Why Gay Rights Not Human Rights in Liberia? “Tacit Tolerance” Undermined
This essay asks: Why are Gay Rights not Human Rights in Liberia? To answer this question, the essay draws on Article 2, Sub-section 2.1 of the New Domestic Relations Law of Liberia, Article 16 (1) of the Universal Declaration of Human Rights, and the New Penal Law, Volume IV, Title 26, Liberian Code of Laws Revised.
It also describes the public attitude of Liberians toward gay people in reaction to US and UK pro-LGBT foreign policy declarations in 2011 and the post-2011 environment which the author terms “Tacit Tolerance.”
Some benefits of tacit tolerance are mentioned as well. The essay concludes with observations on how the strategy for demanding gay rights through public activism may not be working in Liberia and suggests the need to explore more feasible options which will place premium on protecting the health of gay people over legal rights recognition.
*Baba Sillah, is a Liberia academic and researcher. He is currently doing post-graduate studies in the Graduate School of Global Studies at Sophia University in Tokyo, Japan. The inspiration for essay was derived from works in Human Rights in Anthropology.
The Liberian legal context, “Tacit Tolerance” and reaction to US & UK pro-LGBT foreign policies
To address the question of why gay rights are not human rights in Liberia directly, Article 2, Sub-section 2.1 of the New Domestic Relations Law of Liberia describes marriage thus: “Marriage is a civil status, a personal relationship arising out of a civil contract between a male and a female to mutually assume marital rights […].” This law expressly describes the parties qualified for marriage as “male and female,” and by legal logic categorically forbids same-sex marriage.
Additionally, the Universal Declaration of Human Rights (UDHR), Article 16 (1) states that: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”
Thus the Liberian law regarding the definition of parties to a marriage is consistent with the UDHR. Furthermore, the New Penal Law, Volume IV, Title 26, Liberian Code of Laws Revised, approved in 1976 and published in 1978 under Articles 14.74, 14.79 and 50.7 consider “voluntary sodomy” as a first degree misdemeanor, with a penalty of up to one year imprisonment. Sodomy here is defined as “deviate sexual intercourse” between human beings who are not (living as) husband and wife, that consists of contact between penis and anus, mouth and penis, or mouth and vulva.
While consensual sodomy is illegal and punishable by up to a year imprisonment, my research could not identify instances of enforcement. There is no evidence to indicate widespread, mass-based political rallying against gay people prior to 2011 notwithstanding existing laws against gay conduct. Consequently, many Liberians tended to treat gay people with an attitude I term as “Tacit Tolerance.” Tacit tolerance is similar to what Kath Weston refers to as “another sub rosa aspect of sex.” Sub rosa by literal definition means confidentially, secretly, privately.
I use tacit tolerance to posit that based on the absence of widespread, mass-based social and political mobilization against gay people prior to 2011 Liberians may prefer if gay activities are kept secret or private than public. Some benefits of tacit tolerance in Liberia prior to 2011 could be: The absence of widespread, mass-based social and political mobilization against gay people, the lack of efforts seeking to legislate laws to unambiguously outlaw gay marriage and strengthen penalties for gay conduct, limited homophobia against gay people.
Tacit tolerance also may have provided an important psychosomatic and somewhat social cover for a public attitude which based upon claims to African tradition, culture, and the idea of the traditional heterosexual family has to be seen as manifesting opposition to gay conducts. As you will read below in a moment, two significant events triggered public activism for gay rights in Liberia as else in Africa. These events spawn a wave of public activism which as a result undermined tacit tolerance and led to widespread, mass-based social and political mobilization against gay people that is threatening to erode the minimal freedom they enjoyed previously.
In December 2011, former U.S. Secretary of State Hillary Clinton declared in her address at the UN Human Rights Council in Geneva, Switzerland that the US government was ready to combat human rights abuses against gay people abroad.
This foreign policy declaration laid out the US government’s plans for using its diplomatic and aid agencies overseas to combat the criminalization of LGBT status and conduct, to enhance efforts to protect vulnerable LGBT refugees and asylum seekers, and to ensure that US foreign assistance is geared toward promoting the protection of LGBT rights, the enlistment of international organizations in the fight against discrimination, and for swiftly responding to abuses against LGBT people.
