Beyond court victories : using strategic litigation to stimulate social change in favour of lesbian, gay and bisexual persons in common law Africa

Abstract

The use of strategic litigation (SL) to stimulate social change in Common Law Africa in respect of the manifestly controversial issue of equality for lesbian, gay, and bisexual (LGB) persons in countries that experience active homophobia is on the rise. In this thesis, the desired social change is understood as bringing about a situation where both the law and the general public treat LGB persons in the same way as heterosexuals. In the past two decades (1998-2018) there have been 26 cases litigating on LGB rights in Botswana, Kenya, South Africa, and Uganda, the four selected Common Law African study countries. Of these, at least 17 have been successful in court. These victories have seen legal change taking place in favour of LGB persons, especially in South Africa. However, these legal changes have so far not led to significant social change. There is also active backlash, counter mobilisation, and relatively high levels of violence against LGB persons in all the different countries. There has also been a trend in the selected Common Law countries in Africa towards expanded criminalisation of same-sex relations and constitutionalised prohibitions of same-sex marriages. However, experiences from the selected Common Law countries outside Africa – Belize, Canada, Nepal and the United States of America (USA) – show that social change is possible – even in situations of active homophobia. While LGB SL in Canada has achieved significant social change, and has in the USA led to meaningful progress, LGB persons in Nepal and Belize are more or less in the same position as their counterparts in the selected Common Law African countries. These similarities and differences point to the role of a diversity of factors that determine the extent to which LGB SL is likely to lead to significant social change, and refute claims of African exceptionalism. The study finds that exogenous factors (contextual circumstances outside the control of litigants), in particular the state of democracy, the level of judicial independence, the nature of the economic system, the level of economic development, and the social-religious conditions in the country are better predictors of social change through LGB SL than endogenous factors (issues related to the particular litigated cases). The study posits that activists in Common Law Africa have to design LGB SL in a way that fits with the exogenous conditions in their countries if SL is to spur social change. It concludes by identifying the key factors that need to be taken into account as LGB litigation strategies are being designed and developed.