Legislating exclusion: Human rights implications of criminalizing same-sex relations in Africa with specific reference to Uganda,Nigeria,Tanzania and Ghana

Introduction

Same-sex relations are illegal in 33 out of 55 African countries. ¹ In most of those countries, such relations are punishable by imprisonment and in some by death. ² In these countries, laws criminalizing same-sex relations continue to infringe upon fundamental human rights. Rooted in colonial-era penal codes and reinforced by cultural and religious conservatism, these laws subject LGBTQI+ (lesbian, gay, bisexual, transgender, queer, intersex and more) individuals to legal persecution, social exclusion, and violence. Despite international human rights frameworks advocating for equality and non-discrimination, governments in several African nations have intensified legislative measures against same-sex relations. This criminalisation not only contravenes universal human rights principles but also exacerbates stigma, restricts access to healthcare, and undermines democratic freedoms.

This article focuses on Uganda, Nigeria, Tanzania, and Ghana. These countries have been selected for this study because they represent some of the most prominent and recent examples of African countries where legislation criminalizing same-sex relations has intensified amid growing political and societal debates. The four countries have not only retained colonial-era anti-LGBTQI + laws but have, in some instances, expanded them in ways that heighten criminal penalties, legitimize discrimination, and curtail basic rights such as freedom of expression, association, and privacy. Uganda’s 2023 Anti-Homosexuality Act imposes draconian penalties, including life imprisonment and the death penalty in certain cases. Nigeria’s Same-Sex Marriage (Prohibition) Act of 2014 criminalizes not only same-sex unions but also LGBTQI + advocacy. In Tanzania, same-sex acts are punishable by up to 30 years to life in prison and crackdowns on LGBTQI + people include forced anal examinations and mass arrests. Meanwhile, Ghana has proposed the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, which seeks to impose harsh sentences on LGBTQI + individuals and their allies. These countries represent a spectrum of legal, political, and social conditions that illustrate the broader trend of exclusionary legislation across the continent. Their selection, therefore, allows for a comparative exploration of the human rights implications of criminalization within diverse legal, political, and cultural contexts.

The article begins by providing a historical overview of the legal foundations of same-sex criminalisation in Africa, tracing colonial influences and post-independence legislative developments. The article then presents a case study analysis of Uganda, Nigeria, Tanzania, and Ghana, examining recent trends in the criminalisation of same-sex relations. This is followed by a discussion on the human rights implications of these laws, focusing on violations of international legal standards and domestic constitutional obligations. The article then explores the role of regional, international and other actors, suggests potential strategies for legal and policy reform, and concludes with a call for a more inclusive and human rights-based approach to decriminalisation of same sex relations in Africa.

Methodology

This study adopts a qualitative, doctrinal and comparative legal research methodology, supplemented by a human rights-based analytical framework. It undertakes a systematic analysis of constitutional provisions, penal codes, special legislation, parliamentary bills, and reported judicial decisions relating to the criminalisation of same-sex relations in Uganda, Nigeria, Tanzania, and Ghana. These four countries were purposively selected using clear criteria: (i) recent legislative or policy intensification targeting same-sex relations; (ii) severity of criminal sanctions, including imprisonment and related enforcement practices; (iii) availability and accessibility of legal and judicial materials; and (iv) their representativeness of different political and religious contexts within Anglophone sub-Saharan Africa. While these states share a British colonial legal heritage, this was deliberately retained to allow controlled comparison of post-colonial legal divergence within a common legal tradition.

The exclusion of Francophone, Lusophone, and North African jurisdictions is a deliberate methodological choice aimed at maintaining analytical coherence. By focusing on Anglophone sub-Saharan African states with a shared British colonial legal heritage, the study enables a controlled comparison of how similar inherited legal frameworks have diverged in response to contemporary political, religious, and institutional pressures. Including jurisdictions shaped by civil law traditions, Islamic legal systems, or hybrid constitutional orders would introduce significant doctrinal and historical variability beyond the scope of this article. Accordingly, the findings are not presented as continent-wide generalisations, but as illustrative of criminalisation dynamics within a specific legal and historical context, while recognising the need for future research extending the analysis to other African legal traditions.

