“Out of the 53 Commonwealth states, 40 still criminalise same sex relationships largely on the basis of laws that they inherited from the British Empire.” Alistair Stewart – Programme manager Kaleidoscope Trust.
Julia Farrington talks to Alistair Stewart about his work with Kaleidoscope Trust to bring to an end a dangerous and persistent legacy of British Colonialism – the criminalisation of homosexuality.
JF: Can you tell us about the Kaleidoscope Trust?
AS: It was formed 3.5 years ago to focus entirely on the International situation for LGBT people around the world. Till then there had been no UK organisation that looked at the international picture and given the UK’s economic and political clout in the world this needed to be addressed.
The mission is to listen to, communicate and amplify LGBT voices across the world directing them towards policy makers, business, general public to make people aware of the issues that LGBT people still face.
JF: Can you describe the international picture of criminalisation of homo-sexuality.
AS: At last count, there were 76 countries that still criminalise same sex relationships. Of those 5 still impose the death penalty, though the crime is rarely prosecuted under the death penalty: Iran S. Sudan, Mauritius, Oman, Saudi Arabia. There is some confusion about Nigeria: 12 Northern states of Nigeria are run under a joint system of common law and Sharia law which technically imposes the death penalty.
A large focus of our work is on countries in the Commonwealth.
JF: Why the Commonwealth?
AS: Out of the 53 Commonwealth states, 40 still criminalise same sex relationships largely on the basis of laws that they inherited from the British Empire.
JF: That’s so interesting. So it is British law introduced during the Empire that continues to be used to criminalise homosexuality. But what is the Commonwealth nowadays – it sounds to me like an outdated, meaningless structure.
AS: I completely understand how a lot of people’s first reaction to hearing the word Commonwealth is to glaze over. The Commonwealth is actually an interesting intergovernmental organisation to work with.
It started formally after the 2nd WW, after Indian independence. A lot of the impetus for its creation actually came from India who saw advantages in maintaining special trade and cultural links with the former British Empire countries. Other non-former British Empire countries have joined it since – including Rwanda and Mozambique.
Unlike other inter-governmental organisations like the United Nations or the African Union, in many ways it is an informal grouping and is a really interesting space for civil society, very vibrant.
JF: How did anti-homosexual legislation start?
Even though same sex relationships had been criminalised in the UK through common law, the first modern laws against same sex relationships were trialled in India. The 1860 Indian penal code was a long time coming, but it finally came into force in 1863. The following year, almost the exact same language used in the Indian penal code was used to criminalise sex between men in the British Offences Against the Person Act.
This was the first systematic criminalisation of homosexuality. Later legislation introduced the idea of ‘gross indecency’ which was the legislation that criminalised gay men up until 1967 and that sent Oscar Wilde to prison.
It is interesting to see this piece of law as part of the shared struggle for LGBT people in UK, Uganda, Australia across the Commonwealth. Once it was imported into the UK it was adopted into legislation in different countries in the Empire in East and West Africa, in the Australian colonies and across the Pacific. With each iteration it got worse and worse. Consent was never an issue – [criminalised] acts got more specific and wider and wider.
Interestingly there is a correlation between decriminalisation in the UK and decolonisation. As these laws were being changed in the UK, independence movements were cropping up across the empire. Countries were leaving the Empire, but keeping hold of these terrible laws that the British had given them. In some cases they have become embedded within the national identity in opposition to the UK Empire. You hear quite a lot that homosexuality is “Un-African” or “it is against Jamaican values” - formed a national identity.
JF: Why was it important for Britain to introduce this legislation at this particular time - in the mid-19th century.
AS: It was about the way in which Victorian Britain both conceptualised its own society and the world it colonised. In many ways the proscriptions around sex were part of the wider Victorian project of the time, trying to establish and police social norms, classifying racial and sexual deviants and using law and science to do so. Classifying race and sex reinforced the way that the colonial project saw colonised regions as wild and untamed an in need of control.
One of the things that need to be governed was the apparent inability of people in the colonies to have adhere to proper Victorian sexual mores. Other characterisations – the sexually ‘rapacious black man’, or the ‘sexually perverted oriental’ - were part of this myth building. Sex and race run through the whole colonial project and criminalisation of same sex relationships was part of those fears.
JF: Are we talking about a sexually free world pre-Empire and we imposed our own specific problem with homosexuality which wasn’t universally shared?
AS: It is fair to say the taboos around same sex relationships that were prevalent in British Victorian society were not shared across the British Empire. But that doesn’t mean there were not other taboos and various local cultural constructions.
There were spaces where same sex relationships were accepted and tolerated and spaces where gender transgressions were not only tolerated and supported but seen as a key part as a religious identity. The role of the Hijra women in India and across South Asia – women born as men or men who identified as women or a third gender - had a very specific position within culture.
They were criminalised specifically by British legislation because we found this kind of gender transgression very difficult to deal with. The position of Hijra women in India is only just beginning to improve.
JF: What is the greatest strength in working through the Commonwealth prism?
AS: A real challenge about talking about LGBT rights internationally is that it tends to polarise very quickly largely along North-South lines. The Commonwealth disrupts these narratives; it spans north and south and it has the same laws; and as a grouping of countries, it is has a majority southern membership. And it isn’t about Brits saying what the rules are. African countries talk to other African countries and how they are approaching directly other countries, rather than UK lecturing.
JF: As the home of the Empire does UK have a distinct role?
AS: Yes, but it is a complicated one. It can exercise diplomatic leverage within the Commonwealth to help facilitate these South/South conversations. But, while the history of British colonialism arguably creates an imperative for British intervention, the legacy of colonialism creates some real pragmatic and ethical dilemmas for UK-based rights activists. There is a lot of resistance to being lectured by Britain about human rights.
JF: What success are you looking for.
AS: In the short term, we are very excited about this year’s Commonwealth Heads of Government Meeting in Malta. This is a fantastic opportunity to raise the issues that face LGBT people in the Commonwealth and we are pleased to be working with the Commonwealth Equality Network to ensure that a diverse range LGBT voices are represented in Malta. We are keen to see the Commonwealth show more public leadership on supporting the rights of all its citizens and working closely with member states to help them realise positive change. While in some ways this is a slow process and one that is starting later than in many other intergovernmental spaces, we’re confident that the Commonwealth can become part of the wider jigsaw puzzle in improving LGBT rights around the world.
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1. Brief description of the Commonwealth – “The Commonwealth is a voluntary association of 53 independent and equal sovereign states. It is home to 2.2 billion citizens, of which over 60% are under the age of 30. The Commonwealth includes some of the world’s largest, smallest, richest and poorest countries, spanning five regions. Thirty-one of its members are small states, many of them island nations. Commonwealth countries are supported by an active network of more than 80 intergovernmental, civil society, cultural and professional organisations.” From the Commonwealth website - See more at thecommonwealth.org
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