Abstract

African progressiveness faces many challenges. One of the greatest opponents has become the politics of sexuality on the continent. The discourse on decriminalizing homosexuality has always followed that of a patriarchal and heteronormative nature.  One of the results of colonialism in Africa is the push for the preservation and anti-infringement of the ‘true’ African identity and culture. Homophobia has become synonymous with African culture. However, how well do we know its origins? 

In this paper, I will argue that homophobia, not homosexuality, is a creation of colonialism by instigating a thorough comprehension of the historical formation of homophobia. Further, the paper will examine the introduction of African customary law through the creation of tribes and the imposition of the twin codes: the 1899 Queensland Criminal Code and the 1860 Indian Penal Code. . 

Introduction

In 2018, Theresa May, the then British Prime Minister, apologized to the citizens of Commonwealth nations for the role her country played in the dashing out of oppressive and crippling anti-gay laws during the horrific colonial era.^[1] The significance of this apology is not that it will magically push African nations to abolish anti-gay laws. Still, it is a reminder that homophobia is indeed an imported concept. The apology forces Africans and their leaders to interrogate anti-same-sex discourse’s convoluted yet irrefutable history. The famous African notion that homosexuality is a colonial import holds little weight. When history is analyzed, it is found that homophobia was a mechanism used by colonialists to divide the African continent and its people. Europe was able to entrench homophobic rhetoric onto the African population in several ways but mainly through tribalizing African societies and introducing customary law.  

Msibi (2011, page 56) states that “African societies have never historically had a “gay” identity or a pathologized “homosexual” category; however, same-sex sexual attraction and expression were known to occur but is usually hidden but sometimes even culturally accepted ways.” It is imperative to note that the term ‘homosexuality’ was not something that was a product of the African continent. It was an abstraction from the Global North to betake a sort of ailment because of being attracted to someone of the same sex. “Homosexuality was, therefore, a term initially introduced in the West to control social relations, while labeling those engaged in same-sex relations as deviant (Msibi 2011, page 56).”

The existence of homophobia is of significant matter for several reasons. First and foremost, sexual rights are human rights. The Declaration of Human Rights was first introduced to act as an affirmation of basic human privileges. Though the Declaration is not legally binding, it serves as a basis for many international laws and treaties and national and regional laws. Human rights are seen as inherent, inalienable, and indivisible entitlements or protections every individual claim and enjoys because they are human beings. All members of the United Nations General Assembly have signed this promissory note. Homophobia infringes on other fundamental human rights of individuals, such as the freedom of non-discrimination, freedom from cruel treatment or punishment, freedom of opinion and expression, right to marry and form a family, right to privacy, and right to the highest attainable living standard (especially in the context of sexual health). We find at times that prejudice and hate beget actions that express this, such as murder, torture, and harassment. When we protect sexual rights, we defend human rights. 

Into the bargain, homophobia allows for sexually related infections to grow in numbers. The stigma of sexually transmitted diseases or infections rise when same-sex relations are criminalized. The negative connotations behind HIV/AIDS and homosexuality, coupled with the outlawing of transference of HIV/AIDS, have all perpetuated a system of an increased poor practice of health. These factors have made people in the LGBTQ+ community sway away from getting regular check-ups. Many may have underlying health issues which cannot be found because of negative brandings. When the system allows health workers to discriminate, it worsens matters. This ties back in with the freedom of health care and freedom from any form of discrimination. 

In the third pace, it is essential to expound on the dialogue on homophobia in Africa because it allows for more research. Scholars and researchers can probe into specific issues in this debate while contextualizing research in the African setting. We have often found that the discussion is disproportionally centered around the perspective of the Global North; thus, development is centered around that region. It is essential to realize the work and role African ideologies, discourse, social movements, and civil societies have played in fighting for equality. 

Tribalizing African Societies

European colonization expanded to ” modernize” the whole world by trying to civilize the uncivil. The quest for civilizing societies grew, and the Europeans found a quandary. The African population posed a specific threat to this conquest because the majority Black race had a strong chance of organizing and becoming self-conscious, thus threatening the prospects of the White European minority’s penultimate control over them. Moreover, they were aware that “modernized” Africans gathered around a rigorous form of administration would allow these same Africans to become aware of their surroundings and start demanding for rights.  A detribalized and modernized African population set up a situation for the Africans to challenge European democratic paragons that had been presented to them. This was seen in the Cape Colony of modern-day South Africa, where the “civilized” and unmonitored Africans revolted and demanded equality with the white colonialists. 

