Advocating for human rights of LGBTIQ+ persons in multilevel governance systems

ABSTRACT

Human rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) persons have been and continue to be highly contested in different contexts all across the world. Their realization is an on-going struggle beyond the national scope. This article’s main interest is to unpack how the rights of LGBTIQ+ persons are negotiated and fought for in different governance arenas. Towards this end, I examine activist strategies concerning rights of LGBTIQ+ persons in southern Africa. The analysis zooms in on the strategies of non-governmental organizations (NGOs) on the national (Botswana) and regional (Southern African Development Community, SADC) level. The analysis is structured along the concept of contextualization. As an advocacy strategy in a highly contested field, contextualization is employed by national and transnational NGOs on two levels. They contextualize their strategies within a multilevel governance system; and they contextualize their activism practices to foster the human rights of LGBTIQ+ persons on these governance levels. With this approach, we can explain why some entities, such as the African Union, are targeted as agents of change for the human rights of LGBTIQ+ persons, whereas some are not even perceived as relevant platforms to engage, such as the SADC.

KEYWORDS:

• LGBTIQ
• human rights
• Southern Africa
• multilevel governance
• civil society

Introduction

‘Hate is not an African Value’ reads a colourful poster at the office of the NGO Lesbians, Gays, Bisexuals of Botswana (LEGABIBO) in Gaborone. The intersex inclusive progress pride flag is placed right next to it. The prominent NGO has advocated for the rights of LGBTIQ+¹ persons over the past decades and has been instrumental in several successful court cases (Yuhas, 2019). The outcome of relentless national and transnational activism – driven by the belief that hate against LGBTIQ+ persons is not an African value and thus hearts and minds and laws can be changed. Indeed, this has led to the decriminalization of same sex sexual conduct between adults in Botswana in 2019 with a landmark ruling by the High Court – one of several litigation processes to ensure the rights of LGBTIQ+ persons. Until recently, Botswana carried laws criminalizing same-sex sexual relations and procedures making the registration of NGOs working on LGBTIQ+ issues complicated and/or impossible in its penal code and constitution. These are directly and/or indirectly related to laws and rules stemming from British colonialism from which Botswana formally became independent in 1966 (Jjuuko, 2020; Tabengwa & Nicol, 2013).

Discourses around the negotiation of the human rights of LGBTIQ+ people at the national, regional, and continental level in Africa cannot be discussed without the colonial legacies of anti-homosexual and anti-transgender norms and rights across the continent (Jjuuko, 2020; Klapeer, 2018; Mutua, 2011). In 32 of the Commonwealth’s 56 member nations same-sex relations are still criminalized based on British commonwealth laws (CIVICUS, 2023). This is especially relevant with regards to the currently debated and/or introduced ‘anti-homosexuality bills’ in Ghana, Kenya, Namibia, Tanzania, and Uganda – which largely strive to expand already harsh colonial legacy laws. It is also relevant with regards to the more recent decriminalization of same-sex sexual conduct in Angola, Gabon, Botswana, and Mauritius (Maunganidze & Cohen, 2023). Across the continent, laws criminalizing same-sex sexual relations, procedures making the registration of NGOs working on LGBTIQ+ issues complicated and/or impossible, as well as denying transgender persons the right to change their legal status are directly and/or indirectly related to laws and rules stemming from British settler colonial occupation (Han & O’Mahoney, 2018; Jjuuko, 2020). Country-specific legislation differs greatly and the intention here is to not (over)generalize, but rather to point out a common denominator: their origins in the colonial past. And the profound impact of these legacies until today (Bennett, 2011; Han & O’Mahoney, 2018).

Just as these complex legacies are transnational and shared, the fight against discriminatory legislation and policies goes beyond the domestic realm. The national governance level is not the only one where the human rights of LGBTIQ+ persons are contested. Civil society actors fight for them on the regional and international level and within supranational organizations. These are important governance arenas where human rights and specifically the rights of LGBTIQ+ persons are negotiated.

