1.
Introduction
LGBTQ rights are an issue of great contention in Africa. We need only look at the anti-gay
laws in Uganda 1 and the opposition of a pro-LGBTQ bill in Botswana by members of the
2
Christian community to see that. What seems to be the major reason human rights are
denied to a small minority of the population? Many people view it as a foreign imposition
that challenge traditional African norms and are of a ‘foreign’ nature as can be seen in
Olufumi Abifarin and Jimmy O Chijoke’s paper which speaks to same-sex relations in
Nigeria stating ‘Homosexuality is sexually disorientated and people must not be blackmailed
or forced to accept foreign impositions’3.
Contemporary African culture rejects universalism which is a principle that human rights are
held universally by all human beings and instead holds onto cultural relativism which is the
claim that they are no universal moral standards,4 seeing these impositions from foreign states
that reject these human rights as a form of colonialism.5 This despite being evidence of a rich
and diverse culture of homosexuality and non-gender conforming behaviour amidst African
people such as non-conforming to gender stereotypes.6
This paper aims to shine a light to the rich LGBTQ+ history of Africa and argues that rather
than promoting universality in the aid of these rights, cultural relativism which is ‘is the idea
that a person's beliefs and practices should be understood based on that person's own culture’7
The paper aims to do so by shining a light on the history of LGBTQ+ persons on Africa and
1
George Oblutsa, 'Uganda enacts harsh anti-LGBTQ law including death penalty' (Reuters, 30 May
2023) <https://www.reuters.com/world/africa/ugandas-museveni-approves-anti-gay-law-parliament-speaker-says-2023-05-
29/> accessed 5 August 2023
2
Mqondisi Dube, 'Botswana Churches Urge Parliament to Vote Against Bill on Same-Sex Relations' (VOA News, 25 July
2023) <https://www.voanews.com/a/botswana-churches-urge-parliament-to-vote-against-bill-on-same-sex-relations-/
7194996.html> accessed 5 August 2023
3
Olufemi Abifarin and Jimmy Chijioke o, 'Same-Sex Marriage, Human Rights And Cultural Diversity: An African
Perspective' [2016] 20(1) World Affairs: The Journal of International Issues 126-139
4
Chimakonam, J.O., Agada, A. The Sexual Orientation Question in Nigeria: Cultural Relativism Versus Universal Human
Rights Concerns. Sexuality & Culture 24, 1705–1719 (2020). https://doi.org/10.1007/s12119-020-09705-9
5
Olufemi Abifarin and Jimmy Chijioke o, 'Same-Sex Marriage, Human Rights And Cultural Diversity: An African
Perspective' [2016] 20(1) World Affairs: The Journal of International Issues 126-139
6
M Elnaiem, 'The “Deviant” African Genders That Colonialism Condemned' (JSTOR Daily, 29 April
2021) <https://daily.jstor.org/the-deviant-african-genders-that-colonialism-condemned/> accessed 5 August 2023
how foreign impositions and colonialism sought to supress said history whilst also washing
away traditional values. How these ‘western’ influences and values shaped the course of
African history and how it’s tendrils still sneak into modern African Jurisprudence.
2. Brief History of LGBTQ+ people in Africa
The history of LGBTQ+ peoples in ancient Africa is in depth with various scattered and
isolated incidents dotted all over the continent. For the purposes of this paper I will be going
over LGBTQ+ behaviours and acts that formed a major part of the culture of the African
countries. Culture is defined as ‘the way of life, especially the general customs and beliefs, of
a particular group of people at a particular time.’8 For the purposes of this paper I will be
focusing on the ‘customs’ aspect of this definition with special reference to various tribe
located around Africa.
