Re-posting my latest writing for the Monkey Cage Blog, Washington Post.
See additional coverage at The Dish.
Published August 4, 2014
When Uganda’s Constitutional Court struck down the controversial Anti-Homosexuality Act on Friday, eyes immediately turned to the country’s longtime president, Yoweri Museveni. Museveni has been under pressure from the donor community, several of whom enacted aid cuts in response to the passing of the law in February 2014. His trip this week to Washington for the U.S.-Africa Leaders Summit seemed perfectly timed with the legal about-face that was sought by the Obama administration. Was the court’s decision yet another clever political manipulation by the man who has held power in Uganda for 28 years?
The executive branch may be powerful in Uganda, but to give the president all the credit for the Anti-Homosexuality Act’s demise is to ignore the vital role played by concerned citizens and the legal community in Uganda. Ten individuals and organizations — including a journalist, professor, doctor, activists and current and former legislators — petitioned the court to repeal the law on the grounds that it was passed illegally, having contravened parliamentary rules of procedure requiring quorum, and that it violated constitutional rights. Their efforts, combined with those of a robust legal team, were integral to the law’s repeal. Their victory demonstrates the power of domestic actors and the courts in promoting social and legal change.
This path to social change in Uganda – through the time, energy and sacrifice of key individuals and organizations, together with the power of the law – is no different than the path to social change in the United States. The protection of rights, especially minority rights, often comes on the back of legal rulings, sometimes even before the general public supports these rights. Recent research by Rebecca Kreitzer, Allison Hamilton and Caroline Tolbert has found that anti-discriminatory legislation can directly shift public opinion to be more supportive of same-sex rights.
Activists and scholars worry that despite recent progress on same-sex rights in places like the United States, countries elsewhere — most notably in Africa, but also Russia and India — are experiencing backsliding. In an article on the relationship between democracy and gay rights, Bard College professor Omar Encarnación writes, “Gay rights appear to be deepening more than spreading, intensifying in some regions while regressing in others.“ While there has been regression as measured by anti-homosexual legislation in a number of countries around the world, the overall trajectory of gay rights may not be as dismal as Encarnación’s article suggests.
Rather than thinking of gay rights as present or absent, a continuum may better represent the extent to which the rights of the LGBT community are being protected as well as the changing attitudes toward homosexuality within society. Expanding the protection and promotion of rights, including same-sex rights, is an iterative and not necessarily linear process. Advocacy and strategic litigation can result in key legal decisions that protect rights, and these rulings in turn can affect public opinion, followed by further public support of subsequent anti-discriminatory policy.
In the United States, landmark cases in the promotion of same-sex rightsinclude One Inc. v. Olesen, Romer v. Evans, United States v. Windsor andLawrence v. Texas. The latter ruled as late as 2003 that anti-sodomy laws — like the one that remains in Uganda’s penal code — are unconstitutional. Progress has not been without setbacks, in the United States or elsewhere, as the initial passage of Proposition 8 in California (subsequently struck down by the U.S. District Court and appeal dismissed by the U.S. Supreme Court) demonstrated all too clearly. Today 12 U.S. states still have anti-sodomy laws on the books, the Supreme Court ruling notwithstanding.
While vocal American activists condemn anti-gay legislation around the world, the United States itself has not yet reached the point of full protection of same-sex rights, nor where the whole population accepts homosexuality. The most recent World Values Survey found in 2011 that nearly 1 in 4 American respondents (24 percent) say that homosexuality is “never justifiable.” This figure is much lower than that of Uganda, where close to 9 in 10 respondents completely opposed homosexuality, but still demonstrates considerable hostility towards the LGBTI community in the U.S.
If we look at attitudes toward homosexuality over time using opinion polls, we find that it can take decades for attitudes to shift. Further, negative attitudes toward homosexuality sometimes increase before they decrease. In South Korea, for example, one of the countries with the longest record of opinion polling on the topic, opposition to homosexuality, again, as measured by the percentage of respondents who say homosexuality is never justifiable, jumped from 60 percent in 1982 to 90 percent in 1990 before declining again. It’s worth noting that levels of anti-homosexuality sentiment in South Korea in 1990 are nearly the same as those in Uganda today. In South Africa too, anti-homosexual sentiment increased before declining. Meanwhile, in the U.S., opposition has fallen only gradually over time and has yet to dip below 20 percent.
Democratic institutions took centuries to develop in the United States but have been adopted in a matter of decades in a number of African countries. Likewise, same-sex rights ultimately may be adopted far more quickly in countries like Uganda than they were in the United States. The urgent question for minority rights activists around the world is, how can the pace of rights promotion and protection be increased.
It is not clear that sanctions on governments enacting anti-homosexuality legislation speed up the process of rights promotion, though they might. Journalist and petitioner in the recent Uganda case, Andrew Mwenda, argues that donor threats were actually the “trigger” that forced Museveni to sign the bill in the first place, despite his initial reluctance to pass anti-homosexual legislation. Rather than threats and sanctions, Mwenda advocates for diplomacy on the basis of mutual interests. Encarnación notes a similar concern, writing, “Attempts by the West to export gay rights, especially across Africa, also often play directly into the hands of local politicians eager to brand gay rights as ‘foreign values’ and to rationalize their anti-gay policies as a defense against ‘Western influences.’”
Perhaps, as in the United States, the mostly likely agents of change are domestic actors, be they civil society, legal professionals, the media or others, who employ a country’s own institutions and laws to protect same-sex rights. This course of action relies heavily on the judiciary branch, but as the case of Uganda has shown, such a strategy can be effective even in countries where the executive branch wields considerable power. Civil society actors and activists can also work in tandem with more progressive members of parliament and the executive to quietly support policy and legal reform. These partners in government can play a critical role in reducing the likelihood that government appeals the court ruling or that a new law is brought to parliament.
The Ugandan lawyer leading the case against the Anti-Homosexuality Act, Nicholas Opiyo, says continued debate and discussion on the issue of homosexuality will work toward putting a “human face” to same-sex rights. So too will the growing number of LGBT individuals who openly identify as such, increasing the number of Ugandans who have friends, family and acquaintances whom they know are gay or lesbian.
It is through the efforts of individuals like Opiyo and the other petitioners, at no small cost either personally or professionally, that countries like Uganda will continue to move along the continuum of the protection and promotion of civil liberties and rights for all.