‘Mother, you can’t leave us here’ Thinking about incarcerated homosexuality
Interview with Ms Alice Nkom, Esq., lawyer at the Cameroon Bar, conducted by Marie Morelle, Douala-Yaounde, 31 January 2020
Over the last 10 years, as a result of a twofold movement of mobilisation and research (Broqua 2012), homosexual relations have become a problem in several African states. This has developed in response to processes of public rejection (sometimes recent) and the penalisation of homosexuality (sometimes older).
In this respect, Cameroon embodies an archetype.1 The first penal code of the independent state contained an article condemning sexual relations between two persons of the same sex to imprisonment and a fine (see later in this chapter), an article that is repeated in the new version of the code, adopted in 2016. This legislation has led to many tactics by gays and lesbians to hide both their sexual practices and their sexual identities. In an attempt to free themselves from homophobic gestures and speeches, many meeting and leisure places have been developed, particularly in cities, for self-assertion purposes (Awondo 2010). Nevertheless, these spaces were (and still are) subject to police raids and rackets, limiting their potential for resistance in order to live in freedom and without discrimination.
In the 2010s, the repeated incarceration of people arrested for same-sex relations,  sometimes carried out in parallel with controversies fuelled, for example, by the publication of‘lists of gay people “in the media”’ (Lado 2011; Awondo
2012) has prompted activists to take up the issue, placing it on a national as well as an international political agenda for decriminalisation. Among the figures in this struggle is Ms Alice Nkom, a lawyer at the Cameroonian Bar, practising from the city of Douala. This interview is an opportunity to retrace the history of her association, its motivations, and its arguments.s Alice Nkom borrows first of all from the register of the law, by virtue of her professional skills, and demonstrates the contradictory, not to say ubuesque, dimension of the Cameroonian legislation regarding the criminalisation of homosexuality. In the interview, she explains how valuable the support of donors has been, noting, though that it is always dependent on available resources, diplomatic relations, and agendas. She stressed the difficulty of thinking of a sustainable public action with emancipating effects for sexual minorities, when some national actors play with the rules while some international actors rely on international policy issues. Towards the end of our conversation, Nkom discussed the importance of obtaining not only justice before the courts on the basis of respect for the law but also reparation and recognition by society on the basis of a respect for human rights. Her elaborations on these matters reveal many conflicts among existing values in Cameroon, whether legal, social, or moral (especially religious).
The biographies of LGBTI,  as attested to by Nkom, are enamelled with symbolic and physical violence: humiliations, arbitrary arrests and detentions, acts of torture. From the cells of police stations and brigades to those of prisons, it is indeed the shadow of confinement that hangs over their life stories, followed closely by exclusion, foremost from the family sphere but also from local societies (village, neighbourhood). Prison is at the intersection of several discourses on homosexuality. It locks up those who are morally and supposedly legally condemned for having had sexual relations with people of the same sex. It also is a space where homosexual practices are taken to be a consequence of the lack of heterosexual sexual partners, and where the prohibition of sexual practices is wielded as an extension of punishment.
To date, research in Africa has focused more on the second situation. It highlights how sexuality is a value negotiated in prison, for the purpose of subjugating the other (who is made to become ‘one’s wife’) and acquiring status for self-protection. This body of literature also shows how, in some cases, sexuality become a channel of resistance to the grip of the prison institution and the gendered roles it assigns for normative purposes (Dirsuweit 1999). Me Nkom explains that in this system of powers, persons prosecuted for homosexual relations become objects of violence, notably (but not exclusively) by other prisoners. However, it is important to place these situations within a broader analysis of the prison experience and violence in prison. There is little research on incarceration on the basis of one’s homosexuality (or transsexuality): research on homosexuality in Africa are outside the prison. There is even,’ reason to believe, however, and let us hope that this interview is the beginning of it, that it is important to think together about the different forms of violence generated by an institution that claims to punish in order to reintegrate ‘undesirables’ and protect society. How do some become the executioners of others during the prison sentence? Refusing to think about it is to allow the essentialising of the figure of the prisoner, the delinquent, the criminal, to the ranks of which some societies and states add the ‘gay’ and the ‘transsexual’. This is most often to the detriment of the most dominated social classes, who are then also the most deprived to defend themselves and be heard.