The study relies on primary legal sources (constitutions, statutes, bills, and case law) and secondary sources (peer-reviewed journal articles, reports by UN treaty bodies, the African Commission on Human and Peoples’ Rights, and reputable international human rights organisations). The period covered is 2000 – 2025, capturing contemporary legislative and judicial developments.

The analysis is guided by international human rights standards, particularly the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights, to identify patterns of legal exclusion and their implications for dignity, equality, privacy, and freedom of expression. In applying a human rights-based approach (HRBA), the analysis also considers core principles of participation, accountability, non-discrimination and equality, transparency and access to remedies, assessing how state laws and practices in each case study undermine these principles in relation to LGBTQI + persons. Limitations include uneven access to court decisions, language constraints, and the contextual specificity of findings, which may limit their generalisability beyond the selected jurisdictions.

Historical context of criminalization: Colonial legacies and post-colonial legal developments

There is no shortage of literature on the historical context of the criminalisation of same-sex relations in Africa. All commentators agree that such criminalization is deeply rooted in the continent’s colonial history. ³ Prior to European colonisation, African societies exhibited diverse attitudes towards same-sex relations and gender nonconformity, with some cultures recognizing and even integrating non-heteronormative identities into social and religious structures. However, the introduction of European legal systems radically altered these dynamics. During the colonial period, European powers, particularly Britain, France, Portugal, and Belgium, imposed their legal frameworks on African territories. The British colonial administration, through laws such as the Indian Penal Code (1860) and its derivative, the Criminal Code Ordinance, introduced statutes criminalizing ‘carnal knowledge against the order of nature.’ These provisions, reflected in Section 377 of British colonial law, became the foundation for anti-LGBTQI + legislation in many African nations. Similarly, French and Portuguese colonial administrations imposed their own moral codes, often influenced by Catholic doctrine, which condemned same-sex relations. These legal frameworks institutionalized the criminalization of LGBTQI + identities and established a legal tradition that outlived colonial rule.

According to Kasa, colonial powers imposed laws that criminalised same-sex relations, which have been retained in many African countries post-independence. ⁴ Kasa further opines:

Due to colonial influence, the imposition of heteronormative gender and sexuality frameworks resulted in the marginalisation of queer identities in African civilisations, which were then referred to as settler sexuality and branded unAfrican. ⁵

And according to Amusan, Saka and Adeyeke, ‘[a]cross sub-Sahara Africa, remnants of colonial anti-sodomy law have been incorporated into penal codes in the many countries that prescribe punishments for homosexual acts’. ⁶ This is because following independence, many African nations retained colonial-era penal codes with little modification, maintaining provisions that criminalized same-sex relations. This retention was often justified by appeals to ‘African traditions’ and ‘moral values,’ despite the historical evidence of diverse pre-colonial understandings of sexuality and gender.

In the late 20th and early 21st centuries, some African nations intensified these colonial-era laws, introducing more punitive measures against LGBTQI + individuals. Countries such as Uganda, Nigeria, Tanzania and Ghana have enacted stringent legislation, including harsh penalties for same-sex relations and even prohibitions on LGBTQI + advocacy. The 2014 Nigerian Same-Sex Marriage (Prohibition) Act, for instance, not only criminalized same-sex unions but also penalized participation in LGBTQI + organizations and public expressions of same-sex affection. Uganda’s Anti-Homosexuality Act of 2023 introduced severe penalties, including life imprisonment and, in some cases, the death penalty for ‘aggravated homosexuality.’

Conversely, however, a few African countries have begun to repeal or reform these laws. South Africa stands out as the most prominent example, having enshrined LGBTQI + rights in its post-apartheid constitution ⁷ thereby formally decriminalising same-sex relations. Other nations, such as Angola, Mozambique, and Botswana, have also made strides in decriminalisation, signalling a slow but significant shift in some parts of the continent.

Despite these developments, the legal landscape remains largely hostile to LGBTQI + individuals in many African nations. Political leaders often frame anti-LGBTQI + legislation as a defence against perceived Western cultural imperialism, further entrenching discriminatory laws. The persistence of these laws underscores the ongoing struggle between colonial legal legacies, post-colonial political dynamics, and evolving human rights standards. It is against that background that recent trends in the criminalisation of same-sex relations in Uganda, Nigeria, Tanzania and Ghana are discussed below.

