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UNIVERSITY OF LONDON, SCHOOL OF ADVANCED STUDY
Senate House, Malet Street, London, WC1E 7HU
Enquiries: [email protected]
 Human Rights,
Sexual Orientation and
Gender Identity in
The Commonwealth
Struggles for
Decriminalisation
and Change

Edited by Corinne Lennox and Matthew Waites

Human Rights, Sexual Orientation and
Gender Identity in The Commonwealth:
Struggles for Decriminalisation
and Change

Edited by Corinne Lennox and Matthew Waites

© Human Rights Consortium, Institute of Commonwealth Studies,
School of Advanced Study, University of London, 2013

This book is published under a Creative Commons Attribution-

NonCommercial-NoDerivatives 4.0 International (CC BY-NCND 4.0)
license. More information regarding CC licenses is available at https://
creativecommons.org/licenses/
Available to download free at
http://www.humanities-digital-library.org

ISBN 978-1-912250-13-4 (2018 PDF edition)

DOI 10.14296/518.9781912250134

Institute of Commonwealth Studies

School of Advanced Study
University of London
Senate House
Malet Street
London WC1E 7HU

Cover image: Activists at Pride in Entebbe, Uganda, August 2012. Photo ©

D. David Robinson 2013.
Photo originally published in The Advocate (8 August 2012) with approval
of Sexual Minorities Uganda (SMUG) and Freedom and Roam Uganda
(FARUG). Approval renewed here from SMUG and FARUG, and PRIDE
founder Kasha Jacqueline Nabagesera. Published with direct informed
consent of the main pictured activist.
Contents

Abbreviations vii
Contributors xi
1 Human rights, sexual orientation and gender
identity in the Commonwealth: from history and law
to developing activism and transnational dialogues 1
Corinne Lennox and Matthew Waites
2 The sodomy offence: England’s least lovely criminal
law export? 61
The Hon. Michael Kirby AC CMG
3 This alien legacy: the origins of ‘sodomy’ laws in
British colonialism 83
Human Rights Watch
4 LGBT rights in Commonwealth forums: politics,
pitfalls and progress? 125
Frederick Cowell
5 United Kingdom: confronting criminal histories
and theorising decriminalisation as citizenship and
governmentality 145
Matthew Waites
6 Wolfenden in Canada: within and beyond official
discourse in law reform struggles 183
Gary Kinsman
7 Australia: nine jurisdictions, one long struggle 207
Graham Willett
8 A few respectable steps behind the world? Gay and
lesbian rights in contemporary Singapore 231
Simon Obendorf
9 The Malaysian dilemma: negotiating sexual diversity
in a Muslim-majority Commonwealth state 261
Shanon Shah
iv HUMAN RIGHTS, SEXUAL ORIENTATION AND GENDER IDENTITY

10 Decriminalisation of consensual same-sex sexual

acts in the South Asian Commonwealth: struggles
in contexts 287
Sumit Baudh
11 Decriminalising homosexuality in Africa: lessons
from the South African experience 313
Gustavo Gomes da Costa Santos
12 The development of sexual rights and the LGBT
movement in Botswana 339
Monica Tabengwa with Nancy Nicol
13 The LGBT situation in Malawi: an activist
perspective 359
Undule Mwakasungula
14 The incremental approach: Uganda’s struggle for the
decriminalisation of homosexuality 381
Adrian Jjuuko
15 Religious institutions and actors and religious
attitudes to homosexual rights: South Africa and
Uganda 409
Kevin Ward
16 ‘Buggery’ and the Commonwealth Caribbean: a
comparative examination of the Bahamas, Jamaica,
and Trinidad and Tobago 429
Joseph Gaskins Jr.
17 Beyond cross-cultural sensitivities: international
human rights advocacy and sexuality in Jamaica 455
Conway Blake and Philip Dayle
18 The use of equality and anti-discrimination law in
advancing LGBT rights 479
Dimitrina Petrova
19 Conclusion
Comparative analysis of decriminalisation and
change across the Commonwealth: understanding
contexts and discerning strategies 507
Corinne Lennox and Matthew Waites
Index 549
This book is dedicated to human rights defenders
across the Commonwealth.
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Abbreviations