The colonialists knew they had to reconstruct the blueprint of the populations for more accessible administration purposes. They then devised a plan to incidentally rule the Africans through the creation of ethnic categorizations later referred to as tribes. The strategy behind this was the conception of indirect rule, where they would partition the African population by lodging the tribe as the primary premise of the continent’s social, political, and economic existence. In other words, the tribe would act as a direct administrator while the colonialist would serve as the invisible hand. 

However, the complication behind this idea was that Africans did not use tribe as a measure of identity in their economic, social, and political entities during this time. People did not limit themselves and dominantly cluster due to their ethnolinguistic identities. Mahmoud Mamdani (2013) vividly expresses: “Did tribe exist [in Africa] before colonialism? It did if we understand by tribe an ethnic group with a common language. But tribe as an administrative entity that distinguishes between natives and non-natives and systematically discriminates in favor of the former against the latter—defining access to land and participation in local governance and rules for settling disputes according to tribal identity—certainly did not exist before colonialism.”

This goes to say that Africans did not tie their identities to tribes. However, they were connected to native communities, faith systems, clans, or beliefs in public affairs. As better articulated by the archivist Terence Ranger (1963, page 248):
“Almost all recent studies of nineteenth-century pre-colonial Africa have emphasized that far from there being a single ‘tribal’ identity, most Africans moved in and out of multiple identities, defining themselves at one moment subject to this chief, at another moment as a member of that cult, as part of this clan, and at yet another moment as an initiate in that professional guild… Thus, the boundaries of the “tribal” polity and the hierarchies of authority within them did not define conceptual horizons of Africans.”

The colonialists believed Africans had primitive societies and identities, so the effortless creation of tribes fit perfectly well into the narrative. They had pictured a scattered ethnic portrayal of pre-colonial Africa being so rudimental that they set out to restore the continent to its actual and “authentic” setting. So, this is when the plan was rolled out: An elaborate scheme with the collaboration of religious institutions, globetrotters, state representatives, and historians. 

Therefore, the design to constitute a tribe was based on ethnolinguistic identities. Fulanis were to form the Fulani tribe; Kikuyu was to constitute the Kikuyu; Akans were to constitute the Akan tribe; Sotho were to constitute the Sotho tribe. The problem with this is that it divided people solely based on vernacular. This means that complex societies were reduced to simple abstracts. A multiethnic society such as the Matabele and Nguni were defined as a single tribe. Therefore, we find two or more different ethnic groups with the same languages, cultures, traditions, norms, and values in contemporary times. Moreover, many multiethnic communities that inhabited the same geographical area were delegated as a single tribe. For example, 19 distinct ethnolinguistic groups encompassing modern-day Uganda, Kenya, and Tanzania were amalgamated into a single tribe known as Abaluyia or Luhya. 

The colonialists abolished all forms of African jurisdiction and established their administrative bodies and regulations. Geographical borders were set up in which each tribe under each colonial power was designated a particular area. Interlinkages between different tribes were abolished while the movement was stiffly limited. The restrictions allowed colonialists to micromanage the ethnic groups. To implement all these changes, the Europeans enacted the help of an indigenous official tasked with enforcing these new rules and laws. This helped set up a division amongst the population by creating a superiority complex that gave some members more authority and power than others. 

Furthermore, Terence Ranger (1963, page 248) expresses:
“The most far-reaching inventions of tradition in colonial Africa took place when the Europeans believed themselves to be respecting age-old African custom. What were called customary law, customary land rights, customary political structure and so on, were, in fact, all invented by colonial codification.”

African Customary Law

According to legislation, the law can be derived from several sources, including treaties, accords, conventions, constitutions, and customs. Customary law refers to the native system of rules and governance of ethnic groups (Ndulo, 2011, page 87). Pre-colonial African societies conducted themselves according to and in line with customary law. Traditions, norms, values, and beliefs all contributed to the customs (a widely accepted pattern of behavior) upheld in society and thus would be used as a governing blueprint. Therefore, in pre-colonial African societies, all the factors above influenced African customary law. However, the Europeans did not follow this exact blueprint: What we see is a reverse formula. Instead, they tweaked and influenced the customary law to mirror their objectives of authoritarian rule. This says that the only accepted and codified customary laws were those in line with autocratic aspirations.