Recent trends in criminalisation: Case studies

Human rights implications

There is no doubt that the criminalization of same-sex relations has profound and far-reaching consequences on several fundamental human rights – both civil and political and socio-economic. Among the civil and political, the violation of the right to equality and non-discrimination stands out. Criminalizing same-sex relations creates a legal framework that discriminates against LGBTQI + individuals. It denies them equal protection under the law and fosters an environment where they are treated as second-class citizens. Such laws reinforce stigma, exclusion, and systemic inequalities in employment, education, and public life. They are in contravention of the right to equality which is protected by all relevant international human rights instruments such as the Universal Declaration of Human Rights (Articles 1 and 7) and the International Covenant on Civil and Political Rights (Articles 3, 14 and 26). Moreover, the United Nations, through the Human Rights Council has adopted several resolutions that recognise the impact of discrimination against LGBTQI + people. ³⁶

In the specific context of the African continent, the right to equality and non-discrimination is not only protected by the African Charter on Human and Peoples’ Rights (Articles 2 and 3), but it is also enshrined in the constitutions of many African countries. It is interesting to note that the African Commission on Human and Peoples’ Rights (African Commission), which monitors the adherence of member states to the African Charter, has stated that:

Together with equality before the law and equal protection of the law, the principle of non-discrimination provided under article 2 of the Charter provides the foundation for the enjoyment of all human rights …The aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation. ³⁷

The criminalisation of same-sex relations, therefore, institutionalises exclusion, fosters discrimination and violates the right to equality. The same applies to the right to human dignity. A lot has been said and written about the right to dignity. In Purohit and Moore v The Gambia (Purohit case) ³⁸ , the African Commission indicated that ‘[h]uman dignity is an inherent basic right to which all human beings, regardless of their mental capabilities or disabilities as the case may be, are entitled to without discrimination’ (At para. 57). And in Modise v Botswana (African Commission on Human and Peoples’ Rights, Communication No. 97/93), the African Commission stated that exposing a person to ‘personal suffering… offends the dignity of a human being and thus violates Article 5 [of the African Charter]’ (Article 32 which provides for the right to dignity). According to Annika Rudman ‘…personal suffering and indignity can take many forms, as is evident in the context of the realities of homosexual persons, for example in Uganda and Nigeria’. ³⁹ Clearly, therefore, laws criminalizing same-sex relations inherently degrade the dignity of LGBTQI + persons by exposing them to personal suffering and portraying their identities and relations as illegitimate or immoral. They subject individuals to social humiliation, police harassment, arbitrary arrests, and even violence, eroding their sense of self-worth and autonomy.

Criminalising same-sex relations also violates the right to privacy by interfering with individuals’ private and consensual relations. The state, by criminalizing same-sex conduct, overreaches into the personal lives of individuals, contradicting established human rights principles that protect individuals from unwarranted state intrusion. I have argued elsewhere that Uganda’s Anti-Homosexuality Act, ‘violates the right to privacy, as it criminalises consensual sexual conduct between adults in private spaces. The right to privacy is a fundamental human right that protects individuals from unwarranted interference in their personal lives’. ⁴⁰ The same would apply to anti-homosexuality laws in the other countries under discussion – Nigeria, Tanzania, and Ghana.

Criminalization of same-sex relations often suppresses LGBTQI + advocacy and discourse. As such, it violates the rights to freedom of expression, assembly and association. As I have opined elsewhere, ‘freedom of expression is central to issues of human rights, sexual orientation and gender identity. It is also one of the most fundamental rights that individuals can enjoy’. ⁴¹ However, LGBTQI + individuals may fear to speak about their identities, rights, or experiences due to the risk of legal consequences, public backlash, or government persecution. This chilling effect discourages public discussions and movements aimed at equality. In addition to Article 19 of the ICCPR which provides for the right to freedom of expression and assembly and articles 9, 10, and 11 of the ACHPR which guarantee rights of expression, association, and assembly, the constitutions of all the countries under discussion contain provisions that protect these rights (Articles 29 of Uganda, 39(1) and 40 of Nigeria, 18 and 20(1) of Tanzania and 21(1) of Ghana), Anti-homosexuality legislation, therefore, has the effect of violating these countries’ obligations under international law and their own constitutions.