In Africa the regional landscape is structured through the African Union (AU) and the implementation of the Treaty establishing the African Economic Community. The AU functions as an umbrella body and recognizes eight regional organizations (ROs), in the AU context so-called Regional Economic Communities (RECs)² (Karangizi, 2012). The continental (and regional) integration goes well beyond economic cooperation. Already under its predecessor, the Organization of African Unity (OAU), the African Charter on Human and Peoples’ Rights was implemented, which ‘is a human rights instrument designed to champion the promotion and protection of human rights and basic freedoms in Africa’. In 1987, the African Commission on Human and Peoples’ Rights (ACHPR) was inaugurated to oversee and interpret the African Charter. Following an extensive report compiled by the Coalition of African Lesbians (CAL) and African Men for Sexual Health and Rights (Coalition of African Lesbians & African Men for Sexual Health and Rights, 2013) on violence against LGBTIQ+ persons, the ACHPR took a stance with resolution 275 in 2014 on the ‘Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity’ (ACHPR/Res.275(LV)2014). The resolution condemns the increasing violence against persons based on their real or imputed sexual orientation and/or gender identity and spells out the obligation of the member states to safeguard that violent acts are investigated and prosecuted. To that end, states shall ensure that respective legislation is introduced (Network of African National Human Rights Institutions, 2020). Resolution 275 is a tremendous accomplishment on the continental level and the outcome of transnational and continental advocacy work and activism, celebrating its ten-year anniversary in 2024. Notwithstanding this landmark, ten years on, the lived realities as well as the de jure situation of LGBTIQ+ persons in most member states of the AU is (still) dire (Arcus Foundation & Iranti, 2019; Centre for Human Rights, 2021; Network of African National Human Rights Institutions, 2020) and advocacy within the AU and its human rights architecture (still) difficult.

Shedding light on the challenges of civil society activists within the AU to advocate for the rights of LGBTIQ+ persons, Monica Tabengwa, human rights lawyer and activist, states:

[T]he African Union or the African Commission is where African human rights mechanisms are housed and it’s been one of the most difficult places to get into or to get LGBTI inclusion. And we’ve been going and trying for years and it’s like we get something this year and then they change the group of the commissioners and then they get a different group that pushes back so we take a step forward and a step back. (Interview M. Tabengwa, 2021)

The most prominent case in point for this is the (de-)registration case of the NGO CAL. Institutionalized participation of civil society actors at the AU level is regulated through observer status, which can be obtained and is granted by the ACHPR. After years of campaigning, CAL was granted this status in 2015; yet, it was not on the list of NGOs with observer status and the status was officially revoked in 2018. This decision is largely attributed to pressure exerted by the AU Executive Council on the ACHPR – which points to a highly problematic development as the Commission is supposedly an independent entity within the AU’s (human rights) architecture (Viljoen & Sogunro, 2024). Jabulani Pereira, former Executive Director of Iranti, illustrates:

Most of the human rights work has gone to the African Commission on Human and People’s Rights and so of course there is Resolution 275 and there is a tension. The AU is arguing that the African Commission of Human and People’s Right is not an independent body. And that of course is not true but it’s a contention to how states want to control the African Commission. (Interview J. Pereira, 2021)

This has thus led to a fallout between the ACHPR and the AU Executive Council as well as the members of the ACHPR and left NGOs working on LGBTIQ+ issues without much trust in this institution. The AU at the regional, that is, the continental governance level as an arena to put forward concerns and interests specifically addressing the needs of LGBTIQ+ persons is still perceived as relevant; however, the lack of accessibility and trust in the AU as an agent for change is prevalent (Interview with S. Ndashe, 2022; Interview with N. Ntesang, 2022; Interview with J. Pereira, 2021).

Thus, the question remains, what role does the regional level within the African multilevel governance structure play for the negotiation of the rights of LGBTIQ+ persons? Within the broader debates around the anti-LGBTIQ+ norms and rights on these governance levels, the question is to what extent national and transnational NGOs advocating for human rights of LGBTIQ+ persons operate on different governance levels in the African context. In this paper, I strive to unpack this and to better understand how NGOs use diverse governance arenas to secure and further the human rights of LGBTIQ+ persons. In doing so, the aspiration of this article is twofold. I have a normatively driven interest in contributing to on-going societal debates with a view to shedding light on the colonial legacies of the debates around the rights of LGBTIQ+ persons as well as the roles of state and non-state actors on different governance levels in advancing these rights. At the same time, I have a conceptually driven interest in contributing to scholarly discourses on multilevel governance systems and the adaptation of norms. I do so by pulling together different strands of literature and further developing the concept of contextualization. This article thereby joins the broader debate around the diffusion of norms and the related discussions concerning processes of localization (Acharya, 2004), translation (Draude, 2018b), and vernacularization (Merry & Levitt, 2020; Zwingel, 2012). Overall, I argue that it is necessary to further develop our understanding of why and how NGOs engage at the different governance levels; and furthermore, to take a closer look at the ways in which they employ pick-and-choose tactics and are highly innovative. First the ways in which contextualization is employed to advocate for human rights for LGBTIQ+ persons by national and transnational civil society activists in Botswana is discussed. In the second part, the study is structured along the relevant RO. I herewith focus on the ways in which national and transnational activists, NGOs, and networks navigate the regional arena, that is the SADC, to advocate for the rights of LGBTIQ+ persons. Lastly, the paper concludes with some thoughts on the gaps in the literature and the need to develop a more nuanced understanding of the processes of contextualization of activism in multilevel governance settings.

