[Content warning: parts of this article include depictions of violence.]

Just over two years ago on May 24th 2018, the Kenyan High Court delivered a ruling that ostensibly denied the existence of anti-queerness as a defining logic in Kenyan society. In their ruling, the three-judge bench concluded that the penal codes in question (section 162 and 165), which criminalize “carnal knowledge against the order of nature” and “gross indecency” between two “males” respectively, did not violate queer and trans people’s rights to “dignity or privacy.”

Yet, as Black queer scholar and writer Tyrone Palmer writes, these fictive ideas of (un)freedom are founded upon the disremembering of the racialized and classed crises that shape Black, poor queerness. Thinking with the HIV/AIDS crisis that continues to ravage Black trans and queer communities in the US, Palmer makes clear that this denial relegates those who are Black and poor and trans and/or queer to the position of what he calls the “unthought”– those who encounter harm that goes far beyond an identity-based lack of inclusion or acknowledgement by the state, harm that is at its root shaped by class and racialized realities.

To unthink, to be unthought, are functions of both imperial queer homogenization and an erasure of the realities that most trans and queer Africans regularly encounter. Like most working-class Africans who face regular food and housing insecurity, perennial unemployment, inaccessibility to healthcare, working-class trans and queer Africans exist within an impoverished precarity that is magnified by transphobia and homophobia and vice versa. That has now been further intensified in especially devastating ways in the wake of the negligent and brutal government policies marshalled in response to the COVID-19 pandemic. These are the trans and queer Africans, the unthought, who survived on the jobs they had painstakingly carved out for themselves in entertainment scenes that now hardly exist, the people who created and curated secure homes for themselves and their people by combining resources that have now shrunk, those in rural areas that were forging communities of security that were always already overlooked by funding structures. 

These are the people for whom decriminalization as a legal, liberal agenda that only accounts for violence at the point of encounter with an abusive police officer or a transphobic mob and that does not sit with the capitalist conditions that make these multiple registers of violence possible in the first place, is always already a failed project. Abolition as an alternative can obstruct those harmful structures in place, and be the gateway to true liberation for trans and queer people on the continent.

For African Feminists, The Digital Space Is a Minefield

One trans woman’s story of struggle and survival makes the case for abolition and the betterment of trans and queer lives in Africa. In mid-April, Emily, a trans woman refugee from Congo currently in Kenya, along with eight other trans and queer refugees, was abducted by the police on the basis of several unsubstantiated charges that ranged from sodomy to human trafficking. The house, a home for trans and queer refugees, was raided, the toilet and sink were dislodged from the walls, chairs were smashed, and many of their belongings were destroyed. When she was arrested, Emily had recently been evicted from her last home by a landlord who accused her of “practising sodomy” and “corrupting” children in the neighbourhood. Prior to that, the safe house she had been building in collaboration with other queer and trans refugees had been burned to the ground. On the day of her arrest, she had gathered with her friends in that apartment in Ngong area, on Nairobi’s south-west periphery to mourn the death of Trinidad, a Ugandan refugee who had recently passed away from injuries sustained in a fire in Kakuma, but also to seek temporary shelter after myriad violent encounters. Prior to the immediate events that led up to her abduction, Emily had been subjected to what appears to be unending institutional deprivation and abuse. She was first forced to seek asylum at the age of 16 as a result of a transphobic attack in a local market in Goma, Congo that led to her grandmother evicting her from her childhood home, leaving her a vulnerable target for more community violence with no shelter or support.

With the help of an ally she migrated to Kampala, Uganda and later with the support of the Red Cross she arrived at the Kakuma Refugee Camp in 2016. Within a short time of her arrival, other refugees in her section threatened to physically assault her upon mis-identifying her as queer and accusing her of “spoiling” their children by introducing them to what they perceived as “ushoga”: homosexuality. At other points during her stay there, she was denied access to water and grocery supplies by other refugees manning the water supply and vending groceries at the market. Emily would periodically appeal to UNHCR officials at Kakuma for financial assistance and identity documents that would enable her to relocate to Nairobi to no avail. In 2018 when she asked why she had not been transferred to Nairobi like other LGBTQ+ refugees, Emily says officials explained that they had been waiting for her to turn 18 years old in order to ascertain whether the transphobic attacks she had been reporting were “real enough” to warrant intervention. 