The right to health and access to health care are other important rights for which ant-homosexuality legislation has significant implications. Article 12 of the ICRSCR and Article 16 of the African Charter protect the right to health and obligate state parties to take steps to safeguard the health of its citizens. Under the constitutions of Uganda, Nigeria and Ghana, access to health care is contained in the Objectives and Directive Principles of State Policy which makes it unenforceable. Nevertheless, Objective 20 of Uganda’s Objectives and Directive Principles specifically states that the state shall take all practical measures to ensure the provision of basic medical services to the population whereas section 17(3)(d) of Nigeria’s Constitution – which is under Directive Principles – requires the state to provide adequate medical and health facilities for all persons. In Ghana, the responsibility of the state to provide adequate healthcare facilities in Article 34(2) also falls under the Directive Principles of State Policy. Interestingly, the Tanzanian Constitution does not explicitly state ‘right to health,’ but merely mandates the state, under Article 11(1), to make provisions for the realization of ‘a person’s right to work, to self-education and social welfare at times of old age, sickness or disability and in other cases of incapacity.’ This also appears under ‘Fundamental Objectives and Directive Principles of State Policy.’

Regardless of whether and how, the constitutions of the countries under discussion protect the right to health, criminalization of same-sex relations ‘has adverse effects for the quality, accessibility, acceptability and availability of health services for individuals who identify as lesbian, gay, bisexual, or transgender. ⁴² It also exacerbates health disparities by discouraging LGBTQI + individuals from seeking medical care, particularly sexual and reproductive health services. Fear of discrimination, harassment, or even arrest can prevent them from accessing HIV/AIDS treatment, mental health support, and other essential medical services, leading to poorer health outcomes and a violation of their healthcare rights.

The length and depth of this article do not lend themselves to a detailed discussion of the implications of the criminalisation of same-sex relations on all human rights norms. Suffice to say that in addition to the rights discussed above, criminalisation has significant effects on other rights such as the right to life – when LGBTQI + are killed because of their sexual orientation. It also has significant effects on the right to education – when they are denied access to schools, and the right of access to justice – when legal systems and police officers discriminate against them by refusing to take their complaints seriously. Mention should also be made of the effect on the right to freedom and security which includes prohibition of inhuman and degrading treatment. According to the Human Dignity Trust, anti-homosexuality laws ‘give license to specific and acute abuses against LGBTQI + people, which individually may amount to inhuman and degrading treatment’. ⁴³ One examples of such abuses is forced anal examinations of LGBTQI + individuals while in police custody.

It should be noted that experiences of criminalisation are not uniform within LGBTQI + communities but are shaped by intersectional factors including gender, socio-economic status, religion, geography, and gender identity. For example, in Nigeria, transgender women have reported heightened vulnerability to police harassment, arbitrary arrest, and housing discrimination because their gender expression makes them more visible targets of enforcement under anti-homosexuality laws, whereas cisgender gay men may more easily avoid detection by conforming to socially expected gender norms. ⁴⁴ Similarly, transgender and gender-nonconforming persons, young people, and those from poorer or rural communities face heightened risks of violence, arrest, and exclusion, while individuals with greater economic or social capital are more likely to avoid detection or access protection. Religious context and local moral surveillance further intensify vulnerability in specific settings. Recognising these layered forms of marginalisation is essential for understanding the human rights implications of the criminalisation of same-sex relations. It is against that backdrop that we proceed to look at the role that regional and international interventions can play and strategies for legal and policy reform.

The role of regional, international and other actors

The criminalization of same-sex relations in Uganda, Nigeria, Tanzania, and Ghana has elicited significant responses from regional and international actors, reflecting broader concerns about human rights violations and state sovereignty. These interventions take various forms, including diplomatic pressure, economic sanctions, judicial rulings, and advocacy by international human rights organizations.

