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SAME-SEX RELATIONS AND LEGAL TRADITIONS IN CAMEROON AND SOUTH AFRICA

Published online by Cambridge University Press:  30 April 2021

Elias Kifon Bongmba
Elias Kifon Bongmba*
Affiliation:
Harry and Hazel Chavanne Chair in Christian Theology and Professor of Religion, Rice University
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Abstract

This essay revisits the debates and legal contests that grew in Cameroon at the turn of the millennium but failed to bring justice for members of the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community. Several members of sexual minorities were tried in Cameroon courts and sentenced to serve jail time. In order to reflect on the state of legal limbo for LGBTQ people in Cameroon, I also revisit the South African case Minister of Home Affairs and the Director General of Home Affairs versus Marie Adrianna Fourie and Cecelia Johanna Bonthuys, which led to legalization of same-sex relationships and marriage in South Africa. In the first and longer part of the essay, I discuss the situation in Cameroon and South Africa. In the second part, I briefly discuss the different legal outcomes in the two countries. I conclude with a brief discussion of signs of hope in the critical dialogue on justice in the debate on same-sex relations in Africa. My goal in this essay is not to offer expert opinion on the legal entanglements on the question of same-sex relations, but to demonstrate that legal and constitutional protections offer the best chance for gaining the rights of LGBTQ people in Africa.

Keywords

AfricaLGBTQ rightscriminalization of LGBTQCameroonSouth Africa
Type
Article Symposium
Information
Journal of Law and Religion , Volume 36 , Issue 1 , April 2021 , pp. 130 - 147
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Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the Center for the Study of Law and Religion at Emory University

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References

1 Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC) at 86 (S. Afr.).

2 “Thérapie spirituelle contre certains fléaux. L'homosexualité a détruit leur vie. Les vitimes témoignent” [Spiritual therapy against certain ills. Homosexuality ruined their life. Victims testify], L'Effort Camerounais, March 2–15, 2011, at 2, as quoted in translation by Ngwa Nfobin, E. H., “Homosexuality in Cameroon,” International Journal on Minority and Group Rights 21, no. 1 (2014): 72–130CrossRefGoogle Scholar, at 82.

3 Green, M. Christian, “Modern Legal Traditions: Africa,” in The Oxford Encyclopedia of the Bible and Law,” ed. Strawn, Brent A. (New York: Oxford University Press, 2015)Google Scholar, https://www.oxfordreference.com/view/10.1093/acref:obso/9780199843305.001.0001/acref-9780199843305. See also Green, M. Christian, “Religious and Legal Pluralism in African Constitutional Reform,” Journal of Law and Religion 28, no. 2 (2013): 401–39CrossRefGoogle Scholar.

4 With the support of religious actors, Uganda and Nigeria have passed bills forbidding same-sex relations that were signed into law. Asonzeh Ukah, “Sexual Bodies, Sacred Vessels: Pentecostal Discourses on Homosexuality in Nigeria,” in Christianity and Controversies over Homosexuality in Contemporary Africa, ed. Ezra Chitando and Adriaan van Klinken (London: Routledge, 2016): 21–37; Bompani, Barbara, “For God and for My Country: Pentecostal-Charismatic Churches and the Framing of a New Political Discourse in Uganda,” in Public Religion and the Politics of Homosexuality in Africa, ed. van Klinken, Adriaan and Chitando, Ezra (London: Routledge, 2016), 19–34CrossRefGoogle Scholar.

5 In focusing on the role of law and the role of religion as public instruments, which I am convinced ought to be used to protect human rights, freedoms, and human dignity in addition to providing a framework for arbitration and set guidelines for responsible citizenship, I do not assume that all religious leaders oppose same-sex relations. Some religious leaders support and affirm members of the LGBTQ communities. Archbishop Desmond Tutu of South Africa is a strong supporter of sexual minorities, The Reverend Dr. Kapya Kaoma of Zambia has been very supportive of sexual minorities, and he has joined other religious leaders in issuing the KwaZulu-Natal Declaration, which calls for an end to discrimination against sexual minorities. In Cameroon, Dr. Jean-Blaise Kenmogne, pastor of the l'Eglise Evangélique du Cameroun (Evangelical Churches of Cameroon) and rector of l'Université Evangélique du Cameroun (Evangelical University of Cameroon) has supported the rights of gays and lesbians. See Jean-Blaise Kenmogne, Homosexualité, Église et Droits de l'Homme, Ouverons le débat (Yaoundé: Éditions CEROS, 2012).