Also the then British Prime Minister, David Cameron, declared at a gathering of Common Wealth Heads of Government in Australia that LGBT rights will influence how the British government considers foreign aid disbursement. Following these foreign policy declarations, the question of gay rights became a serious public theme in Liberia. Liberia receives development assistance from the US government affecting several sectors including the justice and security, education, energy, and health, among others.
Gay rights activists groups such as the Movement for the Defense of Gays and Lesbians in Liberia (MODEGAL), established in 2012, perhaps sensing a chance for the spiral model of human rights change and the advantage for international socialization began to publicly advocate for gay rights to be recognized and legally protected. Technically MODEGAL has been operating illegally as the Liberian government has refused to honor the organization’s request to process its legal registration documents.
It is important to point out that the earliest gay rights advocacy in Liberia began in 1998 through a non-profit organization called Stop Aids in Liberia (SAIL). SAIL Liberia advocacy focused on healthcare for gay people particularly regarding HIV/AIDS. The foreign policy declarations by the US and the UK, which could be considered not only overly audacious but also as a subtle neo-liberal ploy to muzzle poor countries, enraged African governments with antigay rights laws. Many actors including Church leaders in Kenya, the governments of Uganda, and Nigeria, among others, were swift in denouncing these foreign policy declarations which tied gay rights to aid.
In Liberia, President Ellen Johnson through the press secretariat of the Liberian presidency quickly proclaimed that her government would veto any policy aiming to legalize gay rights in spite of the US government’s pro-gay policy. The assertions in 2012 by President Sirleaf, in response to an interview question on gay rights by the Guardian, when she was jointly interviewed with former British Prime Minister Tony Blair, “We like ourselves just the way we are,” “We’ve got certain traditional values in our society that we would like to preserve,” epitomize the public attitude not only in Liberia, but in most of Africa on gay rights.
As the apparent increased in open activism for gay rights became more noticeable serious public backlash began to generate. There was probably a feeling among some Liberians that due to the US government foreign policy which ties development assistance to gay rights, the Liberia government could be pressured into repealing legislations that forbade gay conduct and passing laws that promote gay rights.
This can be construed as the US trying to use “dollar diplomacy” to pressure an aid dependent Liberia into legalizing LGBT rights. An article by journalist Robbie Corey-Boulet based in Liberia in 2012 describes Liberia’s backlash against gay rights as follows: “Liberia’s backlash was remarkable not just because the country’s government makes it a point to disagree with the U.S. as rarely as possible, but because it brought unprecedented local attention to the issue of gay rights.”
In reaction to activism for gay rights ignited by the US and UK pro-gay policy declarations, some Christian and Muslim leaders along with civil society actors coalesced in 2012 on grounds of religious morality and embarked on a mass-based campaign to rally support for draft legislations seeking to out-law gay-marriage. Their campaign was mainly in support of two bills, one commonly referred to as “the anti-same-sex bill” and the other “An Act to amend the New Penal Code chapter 14, sub-chapter D and to add a new section 14.80 making same-sex sexual practices a criminal offence.”
The bills which seek to overtly outlaw gay marriage and strengthen laws against same-sex activities in a bid, it has being argued, to promote and preserve positive Liberian culture in line with the constitution of Liberia, remain pending before the Liberian legislature. Because of the massive public backlash against gay activities and advocacy, some gay people and gay rights activists including Mr. Archie Ponpon, founder of MODEGAL have had to escape physical brutalization from enraged mobs and have seen the properties of their relatives get destroyed. It is assumed that hermeneutics interpretation of religious scriptures particularly the biblical story of “Sodom and Gomorrah,” may have also influenced many Liberians to believe that the Ebola Virus Disease which devastated Liberia in 2014 was as a result of a curse owing to gay practice.
Walking a tightrope
The Liberian government, particularly the Executive Branch it seems is walking a tightrope on the issue of gay rights. On the one hand, it wants to be seen as protecting, respecting and promoting the constitutionally guaranteed human rights of all non-discriminatorily. At the same time, it wants to be seen as remaining committed to and complying with its human rights treaty obligations. On the other hand, it faces unrelenting pressure from religious leaders, civil society actors and citizens who, as mentioned above, have demonstrated support for legislations to strengthen laws against same-sex activities in Liberia.