ABIM Angkatan Belia Islam Malaysia/Malaysian Muslim Youth

Movement
ACDP African Christian Democratic Party
ACT HLRS Australian Capital Territory Homosexual Law Reform
Society
AI Amnesty International
AIDS Acquired Immunodeficiency Syndrome
ALP Australian Labor Party
AMA Australian Medical Association
ANC African National Congress
Arasa AIDS and Rights Alliance for Southern Africa
ASEAN Association of Southeast Asian Nations
ASK Association for Social Knowledge (Canada)
ATR African Traditional Religion
AWARE Association of Women for Action and Research
BBC British Broadcasting Corporation
BDHRL Bureau of Democracy, Human Rights and Labour (USA)
BDP Botswana Democratic Party
BGLAD Bahamian Gays and Lesbians against Discrimination
CAISO Coalition Advocating for Inclusion of Sexual Orientation
CAMP Campaign Against Moral Persecution
CCAP Church of Central Africa Presbyterian
CCRH Canadian Council on Religion and the Homosexual
CEDAW Convention on the Elimination of All Forms of
Discrimination Against Women
CEDEP Centre for the Development of People (Malawi)
CHAAG Commonwealth HIV/AIDS Action Group
CHOGM Commonwealth Heads of Government Meeting
CHOP Committee on Homosexual Offences and Prostitution
(United Kingdom)
CHRI Commonwealth Human Rights Initiative
CHRR Centre for Human Rights and Rehabilitation (Malawi)
CJC Criminal Justice Committee (Australia)
CLA Commonwealth Lawyers Association
viii HUMAN RIGHTS, SEXUAL ORIENTATION AND GENDER IDENTITY

CMAG Commonwealth Ministerial Action Group

CODESA Convention for a Democratic South Africa
COJ Companions On a Journey (Sri Lanka)
CONGOMA Council for NGOs in Malawi
CONTRALESA Congress of Traditional Leaders of South Africa
COU Church of Uganda
COW Committee of the Whole
CPA Centre for Policy Alternatives (Sri Lanka)
CRC Convention on the Rights of the Child
CSCHRCL Civil Society Coalition on Human Rights and
Constitutional Law (Uganda)
CSOs civil society organisations
CVC Caribbean Vulnerable Communities coalition
DAP Democratic Action Party (Malaysia)
DP Democratic Party (South Africa)
DRC Dutch Reformed Church
ECC End Conscription Campaign (South Africa)
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ECJ European Court of Justice
EPG Eminent Persons Group (Commonwealth)
ERT Equal Rights Trust
FARUG Freedom and Roam Uganda
FCO Foreign and Commonwealth Office (United Kingdom)
FNM Free National Movement (Bahamas)
FOL Festival of Light
GALCK Gay and Lesbian Coalition of Kenya
GASA Gay Association of South Africa
GFM Gay Freedom Movement (Jamaica)
GLAAD Gay and Lesbian Alliance Against Defamation (United
States)
GLOW Gay and Lesbian Organisation of the Witwatersrand
(South Africa)
GLRG Gay Law Reform Group of Western Australia
GRL Gay Rights Lobby
HALO Homophobic Activists Liberation Organisation
HEL Homosexual Electoral Lobby
HIV Human Immunodeficiency Virus
HLRC Homosexual Law Reform Coalition (Australia)
HLRS Homosexual Law Reform Society (United Kingdom;
Australia)
HOCA Horizon Community Association (Rwanda)
Hope TEA Hope Through Education and Awareness
 ABBREVIATIONS ix