Human Rights of LGBTIQ+ Persons: Activist Strategies in Multilevel Governance Systems

National and transnational NGOs advocating for the human rights of LGBTIQ+ persons operate on different governance levels in the African context. The question is how and why certain regional entities are targeted and others are not. How do the civil society (organizations) and the non-governmental brokers choose their arena(s) within the multilevel governance setting and how do they use these arenas? Regarding the role of organized non-state actors, Tamale (2020, p. 362) states ‘without the push and pull from national, regional and international women’s movements, it is unlikely that the progress in the gender normative framework of the AU would have been realized’. Within the broader discussions on anti-feminism, Ahikire calls on the need to ‘utilise regional and pan-African spaces and policy instruments to respond to the more deadly manifestations of anti-feminism. The likely spaces may include specific regional blocs such as the East African Community (EAC), Southern African Development Community (SADC), Economic Community of West African States (ECOWAS), possibly the Arab Maghreb Union and the pan-African AU’ (Ahikire, 2014, pp. 20–21). But to what extent are ROs targeted as agents of change for the respective regional and national arenas when it comes to the rights of LGBTIQ+ persons? Debates about non-discriminatory practices and the safeguarding of LGBTIQ+ persons on the regional level and the role of ROs have been taking place in policy fora and among civil society/activist circles – yet, they are largely missing from the scholarly debates.

In order to better grasp the strategies of civil society actors on these levels, the concept of contextualization is instructive. Tjuuko and Tabengwa (2018) discuss contextualization in reference to decriminalization campaigns that need to be tailored to the sociopolitical contexts of the respective countries.

African countries will not and cannot decriminalise in exactly the same way as the US or the UK have done, or any other country for that matter. The specific sociopolitical contexts of each country always intervene, so that the techniques which worked in one may not necessarily be applicable elsewhere. (Tjuuko & Tabengwa, 2018, p. 72)

Building on this, contextualization is here defined as the practices through which norms are framed and shaped according to distinctive spatial and temporal cultural, societal, and historical characteristics to spark a change in norms, institutions, and laws. Contextualization is practiced by national and transnational NGOs to trigger change of discriminatory treatment of marginalized populations on the de facto and/or de jure levels. It goes beyond the notion of localization as it underscores transnational advocacy strategies and in doing so detaches the discussion from the so-called local level central to norm localization.

Norm adaptation processes have been understood as localization (Acharya, 2004), translation (Draude, 2018b), and vernacularization (Levitt & Merry, 2009; Zwingel, 2012). Even though these concepts take seriously the agency of the receiver, they understand norms to ‘originate’ generally from the Global North which are then localized/translated/vernacularized in subnational, national or regional setting – usually in the Global South. Kolah Ghoutschi et al (2022) have suggested looking at translation processes of contested norms, e.g., sexuality education, as multi-sited – acknowledging the various arenas where contested norms are negotiated and transformed. Engberg-Pedersen and Fejerskov (2020, p. 258) point out: ‘[t]he core challenge is to understand the relationships between norms, actors and contexts when all three are seen as dynamic and as influencing each other’. Among others, Draude (2018a, p. 577) has pointed out that ‘[r]esearch on global norm diffusion and institutional transfer has often neglected the agency of the governed’. In this article, I argue that it is necessary to further develop this reasoning, detach the discussion from the so-called local level and look at practices from the perspective of the so-called receiver(s) who apply pick-and-choose tactics and who truly contextualize their practices within various governance arenas. With this, the article aims to contribute to the discussion by conceptualizing contextualization (further). This is sought to work on two levels: the ways in which NGOs contextualize their strategies within a multilevel governance system; and the ways in which NGOs contextualize their activism practices to foster the rights of LGBTIQ+ persons on these governance levels.

