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.