6 Beyala, Calixthe, C'est le soleil qui m'a brûlée (Paris: Stock, 1987)Google Scholar. All quotations are from Calixthe Beyala, The Sun Hath Looked upon Me, trans. Marjolijn de Jager (Portsmouth: Heinemann, 1996). See also, Richard Bjornson, The African Quest for Freedom and Identity: Cameroonian Writing and the National Experience (Bloomington: Indiana University Press, 1994), 411, 416–18. I am grateful to studies of Beyala by Juliana Abbenyi-Nfah and Natalie Etoke, and S. N. Nyeck for insights and interpretations.

7 Beyala, The Sun Hath Looked upon Me, 41.

8 Rangira Béatrice Gallimore, L'oeuvre romanesque de Calixthe Beyala: le renouveau de l'écriture féminine en Afrique francophone sub-saharienne [The romantic works of Calixthe Beyala: The renewal of women's writing in sub-Saharan francophone Africa] (Paris: L'Harmattan, 1997).

9 Ricoeur, Paul, Hermeneutics and the Human Sciences: Essays on Language, Action and Interpretation, ed. and trans. Thompson, John B. (Cambridge: Cambridge University Press, 2016), 93Google Scholar.

10 Ricoeur, Hermeneutics and the Human Sciences, 101–06.

11 Abbenyi-Nfah, Juliana Makuchi, Gender in African Women's Writing: Identity, Sexuality, and Difference (Bloomington: Indiana University Press, 1997), 29Google Scholar.

12 Etoke, Nathalie, “Mariama Barry, Ken Bugul, Calixthe Beyala, and the Politics of Female Homoeroticism in sub-Saharan, Francophone African Literature,” Research in African Literatures 40, no. 2 (2009): 173–89CrossRefGoogle Scholar, at 186.

13 Frida Lyonga, “The Homophobic Trinity in Cameroon,” in Chitando and van Klinken, Christianity and Controversies over Homosexuality in Contemporary Africa, 51–64, at 55–56; see also S. N. Nyeck, “Queer Fragility and Christian Social Ethics: A Political Interpolation of the Catholic Church in Cameroon,” in Chitando and van Klinken, Christianity and Controversies over Homosexuality in Contemporary Africa, 110–24, at 113–16; Charles Guebogou, La question homosexuelle en Afrique. Le Cas du Cameroun [The question of homosexuality in Africa: The case of Cameroon] (Paris: L'Harmattan, 2006), 164.

14 Nyeck, “Queer Fragility and Christian Social Ethics,” 113.

15 Ngwa Nfobin, “Homosexuality in Cameroon” 83–84.

16 See, for example, “Thérapie spirituelle contre certains fléaux,” L'Effort Camerounais, March 2–15, 2011.

17 “Thérapie spirituelle contre certains fléaux,” L'Effort Camerounais, March 2–15, 2011, at 2, as quoted in translation by Ngwa Nfobin, “Homosexuality in Cameroon,” 82.

18 See L'Effort Camerounais, No. 527 (154) 068, 23 April–9 May 2012, at 2, as quoted in translation by Ngwa Nfobin, “Homosexuality in Cameroon,” 82–83, 83n41.

19 National Episcopal Conference of Cameroon, “Declaration of the Bishops of Cameroon on Abortion, Same Sex Relations, Incest and Sexual Abuse of Minors,” January 12, 2013, http://www.familiam.org/pcpf/allegati/4561/Declaration_ENG.pdf. The bishops’ declaration does not invite broad conversations on these major issues, and it ignores the distinctions about a woman's right to choose, a person's expression of his or her sexual orientation, and child sexual abuse. In condemning abortion outright, the bishops ignored the arguments that make the case for a woman's right to terminate a pregnancy for a variety of reasons.

20 National Episcopal Conference of Cameroon, “Declaration of the Bishops of Cameroon,” 1.

21 National Episcopal Conference of Cameroon, 3.

22 National Episcopal Conference of Cameroon, 3. (One need only note that differences and complementarities of many kinds beyond sexual ones are found and achieved in interpersonal relations.)

23 National Episcopal Conference of Cameroon, 3.

24 National Episcopal Conference of Cameroon, 4.

25 National Episcopal Conference of Cameroon, 4.

26 National Episcopal Conference of Cameroon, 4.

27 National Episcopal Conference of Cameroon, 4.

28 The extreme position of the bishops has been described by Cameroonian philosopher Achille Mbembe, a leading theorist of postcoloniality, as a one-dimensional religious approach that opposes same-sex relations on three grounds: same-sex relationship reflects demonic power, is a sin against nature, and “is repugnant to right reason, namely applying the genitals to a vessel other than the natural vessel.” Achille Mbembe “The Sexual Potentate: On Sodomy, Fellatio, and Other Postcolonial Privacies,” trans. Andrew S. Brown, in Readings in Sexualities from Africa, ed. Rachel Spronk and Thomas Hendriks (Bloomington: University of Indiana Press, 2020), 296–300, at 296; see also Basile Ndjio, “Post-colonial Histories of Sexuality: The Political Invention of a Libidinal African Straight,” Africa: Journal of the International African Institute 82, no. 4 (2012): 609–31.