By way of preamble, could you remind us of your position on the section in the old penal code criminalising homosexual practices [Article 347 bis] and what happened to it in the new code adopted in 2016? The latter stated that ‘any person who has sexual intercourse xvith a same-sex person shall be punished by imprisonment for six months to five years and receive a fine from 20,000 to 200,000 CFA francs’
This section 347 bis has been maintained in the new code except that the ‘bis’ has given way to the number 1: it has become section 347.1. Why? Because section 347 bis was not a law. This was an extract from an order issued by the president, signed by the president of the Republic, head of the executive, in 1972. It is a section that was incorporated into the criminal code, into criminal law, by breaking in: the separation of powers had to be broken down. Because in the Constitution, particularly in section 26, it is entrusted to the law, i.e., to Parliament, to determine crimes and offences. However, section 347 bis was not a law, it was an act of the executive. So that’s what I’ve been fighting for, the political aspect of it. I knew that the president was going to feel targeted, that some were going to try to protect him because, as a politician, he presented himself as the greatest contributor to democracy in Africa. However, I have focused on the fact that there is no democracy without the separation of powers: if all powers are concentrated in the hands of one person, it is no longer a democracy.
It is very clearly a dictatorship in which all power is concentrated in one person’s hands. I do not see, in this case, how we can still talk about democracy. It is autocracy, but not democracy!
This speech had a strong impact because the president, in his speeches, wants to be seen as someone who brought democracy. It was necessary to show that this section, this act, also violated other general principles of law, constitutional principles, in particular section 45 and the principle of the hierarchy of norms. Thus, the judge must ensure that he or she does not violate the provisions contained in duly ratified treaties. To sum up, there was already a violation of the law: that of the law establishing the Penal Code, in its section 2. The latter, in fact, reproduces section 45 of the Constitution [on international treaties, which is binding on the Penal Code as well as on all penal provisions]. The Supreme Court judge, who exercises judicial power, therefore had a duty to overturn the application of section 347 bis because it violated general principles of law. He had a legal means of cassation, contained in the Code of Criminal Procedure, to enable Cameroon to comply with its international commitments. So that’s what I’ve been fighting for: decriminalisation based on the unconstitutionality of the articles that repress homosexuality. Finally, home is the place where sexuality is practised. It is protected by the principle of the inviolability of the home as guaranteed by the Universal Declaration of Human Rights. If the home is inviolable, let alone my free, adult, and responsible exercise of my sexuality in those places as well. Therefore, the offence of homosexual relations is impossible to establish [except to violate the inviolability of the home]. Finally, in order to apply this article at the level of the judge, you have to violate the law, the code of criminal procedure, and the Constitution, all of these principles. So there can be no such thing as a misdemeanour.
Despite the illegality of section 347 bis of the old penal code, it is still found in the new code adopted in 2016?
In 2016, they passed this law in Parliament to save the president. The section number was kept, the ‘bis’ that referred us to the ordinance was removed, but the whole text had been taken over. One element of violation was removed, but all the others remain, section 2 of the Penal Code and section 45 of the Constitution in particular.
How does society deal with the issue of homosexuality?
How does it make it a problem? Remember that in 2006, some local newspapers published ‘lists of homosexuals’ (see for example L’Anecdote newspaper, Meteo newspaper, La Nouvelle Afrique newspaper)?
