How did Britain’s colonial past impact Lesbian Gay Bisexual and Trans (LGBT) communities around the world? ‘Envisioning Global LGBT Human Rights: (Neo)colonialism, Neoliberalism, Resistance and Hope’, the latest book from the Human Rights Consortium at the Institute of Commonwealth Studies, encompasses groundbreaking international case studies that assess the effects of colonialism on Commonwealth nations and beyond. It is the result of a five-year international collaboration among some of Britain’s former colonies that were governed by colonial laws that criminalised same-sex relationships. The unique project combined research and writing with participatory documentary filmmaking and personal insights from leading activists at the forefront of some of the most fiercely fought battlegrounds of contemporary sexual politics in India, Africa and the Caribbean.
Below, Adrian Jjuuko and Monica Tabengwa, explore Africa’s post-independence criminalisation of same-sex relations in this extract from the book.
For the past decade in Africa, a new and disturbing trend has been developing – post independence criminalisation and expanded criminalisation of same-sex relations. Some 38 countries in Africa have laws criminalising same-sex conduct with a variety of punishments ranging from small fines to lengthy prison sentences and even the death penalty in some.
This trend involves expanding the laws inherited through colonialism to expressly criminalise consensual sexual relations between adults, or apply the laws to women, or to persons or organisations doing advocacy or those providing services to LGBT persons, or making the punishments harsher or restricting the rights of LGBT persons in the Constitutions.
In 1990 Uganda increased the punishment for ‘carnal knowledge against the order of nature’ from fourteen years imprisonment to life imprisonment; in 1998 Botswana expanded the criminalisation of same-sex conduct to apply to women. Then, in 2005, Uganda introduced a constitutional amendment expressly prohibiting same-sex marriages and the re-criminalisation trend rapidly spread to Nigeria, Zimbabwe, Rwanda, the Democratic Republic of Congo, Liberia, Cameroon, Malawi, Kenya, Tanzania and now the Gambia.
Most recently in 2014 both Uganda and Nigeria succeeded in passing their laws, though for Uganda, the Anti-Homosexuality Act was declared unconstitutional by the Constitutional Court for having been passed without quorum. Only Rwanda formally dropped its plans to criminalise same-sex conduct while the rest are still formally or informally debating how to effectively expand criminalisation of this conduct.
Most, if not all, of these countries already have colonial laws criminalising same-sex relations. Harassment, violence and other human rights violations continue to escalate with some states actively persecuting LGBTI persons and their communities. This is a big departure from the status quo in Africa before 1990 where homosexuality was largely not discussed and where arrests for same-sex relations were largely unheard of. What went wrong? What happened to change the status quo?
Assertions have been variously made by politicians and cultural leaders that homosexuality was never practiced in traditional Sub-Saharan Africa during pre-colonial times. Such statements generally suggest that homosexuality was imported from outside Sub-Saharan Africa; Arabs and colonialists have often been blamed. Despite these assertions, it is has been shown that homosexuality is as indigenous to Africa as heterosexuality.
There are many practices across Africa that could clearly be regarded as same-sex practices. The Portuguese noted the existence of ‘unnatural damnation’ among the Kongo in 1558, [and] among the Imbalanga in what is now modern day Angola in the 1590s.
In other parts of Africa, there are accepted practices that can clearly be regarded as same-sex relations. The most common of these are woman to woman marriages, which are practiced in over forty ethnic groups spread across Sub-Saharan Africa from Southern Africa, through Benin, Nigeria, to Kenya and Southern Sudan. Other practices include men who were treated as women, for example among the Langi in Uganda; such men could even be allowed to marry men.
There are also other forms of evidence of homosexual practices taking place in Africa. This takes the form of paintings, traditional dances, and language. For example, there is a 2000 year old cave painting in Zimbabwe that depicts same-sex relations. Indeed, many indigenous languages have words that refer to homosexuality.
Luganda has the word ‘bisiyaga’. Its origin is largely debatable but it has been in use at least since the Arabs first came to Buganda during the reign of Kabaka Ssuuna (1832-1856). The Shona language has the words: murumekadzi and mukadzirume, which loosely translated mean man-woman and woman-man respectively. The words refer to roles: a man who takes on female roles is a murumekadzi, while a woman who takes on male roles is a mukadzirume. This is perhaps a reference to transgender persons.
However, these practices may not easily fit within today’s description of same-sex relations and tags like ‘LGBTI’. These practices occurred for many different purposes, perhaps least of which was sexual pleasure. For example, men who took on female roles could sometimes do so because they were possessed by spirits – that is, they were acting as mediums for female spirits. Also important to note is that the persons or individuals involved in the practices were usually also conformists to the dominant heterosexual way of life. They went on to marry, have children and be part of heterosexual/ heterocentric families. In this, these individuals were more like those today who are in the closet.
It was during colonialism that Western criminalisation of homosexuality was introduced in most of Sub-Saharan Africa. Sub-Saharan Africa during the colonial period was shared between the British, the French, the Germans, the Portuguese and Belgians. All these colonial nations, apart from Belgium, imposed laws criminalising same-sex relations on their colonies.
At the time of colonialism in Africa, Britain still criminalised same-sex relations and had introduced penal laws criminalising same-sex conduct in its already established colonies in India. As such, almost all British colonies received laws criminalising same-sex relations as they were developed in India (described as ‘carnal knowledge against the order of nature’). The only exceptions were Ghana, which received a version developed for Jamaica.
South Africa is the only British colony that did not receive these laws but instead got a law inspired by Roman-Dutch law. All the laws introduced by the British outlived colonialism, are still on the law books of these countries and continue to greatly affect the lives of LGBTI persons in these countries. A lasting legacy indeed, as Human Rights Watch observes.
Laws seeking to further criminalise same-sex relations in Africa are now commonplace. These laws are retrogressive and dangerous. They threaten the very existence of LGBTI persons and also work to deny them support from other groups in society. To deal with this trend, there must be concerted and deliberate efforts to address the issues raised and also to seek acceptance and understanding from the rest of the population. The struggle is a long-term struggle. It is a struggle that involves uplifting everyone.
Taken from Chapter 2 of ‘Envisioning Global LGBT Human Rights: (Neo)colonialism, Neoliberalism, Resistance and Hope’, p63-96. Paperback for £25 available from the School of Advanced Study’s Publications department.
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Adrian Jjuuko is a lawyer and executive director and founder of the Human Rights Awareness and Promotion Forum, the first and only specialised legal aid service provider for LGBTI persons in Uganda. He brought a successful challenge before Uganda’s Constitutional Court to section 15(6)(d) of Uganda’s Equal Opportunities Commission Act, which had prevented the Commission from investigating matters affecting LGBTI persons. In recognition of his courageous work to advance the human rights of sexual and gender minorities in Uganda, the Centre for Human Rights at the University of Pretoria awarded him the 2016 Vera Chirwa prize.
Monica Tabengwa is a lawyer and human rights activist from Botswana, currently working for Pan Africa ILGA as executive director. She started her career as a prosecutor with the Botswana police, before joining the Coalition of African Lesbians as advocacy adviser, doing regional and international advocacy work on LGBTI rights. She was one of the early members of Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo), and continues to provide them with legal support, which contributed to the successful litigation for freedom of association for the organisation in 2015.