29 See Julia Paley, Marketing Democracy: Power and Social Movements in Post-Dictatorship Chile (Berkeley: University of California Press, 2001); Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, 2003); Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton: Princeton University Press, 2005); Harri Englund, Prisoners of Freedom: Human Rights and the African Poor (Berkeley: University of California Press, 2006); Tania Murray Li, The Will to Improve: Governmentality, Development, and the Practice of Politics (Durham: Duke University Press, 2007).

30 “Whoever uses electronic communication devices to make sexual proposal to a person of the same sex shall be punished with imprisonment from 01 (one) to 02 (two) years or a fine of from 500,000 (five hundred thousand) to 1,000,000 (one million) CFA francs or both of such fine and imprisonment.” Cameroon Penal Code, Law No. 2010/012 of 21 December 2010 Relating to Cybersecurity and Cybercriminality in Cameroon, § 83(1).

31 Law No. 2016/007 of 12 July 2016, Relating to the Penal Code, § 347-1, p. 133, https://www.wipo.int/edocs/lexdocs/laws/en/cm/cm014en.pdf. See Human Rights Watch, “Cameroon: Sodomy Law Violates Basic Rights,” May 17, 2011. https://www.hrw.org/news/2011/05/17/cameroon-sodomy-law-violates-basic-rights.

32 The penal code stipulates, “Whoever has sexual relations with a person of the same sex shall be punished with imprisonment from six months to five years and fine of from 20,000 to 200,000 francs.” Quoted in Eddie Bruce-Jones and Lucas Paoli Itaborahy, State-Sponsored Homophobia: A World Survey of Laws Criminalising Same-Sex Sexual Acts between Consenting Adults (Geneva: International Lesbian, Gay, Bisexual, Trans and Intersex Association, 2011), 21, https://www.ecoi.net/en/file/local/1233606/90_1340784424_2011-05-ilga-state-sponsored-homophobia-2011-0.pdf.

33 For further elaboration, see Ngwa Nfobin, “Homosexuality in Cameroon,” 92.

34 Ngwa Nfobin, 92.

35 Robbie Corey-Boulet, “Who Killed Roger Mbede?” Al Jazeera America, March 26, 2011, http://america.aljazeera.com/articles/2015/3/26/who-killed-roger-mbede-gay-rights-cameroon.html.

36 Neela Goshal, “Dispatch: Does Cameroon Support Violence against LGBTI People?” Human Rights Watch, September 12, 2013, https://www.hrw.org/news/2013/09/12/dispatch-does-cameroon-support-violence-against-lgbti-people.

37 Corey-Boulet, “Who Killed Roger Mbede?”

38 Goshal, “Dispatch.”

39 “Gay Man's 3-Year Sentence Upheld by Cameroon Court,” New York Times, December 12, 2018, https://www.nytimes.com/2012/12/18/world/africa/gay-mans-3-year-sentence-is-upheld-by-cameroon-court.html.

40 “Cameroon: UN Concerned over Reports of Arrests of Suspected Gay and Lesbian People,” UN News, November 16, 2012, https://news.un.org/en/story/2012/11/425812-cameroon-un-concerned-over-reports-arrests-suspected-gay-and-lesbian-people.

41 “Gay Man's 3-Year Sentence Upheld by Cameroon Court”; see also Corey-Boulet, “Who Killed Roger Mbede?”

42 Corey-Boulet, “Who Killed Roger Mbede?”

43 Udombana, Nsongurua J., “Interpreting Rights Globally: Courts and Constitutional Rights in Emerging Democracies,” African Human Rights Law Journal 5, no. 1 (2005): 47–69, at 56Google Scholar.

44 Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC) at 86 (S. Afr.) [hereafter Fourie Constitutional Court decision].

45 Newton, David E., Same-Sex Marriage: A Reference Handbook (Santa Barbara: ABC-CLIO, 2010), 93Google Scholar.

46 Fourie Constitutional Court decision, at paragraph 1.

47 Fourie & Another v Minister of Home Affairs and Another (The Lesbian and Gay Equality Project intervening as amicus curiae), 2002 (unreported) (HC) Case No. 17280/02 (S. Afr.) [hereafter Fourie trial court decision].

48 Fourie & Another v Minister of Home Affairs & Others 2005 (3) SA 429 (SCA) at paragraph 4 (S. Afr.) [hereafter Fourie Supreme Court of Appeal decision]; see also Fourie Constitutional Court decision, at paragraph 8.

