African Law and the Rights of Sexual Minorities: Western Universalism and African Resistance

Abstract

Thirty-two of fifty-four African countries criminalize same-sex sexual intimacy. African leaders have frequently defended such laws by characterizing homosexuality as a foreign blight, a neocolonial construction imposed on Africa by the West. Likewise, according to recent polls, most Africans believe homosexuality should not be accepted. Meanwhile, Western human rights advocates have pointed to the historical and contemporary anthropological record in asserting that homosexuality is, and has long been, a feature of African life. These advocates also note that laws proscribing homosexual activity are the true Western imposition; in many of the African countries that criminalize same-sex sexual conduct, colonial governments originally promulgated the anti-sodomy laws that Africans have now embraced and that Western governments and human rights activists now oppose. In advancing their claims, proponents of the rights of sexual minorities in Africa also appeal to the liberal principles of autonomy and equality at the heart of international human rights law and enshrined in the constitutions of all modern democracies, including those of the African countries that continue to proscribe same-sex intimacy. Many agree, however, that these appeals have often been counterproductive, spurring vigorous enforcement of laws that had been largely ignored for decades in some countries, and leading to implementation of new laws detrimental to the interests of sexual minorities in other countries.

In this chapter, I provide an overview the state of African law regarding the rights of sexual minorities, and I attempt to reconcile the competing narratives offered by many African leaders, on the one hand, and advocates for the rights of sexual minorities, on the other. The anthropological record and the anti-essentialist philosophy of queer theorists reveal that there is some truth in each perspective; although same-sex sexual activity has long been a feature of societies across the continent, contemporary conceptions of homosexual identity are largely a Western cultural construct. The lack of cultural resonance for many Africans of essentialist characterizations of same-sex intimacy (including for many Africans who engage in such intimacies) may partially explain resistance to the non-discrimination arguments that Western governments and human rights advocates have offered. Moreover, the deep communitarian roots of many African cultures may partially explain resistance to liberal claims based on both equality and autonomy. Any productive path forward must include an acknowledgment both of the longstanding existence of same-sex intimacy in African societies and of its lack of conceptual correspondence in many instances to the Western notion of homosexuality. Those interested in advancing the interests of sexual minorities in Africa must also develop an appreciation of the long, sordid history of Western attempts to impose universalizing norms on African societies, of the ways in which current advocacy reproduces important features of colonial discourse, and of the resistance that such efforts are likely to engender.