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The coverage in the
Western media of the recent conviction of two gay Malawians
(subsequently pardoned) for homosexuality was dominated by western
human rights activists’ self-serving — but ultimately self-defeating
— dismissal of African homophobia as “the desperate defence of western
mores in indigenous clothing”.

Writing in the
Independent, the British activist Peter Tatchell, who is heavily
involved in the Malawian test case, made these claims:

“Before the British
came … there were no laws against homosexuality… While many African
leaders decry homosexuality as a “western disease” or a “white man’s
import”, the truth is very different. Prior to colonisation, many
tribal societies and kingdoms had a more relaxed attitude to same-sex
relations than their subsequent colonial occupiers.”

He thus concluded
that “Today, the minds of many . . . Africans remain colonised by the
homophobic beliefs that were drummed into their forebears by the
western missionaries who invaded their lands”.

The works of Marc
Epprecht and Neville Hoad show that homosexuality and homophobia
existed in pre-colonial Africa. Yet, ironically, western activists
persist in challenging the prejudiced claims by some Africans that
homosexuality is “un-African” with the equally prejudiced counterclaim
that homophobia is “un-African”.

The leading
authority for this fallacy, which has been pontificated to the point of
infallibility, is a 66-page report by Human Rights Watch (HRW). It
provides an accurate account of the colonial origins of most of the
statutes that criminalise homosexuality in Africa today.

For example,
Nigeria’s federal sodomy statute – section 214 of the Criminal
Procedure Act – remains identical to the original provision – section
208 – of the 1899 Penal Code of the Australian colony of Queensland.

However, it is a
fallacy for HRW to conclude that “sodomy laws throughout . . .
sub-Saharan Africa have consistently been colonial impositions”, simply
because “no ‘native’ ever participated in their making”.

Rich and varied
systems of indigenous law, which are now collectively called customary
law, existed in pre-colonial Africa. Customary criminal law applied
wherever there was a political entity requiring the enforcement of
certain standards of behaviour and imposing sanctions for their breach.

Although there was
no single body of law that applied throughout the continent, a degree
of basic uniformity of content existed over a wide range of matters,
including the suppression of homosexuality, as was indeed the case
among the rest of mankind.

Customary law was
affected in many parts of Africa by Islam long before European
colonisation. Thus, the British colonialists met different systems,
ranging from relatively simple indigenous systems of social norms based
on the family, the village, or group of villages, to the highly
systematised and sophisticated sharia law of crime.

The fundamental
feature of customary law was that it was unwritten. Although sharia law
was written, it was and still is embodied in disparate rulings of
jurists of the various schools. Therefore, the criminalisation of
homosexuality in pre-colonial Africa was not embodied in comprehensive
codes.

However, a vast
majority of Africans of all faiths and cultures are united today in
their hostility towards homosexuality and this is a reflection of the
similarity of the various systems of customary law to each other and to
the foreign codes on the subject.

Customary law
continues to regulate many areas of people’s lives in Africa today.
Though largely superseded by legislation, it still governs issues such
as family relations. More significantly, customary law on issues such
as homosexuality negates the enforcement of contradictory statutory
law. This happens, for instance, in South Africa, where the legal
recognition of homosexuality has resulted in a backlash against gays
and their perceived assertiveness.

So the fact that
the legislation, which criminalises homosexuality is in apparent breach
of the respective countries’ constitutions, and international treaties,
such as the African Charter on Human and Peoples’ Rights, which
guarantee the right to privacy and prohibit discrimination (as held by
the United Nations Human Rights Committee and the courts in South
Africa and India), does not necessarily mean that a change in
legislation will end the persecution of gay people in Africa.

It should also be
noted that some African constitutions guarantee the right to culture
and oblige the courts to apply customary law in certain circumstances.
Similarly, the African Charter provides that “the rights and freedoms
of each individual shall be exercised with due regard to morality and
common interest”, and prescribes that “the promotion and protection of
morals and traditional values recognised by the community shall be the
duty of the state”.

As such, while
current efforts to strike down the sodomy laws through the institution
of test cases are an important step in the right direction, there is a
need for a more informed and culturally aware strategy that goes beyond
litigation and legislation.

Critical in this regard is an understanding of the various brands of Christianity practiced today in Africa.

Perhaps a more
pragmatic way to serve the interests of gay Africans in the short term
is to appeal to the humanity of a sufficient number of their brothers
and sisters. This could reduce homophobia in the continent to a level
similar to the one deemed tolerable in the west, where, as the Sun’s
poll after the David Laws story shows, homophobia remains rife.

Africa cannot
afford to face this problem with yet another imported and, in its own
way, blinkered attitude, which refuses to acknowledge the existence and
influence of homegrown prejudice.

This article was first published in the NewStatesman magazine, London.