Views to Consider on Section 377 India Ruling

Many in Africa have been following the Indian Supreme Court ruling in the case of Suresh Kumar Koushal and another v. Naz Foundation and others. The judgment was delivered at the beginning of this month and it was not good news – it basically re-criminalized consensual same-sex sexuality in India.

The Supreme Court had been asked to examine the constitutionality of Section 377 of the Indian Penal Code, which provides for the punishment of those found guilty of “unnatural offences”. The law, originally introduced by the British colonial administration over 150 years ago in India, has been used to criminalize same-sex sexuality. Of course this narrative is the same for many former British colonies in Africa. In Kenya the same version of the law was introduced in 1930. 

Many had hoped that India would lead the way by deleting that part of colonial legacy. It is highly unlikely now that any African country will lead the way – if anything; many countries such as Uganda, Nigeria, and Liberia among others have shown appetite for adding to the penalties already provided or even enlarge the scope of the law.  Of course we could be pleasantly surprised by an odd country that opted to affirm its own agency and re-affirm fundamental rights of all her citizens as enshrined in most countries constitutions – but highly unlikely.

While it is easy to see why parliamentarians in Africa push for further criminalization of a discriminated minority – (it earns them political mileage plus providing opportunity to distract public attention), it is hard to understand why the religious leadership relish at further criminalization. Surely only the most unwise would think criminalizing gay and lesbian people would turn them heterosexual. Surely everyone knows criminalization, rather than squeeze out the practice of same-sex sexuality, only changes the context under which it’s practiced.

Religion on the other hand, has to stand the test of time. It should be more strategic in its thinking and reasoning about social issues. I think it’s extremely unwise for the religious class to jump into the criminalization bandwagon. Why? Because, by changing the context, important human rights and public health externalities arise. These externalities are unintended negative spill overs that flow directly from criminalization and often tend to affect the most vulnerable in the society irrespective of their sexuality.

These spill overs include:

• Increased violence – both verbal and physical against gay and lesbian people in the society. Why would the religious sector want to be associated with violence? Yet this type of violence hardly affects all people equally. The most vulnerable would be the gay and lesbian people in crowded slum areas, and hardly ever the rich ones living in greener suburbs. Of interest to the religious sector, is that once it becomes allowable to be violent against someone because of sexual practice, it progressively opens floodgates to violence on moral grounds including poorer religious leaders who may not fit the social script. Interestingly this spiraling of violence and expansion of justification for aggressive behaviour will always affect the poor more than the rich – so much so, that the rich gay man or woman will suffer less from it, than a heterosexual poor man or woman in the long run.

• Obstacles in accessing health care. This is yet another case where negative externalities of excluding the gay and lesbian people follow a resource rather than sexuality divide. I would not want to be seen to underestimate the challenges faced by many gay and lesbian people in seeking non-stigmatizing health services. There are many cases where health workers have openly discriminated and mistreated people on account their real or perceived sexuality. But from an economic point of view, negative externalities flowing from this exclusion, will almost always follow a poverty fault line than they would a sexual orientation one.

• Impact on livelihoods. Discrimination, stigmatization and exclusionary laws do contribute to poverty, decreased social capital, lack of education and consequently employ-ability. Criminalization does fuel certain factors that directly affect gay and lesbian people’s ability to earn a living, such as ejection from the job place, but also bullying in school which may increase absenteeism and low self-esteem. Yet in our African family context where “haba na haba hujaza kibaba” dis-empowerment of one person in the family often affects the economic outcomes of the entire family. In terms of economic outcome spill overs, the poor will generally suffer more as a result of these laws than the rich.

• Constriction of the democratic space and participation in civil society. Many African leaders have realized that anti-gay laws present one of the easiest ways to distract public attention from cases of corruption, human rights abuses or reduction of the democratic space through unconstitutional laws. This of course affects everyone in the society but more often than not, the poor bear the brunt of the economic and political outcomes.

The religious sector may not have deeply reflected on their blind support at criminalization. Yet in the long run, as social scientists continue to account for the outcomes criminalization, the legacy of their support will be more about poverty  than sexuality. Two economic concepts for one who may want to explore this inequitable distribution of negative spill overs or externalities are:

Allocative Efficiency – particularly in reference to health. Because of criminalization, gay and lesbian consumers of health fail to have their choices and preferences factored in. Often the questions asked are, how health care workers can work can provide health care to gay and lesbians in the context of criminalization, rather than how to gay and lesbian health preferences can be utilized to package services thereby increasing demand and uptake. Smart health allocation strategies would call for an immediate and judicious review.

Social Efficiency – this refers to how externalities are shared out in the society. Criminalization among other negative social outcomes, creates an unfavorable environment for gays and lesbians to seek health services. For the religious and other leaders the important thing to remember is negative externalities resulting from lack of uptake of health services by gay and lesbian people affect more than just this population. It might even be that, in absolute numbers, more heterosexual people are negatively impacted from this exclusion than the gay and lesbian people.

The politicians do gain short-term political capital from the current situation, but the religious sector must query their prophetic opportunity by supporting an inherently discriminative policy - that in any case entrenches inequality more out of poverty than sexuality.