To begin with, there’s evidence of homosexual relationships between men in Africa. The
Daagaba people in Burkina Fasso believed that homosexual men were able to mediate
between the spiritual and human worlds.9 Ancient cave paintings also depicted homosexual
relationships between male persons in Zimbabwe.10 The Hausa people in Nigeria also had
specific terms for homosexuals 11 and in Uganda evidence exists for young men who served
in royal courts and provided sexual favours for kings.12
Unfortunately, most of these homosexual acts seem to be rooted deep in pederasty whereby
older men took young men in for sexual favours.13 For example in Congo in the Azande tribe,
7
Uia, 'Cultural relativism' (THE ENCYCLOPEDIA OF WORLD PROBLEMS & HUMAN POTENTIAL, 4 October
2020) <http://encyclopedia.uia.org/en/problem/140048> accessed 5 August 2023
8
Cambridgedictionary, 'Culture' (Culture, 24/10/2023) <https://dictionary.cambridge.org/dictionary/english/culture> accesse
d 24 October 2023
9
Williams, James S. (21 March 2019). Ethics and Aesthetics in Contemporary African Cinema: The Politics of Beauty.
Bloomsbury Academic
10
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
11
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
12
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
13
Wikipedia contributors. (2023, October 15). Pederasty. In Wikipedia, The Free Encyclopedia. Retrieved 12:13, October
24, 2023, from https://en.wikipedia.org/w/index.php?title=Pederasty&oldid=1180304329
young men from the ages of 12-20 carried out sexual favours by warriors.14 Young boys were
also expected to dress up as girls and carry out the jobs of women.15 To expand further on the
Uganda men mentioned above, around 1885, King Mwanga II of Buganda ordered the
execution of 22 Christian men who refused to carry out those duties.16
Amongst those men there was also gender non-conforming behaviour. In Angola, Portuguese
priests encountered men who spoke, sat and dressed like women entering into marriages with
other men 17 such non-conforming behaviour was seen in various other African nations such
as Kenya.18 Uganda19 and Sudan 20. People who behaved in non-conforming ways were
usually given a high position in society such as ‘priesthood’.21
Not only did Africa view people men who didn’t conform to gender norms in high regard, but
also various African religions had Gods that did not conform to typical gender roles.22 The
God Leza worshipped in parts of Zambia and Southern Africa who not only was a mother of
beasts but also regarded as a male.23 Furthermore, there were priests in certain tribes in
Ndongo (an area located around modern-day Angola and Namibia) were considered to have
female spirits within them.24 In Angola and Ethiopia there’s evidence of third gender
narratives, of men who acted like women and taking great offence at being called men in the
Amhara tribe and also mannish-women called wandawande.25
14
Evans-Pritchard, E. E. (December 1970). "Sexual Inversion among the Azande". American Anthropologist, New Series,
72(6), 1428–34.
15
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
16
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
17
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
18
Rodney Needham, Right and Left: Essays on Dual Symbol Classification, University of Chicago Press, 1973.
19
Anthony Appiah and Henry Louis Gates, Encyclopedia of Africa, Volume 2 OUP, USA, 2010
20
Anthony Appiah and Henry Louis Gates, Encyclopedia of Africa, Volume 2 OUP, USA, 2010
21
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
22
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
23
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
24
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
As well as men, women also engaged in same-sex relationships. Women in Lesotho engaged
in same-sex relationships called motsoalle.26 These relationships were usually long term and
acknowledged publicly. Lesbian relationships existed between women in polygamous homes
in Congo27 however this was frowned upon. In Benin there were women warriors who could
take in young women as wives.28 Furthermore, in the Lobedu kingdom in modern-day South
Africa, ‘the rain queen Modjadji is reported to have taken as many as 15 wives. It was
considered an honor for the queen to choose your daughter as a wife, so many families sent
their daughters to her for the promise of favourable tribal standing and rank.’29
As can be seen, gender non-conforming behaviors and same-sex relationships were very
prominent in pre-colonial Africa. Though some of it was rooted in being exploitative of
younger persons which is behavior that should be condoned, ultimately it can be seen that
Africans acknowledge homosexual relationships and held them in high regard. Furthermore,
people who didn’t conform to classic gender stereotypes were given a high status in society,
with their own rights and lawful status. The concept of there being a third-gender was held in
such high regard that Gods would fit into such a mold. Various terms existed for third gender
natives amongst African persons30 and rather than being ostracized, these relationships and
unions were celebrated.
The next section goes over the unfortunate effect of colonialism and the reason why these
relationships aren’t held in high regard today.
