Political determinants of sexual and reproductive health: Criminalisation, health impacts and game changers

The project “Political Determinants of SRHR” analyses effects of criminalizing sexual and reproductive behaviour and health services and the political dynamics that drive, hamper and shape such uses of criminal law. The empirical focus is on causes and effects of (de)criminalization of abortion and same sex relations on the African continent, where all but 4 of 54 countries criminalise abortion and 32 criminalise same-sex sexual relations, while most others restrict LGBT-rights. The main objective is to develop insights into political game changers that may improve conditions for sexual and reproductive health and rights. A central question in the literature is whether politicisation is a reaction/backlash to activist strategies generally and litigation specifically. We conducted a 13-country comparative study of Queer Lawfare in Africa - legal mobilization over the rights of Lesbian, Gay, Bisexual, Trans, and Intersex (LGBTI) persons in Botswana, Ghana, Gambia, Ethiopia, Kenya, Malawi, Mozambique, Nigeria, Senegal, South Africa, Sudan, Uganda, and Zambia. We find that, from the perspective of individual countries, domestic triggers stand out when explaining politicisation: visibility of LGBT activist, reactions against court judgments challenging prevailing norms, activist’s foreign ties. In Uganda, foe example, more visible activism and court cases to advance LGBT rights have been seen as contributing to the current backlash, with restrictive law proposals and increased violence and discrimination. However, when analysed comparatively, the picture changes: there is politicisation where identified domestic triggers are absent, and absence of politicisation where they are present, Diffusion effects, both from neighbouring countries and globally seem as important. It is also clearer in comparative perspective that activist strategies—including court cases—predominantly are reactive, responding to politicisation by political actors and media rather than causing it. A related question is whether international actors trigger backlash. Anti-colonial rhetoric criticising international donors supporting SRHR work, and LGBT activists as foreign agents, have been common, but in our assessment, what international donors and activists do in relation to a particular country has limited explanatory value. It may serves as a pretext for legislation making it harder for local organisations to register and receive foreign funds and other sanctions, but again, the rhetoric and sanctions are similar in cases with little international involvement with LGBT activist. In the broader picture, there is a reaction from African (and other) elites against the global liberal-democratic hegemony that SRHR activism reflects. African churches are integrated in conservative networks contesting liberal gender ideology. Seeing local politicisation as part of a global contestation means that we need to pay more attention to what happens globally, such as implications of the set-back for abortion rights in the USA, international court rulings, and how global organization work to embed and change gender norms. This does not mean that it is unimportant how international actors engage in a country. We find that short time-frames in donor projects, preference for funding certain activities, and insufficient local anchoring increase risks of sparking political reactions. Whereas support from the international community may lead to accusations of non-African imperialism it also contributes resources and legitimacy to domestic activist and can protect and enable local engagement. Longer term, visibility and knowledge may change attitudes. The COVID pandemic lead to political restrictions that in many cases affected LGBT people particularly hard, and provided a laboratory for studying the effects of lockdown measures in countries with different levels of criminalisation and politicisation. Surveys of LGBT communities in Mozambique, Ethiopia, and Uganda during lockdown found systematic differences. In Mozambique where homosexuality is legal but socially stigmatised, challenges from moving in with family were commonly reported (with a later survey-round finding that for some, relations improved during the pandemic). In Ethiopia, where homosexuality is criminal, but not highly politicised, reports of mental stress were rife. In Uganda, the LGBT community was directly targeted and victimised, including though arrests and lengthy detentions, with lockdown regulations placing obstacles for legal assistance. The project is a collaboration between CMI/LawTransform, the Universities of Pretoria; Harvard; Georgetown; Addis Abeeba and Malawi; Kelin (Kenya), HRAPF (Uganda), and COWI (Mozambique).

The project has engaged more than 35 scholars in different capacities. Most are young and more than half are African. Many are lawyers – academics as well as practicing advocates, or with an activist background, some are social scientist. Norway- and US-based team members are a mix of senior and junior scholars from different disciplines (political science, law, public health, anthropology, psychology, economics). Project activities have included joint fieldwork, co-writing, workshops, PhD courses and methods training in connection with the annual Bergen Exchanges, which also provides opportunity for learning from related projects in different regions. This has built individual capacity and a collective basis for further interdisciplinary, and international research collaboration . Throughout the project we have engaged researchers working on related issues and projects in Norway and internationally, as well as practitioners (development practitioners, activists, legal professionals, judges) and students to enhance capacity beyond the team, and ensure that findings and insights from the project reach, and is actionable for potential users. Longer term impacts on society are likely to emerge from the capacity built in the team. Many team members are also, or will become practicing lawyers, policy makers and thought leaders in their communities, and will utilise the knowledge gained as well as the networks. The insights gained on dynamics of politisization of SRHR in African context will enable more effective work to advance sexual and reproductive health and rights, as well as contribute to scholarly theory building.

Development actors increasingly recognise the importance of the political determinants of health. One way in which politics and power dynamics impact health is through the use of criminal law. The project provides insights into the causes and effects of criminalisation of abortion and same sex relations, which is widespread in LLMI countries, and has significant detrimental effects on mental health, maternal mortality; the health of women and LGBTs, and HIV transmission. The project investigates health effects of criminalizing sexual and reproductive behaviour and health services, and analyses the political dynamics that drive, hamper and shape the uses of such criminal law in ten African countries. Six are predominantly Christian Sub Saharan countries (Ethiopia, Kenya, Malawi, Mozambique, Uganda, Zambia) while two are North African Muslim countries (Sudan and Tunisia, a third country will be added). Within each group there are countries with a long tradition of legal abortions (under different requirements) as well as countries where it is strictly criminalized - and on homosexuality the cases range from Mozambique, where same-sex relations were legalized in 2007 to legal provisions for the death penalty in Sudan. The project aims to develop insights into political game changers that can improve conditions for sexual and reproductive health. Global health actors have sought to push for de-criminalisation of abortion and same sex relations but external pressure seems to trigger local resistance and backlash, and once abortion and homosexuality become politicized, public health evidence seems to have little traction among legislators and policy makers. And even when laws change, health policies, services and outcomes often do not. An effective de-criminalisation agenda requires better insights into the political and social dynamics - inside the health system as well as outside - and the project aims to contribute to filling this gap.