Abstract:
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 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.