3. The Effect of Colonialism
In the early 17th century when speaking about third gender natives in Angola called the
chibados, one Artur Viegas called them ‘extremely great fetishers…[who] went around
25
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
26
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
27
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
28
. B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
29
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
30
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
dressed as women and they…by great offence called themselves men; they had husbands like
the other women, and in the sin of sodomy they are just like devils.’31 Another foreigner
named Jesuit de Santos also wrote ‘attyred (sic!) like women, and behave themselves
womanly, ashamed to be called men; are also married to men, and esteeme that unnatural
damnation an honor”32.
Pre the scramble of Africa, homosexuality was associated with decadent, immoral countries.
33
African people were presumed to be ‘generally uncivilized’34 and furthermore, it was
thought that Africans did not ‘exhibit social traits and behaviours assumed to come with
civilization.’35 The general view of colonial countries were that Africans and by extension,
African people were savages, and this rich history and non-conforming behavior was nothing
more than a result of perceived moral decadence in Africa. Racism and by extension, the
heteronormative values which was common in modern European countries sought to
undermine the intelligence of pre-colonial African tribes and this perceived defect resulted in
an attempt to ‘tame’ the savages with European values. This mindset of decadence and
savagery lead to the undermining of African religious values and laws, replacing them with
European laws and religions that didn’t have a place for the none heterosexual relationships
and ideas practiced by the African people.
In an attempt to unify and make administration of justice easier amidst African colonies, the
British attempted to pass a uniform criminal code in African states under their rule. 36 This led
to an import of British foreign criminal laws, many of which were incompatible with
traditional African values. Homosexual Acts found their way in Germany in the early 1870’s
where the final German Penal Code include a sodomy as a crime in Paragraph 175 which
stated ‘Unnatural fornication, whether between persons of the male sex or of humans with
beasts, is punished with imprisonment, with the further punishment of a prompt loss of civil
31
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
32
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21
33
Marc Epprecht, '"Bisexuality" and the Politics of Normal in African Ethnography' [2006] 48(2) Anthropologica 187-201
34
Marc Epprecht, '"Bisexuality" and the Politics of Normal in African Ethnography' [2006] 48(2) Anthropologica 187-201
35
Marc Epprecht, '"Bisexuality" and the Politics of Normal in African Ethnography' [2006] 48(2) Anthropologica 187-201
36
South African Litigation Centre and Centre for Human Rights Education, Advice and Assistance, No Justice for the Poor:
A Preliminary Study of the Law and Practice Relating to Arrests for Nuisance Related Offences in Blantyre, Malawi (South
African Litigation Centre, 2013) p23
rights’. 37 For the purposes of this paper, special reference is made to Britain because British
colonies were more likely to keep their anti-homosexual laws post-independence.38
Homosexual acts were criminalized in Britain in 1533 under the buggery act39 which made
homosexual offences (a sodomy law) punishable by death. Section 61 of the Offences against
the Person Act removed the death penalty40, in 1862 the Penal Code created by British
authorities for the Indian Raj colony effectively criminalized homosexuality for Britain’s
Indian colonies and by extension the rest of the British empire and colonies.41 42 It was only in
1957 that the Wolfenden report was published that had the positive effect of decriminalizing
homosexuality in 1967.43 This was too late as after colonialism, sodomy laws made their way
into African penal codes and is still a punishable offence in 32 African countries.44
Furthermore, various when British colonies decided to start with a system of laws to govern
their subjects, they created a separation of British law with native customary law under the
Foreign Jurisdiction Acts.45 There was an initial separation between the laws whereby British
people were content to let matters be and let the natives govern themselves 46, however, as
evidenced by the system of law in many of the British colonies, there was already great favor
placed upon the received law over customary law. This disconnect can also be seen as in an
attempt to codify African customary law in 1873, the Cape Colony Report ‘showed scant
37
Imperial Penal Code of Prussia 1872 p176
38
