Public opinion on gay rights- why it should matter for the human rights activist

                                                                                                             by Chisomo Kaufulu-Kamwenda*

Our earliest conceptualization of democracy was simple: ‘the majority rules!’ Inevitably, what the majority decides will ultimately prevail. With an enhanced understanding of what human rights entail, it has now become clearer that the minority view does count. In essence, it is not necessarily a question of ‘numbers’ that will decide what is often perceived as the common good of a country; instead it is what is right, just or equitable that ought to matter. Thus, and as has now been established by various scholars, democracy and human rights are not necessarily opposed. In fact, it is democracy that creates an enabling environment for the effective enjoyment of human rights. 

With that understanding, my mind deliberately floats to the on-going struggle for the recognition of gay rights in modern society. Though the full realization of gay rights remains lacking in most parts of the world, I focus my discussion on the African continent where most countries have laws used to criminalize gay relationships. In addition, the majority of the African populace remain vehemently opposed to gay rights. Ideally, the evident detest of African societies against gay rights should not bother the human rights activist. Did not the South African Constitutional court judgement of R v Makwanyane regarding the death penalty clearly illustrate that public opinion cannot serve as a justifiable limitation to the enjoyment of individual human rights? Thus, the human rights activist may continue to advocate for legal reform that upholds gay rights even in the face of wide public outrage. Problem solved….or is it not? Unfortunately, the solution is not as clear cut as outlined. Though public opinion cannot serve as a justifiable limitation to individual rights, this does not necessarily mean that such opinion remains irrelevant. The wide public resentment against gay rights by most African countries may arguably surpass any other resentment held so far against individual rights in this post-colonial era. Poverty stricken countries have been willing to forego development aid than succumb to international pressure to recognise gay rights. Others (like Uganda) were recently on the verge of passing stricter sentences against those engaged in gay relationships. Malawi1 and Liberia, for instance, have also recently passed legislation further restricting acts of homosexuality and lesbianism. All this in the midst of wide citizenry support. It is this fierce resistance and open defiance that has provoked me into thinking whether human rights activists’ approach on this matter has been strategic. Will constant threats of aid cuts from human rights bodies eventually give rise to the legal recognition of gay rights in such countries? And if so, will such legal reform really account for much difference on the ground?

Photo by Bénédicte Desrus

Earlier on, scholar Kathleen Pritchard noted, “there is very little research on the role played by mass public opinion, and perhaps even less, on factors that shape and influence that opinion in the field of human rights."2 Perhaps it is high time that human rights activists paid keen interest to public opinion especially where such opinion vehemently opposes seemingly beneficial reform. It is for the court to disregard public opinion where necessary. But the human rights activist must not ignore public opinion. In fact, we must use it as an avenue to seek change. Legal reform, on its own, cannot safeguard gay rights. Law does not operate in a vacuum but within societal relations. It is these societal relations that are an important element for the enjoyment of rights. Inasmuch as rights are inherent, they cannot merely be enjoyed through a court order or a piece of legislation. In fact, where the law overlooks societal behaviour when addressing a necessary reform, not only does implementation prove difficult but incidences of violence against the group that the law seeks to protect tend to increase. Rights must be understood as "claims (of one person/group on another person/group/institution) that have been legitimized by social structures and norms."3 Though individual rights must be guaranteed today and now, effective and sustainable realization of such rights would sometimes necessitate a patient and more strategic approach. We must not rush to the constitutional court for an invalidation order against laws that criminalize gay relationships before we have addressed the underlying issues provoking wide public outrage. As we explore the answer, we will encounter a web of public perceptions/responses that must frame our intervention. In the face of religious, cultural and moral resistance, the activist’s role is not to change such beliefs. Instead an interface must be sought within the ambit of such tightly cherished beliefs in which there will always be room (in whatever fashion or form) for principles of humanity, including gay rights.

As Musembi notes: “rights are shaped through actual struggles informed by people’s own understandings [...]”4 To serve as a best practice, African rural communities are progressively embracing principles of gender equality through participatory approaches with the public. This has led UNFPA to acknowledge that: “success, we have learned, requires patience, a willingness to listen carefully and a respect for cultural diversity.” Thus diversity in morals, religion and culture in the African society should not be perceived as a limitation to uphold gay rights. It is but an opportunity if positively approached.

1 Section 137A of the Penal Code Amendment Act of 2009.
2 Kathleen Pritchard ‘Human Rights: A Decent Respect for Public Opinion?’ (1991) 13 Human Rights Quarterly 123–142.
3 C Moser, A Norton ‘To Claim Our Rights: Livelihood Security, Human Rights and Sustainable Development’ (Overseas Development Institute: 2001) 4.
4 C Nyamu-Musembi ‘An Actor-oriented Approach to Rights in Development’ (2005) 36 IDS Bulletin 41.


Special thanks to Bénédicte Desrus for permitting the use of the photo.

Chisomo Kaufulu-Kumwenda holds an LLB (Hons.) degree from the University of Malawi and an LLM in ‘human rights and democratization in Africa’ from University of Pretoria. She has previously worked with the Malawi National Assembly and UNDP Malawi on governance related work and has also been involved in various research initiatives on women’s rights. Currently, she is engaged as a research assistant on a study focused upon women’s sexual and reproductive health rights in Malawi and is also conducting consultancy work related to accountability in governance institutions. 

Readers are encouraged to quote, reproduce and share this content for educational, non-profit purposes, provided the source is acknowledged. The views expressed in this post are those of the author and do not necessarily reflect the views of the HR&D team.


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