LGBTQ+ History Month: Defending freedom – the legal struggle for LGBTQ+ rights in Africa

There is a Western tendency to view anti-LGBTQ+ practices in Africa as a quirk of the continent, an unfortunate habit that produces a resistance to progress. Within some communities across Africa, it is a commonly held belief that LGBTQ+ identities are an increasingly stubborn Western import.

The UK is no stranger to anti-LGBTQ legislation – it was not so long ago that Margaret Thatcher’s Section 28 law effectively placed a gag order on all teachers and local authorities viewed to be ‘promoting homosexuality’. Early civil sodomy laws dating from the 16^th century provided the building blocks for the more contemporary anti-LGBTQ+ penal codes enforced across the British empire. Indeed, many African states have retained these laws (in part or whole) across their legal systems, though enforcement is variable. Legal penalties afforded to state institutions can include lengthy prison sentences and the death penalty, and are accompanied by discrimination, isolation, and challenging socioeconomic disadvantages for LGBTQ+ individuals.

However, across Africa and particularly over the last 10 years, lawyers, activists and campaigners have mounted successful legal challenges – promising bright spots for LGBTQ+ inclusion have emerged across the continent. In 2021, following litigation filed by Letsweletse Motshidiemang in 2019 (supported by the Lesbians, Gays and Bisexuals of Botswana and the Southern Africa Litigation Centre), the Botswanan Court of Appeal upheld a ruling overturning sections of the penal code dating from 1965 under British colonial rule. These laws outlawed relationships ‘against the order of nature’ and carried sentences of up to seven years in jail. The challenge was won on the basis that the prohibitions were unconstitutional and violated several fundamental human rights.

Mauritius is one of the more recent countries in Africa to scrap anti-LGBTQ laws. In 2019, Abdool Ridwan ‘Ryan’ Firaas Ah Seek, a gay Mauritian man and LGBTQ+ activist, alongside local LGBT rights organisation ‘Collectif-Arc-en-Ciel’ as an interested party, filed a legal challenge in Mauritius’ Supreme Court. The claimant successfully challenged the constitutionality of Section 250 of the Criminal Code (dating back to the 1898 British colonial penal code) and its criminalisation of consensual sexual conduct between men. The case was also a demonstration of the ways in which law firms can support such cases internationally, with Herbert Smith Freehills working alongside the Human Dignity Trust, Gavin Glover SC, and other members of Ah Seek’s legal team. In 2024, following a case brought by gay rights activist Friedel Dausab, the Namibian High Court struck down all references to ‘sodomy’ across several laws, ruling that aspects of this legislation originating from colonial rule were unconstitutional. These countries are just a few among a litany of states to have seen successful litigation against long established anti-LGBTQ+ legislation.

The stalwartness of lawyers, activists and campaigners continues to be a driving force behind these challenges. Alice Nkom, a Cameroonian lawyer who has defended hundreds of LGBTQ+ people in the country against punitive laws and founded an anti-homophobia NGO in Cameroon (Association for the Defence of Homosexuality), knows all too well of the dangers associated with identifying as part of the LGBTQ+ community. The enforcement of the penal code in Cameroon is active; in the first quarter of 2021, at least 24 people were arrested and in May 2021, two transgender women were handed prison sentences of 5+ years in a male prison. Nkom’s 2003 chance encounter in the public prosecutor’s office in Douala with a pair of young people charged with homosexuality sparked her conviction for defending the fundamental freedoms of LGBTQ+ individuals – support that is sorely needed in the country.

Despite these victories and the champions behind them, anti-LGBTQ+ policymaking has picked up pace in recent years. In February 2024, policymakers in Ghana passed the Proper Human Sexual Rights and Ghanian Family Values Bill, decreeing that any person identifying as LGBTQ+ could be sentenced to jail for up to three years, or up to five years if charged with forming or funding LGBTQ+ groups. The now infamous bill threatens both LGBTQ+ individuals, and the network of those who advocate for the community. Both of Ghana’s main political parties backed the bill, with few ballot box incentives to challenge it. Though legal teams representing university researcher Dr. Amanda Odoi and Ghanaian broadcaster and lawyer Richard Dela-Sky submitted separate challenges to the bill in December 2024, both cases were dismissed by Ghana’s Supreme Court. Whilst the bill lapsed in January 2025 due to Ghana’s election of a new government headed by president John Mahama, it remains to be seen whether he will maintain the expiration of the bill, or support its revival.

