Dr Cristiano d’Orsi is a Senior Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg.
South Sudan is the newest universally recognized country internationally, which declared independence on July 9, 2011. Born from the ashes of a conflict with its now northern neighbour of Sudan, South Sudan initially made enormous strides given the goodwill of its people and the international community that wanted it to succeed. However, its post-independence history has not been peaceful, with its governance that has even been defined as a ‘kleptocracy’ (at 6). Against this backdrop, since 2012, its first full year of independence, human rights violations recorded in the country were massive. The following civil war did not improve the situation of respect of human rights in the country. Yet, in this framework, it is not surprising to ascertain the treatment often reserved to lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.
South Sudan is a predominantly Christian country where the highly revered religious leaders many times have publicly stated that marriage should be strictly between men and women. When the topic of same-sex relationships has attracted public discussion, Christian leaders have simply denounced it as a “perversion”. Homophobic discrimination seems to be worrying above all in the Episcopal Church. This religious stance finds a strong supporter in President Salva Kiir Mayardit that, even before independence, in 2010, affirmed that LGBTI recognition is not in the “character” of South Sudanese people. He also added that homosexuality does not exist in South Sudan and if anybody wants to import/export it to South Sudan, this action “will always be condemned by everybody”. Before him, back in 2004, Aleu Akechak Jok, an appellate court judge from South Sudan (then still part of Sudan) affirmed that in South Sudan, if men are found guilty of having consensual sex with one another they will be killed by firing squad.
In spite of this, ethnographic studies have proved that, in ancient times, the practice of having “female husbands” was widely accepted among the Nuer while Zande people, both men and women, engaged in same-sex relations without any major problem. The evidence ranges from chiefs engaging in sexual relationships with youths, who were considered “disease-free” to the general acceptance of same-sex engagements. Nuer and Zande are two of the ethnic groups present in South Sudan (Thabo Msibi, ‘The Lies We Have Been Told: On (Homo) Sexuality in Africa’, Africa Today, 2011 at 65-66 and 89). Murray and Roscoe also mentions the presence of “female husbands” among the Dinka and the Shilluk (at 253). In 2012, Sudan’s first online gay magazine named “Rainbow Sudan” became available. This primarily points out the situation within the Republic of Sudan but occasionally refers to LGBTI issues in South Sudan, as well.
Yet, contemporary times present an all too different story. In 2008, the autonomous Government of Southern Sudan adopted its own Penal Code, which prohibits “carnal intercourse against the order of nature” punishable with a fine and sentence not exceeding ten years detention if there is consent and not exceeding fourteen years if consent is absent (Section 248 “Unnatural Offences”). Section 249 (“Acts of Gross Indecency”) is also significant to outlaw LGBTI individuals as well as Section 379(e) (“Vagabond”) criminalising “any male person who dresses or is attired in the fashion of a woman”. This last section can be used above all to target transgender persons. To mitigate these sections, according to the Code of Criminal Procedure Act, a person accused of an offence punishable with imprisonment for a term not exceeding ten years can be released on bail (Section 127(2) (“When Bail may be Taken in respect of Non-Bailable Offences”).
Along the same lines of the Penal Code, the 2011 Passports and Immigration Act, Section 15(5) (“Refusal or Cancellation of Visa”) states that a visa shall not be granted to an alien who “is reasonably suspected to be entering South Sudan for the purposes of prostitution, homosexuality, lesbianism or human trafficking”. The 2011 Constitution is also clear in promoting solely heterosexual relations. Article 15 (“Right to found a Family”) concedes that in the country there is a right to marry exclusively “a person of the opposite sex and to found a family”. Consistently with these provisions, when during the United Nations Universal Periodic Review (Second Cycle: 2016-2017) Uruguay recommended (No. 128.33) to repeal Penal Code provisions criminalizing sexual relations between consenting adults of the same sex, the South Sudanese Government simply responded that that recommendation was “in conflict with South Sudan customs and beliefs as such cannot be supported”.
In 2017, the US Department of State Country Report on Human Rights for South Sudan found that there had been no information of the authorities enforcing the restrictive laws in recent years. Nevertheless, for example, in the 2020 edition of the same document, LGBTI persons reported security forces regularly harassed and sometimes detained, tortured, and beat them. Because of actively hostile government rhetoric and actions, most openly LGBTI citizens fled/are fleeing the country. Yet, many of them have fled to Kenya and relocated in Kakuma Refugee Camp, where they are still attacked.
In this unfavourable scenario for LGBTI communities, South Sudan is also assisted by the fact that the three sub-regional organizations it is a part of have been until now completely silent on the subject of the homo/trans/intersexuality. The Common Market for Eastern and Southern Africa (COMESA: South Sudan joined in May 2016), the Intergovernmental Authority on Development (IGAD, which played an important role in the peace talks during the civil war in the country: South Sudan joined in November 2011) and the East African Community (EAC: South Sudan joined in April 2016) until now never have adopted any document dealing with the situation of the LGBTI communities in the area.
The African Commission on Human and Peoples’ Rights (ACHPR) in May 2014 adopted a resolution (ACHPR/Res.275(LV)2014) condemning violence based on sexual orientation and gender identity. The resolution calls on “State parties [to the African Union: South Sudan joined in July 2011] to ensure that human rights defenders were able to work in an environment free from stigma, reprisals or criminal prosecution as a result of their human rights protection activities”. In addition, States were urged to no longer tolerate acts of violence and abuse by adopting laws to prohibit and punish these forms of violence directed toward people because of their sexual orientation and gender identity. States were also advised to investigate and prosecute perpetrators of violence and have the necessary judicial means to support victims. Useless to add that this resolution remained a dead letter in South Sudan, because the limits of the African human rights body are evident in how member states default on implementing its decisions.
The interesting thing is that, by this time, instead of the African Union (AU) positively influencing states in dealing with LGBTI matters in a more progressive way, the AU seemed to take retrograde steps. The ACHPR granted observer status to the Coalition of African Lesbians (CAL) in May 2015. However, at the 2018 Addis Ababa Summit, the AU Executive Council was concerned (EX.CL/1058(XXXII)) about the non-implementation of its decision of June 2015 (EX.CL/Dec.887(XXVII)) on the withdrawal of the observer status of the CAL and requested the ACHPR to comply with that decision. The ACHPR finally stripped the CAL of its observer status on August 8, 2018 because the CAL was attempting “to impose values contrary to the African values” (EX.CL/Dec.887(XXVII)) para 7. In June 2018, the AU Executive Council had requested that the ACHPR would withdraw the accreditation of the CAL by 31st December 2018, at the latest. (EX.CL/Dec.1015(XXXIII)) para 8(vii). At first, the ACHPR tried to resist to the pressures received by the Executive Council, above all scrutinizing “[t]he notion of “African values” within the framework of its mandate to interpret the African Charter” (ACHPR, 43rd Activity Report, para. 51(d)) but it was finally obliged to yield to pressures.
These decisions revive the debate around homosexuality in Africa because, by referring to African values and traditions, the AU Executive Council seems to put emphasis on the idea that homosexuality is an import from the “West” that goes against African traditions, although we have seen that this idea is historically not true. In converse, evidence suggests that it was the historical processes of colonization and missionization, which regularly altered African sexual practice, including same-sex relations (Deborah P. Amory, 1997, at 5). As such, it cannot be a surprise to find out that LGBTI communities are struggling to affirm their status and their rights in South Sudan, like in many other African countries.