Siri Gloppen, LGBT Rights in Africa. in Chris Ashford and Alexander Maine (eds), Research Handbook on Gender,
Sexuality and the Law (Edward Elgar Publishing Limited 2020) 194-209
39
Buggery Act 1533
40
Offences against the Person Act 1861 s61 states ‘Whosoever shall be convicted of the abominable Crime of Buggery,
committed either with Mankind or with any Animal, shall be liable, at the Discretion of the Court, to be kept in Penal
Servitude for Life or for any Term not less than Ten Years’
41
Indian Penal Code 1834 s377 states ‘Whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine’
42
Tessa Wong, '377: The British colonial law that left an anti-LGBTQ legacy in Asia' (BBC, 29 June 2021)
<https://www.bbc.com/news/world-asia-57606847> accessed 10 November 2023
43
Unknown, 'Before and After the Wolfenden Report' (Cabinet Papers, 3 March
2015) <https://www.nationalarchives.gov.uk/cabinetpapers/themes/before-after-wolfenden-report.htm> accessed 10
November 2023
44
P Gerber, 'African Countries where Homosexuality is still a Crime' (Countries that still criminalise homosexuality, 10th
November 2023) <https://antigaylaws.org/regional/africa/> accessed 10 November 2023
45
JH Pain, 'The reception of English and Roman-Dutch law in Africa with reference to Botswana, Lesotho and
Swaziland' [1978] 11(2) The Comparative and International Law Journal of Southern Africa 137-167
46
JH Pain, 'The reception of English and Roman-Dutch law in Africa with reference to Botswana, Lesotho and
Swaziland' [1978] 11(2) The Comparative and International Law Journal of Southern Africa 137-167
interest in querying exceptions to Africans’ heterosexual norms and ideas.’47 The unfortunate
separation of customary law from colonial law had the adverse effect of having a body of law
dedicated to colonial ideas of jurisprudence and laws, diminishing Africans capability of
forming their own jurisprudential ideas and body of law reflecting African values post-
colonialism. This in turn lead to a sort of dissonance where the laws that govern the people,
don’t reflect the values of said people post colonialism.
It would be neglectful of me to not only reflect the effect of religion on Africa’s identity.
Christianity arrived in Africa around 5 AD.48 It became more prominent in the 15th Century
where Portuguese leaders managed to convert prominent leaders to Christianity and during
the scramble for Africa, in the late 19th Century Christian communities began to flourish.49
Christian evangelists were also responsible for the colonization of southern Africa. 50 As of
2020, 49% of Africans identify as a Christian.51
Christian schools view homosexuality as a sin. Leviticus 18:22 states ‘You shall not lie with a
male as with a woman; it is an abomination’52 and Leviticus 20:13 makes it an offense
punishable by death.53 The widespread of Christianity in turn had the adverse effect of, in a
way, criminalising homosexuality as a moral wrong when before it wasn’t viewed as such
before.
Furthermore, 42% of Africans as of 2020 identify as Muslim.54 Prominent countries in such
as Somalia and Mauritania have Shariah law embedded in their constitutions.55 Shariah law
being law derived from Quran (the word of God) and the Hadith (prophetic sayings). It is
notable to mention shariah law as homosexuality is a crime punishable by death. The Quran
47
Marc Epprecht, '"Bisexuality" and the Politics of Normal in African Ethnography' [2006] 48(2) Anthropologica 187-201
48
Isichei, Elizabeth (1995). A History of Christianity in Africa: From Antiquity to the Present. Wm. B. Eerdmans
Publishing. p. 42
49
Agbaw-Ebai, Maurice Ashley; Levering, Matthew (27 December 2021). Joseph Ratzinger and the Future of African
Theology. Wipf and Stock Publishers.
50
Kenneth Scott Latourette, The Great Century: North Africa and Asia 1800 A.D. to 1914 A.D. (A History of The Expansion
of Christianity, Volume 6) (1943) pp 301–464
51
Gordon Conwell Theological Seminary. March 18, 2020
52
Leviticus 18:22
53
Leviticus 20:13
54
Gordon Conwell Theological Seminary. March 18, 2020
55
The Holy Quran Chapter 7 Verse 80
mentions ‘And remember Lut (Lot), when he said to his people: ‘Do you commit the worst
sin such as none preceding you has committed in the… ’Verily, you practice your lusts on
men instead of women. Nay, but you are a people transgressing beyond bounds (by
committing great sins).’56 The Hadith verifies this and states that ‘“Whoever you find doing
the action of the people of Lut, execute the one who does it and the one to whom it is done.”57
Why do I mention Shariah law in a paper about colonialism. I find it necessary to mention
that Islam originated in Saudi Arabia around 7th Century CE.58 It is only through Islamic
conquests that Islam made its way to Africa59 and therefore Islamic law and by extension its
effect on Africa can be said to be a colonial import, only this time from the middle east rather
than Europe.