Multilevel governance settings are defined as ‘a distinct pattern of political decision-making marked by several typical features: Processes of decision-making tend to be organized sequentially, taking place across several levels of a polity, whereby the territorial or spatial dimension is relevant in a horizontal as well as a vertical direction. Actors involved represent formal political authorities as well often quasi-governmental or even non-governmental actors representing society-based interests’ (Behnke et al., 2019, p. 4). Here, diverse actors and groups of actors shape and contribute to decisions on different governance levels, including non-state actors who are accredited far-reaching agency (Börzel, 2016). The relevant actors (individual and/or organized) who drive or stop change processes at the centre of the analysis are often referred to as ‘brokers’ (Draude, 2018a; Keck & Sikkink, 1998). One of many crucial intergovernmental and/or supranational entities in multilevel governance settings are ROs. These are usually defined as organizations that consist of three or more contiguous states that cooperate in more than one policy area at the regional level (Jetschke & Lenz, 2013). As pointed out above, the African multilevel governance architecture is layered on the regional level: encompassing the AU itself and the eight RECs as well as other ROs that exist on the continent outside of the AU’s framework. These governance arenas can be vital spaces to foster human rights – including (basic) human rights for LGBTIQ+ persons – and are at the moment largely underutilized by NGOs. The following analysis sheds light on some of the reasons for this.

Contextualization as Framework

Within the above outlined debates, the question remains how national and transnational NGOs advocate for the rights of LGBTIQ+ persons and how they operate on different governance levels in the African context. To better grasp this, I propose a conceptualization of contextualization which is informed by the practices of the relevant actors on the national and transnational level in southern Africa. I herewith follow a research process of constructing research questions and agendas from empirical observations that concern the lived realities of historically and structurally marginalized and silenced (groups of) people (Ackerly & True, 2008).

Contextualization is here understood as practices through which norms are framed and shaped according to distinctive spatial and temporal cultural, societal and historical characteristics to spark a change in norms, institutions, and laws. National and transnational NGOs practice contextualization in order to trigger change of discriminatory treatment of marginalized populations on the de facto and/or de jure levels. I suggest a framework of contextualization which operates on two levels. On the one hand, these are the ways in which NGOs contextualize their strategies within a multilevel governance system. These are inter alia strategic litigation campaigns and (other) advocacy work by NGOs to trigger change of discriminatory treatment of LGBTIQ+ persons on the de facto and/or de jure levels. On the other hand, the ways in which NGOs contextualize their strategies to foster the human rights of LGBTIQ+ persons on these governance levels. These concern decision-making processes within organized non-state actor fora on the national and transnational levels (including NGOs, but not exclusively) as to when, where, by whom, and how to implement certain (activist) practices. Following from this, I present an analysis of how NGOs fight for the rights of LGBTIQ+ persons (de jure and de facto); and in what ways conflictual and contested processes on the outlined levels of governance in southern Africa are carried out. These are closely intertwined with colonial legacies of the anti-LGBTIQ+ legal practices as well as the interconnected societal norms.

Methodology

Botswana lends itself to a case study on the national level, as it is among the African countries which decriminalized same sex sexual conduct between consenting adults and herewith got rid of a colonial legacy law. This ruling was one in a few court cases which can be framed as a strategic litigation campaign. Within the multilevel governance structure on the continent, Botswana is a member country of the AU and of the SADC – and host of the SADC headquarters in Gaborone.

In order to understand how the rights of LGBTIQ+ persons are negotiated by the various state and non-state actors in these arenas, semi-structured expert interviews were carried out during a research trip to Botswana and South Africa from November 2021 until March 2022. Interviews were conducted with five persons virtually as well as 16 persons in Gaborone, Johannesburg, and Pretoria.³ The interviewees were selected and approached based on their expertise and in-depth knowledge of the national and/or regional and/or continental negotiation processes of the rights of LGBTIQ+ persons over the last years. They were either directly involved in strategic litigation and/or campaigns fostering the rights of LGBTIQ+ persons or through the respective NGO they work for. The interviews were carried out in South Africa, additionally to Botswana, for several reasons. The wide-reaching de jure protection of (the rights of) LGBTIQ+ persons in South Africa since the end of the Apartheid regime inter alia enables the work of NGOs (Barnard-Naudé & de Vos, 2022). Thus, many NGOs in the field have been and still are located in South Africa but engage transnationally and internationally. This is also true for neighbouring Botswana.