To implement this, the colonialist overhauled the stratifications in the social life of the societies. They constructed and placed systems of hierarchies. For example, officers were to monitor native chiefs while these indigenous chiefs monitored the indigenous populations. Moreover, seniors were to watch the youth. Patriarchy as a system was enforced heavily in which the men would monitor women. 

This new system convinced people this was the “true” African culture. What happened after was the suspension of fluidity and change regarding customary laws. One cultural factor is that colure is never stagnant; instead, it changes over time and takes a new form. However, the Europeans froze the elements that allowed African culture and customs’ multifaceted and constant evolution. This does not mean African culture didn’t evolve, but African customary law did not develop and reflect the underground changes under colonial rule. Because of this new resetting back to the “true” and “genuine” Africa, Africans had to be taught how to be African. The Fulani had to be taught how to be Fulani, and the Luo had to be taught how to be Luo. There were rules that “true” Africans had to follow, even regarding reproductive autonomy and sexual sovereignty.

One practice that drew Europeans to Africans was the practice of same-sex relations and, more importantly, same-sex marriages. Like in other non-African societies, the institution of marriage existed in Africa for various reasons. Same thing with opposite-sex marriages as functional institutions. They lived to perpetuate continuity for the community, pass down heritage, bring peace, and join families, amongst other reasons. On that same note, same-sex marriages and relations did exist as well, and they existed in a complex nature. So, it would be a disservice to state that same-sex marriage is not mainly African. It existed amongst the Kikuyu, Kamba, Igbo, Xhosa, and Mbundu groups for various reasons such as sexual desire, autonomy for women, wealth generation, child surrogacy, and spiritual wellness. 

“For example, the Ndebele and Shona in Zimbabwe, the Azande in Sudan and Congo, the Nupe in Nigeria, and the Tutsi in Rwanda and Burundi all engaged in same-sex acts for spiritual rearmament — i.e., as a source of fresh power for their territories. It was also used for ritual purposes. In many African societies, same-sex sexuality was also believed to be a source of magical powers to guarantee bountiful crop yields, abundant hunting, good health, and ward off evil spirits. Among various communities in South Africa, sex education among adolescent peers allowed them to experiment through acts such as “thigh sex” (Tamale, 2014).

Same-sex relations also were present in governance. It is known that King Mwanga II of the Buganda Kingdom, in modern-day Uganda, was openly gay. The myth of homosexuality being un-African is ahistorical and reductive.

What we can prove was un-African were the Abrahamic religions introduced to the African continent through trade, relations, and colonialism. These religions (Christianity and Islam) outline that same-sex relations are unnatural, sinful, and an abomination. Because Europeans were predominantly adherents of the Christian faith, so they used the Bible as a legitimate source of governance amongst the African populations, who often didn’t adhere to this religion. They also used the Bible (which was not African) to create African customary laws.

The Penal Codes

The reformation of this colonially categorized “ill” practice was carried out through the 1860 Indian Penal Code and the 1899 Queensland Criminal Code. These two statutes were first implemented in other colonies and then brought to the African continent with the intent of being codified into customary law. The two codes outline criminal law while highlighting penalties for infringement on specific regulations. The people who benefited from these laws were primarily the colonialists and the Africans with privilege and power, such as the chiefs, administrators, seniors, and men. The privileged indigenous Africans legitimized these laws because they gave them authority and control. 

Conclusion

The enforcement of African conservatism, homophobia, and authoritarianism have all been made of European colonial rule. Europe, in delusion, set out to bring Africa to its “original” state. The colonialist mindset and actions have appallingly contaminated contemporary African culture. It is undoubtedly that Africa was not homophobic, but the laws and rules introduced were. The imported laws that set out to tribalize, divide and restrict African people and societies are foreign to the continent. To strive for African progressiveness, we must deconstruct these various systems placed by the colonialists. There is no proper set of particular and stagnant African customary laws in regulated societies. This means that there is no “original” African culture. What was original were the laws enforced on the continent. Therefore, when people speak of homosexuality going against the authentic African culture, they mean that it goes against the African culture taught to Africans by the colonialists.   