4. The effect of Colonialism on modern day African jurisprudence
In his paper on providing an African perspective to same sex marriage, Abifarin and Chijioke
boldly and rather amusingly states that homosexual values are a foreign import and that it
further goes against the sanctity of marriage.60 This, despite their being a rich example of
homosexual relationships and polygamous relationships in Africa and by extension, Nigeria,
the place the writers made special reference to.61
However, due to the existence of anti-sodomy laws as mentioned above and the widespread
protests in Africa against any progress made for homosexual persons, this idea is shared
amongst a variety of Africans, continent-wide. Why is that?
In the case of Kanane v The State, it was held that ‘There was no evidence that the approach
and attitude of society in Botswana to the question of homosexuality and to homosexual
practices by gay men and women required a decriminalization of those practices, even to the
extent of consensual acts by adult males in private. The trend was not to move towards the
56
Al-Tirmidhi (1456), Abu Dawud (4462) and Ibn Majah (2561)
57
Ahmad (2915)
58
F Mcgraw donner, The Early Islamic Conquests (Princeton University Press 1981)
59
F Mcgraw donner, The Early Islamic Conquests (Princeton University Press 1981)
60
Olufemi Abifarin and Jimmy Chijioke o, 'Same-Sex Marriage, Human Rights And Cultural Diversity: An African
Perspective' [2016] 20(1) World Affairs: The Journal of International Issues 126-139
61
B Mehra and others, 'An Exploratory Journey of Cultural Visual Literacy of “Non-Conforming” Gender Representations
from Pre-Colonial Sub- Saharan Africa ' [2019] 3(3) Open Information Science 1-21 for example the Woman King who took
women as wives who were from abused families and was regarded and respected as a ‘king’. The term yan dauda which
means ‘homosexual’ and dan dauda which means ‘homosexual wife’.
liberalization of sexual conduct by regarding homosexual practices as acceptable conduct but
showed a hardening of a contrary attitude’ and furthermore held that ‘The time had not yet
arrived to decriminalize homosexual practices even between consenting adult males in
private. Gay men and women did not represent a group or class which at this stage had been
shown to require protection under the Constitution’.62 The African Commission of Human
Rights, created to protect and defend human rights in the African on the 8th of August 2018
continent removed observer status of Coalition of African Lesbians (CAL) due to repeated
pestering from the African Union Executive Council63 as it did not reflect ‘African Values’.64
Whilst the Kanane case has now been reexamined and Botswana has been taking positive
steps to recognize and protect the rights of the LGBTQ+ community 65, CAL unfortunately
still hasn’t regained it’s observer status as of 2023.
Article 17(3) of the African Charter of Human and People’s Rights provides that the state has
a duty to protect the traditional values recognized by the state66 and Article 22(1) states that
all people have the right to social and cultural development in regard to their identity. 67 It is
unfortunate that a body of law created to protect African cultural values passed down a
decision that despite the rich and varied examples of African lesbian relationships, pre-
colonial Africa mentioned above, the AU Executive still states that CAL did not reflect
African values.
Furthermore, in the Kanane case it was done so taking regard to the sodomy laws that existed
in Botswana at the time codified in the then existing Penal Code under section 167.68 Despite
said laws being a British import by nature as mentioned above it was used as reference in this
case.