HRC Human Rights Committee

HRS Homophile Reform Society (Canada)
HSSP III Health Sector Strategic Plan III (Uganda)
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural
Rights
IDAHO International Day Against Homophobia and Transphobia
IFP Inkhata Freedom Party (South Africa)
IGLHRC International Gay and Lesbian Human Rights Commission
ILGA International Lesbian, Gay, Bisexual, Trans and Intersex
Association
IPC Indian Penal Code
IRF Islamic Renaissance Front (Malaysia)
J-FLAG Jamaica Forum for Lesbians, All-Sexuals and Gays
JIM Jamaah Islah Malaysia/Malaysian Reform Movement
LCL Liberal Country League (Australia)
LeGaBiBo Lesbians, Gays and Bisexuals of Botswana
LGBT lesbian, gay, bisexual and transgender
LGBTI lesbian, gay, bisexual, transgender and intersex
MARPs Most at Risk Populations
MHRC Malawi Human Rights Commission
MHRRC Malawi Human Rights Resource Centre
MPNF Multiparty Negotiating Forum (South Africa)
MSM men who have sex with men
NACHO North American Conference of Homophile Organizations
NACO National AIDS Control Organisation (India)
NCGLE National Coalition for Gay and Lesbian Equality (South
Africa)
NGK Nederduits Gereformeerde Kerk/Dutch Reformed Church
(South Africa)
NGOs non-governmental organisations
NHRIs National Human Rights Institutions
NLRF National Law Reform Fund (South Africa)
NP National Party (South Africa)
NSW New South Wales (Australia)
OAS Organisation of American States
OHCHR Office of the United Nations High Commissioner for
Human Rights
OIC Organisation of Islamic Cooperation
OLGA Organisation of Lesbian and Gay Activists (South Africa)
PAP People’s Action Party (Singapore)
PAS Parti Islam Se-Malaysia/Islamic Party of Malaysia
(Malaysia)
x HUMAN RIGHTS, SEXUAL ORIENTATION AND GENDER IDENTITY

PEMBELA Muslim Organisations in Defence of Islam (Malaysia)

PKR Parti Keadilan Rakyat/People’s Justice Party (Malaysia)
PLP Progressive Liberal Party (Bahamas)
QAGLR Queensland Association for Gay Law Reform (Australia)
QPC Queensland Penal Code (Australia)
RAB Rainbow Alliance of the Bahamas
RCC Roman Catholic Church
RCMP Royal Canadian Mounted Police
RTPC Right To Privacy Committee (Canada)
SADF South African Defence Force
SAHRA South Asian Human Rights Association for Marginalised
Sexualities and Genders
SGL same gender loving
SMUG Sexual Minorities Uganda
SOLM Senior Officials of the Law Ministries (Commonwealth)
SUARAM Suara Rakyat Malaysia/Malaysian People’s Voice (Malaysia)
TGLRG Tasmanian Gay Law Reform Group (Australia)
UDF United Democratic Front (south Africa)
UDHR Universal Declaration of Human Rights
UHSPA Uganda Health and Science Press Association
UMNO United Malays National Organisation
UNDP United Nations Development Programme
UNHCHR United Nations High Commissioner for Human Rights
UNHCR United Nations High Commissioner for Refugees
UNIBAM United Belize Advocacy Movement
UPR Universal Periodic Review
WHO World Health Organization
WSG Women’s Support Group (Sri Lanka)
Contributors

Sumit Baudh is an assistant professor and assistant director of the Centre

for the Study of Social Exclusion and Inclusive Policy at the National Law
School of India University (NLSIU), Bangalore. He earned his Master of Laws
from the London School of Economics, and Bachelor of Laws and Arts from
NLSIU, Bangalore. He is a former British Chevening scholar. He is qualified
to practice law in two jurisdictions, India and the United Kingdom: Advocate,
Bar Council of Delhi and Solicitor n.p., England and Wales. He has served as
legal advisor, researcher and consultant to various international organisations
including United Nations Development Programme (UNDP), CARE India,
Commonwealth Human Rights Initiative, AMAN Trust, and Unilever. In
addition to his legal work, Mr Baudh has also published several academic
articles and given scholarly presentations at conferences internationally.
His areas of interest include caste, gender, sexuality and human rights. He
regularly volunteers his expertise and time to advocate for social justice causes
and has worked extensively with Voice Against 377 to fight against structural
inequalities with the Indian Criminal Justice system.

