The African continent has been reported to have laws stipulating that criminal charges should be instituted against men who are caught engaging in sexual relations with other men. In countries such as Uganda, Tanzania, Sudan, Sierra Leone, and Mauritania, MSM can face from 14 years to life imprisonment. These laws can have physical, psychological and sexual violence related implications for MSM. The manifestations of this criminalisation of MSM on the African continent are varied, from being ostracised socially, to loss of employment, being forced to move and leave their birthplaces (extensional exile), as well as being a victim to "hate crimes" and ultimately death (McKenna, 1996). It is obvious how these risks encompass what Mohan Dutta (2008) describes as being peripheral to the dominant system of the day – when presenting a definition for marginalisation.
Men Having Sex with Men (MSM) on the African continent are grossly marginalised and are faced with a variety of punishments should they publicly live out their same-sex desires. The plethora of punishments for being found guilty of engaging in same-sex acts range from being fined to short and lifelong incarceration, strenuous manual labour, obligatory psychiatric treatment, banishment, lashing, as well as death by public
stoning (Arreola, Santos, Beck, Sundararaj, Wilson, Hebert, Makofane, Do and Ayala, 2015). The enactment and reinforcement of this marginalisation of MSM is therefore performed using punitive laws and by perpetuating what Phumla Gqola (2015:58) refers to as the "Fear Factory", in this case, it can be understood as a Homosexual Fear Factory.
This Homosexual Fear Factory is enacted in a two-fold manner, firstly it teaches citizens to fear and not want to be associated with MSM. Secondly, MSM constantly live in fear of being exposed, imprisoned and killed with many ‘going underground’. This successfully erases MSM from society and cements their position of marginalisation. As a result, many of these men live out their lives caught up in a complicated web of legal, social, religious and moral contempt, with the ever-present threats of harassment, intimidation, arrest, imprisonment, and even death, hovering over their heads, which increases their vulnerability to negative health and other outcomes (McKenna, 1996; Zahn, Grosso, Scheibe, Bekker, Ketende, Dausab, Iipinge, Beyrer, Trapance and Baral, 2016).
The Panos research project indicated that in 1993, Africa had 24 countries out of a total of 44 (55%) which had laws against sex between men. At the time, there was information on laws in nine countries, with 11 countries making no mention of sex between men in their penal codes (McKenna, 1996). As recently as 2007, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) performed a world survey on the legal status of same-sex practices. The findings revealed that 75% of the African nations, (40 of the 53), deemed same-sex practices to be illegal. This is evidence that Africa continues to have the highest rates of intolerance towards same-sex practices. The number has marginally decreased over the past decade, as statistics revealed in the 2016 Report written byAengus Carroll (2016) on behalf of ILGA. In 2016, 37 countries had laws which prohibited same-sex acts between consenting adults. This structural and legislative discrimination is based on the belief that homosexuality is “un-African” and is a European imposed practice that arrived with the colonisers and has no place in African history (Aggleton and Parker, 2015).
The above idea was supported by the then African Union (AU) Chair and former Zimbabwean President Robert Mugabe who asserted at a United Nations General Assembly meeting that, “We reject attempts to prescribe new rights that are contrary to our values, norms, traditions and beliefs. We are not gays.” (News24,
2015: para 2). Former President Mugabe vehemently argued that his country and Africa would not accept homosexuality as it did not form part of African values.This is an example of the common "us versus them"
rhetoric used by politicians attempting to garner popular support for anti-LGBT policies (Kretz, 2013; Biruk, 2014). Evidently, statements like these reflect the views of 69% of African leaders and have salient effects on the levels of discrimination experienced by MSM in most of the countries on the continent (Biruk, 2014).
Though the above arguments are centred on “Africanity” and its value, there is a growing scholarship which problematises this notion and links the current understanding of this kind of Africanity to colonial inheritances and ideals (Fanon, 1967; Biko, 1977; Tshaka, 2007; Mpofu, 2013; Rebe, De Swardt, Struthers and McIntyre, 2013). The foundation for the beliefs and the laws which ultimately criminalise the existence of MSM are effectively the legal codification of moral, religious and social taboos (McKenna, 1996). It can be argued that these are a critically weak foundation for the marginalisation of an entire community of people. Many of these laws are firmly founded on religious beliefs and prescripts which define the legal and the social construct of the relevant countries. What is especially awkward is that organised religion in its current form is understood to be another form of colonial influence on the native citizens of the African continent and has no place in the continent’s pre-colonial history.
Research indicates that the prohibition on homosexual activity dates back to colonial penal codes; British colonial laws banning homosexuality remain on the books in nearly two-dozen nations and although Britain has repealed its sodomy statutes, many of its former colonies have simply retained these laws, which are generally referred to in the penal codes as moral codes or indecency laws (Kretz, 2013; Semugoma, Nemande and Baral, 2012).
Ironically, this exhibits the effects of coloniality on the African continent and therefore, the use of a colonial inheritance to define and govern the way African states function is a matter tantamount to perpetuating the neo-colonial rule. Consequently, this presents the current study with an opportunity to select a fluid, all- encompassing African perspective of same-sexuality from a decolonial vantage point. Such a decision is exhibited in the choice to use the encompassing phrase MSM, and thus avoid identification descriptors such as Gay which, as highlighted above continue to be associated with whiteness, affluence and privilege.
In contrast, the acronym MSM is encompassing of men of colour that may be poor and underprivileged. This will ensure a better understanding of the intersectional existence of a range of BMSM who reside in the Msunduzi Local Municipality. This will further allow for a more nuanced exploration of what informs their choices, especially with regards to disease prevention strategies and the role that communicative acts play in influencing these choices.
Particularly relevant to this study is the association between this marginalisation and access to health care.
Below is an exploration that will illuminate how the narrative of same-sexuality being "un-African" translates into the enforcement of punitive laws which as a result marginalise BMSM. This ultimately places them at a higher risk of HIV transmission and simultaneously limits their opportunities to access the necessary health facilities and services to prevent this. In their study on Human Rights violations among MSM in Southern Africa, Zahn et al. (2016) postulate that the criminalisation of same-sex acts and the deep-rooted stigmatisation of homosexuality disadvantages MSM economically by preventing them from securing employment. Employment provides MSM with the financial means to access the necessary health services, particularly proper counselling, treatment and care for a range of mental and physical health risks, including HIV. The United Nations Programme on HIV and AIDS-UNAIDS (2009) supports this when they assert that where the legal and social environments punish, stigmatise and discriminate against key populations such as MSM, these individuals are less likely to have sufficient awareness of HIV risks, access to HIV prevention services, including regular voluntary testing and access to preventative commodities such as condoms and water-based lubricants. Furthermore, these men are also less likely to organise and participate meaningfully in the design of HIV programmes, peer outreach or other community-level initiatives, thus leaving them vulnerable to negative health outcomes (UNAIDS, 2014; UNAIDS, 2016). This act of marginalisation has specific reference for this study which explores the availability and motivators by MSM to access HIV preventative methods.