62
Kanane v The State [2003] 2 BLR 67 (CA)
63
OC Okafor & GEK Dzah ‘The African human rights system as ‘norm leader’: Three case
studies’ (2021) 21 African Human Rights Law Journal 669-698
64
Centre for Human Rights University of Pretoria, A Guide to the African Human Rights System (Pretoria University Law
Press, 2021)
65
See MOTSHIDIEMANG v ATTORNEY -GENERAL (LESBIANS, GAYS & BISEXUALS OF BOTSWANA AS
AMICUS CURIAE) [2019] 4 BLR 143 (HC)
66
African Charter on Human and People’s Rights (adopted June 1981) Art 15(3)
67
African Charter on Human and People’s Rights (adopted June 1981) Art 15(3)
68
Penal Code of Botswana 1964 s167 which vaguely states ‘Any person who
(a) has carnal knowledge of any person against the order of nature;
(b) has carnal knowledge of an animal; or
(c) permits any other person to have carnal knowledge of him or her against the order of nature, is guilty of an offence and is
liable to imprisonment for a term not exceeding seven years.’
As mentioned above, the 1873 Cape Colony report when querying sexual norms, British
colonizers omitted sexual ideas that did not fit the heteronormative values that reflected
British society. The Commission raised an issue of ‘unnatural crime’ with Sesotho elderly
chiefs, the chiefs stated such crimes didn’t exist.69 Why then, do sodomy laws still exist and
the views of LGBTQ+ people so contentious?
In my opinion, I state that after colonialism, Africa did not get the opportunity to develop a
jurisprudential and body of law that reflected the culture at large. The use of foreign laws and
the separation of Customary Law from the imported law system has a part to play in this.
Most African countries have a combination of imported common law and customary law 70,
however, most of the laws only regulate civil matters71 and is only of application to people
deemed to be ‘tribesmen’.72 Furthermore, customary law must conform to universal but
imported concepts of fairness and equity.73
This separation of laws in my opinion shows a lack of confidence in customs and traditions to
govern state matters. Furthermore, it takes away the African’s rights to self-determine and
increased reliance on imported laws that do not accurately reflect the customs and traditions
of the people they’re supposed to govern. This lack of development can be seen in the
Kanane case mentioned above where, I believe, if the court were to be cognizant of the
African traditional values at large and found in Botswana, the case would’ve been decided
differently furthermore, in dealing with the CAL’s observer status, the African Union
wouldn’t have said that it was against African values.
69
Marc Epprecht, '"Bisexuality" and the Politics of Normal in African Ethnography' [2006] 48(2) Anthropologica 187-201
70
N Ndulo, 'African Cust African Customary Law, Customs, and norms, and Women's Rights s Rights' [2011] 18(1) Indiana
Journal of Global Legal Studies 87-120
71
See Mujuzi, Jamil Ddamulira. (2020). Reconciling customary law and cultural practices with human rights in
Uganda. Obiter, 41(2), 239-256. Retrieved November 10, 2023, from http://www.scielo.org.za/scielo.php?
script=sci_arttext&pid=S1682-58532020000200003&lng=en&tlng=en, see also Customary Courts Act of Botswana CAP
04:05 s13
72
Customary Law Act of Botswana CAP 16:01 s4 and also Nwauche, E. (2015). Affiliation to a New Customary Law in
Post-Apartheid South Africa. Potchefstroom Electronic Law Journal, 18(3), 568–592. https://doi.org/10.4314/pelj.v18i3.0
73
Mujuzi, Jamil Ddamulira. (2020). Reconciling customary law and cultural practices with human rights in
Uganda. Obiter, 41(2), 239-256. Retrieved November 10, 2023, from http://www.scielo.org.za/scielo.php?
script=sci_arttext&pid=S1682-58532020000200003&lng=en&tlng=en, see also Customary Courts Act of Botswana CAP
04:05 s2 ‘ " customary law" means, in relation to any particular tribe or tribal community, the
customary law of that tribe or tribal community so far as it is not incompatible with the
provisions of any written law or contrary to morality, humanity or natural justice ‘and Customary Law Act of Botswana CAP
16:01 s2
The other reason I believe that Africa hasn’t been able to develop her own identity, is the
influence of foreign religions in the statutes and governmental officials of Africa. For
example, the Anti-Gay Bill of 2014 was passed by under pressure from far-right Christians
and American evangelists.74 As mentioned above, Shariah law also has a part to play. Around
16 countries in Africa have Shariah law embedded into their legal systems.75 Of one of them,
Mauritiana, an Islamic state has the death penalty for homosexual acts76 and countries such as
Sudan have the death penalty as punishment for repeated offences.77 Countries such as
Tanzania have a punishment of 30 years imprisonment.78
These religions, both foreign and only introduced to Africa through missionary work and
conquest are not reflective of African values and shouldn’t have a part in deciding policy.