Internationally, the United Nations (UN) has repeatedly condemned the criminalization of same-sex relations, asserting that such laws violate fundamental human rights principles enshrined in the Universal Declaration of Human Rights and other international treaties. ⁴⁵ The UN Human Rights Council has issued reports and recommendations urging states to decriminalize same-sex relations. Additionally, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has provided technical support and guidance to human rights defenders in affected countries. ⁴⁶

Foreign governments and international organizations have also leveraged diplomatic and economic measures to challenge the criminalization of same-sex relations. Countries such as the United States, Canada, and several European nations have conditioned aid and trade agreements on respect for human rights, including LGBTQI + rights. While these efforts have had some success in encouraging legal reforms, they have also fuelled nationalist rhetoric in some African nations, where leaders decry foreign interference. Reacting to international condemnation of the passing of the 2023 Anti-Homosexuality Act, for example, Uganda’s Information Minister stated: ‘While we appreciate the support we get from partners, they must be reminded that we are a sovereign country, and we do not legislate for the Western world. We legislate for our own people here in Uganda. So that kind of blackmail is not acceptable.’ ⁴⁷

The role of international human rights organizations, including Amnesty International, Human Rights Watch, and Outright International, remains crucial. These organizations document abuses, provide legal assistance, and amplify the voices of local activists. Their advocacy has led to increased global awareness and has, in some cases, influenced judicial and legislative decisions within the targeted countries.

At the regional level, the African Commission on Human and Peoples’ Rights (ACHPR) has played an instrumental role in advocating for the rights of sexual minorities. In 2014, the ACHPR adopted Resolution 275, ⁴⁸ which explicitly condemns violence and discrimination based on sexual orientation and gender identity. Despite this, enforcement remains a challenge as many African states, citing cultural and religious justifications, resist such declarations. Unfortunately, not many cases relating to LGBTQI + rights have come before the African Court on Human and Peoples’ Rights, even if the Court’s rulings often face non-compliance from some national governments.

The Economic Community of West African States (ECOWAS) and the East African Community (EAC) have been less vocal on LGBTQI + rights, largely due to the dominance of member states that uphold anti-LGBTQI + legislation. However, civil society organizations within these regional blocs continue to engage in advocacy and legal challenges against discriminatory laws.

Apart from international and regional role-players there are other important actors at the domestic level that play a pivotal role in shaping the socio-political environment that either reinforces or challenges the criminalisation of same-sex relations in Africa. Educational institutions, particularly universities, serve as both battlegrounds and beacons of progressive thought. While some African universities have been spaces of resistance to state-imposed homophobia, others remain complicit in perpetuating heteronormativity, often due to pressure from religious or state authorities. ⁴⁹

The media, and social media in particular, have emerged as double-edged swords in the discourse on same-sex relations. According to Svensson, Edenborg Strand,

… with the Ugandan media landscape full of discriminatory dis/misinformation pertaining to LGBT + people, self-controlled digital media spaces play a crucial role in the community to become visible for distant others both inside and outside Uganda on their own terms. ⁵⁰

Moreover, traditional media outlets in countries like Nigeria and Uganda have often been complicit in sensationalist and harmful portrayals of LGBTQI + individuals, sometimes publishing names and photos of alleged homosexuals, thereby exposing them to violence and social exclusion. ⁵¹ Yet, in parallel, social media platforms and digital activism have opened up new avenues for resistance, visibility, and transnational solidarity.

Religious and cultural institutions are arguably the most influential domestic actors in reinforcing exclusionary laws. Pentecostal and evangelical Christian movements in Uganda, Nigeria, and Ghana have been particularly instrumental in promoting anti-LGBTQI + sentiments, often framing homosexuality as a foreign import threatening African values. ⁵² Cultural leaders, too, have invoked ‘tradition’ to justify criminalization, despite historical evidence of diverse sexualities in precolonial Africa. ⁵³ However, some progressive religious leaders and traditional rulers have cautiously begun to challenge these narratives, advocating for compassion, inclusion, and a reinterpretation of cultural norms.