The expert interviews were carried out with a semi-structured questionnaire. This interview technique gives the interviewer some room to manoeuvre and flexibility in case a certain issue comes up which was not anticipated and/or they want to further discuss a certain aspect (Bogner et al., 2005; Gläser & Laudel, 2009; Littig, 2005). The interviews were carried out after consent was given to record the conversations and consent was again given to publish the content in this publication. The insights of the interviews are triangulated with open access materials by NGOs, e.g., videos, reports, and blog posts. One risk in studying activism strategies is to expose these and contribute to vulnerabilities and backlash. It is crucial to ensure this is not the case. Therefore, additionally to gaining informed consent to use the insights from the interviews and discussions, I have used materials and insights which are available on the websites and in brochures produced by the NGOs. These materials complement the insights derived from the interviews.

Contextualizing Human Rights of LGBTIQ+ Persons in Multilevel Governance Systems in Southern Africa

The way NGOs use certain governance arenas and avoid others is a deliberate and thought through practice; it implies tactics to save precious and scarce financial and human resources. But how exactly does this pan out within multilevel governance systems and on different governance levels? With the two-step analysis, the paper unpacks how NGOs contextualize their activism to foster the rights of LGBTIQ+ persons in specific governance settings and not others. The point of departure is Botswana and then we take a closer look at the SADC as a regional arena.

National level: Botswana

On the national governance level, strategic litigation campaigns have proven to be among the most promising avenues for the advancement of the rights of LGBTIQ+ persons. Here, norms and laws are targeted in unison and contextualized within the national cultural and societal setting (Jjuuko et al., 2022). These campaigns involve a multitude of NGOs on the national, regional, and even international level. Careful consideration is exercised in the division of the work between the different actors and organizations and decisions who visibly carries out which role, in order to safeguard the ownership and agency of the national actors (interview M. Tabengwa, 2021). Anna Mmolai-Chalmers, Research and Advocacy Officer of the Equality Cluster at the transnational advocacy network Southern African Litigation Centre (SALC) recaps ‘strategic litigation, it takes a really, really long time (…), because that’s what strategic litigation is about, changing minds, thoughts, mindsets, and behaviours’ (interview A. Mmolai-Chalmers, 2022). This is a first and fundamental way of contextualizing activism on the most relevant governance level – the national. The strategic litigation campaigns across African states have a mixed record; Botswana is one of the most successful examples (Jjuuko, 2020). In the following, the de jure and de facto developments over the past years and the entanglements with colonial legacies are briefly outlined.

In November 2021, the Botswana Court of Appeal upheld the judgement that the Penal Code’s prohibition of consensual sex between partners of the same sex is unconstitutional – the original ruling of the High Court in 2019 was appealed by the government. The decision is historical as it is only the second decision from an apex court in Africa to decriminalize; it follows the 1999 decision of the South African Constitutional Court. The judgement renders sections 164(a) and (c) of the Botswana Penal Code unconstitutional. One of two sections criminalizing same-sex sexual conduct which are based on British Commonwealth law (Southern African Litigation Centre, 2021). These are framed as anti-sodomy laws and use language such as ‘carnal knowledge against the order of nature’ which has been interpreted as prohibiting sexual acts between persons of the same sex, however usually targeting men who have sex with men⁴ (Tabengwa & Nicol, 2013).

Predating the landmark ‘decriminalization’ ruling of the High Court in 2019, various other related cases concerning the rights of LGBTIQ+ persons, such as the registration of NGOs in this realm⁵, were negotiated at the national level in Botswana (Jjuuko, 2020). ‘Kanane v. the State 2003 (2) BLR 67 (CA)’ was the first case referred to the High Court for determination under the provisions of the penal code. ‘The High Court dismissed the case, placing much emphasis on religious doctrine and accusing Westerners for being the source of many evils such as HIV/AIDS and homosexuality in Botswana’ (Tabengwa & Nicol, 2013, p. 342). The Center for Human Rights (Ditshwanelo) applied to the Court of Appeal alleging that the High Court had misinterpreted the constitutional provisions referring to non-discrimination. The same arguments were presented before the appeal court, which also dismissed the case on the basis that Botswana society was not yet ready to decriminalize homosexuality (Tabengwa & Nicol, 2013). An emphasis was made on the notion that LGBTIQ+ persons are not specifically protected under the constitution. Almost two decades later, the High Court decriminalized same-sex sexual relations between adults and explicitly mentioned changing national and international societal norms (Southern African Litigation Centre, 2021). This is a historic win for the national LGBTIQ+ community (and its allies) – celebrated across borders and with the hope for a signalling effect for other countries on the continent (interview A. Mmolai-Chalmers, 2022; interview M. Tabengwa, 2021; interview C. Youngman, 2022).