The Violence of Queer Misrepresentation In South African Media

She encountered this same institutional non-response when she eventually moved to Nairobi for the first time that same year and petitioned the UNHCR for identity papers and a small stipend. She never received the financial assistance or identity documents but the UNHCR issued her with a movement pass and forcibly transferred her back to Kakuma in early 2019 after which she moved to Sherkole Refugee Camp in western Ethiopia. After a short stay there, Emily went back to Nairobi, where she struggled to find safety. In the wake of the possibility of a transphobic attack, Emily could not use public transport. Therefore, in order to access treatment for injuries she sustained during a rape she survived at the beginning of her second stay in Nairobi, she had to take expensive Ubers she generally could not afford in a city where her gender has been perceived as suspect. She also struggled to find secure, stable housing— often having to look for housing in more expensive parts of Ngong, an area on Nairobi’s south-west periphery, in order to dodge the close proximity and lack of privacy that often exists in low-income areas where houses are squeezed together and space, the ability to hide or disguise oneself is almost always an impossibility.

To sit with the immediate and long-term events leading up to Emily’s arrest is to trace a reality co-constituted by transphobia, impoverishment and xenophobia —strands so tightly bound together they are sometimes impossible to detangle. An analysis that is limited to noticing the transphobia and queerphobia enshrined in sections 162 and 165 of Kenya’s penal code, as the sole logics that make Emily’s violent police abduction possible, fails. It fails to account for the challenges she faced before her arrest;the manufactured dependence of poor trans and queer refugees on institutions who are always already suspicious of them, the lack of access safe housing, transport and healthcare, poverty, andviolence— the conditions of impoverishment and isolation that rendered her vulnerable to the force of Kenya’s transphobic and queerphobic laws in the first place. 

Instead, to truly think with the narratives of vulnerable African queer and trans people like Emily— those who are unthought —is to understand that the crisis of anti-trans and queer criminalization never first emerges at the point of contact with the police or the law, instead it begins at the scene of deprivation and marginalization. It is to take on an abolitionist approach that refuses a liberal legal analysis of trans and queer African criminalization that disarticulates transphobia and queerphobia from the capitalist, anti-poor conditions that largely actualize this state brutality in the first place. Abolition makes clear to us that legal decriminalization cannot be the primary metric of queer and trans African freedom, where the conditions that make criminalization possible— poverty, houselessness, avoidable/curable illness, intracommunal harm— are legal and largely uninterrogated modes of punishment under capitalism. An abolitionist analysis enables us to revisit colonial anti-trans and queer penal codes as not only infringing on “civil protections” or preventing queer visibility or privacy or romantic partnership, but as state mechanisms used to maintain a broader capitalist heteropatriarchal order that primarily seeks to police those who are trans and queer and poor. Here, the material and mental safety of all trans and queer Africans are prioritized. The eradication of the capitalist cis-heteropatriarchy order is our horizon and legal decriminalization is a tool for surviving in the meantime as we fight towards a more expansive abolitionist future.

A History of Queer African Activism

To understand what it means to work towards an abolitionist future on the continent we can point to the work of organizations such as Minority Womyn in Africa or MWA, a membership-based organization located in low-income parts of Nairobi such as Kariobangi and Mathare and rural areas of Kenya such as Meru. MWA includes a total of 22 national organizers who work towards creating community amongst local groups lesbian, bisexual and queer (LBQ) women and beyond, through security training, participatory research and creative projects and shared housing and ultimately “dislocate the violence affecting LBQ women,” as organizer Muthoni Ngige puts it. In order to do this radical work, organizers notice how class and locality shape the lives of the LBQ (Lesbian, Bisexual and Queer) women in the communities they work within. They notice how the visibility so often fought for on national and global scales can lead to a queerphobic attack, how overcrowdedness in informal settlements affects impoverished queer women’s ability to have safe sex away from prying neighbours, how workplace exploitation limits the time and energy their people have to organize, how lack of fare can mean the difference between queer communities being strengthened and falling apart. They notice how limited access to wealth determines what we even imagine as queerphobic and transphobic violence. This noticing exists as what critical scholar Lyn Ossome thinks of as “an awareness of the multiple and intersecting causes of political persecution and oppression”— an awareness that guides the work they do to not only meet each other's material needs but to create communities of safety, trust and care that poor LBQ women can rely on not just in the wake of acute crisis such as the COVID-19 pandemic or police arrests, but regularly.