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

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.