Despite the interventions of various role-players, the enactment and enforcement of laws criminalizing same-sex relations in Uganda, Nigeria, Tanzania, and Ghana persists. So too does the violation of the rights of people in same-sex relations in those countries. It is for that reason and against that background that strategies for legal and policy reform are called for, an aspect to which we now turn our attention.

Strategies for legal and policy reform

It can be seen from the foregoing discussion that regional and international actors can and do play an important role in the fight against anti- LGBTQI + laws and practices by national governments and leaders. According to Nina Sun et al, several key strategies were already introduced in response to the introduction of repressive anti-LGBTQI + legislation in Uganda and Ghana. They include:

(1) the creation of coalitions of civil society organizations, government, United Nations agencies, and donors to support vulnerable LGBTQI individuals and coordinate strategies for pushing back against repressive laws and their enforcement; (2) efforts to obtain increased funding for the safety and security of LGBTQI-led organizations and for the provision of legal support to community members and civil society organizations (as well as for legal challenges); and (3) the development of new approaches to reach vulnerable individuals, including through more targeted and smaller-scale outreach and the expansion of online resources. ⁵⁴

It is submitted that these strategies need to be strengthened. It is also submitted that regional and international human rights bodies, such as the African Commission on Human and Peoples’ Rights (ACHPR), and the United Nations Human Rights Council (UNHRC) should be engaged because they can play a crucial role in pressuring governments to uphold human rights obligations. Additionally, leveraging economic and diplomatic relations with international partners can incentivize legal reforms.

Civil society organizations (CSOs) play a vital role in providing legal aid, advocacy, and support services to LGBTQI + individuals. For example, following Uganda’s enactment of the 2023 Anti-Homosexuality Act, civil society organizations, some government ministries, and United Nations agencies collaborated to safeguard and promote access to HIV services for LGBTQI + populations. ⁵⁵ This effort led to the formation of a coalition comprising civil society actors, government entities – including the Ministry of Health and the Ugandan AIDS Commission – as well as UNAIDS, technical partners, and donors. Within this coalition, ‘the AIDS Support Organization and other civil society implementers of HIV and human rights programs developed an ‘adaptation plan’ with the goal of mitigating harm from the AHA and maintaining continuity of HIV services for the LGBTQI + community’. ⁵⁶

Additionally, Ugandan civil society pursued legal avenues to challenge the legislation. In December 2023, human rights lawyers, LGBTQI + activists, and some members of Parliament filed a petition before the Ugandan Constitutional Court, contesting the law’s constitutionality. In April 2024, the Constitutional Court invalidated certain provisions it found to be in violation of the rights to health and privacy, including restrictions on renting to LGBTQI + individuals and the imposition of a duty to report (Hon Fox Odoi-Oywelowo & 21 Others v Attorney-General & 3 Others ⁵⁷ ). However, the court largely upheld the law’s core provisions. In response, the coalition engaged in outreach efforts to educate HIV clinic staff on the ruling and to address concerns among healthcare providers regarding legal compliance.

In Ghana, civil society organisations have also been using the courts to challenge and delay the enactment of the Promotion of Proper Human Sexual Rights and Ghanian Family Values Bill. As mentioned earlier, two separate lawsuits were brought before the courts challenging the constitutionality of the bill before its passing, although, after its passing in December 2024, the Supreme Court dismissed the two cases thereby potentially paving the way for the bill to be enacted. Clearly, strengthening civil society organizations through funding, capacity building, and legal protections against state repression can enhance their ability to challenge discriminatory laws effectively. Establishing regional coalitions can also enable shared strategies and resources, making advocacy efforts more resilient.

Another key strategy for legal and policy reform revolves around constitutional and legislative advocacy. Such advocacy would be aimed at strengthening human rights protections, for example. This can be done by amending constitutions of the countries under discussion to include sexual orientation and gender identity as protected categories under anti-discrimination clauses as South Africa has done. ⁵⁸ However, South Africa’s experience was shaped by a distinctive post-apartheid constitutional moment, characterised by progressive political leadership, robust civil society mobilisation, and a transformative constitutional ethos. In contrast, constitutional amendment in Uganda, Nigeria, Tanzania, and Ghana faces substantial challenges, including entrenched political opposition, strong religious and cultural resistance, rigid amendment procedures, and the utilisation of sexuality in populist and nationalist politics. As a result, constitutional reform in these contexts is likely to be gradual, contested, and heavily dependent on broader political liberalisation.

