The use of strategic litigation via the courts of law to stimulate social change in Common Law Africa in respect of the manifestly controversial issue of equality for lesbian, gay, and bisexual (LGB) persons is on the rise. Paradoxically, such development is taking place against the backdrop of active homophobia in a majority of these countries. In this book, 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 that heterosexuals are treated. In the past twenty three years (1997-2019), a total of 33 strategic cases have been filed by LGB activists in Common Law Africa, namely Botswana, Kenya, Malawi, Nigeria, South Africa, and Uganda. The majority of these cases (20) have been successful. These victories have resulted in legal change in favour of LGB persons, especially in South Africa and Botswana. At the same time, these legal changes have thus far not led to significant social change in any of the countries. Instead, there has been active backlash, counter-mobilisation, and relatively high levels of violence against LGB persons in all five of the mentioned countries. There has also been a trend in Common Law Africa towards the expanded criminalisation of same-sex relations and constitutionalised prohibitions of same-sex marriages. Each country has its own experiences with social change, which often do not seem to rhyme with court victories. This book asserts that Common Law African countries are not inherently homophobic and thus unable to achieve significant social change, but rather that a diversity of factors determine the extent to which LGB strategic litigation is likely to lead to significant social change in situations of active homophobia. 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 strategic litigation than endogenous factors (i.e. issues related to the particular litigated case such as the nature of organising and the nature of strategy adopted, as well as lawyers enagged). It is thus clear that however well-organised and successful a strategic case is, it would do little to contribute to social change if the exogenous factors do not align. This book argues that activists in Common Law Africa have to design LGB strategic litigation in such a way as to fit with the exogenous conditions in their countries if strategic litigation 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.

Share this out

Author Adrian Jjuuko

Dr. Adrian Jjuuko is a Ugandan human rights lawyer, researcher and consultant. He is the founder and Executive Director of Human Rights Awareness and Promotion Forum (HRAPF). HRAPF operates the first and only specialised legal aid clinic for marginalized persons in Uganda, and has been instrumental in carrying out advocacy and strategic litigation against laws that violate or threaten the rights of LGBTI persons and other minorities in Uganda. He holds an LLD from the University of Pretoria, and his research LLD thesis is titled ‘Beyond court victories: Using strategic litigation to stimulate social change in favour of lesbian, gay, and bisexual persons in Common Law Africa.’ He also holds an LLM in Human Rights and Democratisation in Africa from the University of Pretoria, an LLB from Makerere University Kampala, Uganda, and a postgraduate Diploma in Legal Practice from the Law Development Centre, Kampala. He is an author of three books, five journal articles and a contributor to an encyclopedia. He has delivered talks/lectures on his work at leading universities around the world, including Harvard Law School, University of Pretoria, University of Toronto and University of Bergen. He is a consultant facilitator at human rights trainings. His research interests are in the areas of: LGBTI rights, democracy and human rights, the right to health, and children’s rights.