Towards a Legal Recognition of LGBTIQ+ Torture in Africa: Insights from Malawi, Kenya, and South Africa

“Let us be the generation that finally declares: there is no place for torture of LGBTIQ+ people, no place for hate, and no place for injustice on this continent.”

This was the rallying cry from Mmapaseka Steve Letsike, South Africa’s Deputy Minister for Women, Youth and Persons with Disabilities, at a recent gathering of activists and lawyers from Malawi, Kenya and South Africa in Pretoria, South Africa, convened by REDRESS.

Despite constitutional and legislative differences, Malawi, Kenya, and South Africa share a grim reality: LGBTIQ+ persons across all three jurisdictions are routinely subjected to violence — both by State and non-state actors — that often meets the threshold of torture or ill-treatment under international and regional human rights law.

Malawi

Malawi presents one of the most legally hostile environments for LGBTIQ+ persons in the region, with consensual same-sex relations criminalised under the guise of prohibiting “unnatural offences” and “indecent practices.” These provisions not only legitimise but actively facilitate acts of violence that constitute torture, often committed by State actors.

Particular problems for LGBTIQ+ people include arbitrary arrest and prolonged detention without charge; physical and sexual assault in police custody; psychological torture through verbal abuse and threats; and denial of gender-affirming healthcare in detention settings.

Kenya

Kenya’s legal landscape is marked by tension between progressive constitutional protections and the continued criminalisation of same-sex intimacy. There are constitutional guarantees of dignity, freedom from torture and other ill-treatment, and access to justice. However, same-sex conduct is still criminalised, which in practice justifies many abuses by State authorities.

Legal victories such as the 2016 High Court decision in EG & 7 Others v. Attorney General—which outlawed forced anal examinations as a form of inhuman and degrading treatment—have set progressive precedents. Yet these rulings are rarely fully implemented and these ‘victories’, far from improving the lived experience of LGBTIQ+ Kenyans, have often provoked a backlash against them.

South Africa

South Africa is widely regarded as a legal pioneer in the protection of LGBTIQ+ rights. Its Constitution prohibits discrimination on the basis of sexual orientation, and the Prevention and Combating of Torture of Persons Act of 2013 comprehensively incorporates the UN Convention against Torture (UNCAT) into domestic law.

However, this theoretical equality has not translated into lived safety for members of the LGBTIQ+ community. Widespread practices—such as targeted hate crimes, police harassment, and discriminatory service provision—persist, particularly in townships and rural areas. These abuses are often wrongly categorised as “hate crimes” or interpersonal violence rather than recognised as acts of torture by or with the acquiescence of State actors.

Joint regional efforts

These themes were explored in a regional roundtable convened by REDRESS in April 2025 in Pretoria, in collaboration with the Centre for the Development of People (CEDEP – Malawi), the National Gay and Lesbian Human Rights Commission (NGLHRC – Kenya), and Access Chapter 2 (South Africa), along with other key institutions including the Initiative for Strategic Litigation in Africa (ISLA), the South African Litigation Centre (SALC), Section 27, Outright International and the South African Human Rights Commission (SAHRC).

Deputy Minister, Mmapaseka Steve Letsike, delivering the opening remarks.

Drawing on first-hand testimonies, legal practice, and existing jurisprudence, participants’ analysis revealed that, whilst significant differences exist in the protections afforded to LGBTIQ+ persons in the three national legal frameworks, none of the three jurisdictions are currently effective in prosecuting violence against LGBTIQ+ persons as torture. This legal and conceptual gap has profound implications for access to justice, accountability, and prevention.

Participants worked together on action plans focused on the urgent need to reframe violence against LGBTIQ+ persons as torture: systematic, State-enabled, and rooted in discriminatory intent. The roundtable called for strategic deployment of regional legal tools including African Commission Resolution No. 275 (2014) on protection from violence based on sexual orientation and gender identity.

Legal background

International law is clear that when violence is used against a person for a discriminatory purpose it can amount to torture, if the violence is severe, intentional, and committed with the involvement of a State official.

Torture against LGBTIQ+ persons can take many forms, including physical and sexual abuse, forced medical examinations, conversion practices, ‘corrective’ rapes and other forms of harassment. Under UNCAT, States must investigate allegations of torture and other ill-treatment, and prosecute and punish perpetrators.

However, torture against LGBTIQ+ persons often goes unpunished. National authorities frequently fail to recognise discriminatory motives, treating such cases as ordinary cases of violence or assault. Knowing if the torture was motivated by discrimination is crucial for LGBTIQ+ victims to access justice, obtain reparations, and address the root causes of such discriminatory violence.