However, these nations remain adamant to keep them in and refuse to acknowledge their
existence as a foreign entity and therefore pass laws this in turn leads to African culture and
values being replaced by moral values both from an ancient time and having originated far
away from Africa and therefore, not reflective of African beliefs and culture at the time they
were received.
It seems, despite regaining independence from foreign rule, Africa still relies on a system and
body of laws that aren’t their own but rather ‘other’ in nature. Not only propagating these
laws, but regulating them and enforcing them whilst crying out that any foreign sanctions to
maintain the rights of those minorities whom the law is supposed to protect and are given a
stone wall of legal remedies to recognize said rights are of a ‘foreign’ nature. It is a vicious
cycle made even worse by leaders who cry that it is a moral outrage while ignoring the issues
74
Stella Nyanzi & Andrew Karamagi (2015) The social-political dynamics of the anti-homosexuality legislation in Uganda,
Agenda, 29:1, 24-38
75
K Hairsine, 'Shariah law in Africa has many faces' (Rule of Law, 28th January 2022) <https://www.dw.com/en/sharia-law-
in-africa-interpretations-legal-system/a-60587789#:~:text=Several%20African%20nations%2C%20such%20as,which
%20was%20adopted%20in%202012.> accessed 10 November 2023
76
Penal Code of 1984 Mauritiana Article 308 ‘Any adult Muslim man who commits an indecent act or an act against
nature with an individual of his sex will face the penalty of death by public stoning. If it is a question of two women,
they will be punished as prescribed in article 306, first paragraph.’
77
The Penal Code 1991 (Act No. 8 1991) of Sudan, s148(c) which states (c) If the offender is convicted for the third time he
shall be punished with death or life imprisonment.’
78
see Penal Code of 1945 (as amended by the Sexual Offences Special Provisions Act, 1998) s154 (1) 1) Any person who–
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence,and is
liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years.
in their country.79 What is the solution to this problem? I will be going over that in the next
heading.
5. Cultural Relativism: The true aid
The Universal Declaration of Human Rights (UDHR) was signed and ratified in 194880 at the
time they were only 58 recognized countries as opposed to the 195 that exist now.81 As of that
time a lot of African countries were still colonized or in the process of being decolonized. The
UDHR preamble sets out in the preamble that states should set out to ‘secure their universal
and effective recognition and observance’82 (emphasis is my own). By its nature ass set out in
the UDHR, human rights are universal. Cultural relativism is the claim, meanwhile that ‘there
are no universal moral standards’83 and that ‘there are distinct, historically constituted,
cultures, of equal ethical and political worth.’84
When the UDHR was first ratified, the existence of African nations as we know them was
still in the process. A lot of African countries and statesmen didn’t have a say in the universal
rights provided to the people. It was only later, when African countries regained their
independence and were recognized as states that they ratified the UDHR. However, the
UDHR as a body of rights reflects the cultural values of a time where the African states of
the time were barely a twinkle in the original drafters eyes. It was only on June 27th 1981
that the African Charter on Human and People’s Rights was passed that reflected the values
and cultural values of the African people.85
Despite this, however, the common argument against gay rights is that it is a foreign import
from abroad. That is the argument written in response to economic sanctions imposed on
79
Siri Gloppen, LGBT Rights in Africa. in Chris Ashford and Alexander Maine (eds), Research Handbook on Gender,
Sexuality and the Law (Edward Elgar Publishing Limited 2020) 194-209 which makes reference to Mugabe’s speech in 1993
made against homosexual and lesbian persons
80
BH Weston, 'Human Rights' [2000] 22(3) Human Rights Quarterly 838-860
81
Worldometer, 'Countries in the World' (How Many Countries are there in the World?, 10 November
2022) <https://www.worldometers.info/geography/how-many-countries-are-there-in-the-world/#:~:text=There%20are
%20195%20countries%20in,and%20the%20State%20of%20Palestine.> accessed 10 November 2023
82
United Nations General Assembly. The Universal Declaration of Human Rights (UDHR). New York: United Nations
General Assembly, 1948
83
Chimakonam, J.O., Agada, A. The Sexual Orientation Question in Nigeria: Cultural Relativism Versus Universal Human
Rights Concerns. Sexuality & Culture 24, 1705–1719 (2020).
