was caught in the law’s ambit just by having consensual sex, and the other involves an alleged sex offender who is accused of assaulting several youths. The case has drawn protests from the usual crowd who do not want to see the law struck down.

Zimbabwe: The government introduced a bill to abolish the death penalty, part of a growing trend in Africa.

Central and Eastern Africa

Uganda: Uganda drew a lot of headlines this year due to the passage of the Anti-Homosexuality Act, 2023, a draconian bill that stiffens penalties for gay sex, including death for “aggravated homosexuality,” imposes restrictions on LGBT expression and association, imposes reporting requirements on citizens to tattle on LGBT people they know, and makes it illegal to rent homes or facilities to LGBT people. The bill is a response to the Constitutional Court having previously struck down a similar bill on procedural grounds, and it has already been subject to a Constitutional Court hearing. A ruling awaits, but even if the law is struck down, the original sodomy laws would likely remain.

In the meantime, the law has been strongly condemned by governments and international organizations around the world, including by the United States, which removed Uganda from a program that grants free trade access to the US market to African countries in exchange for upholding democratic and human rights standards.

Kenya: A copycat bill was introduced in Parliament to further criminalize homosexuality and criminalize LGBT expression. It awaits debate.

In February, the Supreme Court ordered the government to register the NGO National Gay and Lesbian Rights Commission, finding that discrimination based on sexual orientation, gender, or intersex status was forbidden by the constitution. The Court reaffirmed that ruling in September.

A case seeking decriminalization of sodomy was pending in the Court of Appeal – the High Court upheld the law in 2019.

Burundi: Last week, the President called for gay couples to be stoned.

Ethiopia: The government began a crackdown on bars, hotels, and restaurants that it alleged catered to homosexuals.

Equatorial Guinea: The government detained a journalist and LGBT activist upon her return from a conference in Europe. The country is a brutal dictatorship.

Gabon: The country was semi-suspended from the Commonwealth of Nations following a military coup.

Western Africa

Ghana: Parliament is still debating a copycat anti-LGBT bill inspired by Uganda, but it enjoys the support of the government and President.

In a rare bright spot, Parliament repealed the death penalty for all ordinary crimes, continuing the trend in Africa. Apparently, repealing the death penalty for treason requires a constitutional amendment.

Mali: People voted into effect a new Constitution that includes an explicit ban on same-sex marriage.

Mali, Burkina Faso, and Niger turned increasingly into military dictatorships, and spurned longstanding ties with former colonial power France in favor of increasing ties with Russia in 2023. There have even been some talks of the three forming some kind of federation.

Nigeria: There was an increasing crackdown on LGBT gatherings that saw hundreds of people arrested for supposedly participating in same-sex weddings.

Senegal: In a horrific hate crime, a deceased gay man’s body was exhumed and set on fire, triggering some denunciations of the offenders, who were apprehended.

North Africa

Tunisia: A challenge to the country’s sodomy law was heard at a Court of Appeal in February, after two people were convicted under it by a lower court. I believe a similar challenge at the Court of Cassation heard in December 2021 is still awaiting a ruling.

Morocco: The Justice Minister spent some time considering decriminalizing extramarital sex, although the discussions didn’t seem to include decriminalizing sodomy. The discussions are still ongoing, and a bill has not yet been tabled.

Algeria: In August, the government temporarily suspended all programming on a local television station after it broadcast a same-sex wedding.

 

Oceania

New Zealand: Conservatives won elections this year, and it remains to be seen if they will roll back LGBT rights in the same way that they have planned to roll back Indigenous rights.

A private members’ bill to ban discrimination based on gender identity and sex characteristics did not pass before the election. A bill to reform surrogacy laws also failed to pass. Theoretically, both bills could still be brought forward, but the government has announced no plans in this regard.

Meanwhile, the Cook Islands, an independent country that is part of the Realm of New Zealand, finally passed its Crimes Act update, decriminalizing gay sex. Once again, with this solved, queer Cook Islanders are now making calls for other rights.

Gay sex remains illegal in Niue, the other country in the Realm. Neither Niue nor Cook Islands are UN member states, though there have been some pushes for both to have greater representation in international forums including the UN and Commonwealth. In September, President Biden announced that the USA was formally recognizing both as sovereign independent states.

Australia: The federal Labor government hasn’t really lived up to the hope some had that it would lead progressive legislation for LGBT rights, has it? In January, the law reform commission recommended that the Commonwealth reform discrimination laws to protect all students and teachers from sexual orientation, gender identity, or marital status discrimination, but the government hasn’t acted, citing the need to accommodate religious schools.

The Australian Capital Territory banned unnecessary surgeries on intersex children.

Queensland updated its hate speech laws to include protections for LGBTI people, and also removed the surgical requirement for a legal gender change.

New South Wales and Tasmania have announced plans to ban conversion therapy, but activists have been critical of the Tasmanian bill that was tabled this month.

Sydney hosted WorldPride, during which there was some focus on improving LGBT rights in the Pacific region.

Tuvalu: Tuvalu amended its constitution to ban discrimination based on sex. However, the evolving international jurisprudence is that sex discrimination includes sexual orientation and gender identity discrimination, so it’s entirely likely that anti-LGBT discrimination was just banned there. It will likely take some court challenge to firmly establish that. The new constitution also defines marriage and family in heterosexual terms, however, and the new constitution specifically shields marriage laws from review on discrimination grounds.

Papua New Guinea: The Prime Minister said he had no intention of decriminalizing gay sex.

Commonwealth of Northern Mariana Islands: As discussed in the section on the Americas, this US territory passed an LGBT-inclusive hate crime law.

Tomorrow, I’ll be back with a look at Europe, where there was a flurry of development on LGBT rights in 2023.