Politics

Africa: The Colonial Legacy of Anti-LGBTQ+ Laws in Africa

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Namibia’s High Court will rule next May in a case that could see the southern African country overturn a colonial-era ban on same-sex relations.

Friedel Dausab, who is gay, is challenging the compatibility of the common law offence of sodomy and related offences with his rights under the constitution. Sexual contact between men is a criminal offence in Namibia but the law is seldom enforced.

Like many anti-LGBTQ+ statutes across Africa, the Namibian law dates back to colonisation and was retained on the books after independence in 1990.

In October, Mauritius moved to decriminalise same-sex relations when the Supreme Court in the Indian Ocean island nation struck out a law dating back to British colonial rule in 1898, saying it was unconstitutional.

Globally, 65  jurisdictions  still criminalise same-sex relations, according to rights group Human Dignity Trust (HDT), and 31 of these are in Africa.

Here’s what you need to know about this colonial legacy in Africa.

Where is the colonial legacy still being felt most keenly?

Rights activists say abuses experienced by LGBTQ+ people today can often be traced back globally to a colonial legacy of discrimination, even though colonial powers like Britain, France and Portugal long ago decriminalised same-sex relations.

Given the size of its empire at the height of its power, British law still casts a long shadow in its former colonies.

According to HDT research, 13 former British colonies in Africa have laws that prohibit same-sex relations.

“The basis of many of the world’s anti-LGBT criminal laws is British colonialism,” said Téa Braun, chief executive of HDT.

This idea is also espoused by activists who challenge the notion — often voiced by lawmakers pushing for anti-LGBTQ+ legislation — that same-sex relations are un-African.

They point to historical examples of more fluid sexual behaviour across the continent.

“The British exported their legal systems … imposing them on societies where often consensual same-sex activity did not carry the same social and religious taboos,” said Braun.

By the time Britain legalised same-sex acts in 1967, many former colonies had gained independence and did not inherit the legal change, including Kenya and Uganda.

What about other colonies?

While Britain’s colonial legacy weighs heavy on LGBTQ+ communities in some African countries, it is not the case in every former colony.

Portugal was one of the main colonial powers in Africa and today, all five of its former colonies have decriminalised gay sex.

Guinea-Bissau was the first to do so in 1993 — becoming the first African country to legalise LGBTQ activity — while Angola and Mozambique dropped the colonial-era “vices against nature” from their criminal codes in 2019 and 2015, respectively.

Gustavo Gomes da Costa Santos, a sociologist at the Federal University of Pernambuco-Brazil, said one possible reason Portuguese legislation did not have the lasting effect of British law was that it was only applied to colonies in 1954.

“We’re talking about the very late phase of the Portuguese colonial reign in Africa,” he said.

Former French colonies fell under the jurisdiction of the French Penal Code of 1791, which was centuries ahead of other European laws in decriminalising consensual same-sex activity.

But several former French colonies passed anti-homosexuality laws after gaining independence, including Algeria, Cameroon, Mauritania and Chad.

Away from colonial influences, some rights activists say foreign anti-LGBTQ+ religious groups drive the agenda in some countries while sharia is also used — for example in Somalia and some Nigerian states — to outlaw LGBTQ activity.

What is behind the current pushback on LGBTQ+ rights?

A recent wave of conservatism has swept across Africa with activists decrying an assault on LGBTQ+ rights, notably in east Africa.