Constitutional reform can also include strengthening privacy protections to prevent the use of laws against same-sex relations to infringe on personal freedoms. Moreover, strategic litigation at national and regional levels can be used to challenge laws criminalizing same-sex relations by invoking constitutional guarantees of equality, dignity, and non-discrimination and advocating for legal reform. Traditionally, ‘strategic litigation has been defined as the litigation of a public interest case that will have a broad impact on society beyond the specific interests of the parties involved’. ⁵⁹ As such, it is ‘capable of drawing attention to human rights abuses and violations and emphasizes the duty on the State to fulfil its national and international obligations’. ⁶⁰ In this sense, strategic litigation ‘serves as a powerful and innovative advocacy tool by serving as a mechanism for government accountability’. ⁶¹

Related to the use of strategic litigation is the strategy of judicial intervention. According to Adrian Jjuuko,

Strategic litigation is an important avenue for seeking social change. It holds great potential for the realisation of LGB rights through stimulating and influencing social change. This potential lies in the fact that courts are bound to hear cases, and they have indeed done so, but they also seem to be the most readily available avenue to engage on LGB issues. ⁶²

Jjuuko further states that ‘Courts are a legitimate way of engaging the state on any issue… Court action has the potential to mobilise people around a cause in a legitimate and legal way’. ⁶³ In that way, courts can serve as powerful avenues for challenging discriminatory laws. Legal challenges that focus on constitutional rights, due process violations, and international treaty obligations can help set important precedents. In countries where domestic courts may be hostile, regional courts, such as the African Court on Human and Peoples’ Rights, can offer alternative avenues for justice even if, as mentioned earlier, its rulings often face non-compliance from some national governments. Successful rulings can provide persuasive legal arguments for future advocacy efforts.

National human rights institutions play an important role in the promotion and protection of human rights within their countries. That is their primary mandate which includes monitoring human rights violations, advocating for legal and policy reforms, and providing remedies for victims of human rights abuses. In the specific context of the rights of LGBTQI + people and the criminalisation of same-sex relations, NHRI’s can execute their mandate by monitoring and reporting relevant human rights violations, pushing for the repeal of discriminatory laws and working with governments to align national laws with international human rights standards, including those set by the UN and regional bodies. Through public education and awareness campaigns, NHRIs conduct programmes to combat stigma and misinformation about LGBTIQI + identities and train law enforcement, healthcare providers, and policymakers on human rights issues related to sexual orientation and gender identity. Moreover, NHRIs can provide platforms where LGBTIQI + persons can file complaints regarding discrimination and rights violations. They can also investigate complaints, mediate conflicts, and, in some cases, offer legal assistance or referrals. Because NHRIs serve as a bridge between governments, civil society, and international bodies in ensuring the protection of LGBTQI + rights, their role in advocating for legal reforms, addressing discrimination, and raising awareness is critical in the fight for LGBTQI + equality.

Other strategies for legal and policy reform in relation to the criminalisation of same-sex relations in Uganda, Nigeria, Tanzania and Ghana include engaging law enforcement officials on LGBTQI + issues, indirectly participating in law-making processes by lobbying law-makers, influencing popular culture and changing public attitudes, and lobbying policy-makers for the integration of LGBTQI + rights into broader human rights and development agendas, such as health policies addressing HIV/AIDS and other diseases.

It should be emphasised however, that reform strategies must be sequenced and context sensitive. In highly restrictive environments, immediate priorities are safety, documentation of abuses, and community-based support, rather than overt constitutional litigation. Where judicial independence and civic space exist, strategic litigation and legislative advocacy are more viable medium-term tools. High-visibility activism carries differential risks across contexts and may expose communities to surveillance, arrest, or violence; therefore, risk-mitigation and harm-reduction approaches are essential. A realistic reform pathway thus requires graduated interventions aligned with political openness, judicial independence, and levels of state repression.