Bibliography

Adebajo, S., Eluwa, G., Allman, D., Myers, T., & Ahonsi, B. (2012). Prevalence of Internalized Homophobia and HIV Associated Risks among Men who have Sex with Men in Nigeria. African Journal of Reproductive Health / La Revue Africaine De La Santé Reproductive, 16(4), 21-28. Retrieved January 31, 2020, from www.jstor.org/stable/23485772

Awondo, P., Geschiere, P., & Reid, G. (2012). Homophobic Africa? Toward A More Nuanced View. African Studies Review,55(3), 145-168. Retrieved January 31, 2020, from www.jstor.org/stable/43904852

Barlet, O. (2014). “Homosexuality Is Not Un–African; What Is Un–African Is Homophobia”: An Interview with Wanuri Kahiu on Jambula Tree. Black Camera, 5(2), 186-190. doi:10.2979/blackcamera.5.2.186

Currier, A. (2010). Political Homophobia In Postcolonial Namibia. Gender and Society, 24(1), 110-129. Retrieved January 31, 2020, from www.jstor.org/stable/20676848

Epprecht, M. (2005). Black Skin, ‘Cowboy’ Masculinity: A Genealogy of Homophobia in the African Nationalist Movement in Zimbabwe to 1983. Culture, Health & Sexuality, 7(3), 253-266. Retrieved January 31, 2020, from www.jstor.org/stable/4005495

Epprecht, M. (2012). Sexual Minorities, Human Rights And Public Health Strategies In Africa. African Affairs,111(443), 223-243. Retrieved January 31, 2020, from www.jstor.org/stable/41494486

Gunkel, H. (2013). Some Reflections on Postcolonial Homophobia, Local Interventions, and LGBTI Solidarity Online: The Politics of Global Petitions. African Studies Review, 56(2), 67-81. Retrieved January 31, 2020, from www.jstor.org/stable/43904928

Ireland, P. (2013). A Macro-Level Analysis of the Scope, Causes, and Consequences of Homophobia in Africa. African Studies Review, 56(2), 47-66. Retrieved January 31, 2020, from www.jstor.org/stable/43904927

Kuwali, D. (2014). Battle for Sex?: Protecting Sexual(ity) Rights in Africa. Human Rights Quarterly, 36(1), 22-60. Retrieved January 31, 2020, from www.jstor.org/stable/24518096

M’Baye, B. (2013). The Origins of Senegalese Homophobia: Discourses on Homosexuals and Transgender People in Colonial and Postcolonial Senegal. African Studies Review, 56(2), 109-128. Retrieved January 31, 2020, from www.jstor.org/stable/43904930

Mamdani, M. (2013). Define and rule (p. 7). Kampala: Makerere Institute of Social Research, Makerere University.

Msibi, T. (2011). The Lies We Have Been Told: On (Homo) Sexuality in Africa. Africa Today, 58(1), 55-77. doi:10.2979/africatoday.58.1.55

Ndulo, M. (2011). African Customary Law, Customs, and Women’s Rights. Indiana journal of global legal studies: Vol. 18: Iss. 1, Article 5.

Ranger, T. (1983). The invention of tradition (p. 248). Cambridge: University Press.

Ratele, K. (2014). Hegemonic African Masculinities and Men’s Heterosexual Lives: Some Uses for Homophobia. African Studies Review, 57(2), 115-130. doi:10.2307/26408900

Roehr, B. (2010). Homophobia and Africa’s HIV epidemic. BMJ: British Medical Journal, 340(7757), 1166-1168. Retrieved January 31, 2020, from www.jstor.org/stable/40702157

Seo, H. (2017). Origins And Consequences Of Uganda’s Brutal Homophobia. Harvard International Review, 38(3), 44-47. Retrieved January 31, 2020, from www.jstor.org/stable/26528682

Tamale, S. (2013). Confronting the Politics of Nonconforming Sexualities in Africa. African Studies Review, 56(2), 31-45. Retrieved January 31, 2020, from www.jstor.org/stable/43904926

Tamale, S. (2014, April 26). Homosexuality is not un-African. Al Jazeera. https://america.aljazeera.com/opinions/2014/4/homosexuality-africamuseveniugandanigeriaethiopia.html