Of course, anti-LGBTQ+ legislation does not exist in a vacuum. Even where anti-LGBTQ+ legislation is being challenged or has been overturned, its effects can be long-lasting, and can reinforce established homophobic attitudes.

In 1996, South Africa became the first country in the world to ban discrimination based on sexual orientation in its constitution, providing a pathway for legal gender recognition for transgender South Africans in 2003, and legalising same-sex marriage in 2005. Its legal protections against anti-LGBTQ+ discrimination are perhaps the most robust on the continent, yet violence continues to occur; between February and October 2021, at least 20 people were killed in murders allegedly motivated by homophobia. Moreover, societal views can also impact the development of legislation – MPs in Ghana have noted that the bill was drafted in response to the nation’s first, short-lived LGBTQ+ community centre in Accra in 2021, which met staunch protests from religious and traditional leaders.

In response to conservative LGBTQ+ policies across Africa, international bodies have looked to influence legislation through restrictions and sanctions. However, the effectiveness of international pressures is mixed, and is muddied with colonial and post-independence memories of international bodies’ heavy-handed influence on African politics and economics.

Economic sanctions from organisations like the World Bank have been doled out in recent years in response to such policies – the Ghanaian Finance Ministry warned that it could lose around $3.8 billion in World Bank funding over the next five to six years if the bill was passed. Despite Ghana having experienced recent economic turmoil requiring international bailouts and economic support, this pressure did not stop the progression of the bill, though it has not been signed into law. Similarly, the World Bank has refused to issue new loans to Uganda following its enactment of the Anti-Homosexuality Law in 2023, stating that the law contravenes the Word Bank’s values. Currently, there is little evidence that these restrictions have a positive domestic effect on attitudes regarding the LGBTQ+ community – the diversion of resources to campaigners and lawyers working domestically to combat anti-LGBTQ+ legislation may prove far more productive.

Regardless of African states’ attitudes to LGBTQ+ communities, there is no doubt that the continent’s place in the global economy will become ever more prevalent – by 2050, Africans will constitute one third of new entrants to the world’s workforce. However, it is unclear as to whether the US, with the recent triumph of Trumpism and its strong aversion to anything remotely close to ‘DEI’ policy, will seek to influence African law-making by enforcing sanctions against African nations, as Trump’s predecessors once did (in addition to the World Bank’s restrictions, Uganda for example has repeatedly felt the sting of US government sanctions against its anti-LGBTQ+ laws).

Certainly, Africa’s other strong economic partners, such as China, have not historically exerted similar pressures. Though this pressure on anti-LGBTQ+ policymaking may be limited from its state partners, other institutional bodies more inclined towards LGBTQ+ advocacy may continue to impose economic restrictions on African governments. Indeed, the turbulence of African economies and the complicated economic partnerships with development finance institutions and other institutional bodies may ensure these pressures on policy-making continue in future. Resistance from some governments to calls for more progressive laws however, may also find similar endurance.

The landscape for LGBTQ+ inclusion is one of the many issues that highlight Africa is far from a monolith; hard-won victories in some states for LGBTQ+ freedoms accompany entrenched battles in others. Lawyers, campaigners and activists on the ground continue to mount compelling challenges to laws often originating from colonial rule, and external threats of sanctions intending to influence the direction of policymaking still see mixed results. Despite these challenges, the ongoing bravery of the legal teams, activists, and LGBTQ+ individuals challenging the status-quo deserves to be explored and celebrated during this LGBTQ+ History Month.

Zareen Roy-Macauley is a trainee solicitor at Clifford Chance LLP and a member of the LGBTQ+ Solicitors Network committee