While the above strategies are all important, it is crucial, however, that they are underpinned by a human rights-based approach to which reference was made earlier. According to the Scottish Human Rights Commission (SHRC), a human rights-based approach ‘is about empowering people to know and claim their rights and increasing the ability and accountability of individuals and institutions who are responsible for respecting, protecting and fulfilling rights.’ At the heart of a HRBA lies the international human rights framework and its principles. That is why, according to the European Network of International Human Rights Institutions (ENNHRI), ‘a human rights-based approach is underpinned by five key human rights principles, namely, participation; accountability and transparency; non-discrimination and equality; empowerment of rights holders; and legality.’ In that sense, a human rights-based approach to LGBTQI + issues and the criminalization of same-sex relations would center on fundamental human rights principles, such as dignity, equality, and non-discrimination. It would emphasize that laws criminalizing same-sex relations violate internationally recognized human rights. Accordingly, it would advocate for decriminalization, legal recognition and equal rights. It would also promote state accountability and ensure that LGBTQI + individuals can participate in decisions affecting their lives.

A human rights-based approach is adopted here as an analytical framework rather than a purely descriptive lens. It proceeds from three core elements: (i) the identification of LGBTQI + persons as rights-holders entitled to dignity, equality, privacy, health, and expressive freedoms; (ii) the designation of states as duty-bearers with obligations to respect, protect, and fulfil these rights under constitutional and international law; and (iii) evaluative criteria drawn from non-discrimination, proportionality, legality, and accountability. The comparative analysis assesses the extent to which criminalisation regimes in Uganda, Nigeria, Tanzania, and Ghana fail these criteria by legitimising exclusion, enabling rights violations, and insulating state and non-state actors from accountability.

Conclusion

The criminalisation of same-sex relations in Africa is deeply rooted in colonial-era laws and reinforced by post-independence legislative developments that have sought to maintain or even intensify legal restrictions. Through a comparative analysis of Uganda, Nigeria, Tanzania, and Ghana, it has been seen that these laws are not merely symbolic but are actively enforced, leading to severe consequences for LGBTQI + individuals, including discrimination, violence, and social marginalization. These legal frameworks not only contravene international human rights standards but also often violate domestic constitutional principles related to dignity, privacy, and non-discrimination.

The persistence of anti-LGBTQI + laws highlights the intersection of legal, cultural, and political forces that sustain exclusionary policies. While many governments justify criminalisation on the grounds of culture, religion, or public morality, these justifications fail to acknowledge the universal principles of human rights to which these states are bound. International and regional bodies have increasingly recognised the urgency of addressing these violations, calling for legal reforms and greater protections for sexual minorities. However, the road to decriminalisation remains fraught with political resistance and societal opposition.

Experiences from South Africa, Botswana, Angola, and Mozambique demonstrate that decriminalisation is typically enabled by a combination of judicial independence, constitutional rights cultures, strategic litigation, and political opportunity windows. In Southern Africa, reform was also facilitated by regional norm diffusion and stronger engagement with international human rights jurisprudence. While these conditions are not uniformly present in East and West Africa, certain transferable elements exist, including the use of incremental strategic litigation, coalition-building with public health and governance actors, and leveraging regional human rights mechanisms. These cases illustrate that reform is not only aspirational but institutionally achievable under specific political and legal conditions.

Despite the challenges, the growing engagement of civil society, regional human rights mechanisms, and international organizations presents a pathway for reform. Strategic litigation, public advocacy, and judicial intervention have demonstrated potential in challenging oppressive laws and promoting more inclusive legal frameworks. The role of national human rights institutions, alongside international human rights bodies, is crucial in fostering a shift towards decriminalisation and ensuring that the rights of all individuals, regardless of sexual orientation, are upheld.

Ultimately, the decriminalisation of same-sex relations in Africa is not merely a legal issue but a broader struggle for human rights, justice, and equality. A human rights-based approach, informed by constitutional and international legal principles, must underpin all strategies for legal and policy reform, ensuring the dismantling of exclusionary laws and promoting policies that protect the dignity and freedoms of all individuals. As the global human rights movement continues to evolve, Africa has an opportunity to move beyond legislating exclusion and towards embracing a future grounded in inclusivity, respect, and fundamental human rights for all.