By Philip Dayle
Once again, a country that was a British colony has run afoul of human rights concerning gay people. A Ugandan newspaper recently called for the hanging of homosexuals, after "outing" 100 people in a news story. Earlier this year, Malawi imprisoned a gay couple for celebrating their engagement in a public ceremony. The Malawian president granted
the two offenders a pardon only after huge international outcry and the intervention of the UN secretary general, Ban Ki-moon.
The common thread in these incidents is that laws remain on the books that are relics of a British colonial past. In Africa, Asia and the Caribbean, offences under the Victorian Offences Against the Person Act 1861 have metastasised into legal codes that prohibit acts of homosexuality. Even where there are no prosecutions, that such laws remain on the statute books serves as a big stick that silences, suppresses and intimidates gay people.
In reacting to stories of homophobia from developing countries, the narrative from the UK and Europe can have a tone of smugness. It is often forgotten that objections to gay rights in Europe had similar themes, as is now dramatised through incidents in Uganda, Malawi and elsewhere. Only three decades ago, the European Court of Human Rights, in the case of Dudgeon v UK , sided with the applicant, a gay man from Northern Ireland, who argued that although he had not been prosecuted, the very existence of anti-homosexuality laws was an infringement on his right to privacy.
The court later gave similar judgments in cases against Ireland and Cyprus – interpreting the same statute that Britain exported to its other former colonies across the world. In all these cases before the European Court, governments argued that there was a "legitimate aim" of "protection of morals" in maintaining anti-gay laws. They cited strong feelings against homosexuality based on religion and centuries-old moral standards. One dissenting judge in the Dudgeon case warned that "all civilised countries until recent years penalised sodomy". Painting the picture he imagined, the judge predicted "public outcry and turmoil" if anti-homosexuality laws were repealed. As Northern Ireland remains intact, his fears have been proven unfounded.
Eric Heinze, professor of law at Queen Mary, University of London, believes that there is a "manufactured sensitivity" in pressing human rights relating to sexual orientation. Why shouldn't gay rights attract the same moral revulsion as the fight against racism or violence against women? Can the UK call out its former colonies on this issue? What kind of deference is shown to culture or religion in this type of human rights activism?
Not surprisingly, the colonial history of many developing countries makes them resistant to calls for reform from metropolitan centres in Europe. Activism that is viewed as patronising harks back to the days of empire, when important decisions were made in London and force-fed back to the colonies. These seemingly symbolic considerations are as important as substantive arguments in advocacy for change in this regard.
One opportunity for saying that gay rights are human rights derives from the Yogyakarta Principles. Developed in Indonesia in 2007, the principles are a statement of LGBT rights and the corresponding obligations of states. Importantly, the principles broaden the source of legal and moral authority beyond Britain and Europe. They provide not just an excellent tool of interpretation but evidence that these matters are truly a global concern.
Arguments of nationalism, religion and culture should not preclude intervention in debates about human rights. However, the success of advocacy requires that they be given sufficient consideration: it is not desirable that activists' efforts be viewed as "rescue" missions or top-down gestures from rich, industrialised nations to backward, third-world countries.
Partnerships that empower local activists to articulate their own concerns are a bulwark against such criticisms and go far in reducing charges of foreign interference in domestic affairs.
Philip Dayle is a lawyer, a research fellow at the Runnymede Trust and a freelance writer.