Human Rights Day 2020: The legacies of British colonialism and the struggle for LGBTQIA+ rights
The jfa editorial board
July 2001.
LGBT activist Arif Jafar, along with four of his colleagues, was arrested under the now-repealed section 377 (unnatural offences) of the Indian Penal Code. The police found condoms, literature on gender, sexuality and safe sex at Bharosa Trust, a community-based organisation supporting and counselling LGBTQ+ individuals, where the five men worked and used it as proof of their “perversion”. The men were brutalised by police in public prior to their arrest as well during their 47-day jail sentence.
October 2019.
16 LGBTQ+ activists were arrested in Uganda on charges of gay sex - punishable by life imprisonment under section 145 of the Penal Code. Arrested at the sexual health organisation where they worked and lived, the police found lubricants, condoms and anti-HIV medication, and used this as proof. All 16 activists were then forced to undergo anal exams - a practice that can amount to torture under international law.
These two stories, though separated by time and geography, share a common feature: both laws deeming gay sex as a criminal act have its origins in a British colonial-era penal code.
Human Rights Day falls on December 10 every year, the day the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) in 1948. Adopted after the atrocities of the Second World War, the UDHR was the first international declaration of its kind outlining the basic principles of human rights.
Despite the declaration proclaiming universal equality, freedom, and justice for all, irrespective of colour, creed or religion, most of the African continent was still under colonial rule in 1948 by the very supporters of the declaration; such as Belgium, France, Great Britain, Portugal and Spain. Only three of the four African UN member states at the time, Egypt, Ethiopia and Liberia, signed the declaration.
Photograph: The first session of the Drafting Committee on International Bill of Rights, Commission on Human Rights, at Lake Success, New York, on Monday, 9 June 1947. © United Nations Photo.
The West often sees itself as a defender of, and a ‘safe’ space for, LGBTQ+ rights. After all, Toronto, Amsterdam and Madrid were the top three gay-friendly cities, and San Francisco has often been called the “gay capital of the wold”. The UK partially decriminalised homosexuality in 1967 (Sexual Offences Act) in England and Wales between men over the age of 21 conducted in private. In 2004, same-sex couples were allowed to enter into civil unions in the UK, and same-sex marriage became legal in England and Wales in 2013.
While these discriminatory laws have been repealed in the UK, they are still very much in effect in some of the former British colonies. In a stark comparison, gay sex is criminalised in 35 of the 54 Commonwealth countries, nine of which have a maximum penalty of life imprisonment.
The struggle for human rights has always been, and will always be, a fight against oppression, and the marginalisation of individuals and communities. There is a direct connection between colonialism and the human rights violations experienced by individuals such as Arif Jafar - and they are far from over. The British Empire fell decades ago, but the remnants of imperialism are still impacting the ability of queer people to enjoy full, equal rights. To love and be loved without prejudice, violence, or incarceration.
Let us take you back to 1533.
During the reign of Henry VIII, the Buggery Act of 1533 was the first law in UK history to outlaw sodomy (anal sexual intercourse) making male homosexuality punishable by death. This law would then apply to what would become the British Empire. The death penalty was abolished in 1861 with the Offences Against the Person Act and replaced with a sentence of minimum 10 years to life imprisonment. In 1885, any male homosexual act became illegal, including anything occuring within the private sphere. Even more intriguing, female homosexuality was never explicitly targeted for fear that it would encourage women to explore relationships with other women, and due to a belief that lesbianism only occurred in a tiny portion of the female population.
What British colonial officials brought with them was the belief that their Victorian values - defined by sexual restraint and propriety, with no tolerance for criminal activity - were superior to the behaviour of the individuals they colonised. Sex and sexuality was heavily regulated; sexual relations were only allowed between men and women for reproductive purposes, and any fluidity in gender and sexuality was deemed ‘uncivilised’ and wrong. The British empire effectively ‘exported’ their homophobic ideology to the colonies, deeming that relations between persons of the same sex (particularly two men) was unnatural.
When countries gradually became independent from British rule, they had to rewrite their entire penal systems, and rather than starting from scratch, many kept the British common law system as it was a legal standard they were familiar with.
“States that were colonised by the British found themselves using laws that were similar to each other. In Kenya, it’s sections 162, 163 and 165 of the Penal Code, in India it’s 377 of the Penal Code,” explains Imani Kimiri, Head of Legal Affairs at the National Gay and Lesbian Human Rights Commission (NGLHRC) in Kenya. “These laws were passed down from colonisers, [we’re] still under laws that are not ours, that did not come from folks who reside in these states.”
“It is the laws that have come from the West, not homosexuality,” affirmed Rosanna Flamer-Caldera, founder of EQUAL GROUND, Sri Lanka and Chair of The Commonwealth Equality Network (TCEN).
Colonialism stripped away the sexual freedom that many people of colour likely already had. Prior to colonial invasion, gender and sexual expression were much more fluid. In Kenya, for example the woman-to-woman marriages were part of pre-colonial marriage customs, and continues to this day. King Mwanga II of nineteenth-century Buganda (present-day Uganda) was also an openly-gay monarch who opposed Christianity and colonialism. In pre-colonial India, same-sex relationships were widely accepted, and the existence of multiple gender categories demonstrates the fluidity of gender expression. With British colonialism came the restrictive gender and sexuality binary.
Even so, homosexuality is often seen as a foreign import, and the existence of these anti-sodomy laws for over a century and a half provide historic foundations for widespread homophobia, and for homosexuality to be seen as ‘un-African’ or ‘un-Indian’, for example.
“[There are] a lot of myths and misconceptions that come with being queer as an African, [with people saying] ‘it’s just a phase’,” says Imani. “During our sensitisation forums with stakeholders, we ensure that we take them through the entire history of how the archaic sections of law came into being. We take people through the journey of what was, what is, and what should be.”
“I don’t see [human rights] as a Western import, neither do people from the LGBTQIA+ community”, says Rosanna, “but politicians are trying to change the narrative for us, saying that queer people only exist in the West, that these ‘loose morals’ do not exist in Sri Lanka.”
The UK has been no stranger to hypocrisy. In 2011, David Cameron warned Commonwealth leaders that UK foreign aid should be conditional on the decriminalisation of homosexuality, claiming that they should "adhere to proper human rights.” Ironic considering the only reason these laws exist in the first place is because of British colonialism, and same-sex marriage was only legalised in England and Wales in 2013. In the annual Commonwealth summit of 2018, Theresa May apologised for the legacy that British colonial rule had on LGBTQIA+ rights within previously colonised countries - a pivotal event facilitated by Rosanna herself.
In order to gain a full understanding of human rights and the fight against oppression - not just today, but everyday - it is crucial to acknowledge that it is not always about looking at how far the LGBTQIA+ community have come, sometimes it is about looking at everything that has been reclaimed.
On this Human Rights Day, we celebrate the activists, NGO workers, policymakers and storytellers who are working both to undo and change the ideologies that have been used to harm hundreds of millions of people all over the world. At the heart of Rosanna and Imani’s work is the fight for equality, freedom, and justice for all - all the more important when considered alongside centuries of oppressive colonial rule and discriminatory laws they have been working to dismantle. Rosanna and Imani’s endeavours transcend present-day legal systems and tackles the socio-cultural perspectives that have been entrenched during such a violent time in their country’s past.
Listening to, and supporting, the work of individuals dismantling the oppression placed on their communities of colour by imperial powers is not just a task for December 10. It must be an everyday, life-long effort to understand the past. Only then can equal, fundamental human rights for LGBTQIA+ communities all over the world be attained.