The Constitution of Liberia articles, 14, 15, 16, 17, 18, provides for the right of every citizen to Freedom of Thought, Conscience and Religion, Right to Privacy, Right to Peaceful Assembly and Association, Right to Equal Opportunity for Work and Employment among others.
These provisions are in consonance with the International Covenant on Civil and Political Rights ICCPR and the International Covenant on Economic, Social and Cultural Rights ICESCR, as well as the African Charter on Human and People’s Rights. Some human rights organizations have argued that criminalization of consensual same-sex between adult is a violation of their privacy within the context of the ICCPR.
Interestingly, Article 2 of the African Charter on Human and People’s Rights states that “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.”
President Sirleaf, apparently in a bid to show some degree of respect for human rights treaty commitments and or as a strategy for aligning with the pro-LGBT foreign policies of the US and UK which are two significant development partners, has declined to sign into law the “anti-same-sex bill” and “An Act to amend the New Penal Code chapter 14, sub-chapter D and to add a new section 14.80 making same sex sexual practices a criminal offence” two bill which seek to make harsher laws against gay people.
Bestridden between these two extremes, as the head of the executive branch of the Liberian government she has endeavored to pacify Liberians against the call for gay rights while at the same time stiffed off demands for tougher legislations against gay conduct.
It seems that the issue of gay rights in Liberia is a far cry from reality because even with already existing laws; the legislature has been trying to pass harsher laws. But apart from the legal remit, there may be no available evidence to suggest that negative public attitude toward gay people is decreasing.
Additionally, Liberians preference for “tacit tolerance” over open recognition and legalization of gay life may continue to hold sway. Another important observation is that gay people may not be inclined to easily disengage from public advocacy because they have already seen the significant international attention that public activism can lend to their issues and the pressure that can be brought to bear on their government.
Moreover, heightened public domestic advocacy that arose following the foreign policy declarations by the US and UK may have done more to constrict the environment for gay people in Liberia than assist them in finding freedom.
The backlash against public domestic advocacy in Liberia should prove instructive in understanding that given the nature of the particular environment, as a replacement for the immediate demand for rights and engagement in discursive campaigns with the hope of winning legal victories, it may be more rewarding to focus on designing strategic health programs to deal with special health issues of gay people.
This is important because, a country, through legislations may decide to deny gay rights but to ignore the health challenges of gay people and the implications they could have for the general population may have dire consequences particularly in respect of HIV/AIDS. To consider the implementation of comprehensive and effective health education regimes on HIV/AIDS, while at the same time maintaining discriminatory attitudes toward gay people, which tend to push them further on the periphery of society, is almost unlikely.
The World Health Organization (WHO) Consolidated guidelines on HIV prevention, diagnosis, treatment and care for key populations of 2014, pointed out that failure to provide adequate HIV services for key groups including men who have sex with men, threatens global progress on HIV response.
The report indicated that “Rates of HIV infection among men who have sex with men remain high almost everywhere and new prevention options are urgently needed.” The WHO also made an assortment of comprehensive medical recommendations including urging that men who have sex with men take antiretroviral medicines as supplementary measure for preventing HIV.
Significantly, the WHO also underscored the need for countries to remove the legal and social barriers that prevent many people from accessing services. Therefore while removing legal barriers to gay right remain highly improbable in Liberia at the time, developing social and health strategy that focuses on bringing policymakers particularly from the health sector together with gay people and gay rights advocates on promoting sound and equal healthcare provision for gay people should prove significant in reducing gay people vulnerability to HIV and by extension reduce the probability for transmission to the larger population.
Gay rights are not human rights in Liberia because of legal prohibition on same-sex conduct. Liberians tacit tolerance for gay life which was undermined by domestic public advocacy for gay rights ignited largely by US and UK pro-gay foreign policy declarations may only be restored to its pre-2011 level if pro-gay advocacy recedes. This may possibly restore citizens’ confidence that their government will not yield to what some interpret as neo-liberal pressure to recognize gay rights as human rights.
Disclaimer: This essay is not an advocacy for gay rights in Liberia. It is essentially an intellectual endeavor meant to assess the current discursive course on the subject in Liberia in the context of the pre-2011 environment and subsequent changes post-2011, largely due to open domestic advocacy I believe was spurred by the pro-gay foreign policy declarations of the US and UK governments.
Baba Sillah, Contributing Writer