* BA BA (Hons) MA (Natal), PhD (KwaZulu-Natal); email@example.com. 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.Iwould liketothank conferenceparticipants,membersofGender Research
how,duetotheinfluenceoftheselawsontheformulation ofVictorian lawsonunnaturalacts,theRomanlegalconceptofsexualityunderliesthe lawswhichexistinmanyformerBritishcolonies.Italso brieflyoutlinesthe effectoftheselawsonpresent-day sub-Saharan Africa.Perhaps understandingtheancient,aliensocio-historical contextofthelegal conceptofsexualitybehindtheRomanlawsmayassistinsubverting the lawargumentoftheAfricanhomophobicdiscourse. Key words: homophobia;homosexuality; sub-SaharanAfrica;Roman laws;ancientRomansexuality 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
being used to persecute homosexuals in parts of sub-Saharan Africa is becoming an increasing threat.3The 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.4The legal persecution of homosexuals conjures images of racism and gender discrimination.5European countries and the United States (US) have
threatened to withhold aid to African countries not supporting gay rights.6However, this stance could be considered to be hypocritical.7
Homosexuality and most of the main justifications for homophobia in sub-Saharan Africa, namely, Christian morality8and the laws, are actually imports brought in centuries before by the colonial Western
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