When I started the fight in 2003,1 knew I was going to act within the framework of an association. I knew that I had to register it at the prefecture and that the prefecture had the possibility of refusing to legalise my association because there was this section 347 bis which was very clear. This is what people kept in their minds: homosexual relations are a crime the law punishes. I had to dive into all kinds of texts. I decided to call the association the ‘Association for the Defence of Homosexual Rights’ (Adefho) because I knew that it would be shocking and that the prefet, who has the right to reject my request, would take up the fact that it is an offence: ‘I will reject it, it is punishable by law, etc.’. ‘It’s against morality’. I knew the prefet would have that reaction. As I anticipated, I went to him with the code, with the Constitution, to explain to him that although this article is in the penal code, it is illegal. I knew that it was not easy for people to understand this, but it is the result of my research as a lawyer, as a jurist, as a legal practitioner. So when I went to see the prefect [of the Littoral region] who said, ‘But how can you present that to me, you know it’s forbidden, you want me out of here ...’, in short, there I explained to him, text in hand, why it wasn’t possible that homosexuality, in the current state of our legislation, could be a crime, an offence, even though it’s in the code. I had him read section 2 of the Penal Code and section 45 of the Constitution. He then told me that ‘seeing as I no longer have an argument to reject your request because I have to give reasons for the rejection. I thought I was going to get away with saying that it’s punishable by law, illegal, immoral ... but when you look at it like that, since it’s always the law ...’. Homosexuality cannot be a crime, even under the Penal Code itself, since it violates its section 2.
How do you explain your choice to create this association?
I saw the distress of four young people who came to visit me at the office. They were there on holiday with their French classmates; they were happy and I understood that they were a little more than friends and I wanted to warn them by reminding them that homosexuality was penalised here and that they could expose themselves to mockery, small assaults, and so on ... I managed to do it with a lot of tact. And that distress I read on their faces ... between the time they came in all excited and the time I talked to them ... it ruined everything. That’s what I was wondering about. It’s not all about telling people to be careful. Why? We have to fight, we have to do something, it’s too cowardly to say it like that.
At the time you created the association, were there many preconceived ideas about people having homosexual relations?
It was a misdemeanour; it didn’t deserve to be called into question. It was a misdemeanour, a robber)^. If we steal, we go to jail. Period.
In your practice, have you observed detentions in police station or gendarmerie brigade cells?
I’ve seen a lot of them. So I thought, how am I going to run an association where I might not have anyone as a member? I may have to work alone. How am I going to get my message across? I thought about it, I started reading the newspapers because they always find it very cute, these subjects about homosexuality. So when a person was arrested, and there was a news story, I would take my lawyer’s robe and I would now go and see what the situation was, talk to the person, access the file in my capacity as a lawyer. That’s how I saw more and more how it w'as going. As soon as I decided to take care of it, I went further: I got closer to the young people who were being prosecuted, I offered them help, until the day when about 10 people, even 35, w'ere arrested in Yaounde: ‘the case of the 10’. I rushed to go and defend them, and at the same time to pass on my messages about the illegality of this article, which violates privacy, which violates people’s privacy, which violates the much higher values that are required. Sexuality and homosexuality cannot be subjected to repression. The law's do not allow' it in their hierarchy. This must be placed under the protection of privacy, and the protection of the principles contained in the Universal Declaration of Human Rights. There w'as every argument for decriminalisation.
How are persons prosecuted for homosexual practice treated?
They w'ere treated very, very badly. First by the police; as there is no caught in the act (since I plead, there never has been one), what did the police officers do at the preliminary investigation stage? They w'ould call a military nurse [and ] he would put his fingers in the anus to be able to prove that the anus w'as distended and get proof... Because without the proof, nothing could be done. Sexuality is a protected area unless they are stopped in a public park. Even then, it will be for indecent exposure. So I started talking, getting into the cases, influencing the judges’ decisions, developing my arguments. I could see very well that there is a lot of ignorance, including in the judiciary. Because in court they said, ‘he confessed’, that he has a lover ... But confession is not the end of the evidence.
I can very well say that I had homosexual intercourse more than 10 years ago, but there is a statute of limitations. It’s a difficult crime to defend legally. That’s how I started to communicate on the subject through the interviews I was giving.
