Above: Divina Lorinda, a queer living in Kampala, Uganda. Photo by Stuart Tibaweswa.
Activists and victims say the colonial-era laws lead to violence, extortion, wrongful arrest and hinder the fight against HIV/AIDS
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Just after dark on 21 October 2019 in Kampala, Uganda, a homophobic mob gathered outside the gate of a homelessness shelter, set up to help young people shunned by their families. “They had sticks, they had stones, they were throwing all sorts of things,” said Eric Ndawula, one of those inside. “They were shouting, ‘we need to kill them’.”
After Eric called the police, rather than arrest any of the mob, officers charged 16 victims with “carnal knowledge against the order of nature”, a law Uganda inherited from the Indian Penal Code written by British colonial administrators in 1860. During their four-day imprisonment police searched the 16 for evidence of penetration through a “degrading” forced anal examination, before finally dropping the charges, said Eric, now the 25 year old director of Let’s Walk Uganda, an organisation dedicated to improving the livelihoods of young LGBT people.
The Indian Penal Code was one of a series of Victorian laws which clamped down on homosexuality. Another in 1885 criminalised sex acts between men short of penetration as ‘gross indecency’. This amendment was debated for only four minutes, one of which was spent increasing the punishment from one to two year’s hard labour. Both Oscar Wilde and second world war codebreaker Alan Turing fell foul of this law.
These laws spread throughout the Empire. Of 71 countries which outlaw same-sex relations, half are Commonwealth members. Téa Braun of the Human Dignity Trust, a charity campaigning for LGBT rights, says such laws create “vast global devastation in the lives of hundreds of millions of people – men and women.”
Victorian England never outlawed lesbianism. However, of the 43 countries which criminalise sex between women some, like Uganda, are influenced by British gross indecency laws. “In some countries, ironically, it came about as an attempt to make the laws non-discriminatory. So a country that had a law which specifically criminalised men, rather than being seen as discriminatory in criminalising anybody,” said Téa Braun, governments decided “we have to capture both male and female same-sex conduct.”
On 17 February 2021 the Himalayan state of Bhutan joined Commonwealth countries such as Fiji, Belize, Trinidad and Botswana, in decriminalising homosexuality.
Activist Tashi Tshten from Rainbow Bhutan said, although the country was never colonised by the British, “Most of the laws were basically copy-pasted from the Indian Penal Code. So when you look at those laws and see language like sodomy and unnatural sex, these are very common words that you can find even in Sri Lanka, Bangladesh, and some parts of Pakistan. These laws came from the colonial era.”
The gross indecency law became known in Victorian England as ‘the Blackmailer’s Charter’. Tashi became a victim of that colonial legacy. “I was blackmailed because he found out that I was gay. He told me that he would tell the police that I engage in this type of activity and he would call the police unless I pay him the money.”
Extortion by corrupt police officers was one of the sparks for the two-decade legal campaign to repeal section 377 of the Indian Penal Code by Anjali Gopalan of the Naz Foundation, an Indian HIV/AIDs organisation. “The police would say ‘we’re arresting you and we’re going to call your family, we’re going to tell them you were with another man.’ We have one of the most corrupt police systems in the world, so they would just make money off these men.” said Anjali. Section 377 was eventually declared unconstitutional in 2018.
Elsewhere the British colonial legacy continues. Last year two Zambian men, Japhet Chataba and Steven Sambo, received a Presidential pardon after serving three of their 15 year prison sentence for “carnal knowledge of any person against the order of nature”.
Such laws deter people reporting hate crimes. “LGBT people are labelled by the state as criminals,” said Téa Braun. “People die because of these laws: at the hands of the state, at the hands of the community, at the hands of, sometimes, people’s own family.” Sometimes LGBT people are raped, including by members of their own families, in order to ‘cure’ them. Amber Fatmi from the Lawyer’s Initiative Forum in India said, “Such cases come in where you report against the family for corrective rape, then the police also book you for unnatural sex. So largely because of that the LGBTQ community do not come up and say that rape has happened.”
These laws also hobble the campaign against HIV/AIDS, according to Téa. “The HIV prevalence rates in many criminalising countries is notably higher than in non-criminalising countries. Why would someone go and report their sexual conduct to a health practitioner if that person might report them for committing a crime?”
The only silver lining to this dark cloud is that the response to HIV/AIDS created movements to end criminalisation.
“On the one hand the government was funding programmes for men who have sex with men”, said Anjali, “and on the other the police were” locking up HIV outreach workers. According to Vivek Divan, a lawyer involved in the campaign, the first challenge to section 377 occurred in 1994 when prisons refused to distribute condoms, arguing they would be aiding and abetting a criminal sex act. Eventually public health officials became proponents of decriminalisation. When Vivek originally filed cases the Home Affairs ministry argued to retain the law but “a few years later we get an affidavit from the Health Ministry saying ‘this law must go, because it’s an impediment to HIV work’. So the Supreme Court asked government, ‘make up your mind, because your ministries are conflicting’.” Similarly, in Bhutan, according to Tashi, their biggest allies were in the health ministry, while the influential Minister of Finance worked in HIV/AIDS prevention.
So what would Eric Ndawula say if he came face-to-face with one of these Victorian lawmakers? “People refuse to accept that people could be different than them. You never know that LGBT people exist until you know that your son is gay, or your wife, or you yourself.”