Even though clearly, these laws have their origin in colonial legislation, the narrative of colonial legacy laws is not used and invoked by NGOs in their campaigns. Not raising the colonial legacy of the anti-LGBTIQ+ laws as a distinct point of contestation is a way of contextualization the campaigns within the cultural setting of the early twenty-first century. One interviewee explains that ‘we know where these laws came from, but it’s been over 60 years since independence and if they wanted to change the laws, they would have done so’ and ‘these laws have become our culture’ (interview human rights expert (anonymous), 2022). Here, the interviewee clearly states that rather than focusing on the colonial past of the legislation, activist strategies aim at the current considerations and appeal to the realization of human rights of LGBTIQ+ persons in Botswana. Many of the other experts I interviewed shared the same sentiment with me. Another strategy is to build strong national and transnational coalitions and the resources are directed towards strategic litigation campaigns on the national level (interview A. Mmolai-Chalmers, 2022; interview M. Tabengwa, 2021). Contextualization on the national governance level manifests itself here in the ways in which organized civil society applies pick-and-chose tactics to target legislations in parallel to carrying out advocacy and awareness campaigns to change norms and beliefs.

On the second level of the analysis, the question is to what extent, contextualization is implied on different governance levels and whether norm diffusion takes place. The decriminalization in Botswana is celebrated across borders and with the hope for a signalling effect for other countries on the continent (interview A. Mmolai-Chalmers, 2022; interview M. Tabengwa, 2021; interview C. Youngman, 2022). Furthermore, the hope is that the changes in laws and norms diffuse not only to other nation states but also to and through the regional arenas. One interviewee illustrates this in the following way:

[T]he Botswana victory can be used to challenge African leaders either at the African Commission on Human and People’s Rights where human rights activists from particular countries can say to their countries, ‘you need to do better, look at other countries like Botswana they have done one, two, three, because of one, two, three’ and advance those at the African Commission when they submit reports. So, those in a way, after some time, they become a good foundation for activists to use. (interview with Legal Advocacy Officer (anonymous), 2022)

The perspective on the national struggle is related to and contextualized within the broader multilevel governance setting of the continent. This reasoning shows that activists are interested in moving beyond the national level(s) and concurrently have other national but also regional governance levels on the radar. They view ROs as arenas which can be utilized, herewith contextualizing their cause(s) within multilevel governance settings. This has strong implications for other strategic litigation cases across the continent – both theoretically and practically. The diffusion of strategic activist practices such as litigation campaigns from the national to the regional (in this case continental) to other national levels is an interesting avenue to study diffusion dynamics. With regard to the practical implications, the learning processes that develop out of these diffusion dynamics between and through multilevel governance settings can inform activist strategies further.

Southern African development community

The idea to promote regional cooperation to foster transnational support during the struggle for independence was especially prevalent in Southern Africa and is – until today – a strong identification factor and norm of the SADC.⁶ With this rich history rooted in struggles against oppressive systems, the SADC appears to be one of the ROs well equipped to put the rights of minorities on its own agenda. Over time, the SADC has developed various bodies and mechanisms that, according to its treaty framework, are relevant to the enforcement of human rights and thus of particular importance to activists and within which they can act as ‘brokers’. These are the Parliamentary Forum, the Tribunal, and the Gender Unit of the Secretariat, as well as the Gender Mainstreaming Strategy.

Two bodies of the SADC could potentially play a relevant role for the engagement of civil society on this regional governance level in general but also in regards to the rights of LGBTIQ+ persons: the parliamentary forum and the Tribunal. The functions of the SADC Parliamentary Forum, as laid out in 1997, are mainly to promote the SADC to the people and non-governmental stakeholders and to involve them more by offering a discussion forum and opportunities to network with other inter-parliamentary bodies on the continent and Europe (Lenz, 2011; Southern African Development Community, 1997). The Forum is accommodated within the SADC framework but is an independent body (Southern African Development Community, 2001) and in fact does not play a significant role due to its very limited influence within SADC (Ogbonnaya, 2015; Vanheukelom & Bertelsmann-Scott, 2016). In 2000, the SADC passed the ‘Protocol on Tribunal’, specifying the composition and decision-making procedures of a regional court. According to the SADC treaty framework it is responsible for adjudicating human rights-related cases (Ruppel & Bangamwabo, 2008). The Tribunal was inaugurated in 2005. In late 2007, among the first cases that were heard, was the case challenging the Zimbabwean land reforms. Mugabe’s government refused to implement the ruling in favour of the white farmers, and the Heads of State or Government within the SADC agreed on a temporary suspension of the Tribunal in 2010. Until today, the Tribunal is still not back as envisaged by the Treaty, but only functions as a technical body/ mediator for staff queries. Therefore, the Tribunal cannot be approached by activists. The SADC was one of the first ROs to implement a gender mainstreaming strategy (Debusscher & Hulse, 2014; Roggeband et al., 2014; Seidman, 2007) – it is largely based on a binary understanding of gender and strongly rooted in a uni-dimensional understanding of gender identity as cis-gender. As such it makes only marginal reference to the challenges and protection of LGBTIQ+ persons (Matsila et al., 2021). The regional coalition of NGOs under the umbrella of the Southern African Civil Society Forum has been calling for both the Parliamentary Forum and the Tribunal to be empowered within the SADC’s institutional structure (Southern African Civil Society Forum, 2015). On the structures of the SADC, Anna Mmolai-Chalmers of SALC reflects:

