African human rights law journal



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AFRICAN HUMAN RIGHTS LAW JOURNAL

(2014) 14 AHRLJ 393-411

The influence of Roman laws regarding same-sex acts on homophobia in Africa


Susan Haskins*

Lecturer, Department of Ancient Languages, University of Pretoria, South



Africa

Summary


In recent years there has been a surge of homophobia across Africa. Among the arguments of this discourse against homosexuality is that homosexuality is a pattern of behaviour, not an orientation, that such behaviour is an import from the West and, as such, unAfrican. Paradoxically, this discourse also argues that homosexuality is against religion, where the religion referred to is Christianity, another Western import. However, one of the most dangerous manifestations of homophobia has been attempts not just to socially condemn, but to legally prosecute homosexual acts. Such legal persecution, especially in some of the former British colonies of sub-Saharan Africa, has been possible due to the presence within their penal codes of laws against

unnatural’ sexual acts. Many commentators have noted that these laws

are themselves a remnant of colonial occupation and as such do not

communicate African values. Nevertheless, they are being used to help

justify homophobia in Africa. However, these commentators have not fully

realised the implications of the origin of the laws on unnatural sexual acts.

These laws can be traced back not just to Britain, but to the first codified

laws regulating same-sex acts in the West, namely, the laws of the ancient

Romans. This study examines Roman laws on same-sex acts and the

consequent establishment of a legal concept of sexuality. It then illustrates

* BA BA (Hons) MA (Natal), PhD (KwaZulu-Natal); susan.haskins@up.ac.za. This article began as a conference paper presented at both ‘The reception of Rome and the construction of Western homosexual identities’ conference, Durham University, 17-18 April 2012, and ‘The 30th biennial conference of the Classical Association of South Africa. Reception’, University of the Free State, 8-11 July



2013. I would like to thank conference participants, members of Gender Research

at the University of Pretoria (GR@UP) and the anonymous Journal reviewers for

their invaluable feedback. Any remaining errors are my own.



how, due to the influence of these laws on the formulation of Victorian laws on unnatural acts, the Roman legal concept of sexuality underlies the laws which exist in many former British colonies. It also briefly outlines the effect of these laws on present-day sub-Saharan Africa. Perhaps understanding the ancient, alien socio-historical context of the legal concept of sexuality behind the Roman laws may assist in subverting the law argument of the African homophobic discourse.
Key words: homophobia; homosexuality; sub-Saharan Africa; Roman laws; ancient Roman sexuality
1 Introduction
In 2010, two Malawians, Steven Monjeza and Tiwonge Chimbalanga, classified as men by the Malawian legal system, were sentenced to 14 years in prison with hard labour for conducting a traditional

engagement ceremony.1 This example of homophobia2 is just one

from a growing trend in recent years, where the prospect of the law

being used to persecute homosexuals in parts of sub-Saharan Africa is becoming an increasing threat.3 The West’s reaction to the judgment


1 M Epprecht ‘The politics of gay-bashing’ 28 June 2010 http://www.dandc.eu/ articles/ 175882/index.en.shtml (accessed 16 February 2012). They were later pardoned by the President, Bingu wa Mutharika, but in doing so he also said that

‘[t]hese boys committed a crime against our culture, our religion and our laws’. M Gevisser ‘Homosexuality and the battle for Africa’s soul’ 4 June 2010 http:// www.mg.co.za/article/2010-06-04-homosexuality-and-the-battle-for-africas-soul (accessed 8 August 2013).

2 While Chimbalanga self-identifies as female and therefore this couple cannot technically be called homosexual, Chimbalanga was identified as male by Malawian society and the courts and so this can still be counted as a display of homophobia. Gevisser (n 1 above).

3 In 2009, a Ugandan MP, David Bahati, proposed a Bill that would allow for harsher punishments to be imposed on those successfully prosecuted for homosexual acts under the existing laws on ‘unnatural acts’. These punishments included the death penalty for ‘repeat offenders’. J Mmali ‘Uganda fear over gay death penalty plans’ 22 December 2009 http://news.bbc.co.uk/2/hi/africa/

8412962.stm (accessed 22 March 2012). A watered-down version of this Bill was signed into law in 2014, but it still allowed for life imprisonment for ‘aggravated homosexuality’ and ‘promotion’ of homosexuality. A Cowell ‘Uganda’s President signs antigay Bill’ 24 February 2014 http://www.nytimes.com/2014/02/25/world/ africa/ugandan-president-to-sign-antigay-law.html?_r=0 (accessed 17 June 2014). The law has since been invalidated by the Ugandan Constitutional Court. However, this was on technical grounds and the law may yet be reintroduced in parliament. D Smith ‘Uganda anti-gay law declared “null and void” by constitutional court’ 1 August 2014 http://www.theguardian.com/world/2014/ aug/01/uganda-anti-gay-law-null-and-void (accessed 21 September 2014). In

2009, the Rwandan government was forced to put out a statement saying that they would not be interfering in the private lives of citizens, after fears arose that they too were planning anti-gay legislation. Gevisser (n 1 above). However, other former British colonies in Africa, Nigeria and The Gambia, have followed Uganda’s lead and imposed similar, harsher laws against homosexuality. A Nossiter ‘Nigeria

and similar legal manoeuvres in Africa has been outrage.4 The legal persecution of homosexuals conjures images of racism and gender discrimination.5 European countries and the United States (US) have

threatened to withhold aid to African countries not supporting gay rights.6 However, this stance could be considered to be hypocritical.7

Homosexuality and most of the main justifications for homophobia in sub-Saharan Africa, namely, Christian morality8 and the laws, are actually imports brought in centuries before by the colonial Western

powers.9 The most systematic, pervasive and firmly-established



colonial laws against same-sex acts were imposed by the British and

can be found as remnants in the penal codes of many of their former

3

tries to “sanitize” Itself of gays’ 8 February 2014 http://www.nytimes.com/2014/



02/09/world/africa/nigeria-uses-law-and-whip-to-sanitize-gays.html (accessed

17 June 2014); E Margolin Another African nation to enact anti-gay law’ 10 Sep-

tember 2014 http://www.msnbc.com/msnbc/gambia-anti-gay-law (accessed

19 September 2014).

4 In response to Uganda’s proposed Bill against homosexual acts, Sweden threatened to withhold aid in 2009; Mmali (n 3 above). Barack Obama criticised the Bill in 2010. P Fihlani ‘Religion, politics and Africa’s homophobia’ 23 February



2010 http://news.bbc.co.uk/2/hi/8528409.stm (accessed 16 February 2012). In

2011, David Cameron also threatened to withhold aid to Uganda similarly to the

US policy announced by Hilary Clinton that they would ‘tie US foreign aid to a
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