LGBTI activist denied asylum in SA because he has to “prove” he’s gay

Despite being a well known pan-African LGBTI+ activist and facing death threats, the South African government does not believe that Kenyan George Barasa qualifies for asylum.

Barasa, informally known as Joji Baro, was one of the first people to come out on national television in Kenya as both gay and HIV positive. He has made a name for himself as a leading human rights defender who has campaigned for LGBTI equality in Africa, primarily through art.

In 2016, he and his band Art Attack sparked international attention when they released Kenya’s ‘first gay music video’, called Same Love, a reworking of the Macklemore and Ryan Lewis’ track. The video boldly depicts the lives of LGBTI people in Kenya.

Homosexuality is illegal in Kenya under the country’s colonial-era penal code which penalises same-sex sexuality with five to 14 years in prison. The clip was quickly banned by the authoritarian Kenyan government for non-existent “obscenity [and] explicit scenes of sexual activities” and for “promoting” homosexuality. A warrant for Barasa’s arrest was issued. Despite this, the video has been seen more than 327,000 times.

In 2017, Barasa had enough and left his homeland for South Africa in the hope of finding safety from his ongoing persecution.

“I was afraid,” he tells MambaOnline. “I feared my life. And I decided to leave Kenya because I could no longer provide myself with protection and because threats had become more imminent. I had become a threat to the government and their policies which seeks to penalise LGBTI rights.”

He adds: “I left Kenya in August 2017, the week of the general elections. It is during that time when homophobia is so rampant because politicians use homophobia as a way for them to pass a message or to sell their agenda.”

When he came to South Africa, he volunteered with local human rights groups while he applied for asylum on the basis of facing imminent danger because of his sexual orientation. Under the Refugees Act, 1998, South Africa is obligated to provide asylum to a person who has “a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group…”

To Barasa’s surprise, his application was rejected. “And this is after going through a myriad of challenges just to obtain an interview with the Department of Home Affairs,” he says. “It took me 10 visits to the department to just get an audience and subsequently I had to go over and over again before I could get an interview.”

The reason he was given for the rejection, “was that I’m fraudulently claiming to be an LGBTI person.” With Barasa’s track record as an LGBTI rights defender, the department’s decision seems absurd. “For them to reject my asylum on grounds of fraudulence really hit me so hard that I can’t even comprehend.”

How do I prove that I am gay?

MambaOnline has read the written decision by Home Affair asserting that Barasa’s application is fraudulent. Its justification is garbled nonsense and is appallingly inept. It refers to Kenya’s Constitution and a Human Rights Watch report and concludes that he faces no persecution in Kenya and that he is lying about his sexuality. The official’s obvious lack of competence in assessing Barasa’s case (and likely any case at all) is deeply disturbing. (Click to see a screengrab of the decision.)

His case is not an isolated one and is similar to that of Zambian Anold Mulaisho, who faced similar challenges in being recognised as a gay asylum seeker by Home Affairs.

Barasa further alleges that he has experienced blatant homophobia and xenophobia from Home Affairs officials. In a video provided to MambaOnline, a dismissive Home Affairs official calls Barasa “a woman”.  “We are treated like criminals. They shamelessly admit that they are xenophobic. This is something that I go through all the time from Department of Home Affairs officials. I also face homophobia from other refugees from other countries that are homophobic.”

He recounts one incident after he had just renewed his permit. “I was on my way out when one of the officials stopped me and took my [temporary] permit away and refused to give it back and started asking me questions such as, ‘Do you have a partner, is he a man?’ and telling me that there is no way you can get asylum in South Africa on these grounds as a gay man because you cannot prove that you are gay. So I asked him, ‘How do I prove that I am gay?’”

Also, during one of his many visits to the department, Barasa was mugged while waiting in the long queues outside and his phone containing “crucial evidence” supporting his case was stolen.

It’s like living in an open prison

According to Moude Maodi-Swartz, paralegal officer at the Love not Hate LGBTI Legal Clinic in Pretoria, Barasa’s account indicates multiple violations of his rights.

“The Home Affairs officials were negligent of the fact that regardless of George’s legal status Section 27 (b) of the Refugees Act 3 of 1998 affords him the right to fundamental rights which include the right to human dignity, respect, freedom, security and the right to be protected from unfair discrimination,” said Maodi-Swartz.

“George as a prominent openly gay figure from a country that has anti-LGBTI laws should be afforded protection based on the fact that being gay is a punishable offense in Kenya and the chance of him being prosecuted should he return to Kenya is quite high,” she noted.

Barasa continues to wait for the outcome of his appeal, which has dragged on for months. During this period he must regularly renew a temporary permit to stay in the country. The permit is sometimes valid for three months, sometimes for far less. “Nobody wants to employ you,” he says. To add to his challenges, Barasa claims that his passport was taken by Home Affairs officials. This has left him “without an identity” and makes it almost impossible for him to open a bank account or rent accommodation.

“I call it an open prison,” he says. “They give you a permit that means you can go anywhere in the country, but you can’t do anything with it. You’re practically a prisoner. How do they want us to survive?”

Maodi-Swartz asserts that “The Department of Home Affairs does not have a legal right to confiscate George’s passport. This is an unpopular mechanism used for forced deportation by Home Affairs officials but in George’s case it is illegal and unconstitutional considering that George’s application was rejected based on unjustifiable reasons.”

Barasa now lives with the constant fear that he will be forced to return to Kenya. “I’m a very prominent person [in Kenya] and I can’t go back to my country because if I am going to have to register why I left, and that’s like turning myself in [to the authorities.].

“South African is one of the few African countries that protect LGBTI rights and the refugee appeal board should consider Kenya’s LGBTI criminalisation laws and the risk attached in rejecting George’s asylum permit application,” said Maodi-Swartz.

“The question in LGBTI asylum seeker applications should be about the prohibiting laws in the applicant’s country. Requesting proof of sexual orientation is violating, discriminatory and inconsistent with human rights standards and should not be used as a reason to reject LGBTI asylum applications,” she added.

MambaOnline has launched a petition calling on the SA Government to give George refuge and to treat LGBTI asylum seekers with dignity, respect and humanity, as required by the law and the Constitution. Sign it here.

For free legal support when it comes to LGBTI rights abuses and discrimination, contact the Love Not Hate LGBTI Legal Clinic on 012 430 3272 or email report@lovenothate.org.za.