I mean all the structures seem to have collapsed you know, you can’t seem to have an institution to go to and report when human rights are being violated in the region. Unfortunately we always have to go to Europe to do that you know, I mean it’s just very embarrassing, (…) so, I think that at some point regional civil society, we really need to talk about SADC, because at the moment it’s not serving its purpose, (…) it’s just toothless. (Interview A. Mmolai-Chalmers, 2022)

She points to the shortcomings of the structures of the RO to serve as a refence point concerning human rights violations. Similarly, other interviewees have stated that the SADC does not provide a point of entry for debates around LGBTIQ+ concerns. Responding to the question whether the SADC could be seen an agent of change, one interviewee explains:

No, as far as we are concerned, SADC is a useless body that only works to perpetuate the views of the members states. (…) They are the ones to continuously perpetuate this narrative that countries have sovereignty and therefore they should make [the] decision what should be the status quo in their countries, despite the fact that some of the positions are really human rights violations. (Interview with human rights expert (anonymous), 2022)

Few NGOs have tried to carry out advocacy work on the level of the SADC. Jabulani Pereira states ‘within SADC we haven’t done any of the specific advocacy work. We’ve tried, it’s not for lack of trying, I think there’s definitely been a lot of reaching out’ (interview J. Pereira, 2021). Underscoring the general interest in this particular regional arena. In a similar vein, several experts from the NGOs I spoke to also emphasize that the regional governance level is generally of interest to them, and would like to see it playing a more relevant role and offering avenues for engagement (interview C. Kelemi, 2022; interview S. Ndashe, 2022; interview M. Tabengwa, 2021).

The generally low expectations of the SADC’s interest in providing a space and arena for (LGBTIQ+) activism and voices is reiterated by all interviewees. This perception leads to a de facto practice of non-involvement with the SADC organs and institutions – a way of contextualizing advocacy work within a multilevel governance setting. This shows the ways in which civil society engagement on the level of the SADC is lacking because of the dire state of human rights protection and realization from this RO. A way of contextualizing activist work on this regional governance level and within the multilevel governance architecture of the African continent, when the regional player, SADC, is not seen as a relevant arena for the fight for the rights of minorities, here specifically the LGBTIQ+ community. Concluding from the experts’ accounts, there is a vested interest within the realm of the rights of LGBTIQ+ persons in theory to engage beyond the national governance level e.g., the SADC. However at this point, the SADC is rather seen as unapproachable and not providing arenas for NGOs to engage in when it comes to the human rights of LGBTIQ+ persons.

Conclusion

The different governance levels on the African continent offer spaces and arenas for the advocacy of contested norms and laws regarding LGBTIQ+ persons’ interests and needs. As the case study of Botswana shows, on the national level, NGOs largely rely on strategic litigation and contextualize their campaigns by not pointing to colonial legacies, carefully developing campaigns to change both norms and laws, and enter into transnational alliances. At the regional level, that is the SADC, advocacy and involvement is limited to non-existent, mainly because the RO is not perceived as a relevant arena, institutions are seen as failed and not as an agent of change. Herewith not spending scarce financial and personal resources where they will most likely not lead to a success – contextualization as practice based on non-involvement. However, clearly, if the SADC would enable its institutional framework with the regional court, regional parliamentary body and the forum for organized civil society and non-state actors, it would be a welcome regional arena to discuss and address human rights issues. Inter alia because of the (institutionalized) shortcomings on the regional level, the continental arena at the AU level has been more of a focal point. Even though it is a difficult space to enter and the recent set-backs have led to less confidence in the (human rights) architecture of the AU, it is still the regional arena which NGOs turn to. As the analysis shows, NGOs working towards the safeguarding of human rights of LGBTIQ+ persons apply pick and choose tactics for their multilevel governance advocacy strategies. They use strategic litigation campaigns on the national level and even though these are clearly aimed at sparking de facto and de jure change nationally, they hope for diffusion to other regions and nation states across the continent – also through regional governance arenas like the AU.