84
Halliday, F. (1995). Relativism and universalism in human rights: The case of the Islamic Middle East.
Political Studies, 43, 152–167.
85
African Charter on Human and People’s Rights (adopted June 1981)
Nigeria for human rights violations against LGBTQ+ persons in Abifarin and Ojioke’s
paper.86
In this paper I set out to prove that LGBTQ+ persons existed in Africa in pre-colonial times
and that many of these relationships were celebrated. It was only the foreign imposition of
colonial values and ideas of homosexuality being a result of moral degradation and
deficiency that lead to the modern African view of homosexual persons. Furthermore, the
imposition of foreign laws over customary laws, these foreign laws meting punishment
against homosexual persons which are still being enforced in some African countries today
has led to Africa not being able to form her own jurisprudential identity beyond colonial
values.
Furthermore, religious values that were foreign to African culture also had a role to play in
shaping modern African values, one need only look at the reasoning behind the passing of
Uganda’s anti-homosexuality bill, public opposition in Botswana when striking down
homosexual laws and also the various African countries that use either Shariah Law or a
mixture of it within their legal systems as evidence of that.
Therefore, I believe cultural relativism is the solution to this issue. A general awareness of the
heritage and rich history of non-conforming behavior should be taught and also celebrated,
much like it was before colonial powers took over. Africans should also have confidence in
their own legal systems to govern their own affairs and affairs of other people as only through
laws can a system that accurately reflects African values be found.
That is not to say all of culture should be celebrated. Cultural relativism can be viewed as a
double edge sword, on one hand it is an effective tool in recognizing cultural values that were
previously unheard off, on the other hand, if we rely to heavily on cultural values of the past,
we may be unable to move forward. For example, amidst the rich history mentioned above is
a system of pederasty and exploitation of both young men and women who would legally be
considered minor, not to mention the darker side of African culture such as female genital
mutilation. 87 However, customary law and by relation custom is always quoted as
86
Olufemi Abifarin and Jimmy Chijioke o, 'Same-Sex Marriage, Human Rights And Cultural Diversity: An African
Perspective' [2016] 20(1) World Affairs: The Journal of International Issues 126-139
87
Unfpa, 'Female Genital Mutilation ' (What We Do, 2023) <https://esaro.unfpa.org/en/topics/female-genital-
mutilation#:~:text=Context%20in%20East%20and%20Southern%20Africa&text=It%20is%20estimated%20that%20some,in
%20East%20and%20Southern%20Africa.> accessed 10 November 2023
‘flexible’88, a reflection of the darker aspects of the history and celebration of rights enshrined
in pre-colonial Africa whilst further leaning from other jurisdictions how to tackle these
issues is the way forward in order to enshrine real African values and real African customs
that haven’t been tainted by the tinge of ideas that are foreign and steeped in the darker
aspects of colonialism.
6. Conclusion
This paper was written as a response to the various claims that LGBTQ+ persons and the
protection of their rights are against African values and a colonial import incognizant of
African values. The rich African history of LGBTQ+ persons in Africa mentioned above
directly contradict that statement. It was only through the introduction of foreign laws and the
replacement and negligence of African values that lead to the current view of LGBTQ+
persons. Homophobia and transphobia are the true foreign export and denying the rights of
these people and passing down laws to suppress and imprison them is ultimately acting out
exactly like how foreign colonial countries acted. To deny these persons rights is to
undermine African cultures and values and not the opposite.
88
N Ndulo, 'African Cust African Customary Law, Customs, and W oms, and Women's Rights s Rights' [2011] 18(1) Indiana
Journal of Global Legal Studies 87-120
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