Conway Blake is a solicitor of the Superior Courts in England and Wales.

His main areas of practice are public international law and international
dispute settlement. He has been involved in a number of human rights cases in
Asia, Africa, the Commonwealth Caribbean and before international human
rights tribunals. He has also served as legal consultant to NGOs on issues of
international human rights law and litigation strategy. He is a former lecturer
in international human rights law at King’s College, University of London, and
former Visiting Scholar at the Centre for Human Rights and Global Justice
at the NYU School of Law. He holds a PhD and master’s in international law
from the University of Cambridge and a Bachelor of Law from the University
of the West Indies.

Frederick Cowell worked for the Commonwealth Human Rights Initiative

(CHRI) as the head of the London office and later as a legal advisor and
researcher. During this time he led CHRI’s work on the decriminalisation
of sexual orientation in the Commonwealth and has written widely on the
subject. He is currently completing his PhD specialising in the postcolonial
xii HUMAN RIGHTS, SEXUAL ORIENTATION AND GENDER IDENTITY

politics of Supranational Human Rights Organisations, has published widely

on international human rights law and has taught constitutional and human
rights law at three different universities.

Philip Dayle is a barrister based in London, UK. He is a trustee of the Human

Dignity Trust. He was a Romulo Gallegos Fellow at the Inter-American
Commission on Human Rights in Washington D.C. and worked also as a
Legal Officer with the International Commission of Jurists (ICJ) in Geneva.
He writes frequently about issues at the intersection of race, sexual orientation,
health (especially HIV) and human rights. He holds an LLM in International
Human Rights Law from the University of Essex and an LLB from the
University of the West Indies.

Joseph Gaskins Jr. is a graduate of Ithaca College, Ithaca, NY with a BA in

Politics. He was born in Grand Bahama Island. He has also studied at the
London School of Economics and Political Science (LSE) where he attained
his MSc in Race, Ethnicity and Post-Colonial Studies and has begun his PhD
studies in Sociology. He spent four years working for the Human Rights
Campaign, based in Washington D.C., in their diversity department and college
outreach programs. He lives in Nassau and is a part-time lecturer at College of
the Bahamas. He also writes for the Bahamas Weekly, Nassau Liberal and The
Tribune. He has spoken on political and social issues in the United States, the
Caribbean and the United Kingdom.

Gustavo Gomes da Costa Santos is professor of sociology at the Federal

University of Pernambuco (Recife, Brazil). His PhD dissertation analyses the
struggles for legal recognition of same-sex unions in Brazil and South Africa. In
2010 he completed a graduate internship at Stellenbosch University in South
Africa. His research has focused on the field of citizenship, sexuality, same-sex
conjugality, AIDS and the State in Africa and Latin America. His recent articles
were on the struggle for legal recognition of same-sex couples in South Africa
and on the politics of AIDS in Brazil and South Africa.

Adrian Jjuuko is a Ugandan human rights lawyer and advocate. He is the

executive director of Human Rights Awareness and Promotion Forum
(HRAPF), a human rights NGO providing legal aid services to marginalised
groups in Uganda. He was coordinator of the Civil Society Coalition on
Human Rights and Constitutional Law Uganda (2010–11), which won the US
State Department’s Human Rights Defenders Award 2011 for its struggles to
oppose the Anti Homosexuality Bill in Uganda. Adrian led the team of lawyers
and other professionals that testified before the Legal and Parliamentary Affairs
Committee of Parliament about the Anti Homosexuality Bill in May 2011 and
was instrumental in the successful prosecution of the case of Kasha Jacqueline
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