49 Fourie Constitutional Court decision, at paragraph 13.

50 Fourie Constitutional Court decision, at paragraph 18. In a personal email exchange on June 22, 2020, Professor Nameko B. Pityana of the University of South Africa, a lawyer and former chairperson of the Human Rights Commission of South Africa, wrote, “reading-in in Constitutional Law, is an interpretative technique where the judicial officer reads a text as if such a principle of law as may be implied, and also as if the text reads with the principles that helps to clarify meaning. It is important to state that that is done in extraordinary instances because the law of interpretation always states that the starting point for any interpretation is the express or ordinary meaning of words. However, in cases where the intention of the legislature cannot be intelligently understood except by the technique of ‘reading in’ then the judges will do so.”

51 Fourie Supreme Court of Appeal decision, at paragraphs 50–150.

52 Fourie Supreme Court of Appeal decision, at paragraphs 133–37 (opinion of Judge Farlam).

53 Fourie Supreme Court of Appeal decision, paragraphs 139–50 (opinion of Judge Farlam).

54 Fourie Constitutional Court decision, at paragraph 45.

55 Fourie Constitutional Court decision, at paragraph 46.

56 Fourie Constitutional Court decision, at paragraph 47.

57 Fourie Constitutional Court decision, at paragraph 48.

58 Fourie Constitutional Court decision, at paragraph 49.

59 Fourie Constitutional Court decision, at paragraph 50.

60 Fourie Constitutional Court decision, at paragraph 54, quoting National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC), at paragraph 54.

61 Fourie Constitutional Court decision, at paragraph 59.

62 Fourie Constitutional Court decision, at paragraph 60.

63 See Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) (S. Afr.).

64 Fourie Constitutional Court decision, at paragraphs 63–64.

65 Fourie Constitutional Court decision, at paragraph 71.

66 Fourie Constitutional Court decision, at paragraph 73.

67 South Africa Constitution, 1996, article 9.3, quoted in Fourie Constitutional Court decision, at paragraph 76.

68 Fourie Constitutional Court decision, at paragraph 77.

69 Fourie Constitutional Court decision, at paragraph 162 (see (1)(c)(i) in “The Order”).

70 Fourie Constitutional Court decision, at paragraph 74.

71 Stephen Gray, “Interview: Alice Nkom and Jonathan Cooper on the Future of Criminalisation,” PinkNews, November 18, 2011, https://www.pinknews.co.uk/2011/11/18/interview-alice-nkom-and-jonathan-cooper-on-the-future-of-criminalisation/.

72 “Address by the President of the Republic to the Youths of Cameroon on the Occasion of the 40th National Youth Day, Yaounde, 10 February 2006,” in Churchill Ewumbue-Monono, Youth and Nation-Building in Cameroon: A Study of National Youth Day Messages and Leadership Discourse (1949–2009) (Mankon: Langaa Research and Publishing CIG, 2009), 155–157, at 157.

73 Cameroon Constitution, preamble, principle 4. The preamble to the Constitution of Cameroon, 1972, states, “We, the people of Cameroon, declare that the human person, without distinction as to race, religion, sex or belief possesses, inalienable and sacred rights; Affirm our attachment to the fundamental freedoms enshrined in the Universal Declaration of Human Rights, the Charter of United Nations and The African Charter on Human and Peoples’ Rights, and all duly ratified international conventions relating thereto, in particular, to the following principles” and then lists equal rights and development, protection of minorities, freedom and security, right to settle and move freely, the home as inviolable, absence of compulsion, right to a fair hearing before the courts, among others. Cameroon Constitution, preamble; see also, Cameroon Constitution, Article 1, no. 2 (“The Republic of Cameroon shall be a decentralized unitary State. It shall be one and indivisible, secular, democratic and dedicated to social service. It shall recognize and protect traditional values that conform to democratic principles, human rights, and the law. It shall ensure the equality of all citizens before the law.”).

74 Preamble to the Constitution of Cameroon, 1996 Law No. 96-06 of 18 January to Amend the Constitution of June 1972 [hereafter 1996 Constitutional Amendments].

75 1996 Constitutional Amendments. For discussions of the African System for the Promotion and Protection of Human rights, see Evans, Malcolm and Murray, Rachel, The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Cambridge: Cambridge University Press, 2002)Google Scholar; Murray, Rachel, The African Commission on Human and Peoples’ Rights and International Law (Oxford: Hart Publishing, 2000)Google Scholar; Okafor, Obiora Chinedu, The African Human Rights System: Activist Forces and International Institutions (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar.

76 See above, note 73.

77 Ngwa Nfobin, “Homosexuality in Cameroon,” 94.

78 Ngwa Nfobin, 94–95.

79 Ngwa Nfobin, 96.

80 Ngwa Nfobin and other scholars have discussed this. See Ngwa Nfobin, 97.