With the analysis, I strive to contribute to multilevel governance and transnational norm diffusion discourses and provide a relevant and interesting theoretical connecting point to the study of NGOs that work towards advancing the human rights of LGBTIQ+ persons. That is to shed light on the ways in which different regional governance arenas are utilized by civil society beyond the national level for a ‘policy field’ which is otherwise under-researched in norm (diffusion) research. The article also discusses the opportunities to use certain regional governance arenas for advocacy and points to shortcomings. One way to use a regional arena is to diffuse knowledge and practices of national developments but also draw clear lines and withdraw where the governance arenas are not useful. The monitoring of arenas such as the SADC to evaluate if/when they become relevant arenas or even agents of change could be a useful practice for NGOs to utilize the multilevel governance structure of the continent for their advantage – and to change hearts and minds on the human rights of LGBTIQ+ persons beyond the national realm.

Acknowledgements

I thank the two reviewers for their excellent comments and recommendations. I also thank the colleagues at ISA 2023 and my colleagues at the Center for Conflict Studies for providing invaluable input on the piece. Many thanks go to Andini Hasanah, who supported me with the transcription of the interviews; and to Nozizwe Ntesang and Alina de Luna Aldape for their very helpful feedback and comments on the article. Last but not least, I am very grateful to the interviewees who shared their insights, time, and knowledge with me.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by the Hessian Ministry of Higher Education, Research, Science and the Arts under Grant Dimensions of the Category Gender – Women – and Genderstudies in Hesse

Notes

1 This acronym is largely a Western conceptualization to denominate sexual orientations and gender identities (Tamale, 2011). The terms and acronym renders invisible non-Western descriptions and designations, such as women loving women and Matanyola (a Tswana term used in Botswana). Some of these are a distinctive re-claiming of derogatory names (Mbaru et al., 2018). Colonial continuities need to be reflected here too, as the reproduction of the ‘common’ abbreviation and the continuation of making other terms invisible is in itself highly problematic and a continuation of power dynamics. Furthermore, the acronym is an oversimplification of the different identities, lived realities and the intersections of identities of the people it tries to describe.

2 The African Union recognizes the following eight RECs: Arab Maghreb Union (UMA), Common Market for Eastern and Southern Africa (COMESA), Community of Sahel–Saharan States (CEN–SAD), East African Community (EAC), Economic Community of Central African States (ECCAS), Economic Community of West African States (ECOWAS), Intergovernmental Authority on Development (IGAD), Southern African Development Community (SADC).

3 The research stay was impacted by the Covid-19 pandemic, which made in person meetings challenging and thus some interviews had to be carried out online.

4 In 1998 a partial constitutional review was carried out in Botswana which targeted laws discriminating women – however, discriminatory practices and laws targeting LBTQ women were not considered. Upcoming elections at the time made further pro LBTQ campaigns difficult if not impossible. On the contrary, in the context of the review process, the language of many laws was changed to gender-neutral terms which led to the criminalization of same-sex acts between women – yet, this was not enacted (Tabengwa & Nicol, 2013).

5 In 2012, the NGO LEGABIBO applied for the registration in terms of the Societies Act, which was rejected on the basis that the Constitution does not recognize homosexuals and that the objectives of the organization are contrary to section 7(2) of the Societies Act. The case ultimately landed in front of the High Court of Botswana, asking the court to review the decision to refuse the NGO’s registration. In 2016, LEGABIBO won the court case at the Court of Appeal and was able to register as an NGO (‘Thuto Rammogwe and 20 others Vs. The State’).

6 Frontline states to Apartheid South Africa established the Southern African Development Coordination Conference (SADCC) in 1980. Its mandate was to reduce economic dependency – especially on South Africa; establish and foster an independent Southern Africa; establish and deepen links and regional integration among the member states; mobilize resources for and put into place regional policies; and ensure international cooperation with regard to economic liberation (Southern African Development Coordination Conference, 1990). In 1992, the Treaty of Windhoek turned the SADCC into the SADC.