Taking steps to legal reform for men who have sex with men in Africa and the Caribbean

We are dealing with two epidemics, the Australian judge Michael Kirby said at a pre-conference meeting on issues for men who have sex with men (MSM) yesterday. The first is the epidemic of HIV and AIDS; the second is the epidemic of prejudice, discrimination and hostility towards sexual minorities.

Justice Kirby described how punitive and discriminatory laws fuel both of these epidemics and explored strategies for law reform. Moreover the law was a key theme running throughout the meeting, organised by the Global Forum on Men who have Sex with Men (MSMGF) in Washington DC, on the eve of Sunday’s official opening of the 19th International AIDS Conference (AIDS 2012).

Studies in recent years have highlighted extremely high infection rates in men who have sex with men in all parts of the world, with prevalence always substantially higher in MSM than in the general population. Reviewing the available data in an edition of The Lancet released in time for the conference, Chris Beyrer and colleagues report that an average of 17.9% of MSM in African studies have HIV, as well as 25.4% of MSM in Caribbean studies and 14.7% of MSM of studies conducted in south and southeast Asia.

Michael Kirby noted that 41 of 54 Commonwealth countries – many in sub-Saharan Africa and the Caribbean – criminalise same-sex sexual activity. Moreover he pointed to the battles over the wording of the United Nations Political Declaration on HIV and AIDS last year, where the mere mention of men who have sex with men was fiercely opposed by numerous African and Arab governments, encouraged by the Vatican and the International Islamic Conference.

Nigeria, where the activist Joseph Akoro works, is one of the Commonwealth countries that criminalises sex between men. At the same time, the National AIDS Secretariat (a government agency) supports work with men who have sex with men, who are considered a ‘most at-risk population’ (MARP). But given the legal context and the social stigma that it encourages, he said it is extremely hard to implement HIV prevention programmes.

Akoro’s research with MSM showed that they did not access health services that are supposedly open to them, due to the homophobic attitudes of staff, the illegality of homosexual behaviour and men’s internalised stigma.

“Our task was to look at those laws which help the struggle against HIV and those which hinder the struggle." Justice Michael Kirby

Two weeks ago the Global Commission on HIV and the Law issued its main report. Compiled by a group of statesman, experts and activists – including Michael Kirby – the report addresses a number of areas, including the criminalisation of HIV exposure and transmission, intellectual property laws and the rights of a number of social groups who are at elevated risk of HIV infection.

“Our task was to look at those laws which help the struggle against HIV and those which hinder the struggle,” Kirby said. The report makes recommendations to governments on law reform, and Kirby urged that activists use it as an advocacy tool to guide legal change in their countries.

The Global Commission recommends:

• decriminalisation of homosexual behaviour and identity;
• implementation of existing laws relating to privacy;
• removal of legal barriers to forming community organisations;
• anti-discrimination laws which specifically mention sexual orientation; and
• measures to prevent violence against MSM.

Also speaking at the MSMGF event, Mandeep Dhaliwal, who was a member of the Global Commission’s Technical Advisory Group, noted that removing and reforming discriminatory laws from the statute book is just one aspect of creating safer legal environments for men who have sex with men.

Also important is working with the police and other law enforcement agencies so that they provide the same protection to MSM as other citizens and do not themselves harass and mistreat minorities. And it remains essential to improve access to justice – in other words, men’s understanding of legal protections and access to legal professionals.

An inspiring example for many speakers is the new president of Malawi, Joyce Banda, who announced in May her intention to repeal the country’s colonial-era laws on ‘indecency and unnatural acts’.

Joseph Akoro said that “it’s a very lonely place” for a high-level politician who speaks out on this issue. He warned that the process of repealing the laws will take time and will require the involvement and support of other constituencies, such as legislators, the media, lawyers, doctors and the church.

The rights of MSM should be embedded in a discussion of human right protections for all.

While decriminalisation is his goal in Nigeria, he said that this has to be done in steps – at present his focus is on building a movement and planning advocacy.

Kene Esom and Joel Nana of African Men for Sexual Health and Rights (AMSHR) said that building such an alliance is possible if advocates for men who have sex with men work in alliance with other human rights advocates. Rather than isolating the MSM issue, it should be embedded in a discussion of human right protections for all, on the basis of being a citizen and human.

But statements from Hillary Clinton on lesbian, gay, bisexual and transgender (LGBT) rights being a foreign policy priority and from David Cameron on suspension of aid to governments which do not respect these rights have been counter-productive.

“I don’t want LGBT rights to be seen as foreign or a northern imposition,” Joel Nana said. There was a danger of being seen as “the special child of Obama” he said.

The Jamaican activist Maurice Tomlinson described his work towards law reform in Jamaica. There is progress there – in the run-up to her recent election, the prime minister Portia Simpson-Miller spoke out against legal discrimination and suggested a review of the country’s buggery laws.

But homophobia remains deeply entrenched. Maurice Tomlinson himself was forced to flee the country in January of this year following a series of death threats, many following the publication in Jamaican newspapers – against Tomlinson’s will – of details of his marriage to a man in Canada. A series of police officials did not investigate the death threats or provide personal protection.

“MSM are viewed as unapprehended criminals by police,” he said. “When we have instances of abuse, they refuse to respond.”

Due to a legal loophole, there is no possibility for a citizen to challenge the law criminalising same-sex activity in a Jamaican court. But Tomlinson and his organisation, AIDS Free World, are involved in a legal challenge to the laws at the Inter-American Commission on Human Rights. The lawyers argue that by criminalising homosexuality under its constitution, Jamaica is in violation of international human rights law.

While this commission can only issue a non-binding recommendation, previous recommendations have been influential, both with Jamaica and other governments in the region.

But Tomlinson stressed that the legal challenges had to go hand in hand with work to change public attitudes – a lesson he had learnt from the campaign to reform the law in India (as in Jamaica, Nigeria and Malawi, a law first adopted under British colonisation).

"We need to let the public know that it is the intransigence of the government that is causing the epidemic." Maurice Tomlinson

He helped organise a ‘walk for tolerance’, deliberately framed to be about tolerance of all vulnerable populations (although many in the media described it as the country’s first Gay Pride march). A series of small-scale but highly visible ‘stands for tolerance’ has created further occasions for discussion and dialogue.

The focus on tolerance and mutual respect links back to Jamaica’s national motto, “out of many, one people” – a reference to the diversity of cultures which came together to form the nation. Tomlinson noted that the country was not especially homophobic in the 1960s and 1970s. He attributed the problem to 1980s American televangelists such as Jimmy Swaggart, whose themes have since been widely relayed by local pastors and musicians.

AIDS Free World has, after a long struggle, successfully pressurised Coca-Cola and other companies to no longer sponsor concerts of musicians with homophobic lyrics.

Moreover, Tomlinson continues regular interventions with the Jamaican media from his current base in Canada. “We need to start telling our stories,” he said. “If we don’t, we can be assured that the stereotypes will continue.”

He uses these media interventions to explain the link between legal discrimination, social homophobia and an HIV prevalence rate of 32.9% in men who have sex with men (1.6% in the general population).

“We need to let the public know that it is the intransigence of the government that is causing this perpetuation of an epidemic which can be and should be history,” he said.