Internationally, people have begun to know that there is indeed a ‘homosexual problem’ in Cameroon. Until then, we were told about bills, particularly in English-speaking countries, where the fatwa or whatever was going to be penalised, but we had no idea that in Cameroon there was a deep-seated homosexual problem. That’s how, little by little ... I said that I wanted first of all to break people’s hypocrisy, because many people are hypocritical; they point the finger at others, they put repression on others in order to escape from the bad social outlook. I said, ‘that’s hypocrisy!’ We are going to put the subject on the table as a human rights issue and we are going to discuss it by looking each other in the eye. We cannot have a part of our homosexual children immersed in indignity, in fear; they cannot blossom, they cannot grow up sexually, and God knows that sexuality is enormous for the blossoming of people ... Why should they be deprived of it? So little by little I began to argue, to explain what I was getting from the files, what I was seeing at the prison when I went there. At first, they were treated very badly. Because when a homosexual was caught, everyone thought that [the police] had the right to exercise all kinds of violence on him, to humiliate him ... There were incarcerations in police and brigade cells and in prison. All the arrests I’ve had to know about are arbitrary arrests and illegal detentions.
What were the prison conditions like?
It’s torture. The unwanted interference with your body with [their] fingers ... under the pretext that we have to prove that you’re homosexual ... Rape ... In prison, you have occasional homosexuals, they’re there, they don’t have women. When they find a homosexual, they say, ‘Come on, come and do what you used to do in the city, come on!’ They are raped. They’re psychologically diminished. Everyone does what they want with [them],
[But] since I went there regularly and still have a reputation, they had become the most spoiled prisoners. Not all prisoners get visitors. This is huge. I used to leave Douala to go and see them almost ever)' fortnight, to bring them things that others didn’t have, to bring them back to their dignity as men. I made them regain that dignity through the quality of the visits they received; and internationally, people were beginning to know that there were problems, so we wrote to them, I brought them the mail, and everyone envied them in the end. And obviously my presence was dissuasive. There was no way I was going to hear of any particular abuse or punishment or violations or pressure on my clients. And everyone was standing at attention. They were the spoiled children of Attorney Nkom.
In which prisons did you mainly intervene?
The business mainly took me to the Yaounde central prison.
Were you able to talk to the warden and the prison authorities in general?
Absolutely. I used to go to fights all the time. In fact, I was once arrested from prison because I went there to see them the day before a hearing, to comfort them [and] to give them instructions about the trial that was going to take place the next day. I’d taken pictures, I’d photographed them. Then a prison guard told me there are no pictures here. I said it wasn’t written anywhere. As long as it’s not written down, it’s not forbidden. So they arrested me, took me to the gendarmerie, they wanted to confiscate my camera. That day, by the way, I missed my flight home. The image I have belongs to my clients and they didn’t forbid me to photograph them, so I didn’t give my phone away. They wanted to keep me in custody ... but all Yaounde was aware that Attorney Nkom was in prison, friends of the diplomacy in Yaounde ... It was a real shakedown and they released me.
Do people suspected and accused of being homosexual also suffer violence in public spaces?
So now everyone thinks they have the right to insult or humiliate homosexuals. Except that now, [homosexuals] are falling for it less and less. They know that they do not have the law against them and that they must be their first defenders with the laws I give them.
As in other countries, can we talk about homosexual meeting places? Are they always hidden for fear of violence and racketeering?
Places and people are more respected today, but insecurity may remain. I myself have been a victim of violence, taken to task several times because I defend homosexuals. Everyone thinks they have the right to tell me who I defend, who I don’t defend. I’m a confrontational with people. You have to confront them, explain it to them. That’s how I had to face the churches: Cardinal Tumi and I were at knives drawn. He said that homosexuals are less than animals. In the meantime, it’s the same person who created you and the animals. The Catholic Church has been vehement. It went on, but then it realised that, on the face of it, it might not have any interest in going on against me. I was telling them truths they wanted to keep hidden. I attacked them head-on and I was in the media. They’re the ones with something to hide. I had answers to the biblical arguments that were brought to me. I too drew my arguments from the Bible.
Did you keep any particular case in mind?
Yes, the case of Roger Mbede, that student. His situation was tragic. He ended up dead. He was a very poor person. He was the only one to make a breakthrough. He was a master’s student at the Catholic University [Universite catholique d’Afrique centrale de Yaounde, a private institution]. This trial has ruined his fate. He was abandoned by his family who saw him as a devil. They refused to treat him even though he had been released on bail pending trial ... He got sick, I don’t know, I think he got AIDS there, I don’t know ... but they took him away from the village. He died from it. The family got rid of the devil that way, by denying him care.
Is witchcraft a register for explaining homosexuality in families?
Homosexuality is mostly [understood with reference to religion] ... In a family, you have religions, Muslim or Christian, that refer to the Bible, where they quote you Corinthians, Leviticus ... Sodom and Gomorrah, bullshit like that, and people think that if even God burned homosexuals, then it’s really the ultimate abomination. And in the end, they do like God, they can afford to burn them. They have been put this in their heads.
Have you developed other modalities of action?
I have spoken in the media, [and] I have mostly accompanied the unfortunate people who were caught in the net of justice. Then I realised that fighting ignorance on the issue could be the way out. That’s what I’m trying to do. I have sometimes had small funding here and there that has allowed me to organise workshops and conferences. Just recently, I organised a workshop because I wanted the homosexual issue to be on the current political agenda because we are going to vote for those who pass laws. Let us talk about that, and let the candidates be accountable to all voters without discrimination and stop making laws that contradict each other. I wanted to invite future members of Parliament and lawmakers to be more consistent and to respect the law. But that requires me to hold a lot of meetings, to go and organise meetings with the candidates, the heads of the municipal and legislative lists, so that the homosexual issue remains on the agenda. Because it’s time.
We talked mostly about men, but what about women?
Especially since it is the same term, ‘homosexual’, which designates lesbians, gays, transsexuals, in the penal code. Women are better able to hide their homosexuality, their relationships with others. They can do it easier. Even among Muslims, who are used to isolating women from each other, so there ... and yes ... it’s easier for them. They are confined to environments where they are with each other.
But one day, I read in the newspapers that there are two girls who are in trouble on Cameroon’s border with Equatorial Guinea and Gabon. They’re going to be brought to justice. I figured up til then, I’d just stick up for the gays. Now that there are girls, I have to fight to go and defend them as well. It wasn’t easy. I tried to raise a little money to go there. I’ve been there. It was serious. All the surrounding villages were at the hearing, determined to fight. There were witches there. I pleaded, I kept them out of pre-trial detention, and when their cases were remanded - because I first raised questions of form and forced the judge to hold them under advisement, not to convict them immediately - well, during that time, they begged me not to leave them in the village because they were in danger of being lynched. And I’ve seen it myself. They begged me, ‘Mother, you can’t leave us here’. I was forced to quickly bring them back with me to Yaounde, to find them accommodation, etc. I had to find a place for them. It cost me a lot of money, but I got them out of there. And when the judgment was handed down the next time, I appealed. So that has lowered the attention there, people have forgotten a little bit because the Court of Appeal is elsewhere. I haven’t been summoned to the Court of Appeal for this yet. I don’t know what’s going on. Will it happen, will it end like this? But if I am referred to the Court of Appeal, I will go, because I am currently fighting to obtain a ruling from the Court of Appeal and to take this procedure to the Supreme Court so that the lower courts will have case law that will be binding on the lower courts, and that will ensure that even if the law is upheld, it will no longer apply, it will no longer be enforced. But I’m having a lot of problems right now. The funders give you some money for the court but now that there’s no one in jail, they don’t help me move forward. It’s too bad, we’re really on the right track. These cases I started, I take them all the way to the Supreme Court and I know I’m going to win.
You mention financial support from donors. What is their durability beyond the emergency of the cases to be defended in court?
Going to get me some case law is gonna put an end to this. But now I have no one. I’m all alone.
What are your relationships with the judges, the lawyers?
I’ve converted quite a few judges. I remember once, in 2011 /2012,1 was coming back from a conference in Geneva and I went with the documents I brought back from there, I went to share them with the president of the Court of Appeal. He confessed to me that this is a problem:
I am a judge but I have never felt challenged, not to a great extent. There’s an offence ... Well, and then I grew up in a Christian environment where it was condemned as an abomination. But since you’ve been talking on TV, explaining it, you’ve challenged the judge in me, who must necessarily assess this question through the prism of the law.
There you go. He was the one who told me at the time that there was a bill being prepared in Yaounde and to try to see. But as in Cameroon, there are no bills, only bills from the government ... which are automatically adopted ... Well ... that’s how we passed this law, this text [section 347.1], so that it could take the form of a law, so that I don’t have to criticise the text that implicated the president in person. Now he’s no longer the president, but it’s still an illegal law. This is a fight that must be fought. For example, we need to create instruments, flyers, little books, things that we distribute for free, and why not videos that we give during conferences in schools, for students, doctoral students, that we start to put in people’s heads. An awareness. That’s the work I’ve been doing until now, but I have very little money.
Donors have been accused of interfering in providing you with financial and moral support
They were charged, but we won. During that period, it was very hot against homosexuals; they were arrested ever)' day. The European Union (EU) had given me support in 2010-2011 so that I could improve the living conditions of all these people. Ever)' day they were arrested. The Ministry of External Relations has instructed the EU ambassador to stop this funding. He defended himself well, saying that it was a question of human rights and that it was part of their role to improve human rights, the functioning of justice, and the rule of law, and that he did not see what they were doing wrong. They’re not there against tradition. They refused to suspend our funding. Unfortunately, those who followed are afraid. The ambassadors who followed are afraid. They’re not helping us.
What link do you make between your fight and the emergence of the fight against HIV AIDS?
It allowed you to come out legally. My own discussion was to say that this is a human lights issue: the right to health. This allowed them to create associations that were not called like mine and that spoke of the right to health. But within the right to health, they were particularly concerned about people who have homosexual relations. There are many of them. Currently they have a Unity platform in Yaounde. We put this in place four to five years ago. They’re blooming. They don’t put homosexual in the title of their associations because there’s no prefect who can dare to do what I could get.
Have you taken part in inter-African exchanges?
I have often been invited to English-speaking countries because there, the associative life is stronger. French-speaking countries are more cautious on the issue. For example, when I had to be part of REDHAC [Network for the Defence of Human Rights in Central Africa, Reseau des defenseurs des droits humains d’Afrique centrale], I know that in the board of directors, the delegates from Chad and others said that I could not be part of the network because I was not defending human rights. But we won. I’m even the chairman of the board of directors.
To what extent does your action not reveal more generally the lack of legal protection to which the majority of the Cameroonian population is subjected? This is evidenced by the alarming situations of pre-trial detention in the vast majority of the country’s prisons
That’s it, that’s exactly it. I know there’s a very close relationship between a country’s level of democracy and homosexual repression. A democratic country', which has a new sufficiency of democracy, i.e., which bases its government on the principles of equality and non-discrimination, cannot continue to penalise homosexuals, cannot push society, cannot condone the violence that is done to homosexuals. That’s not possible. It is a country' where there is no democracy and no rule of law. That is why defence actions must be coupled with political actions. Politicians, elected officials at all levels, must be constantly reminded that they have sworn an oath on the Constitution, there is no question of the Assembly, once elected, forgetting the Universal Declaration and the Constitution as roadmaps. (...) There is civil society work to be done, a work of popularisation of the texts. I’m hearing things like ‘it’s imported ...’; that’s not true. And the
Cameroonian people have ratified the texts and have adopted a Constitution which lays down rules, values, and principles. And the politician comes after for electoral, opportunistic reasons ... flouting his own rules and banishing his own country from the international community. He’s violating his oath. It doesn’t get much worse than that.
It takes a great deal of work to raise awareness. We have set up the Collectif des families des enfants homosexuels (COFENHO, Family Group of Homosexual Children) because it’s hard for a family to look at others when you have a homosexual child. It is heavy for a family, a mother who goes to church, who believes in God, and who hears her pastor tell her ever)’ day that it is an abomination. It’s hard to come home and deal with a gay child. Now, a homosexual child must find in his nuclear, natural family, where the good God has sent him, his first defenders. That is not what we are seeing. There are families who have turned their backs on their children once they have been prosecuted for homosexuality. The first bulwark of a homosexual child is his mother, his family. I saw the distress, the suffering: more than being imprisoned, it was being abandoned by their mothers that ravaged them. I’ve been a surrogate mother to these kids many times. I saw their suffering, I palpated them with my hands, chewed them with my teeth. Families must be helped to consider a child, homosexual or not, as a respected child. You have to love him as much as anyone else. It starts there.
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