Heterosexual nationalism and the mischaracterisation of anti-sodomy laws in Zambia

Abstract

Before colonisation, African territories were organised in Kingdoms, small polities and less structured societies. Each of these had their own, but similar customs, political, social, religious and legal systems. Sexuality, including sexual diversity, was a major part of these systems. The African traditional legal system had a penal system with substantive criminal laws and a procedure for sanctions. Sexual and gender minorities were not labelled or seen as deviants in the social and customary systems, and, therefore, consensual same-sex sexual conduct was not a substantive criminal offence in African traditional legal systems. Rather, African social, religious and legal systems were cultured in tolerance and acceptance of diverse sexualities and gender identities. There is enough evidence to say that African traditional forms of criminology were queered.

The culture of tolerance and acceptance was disrupted by colonialism. Colonialism and the colonisation of African territories created new nation states, introduced new value systems of socialisation, codified criminal laws and religious beliefs unknown to African societies. Concomitant with the introduction of these value systems, criminal laws and Abrahamic religions, came the labelling of sexual and gender minorities as deviants and the criminalisation of consensual same-sex sexual conduct through anti-sodomy laws. The labelling of sexual and gender minorities as deviant members of society and the criminalisation of consensual same-sex sexual conduct marked the birth of the regulation of sexual citizenship in African. In turn this was also the beginning of homophobia on the continent. While anti-sodomy laws were not introduced in response to the culture of tolerance and acceptance of sexual and gender minorities, but rather an incidental consequence of the codification of criminal law in colonial Africa, the effect of these laws, in combination with the new Christian value system, produced a counterculture of homophobia in African societies.

Anti-sodomy laws can be traced to the Bible in the Old Testament stories of Sodom and Gomora, through to the Code of Justinian, the English Buggery Act, the Offences Against the Persons Act and later into Criminal Codes exported to British African colonies. The original intention and purpose of these laws was to deter and punish anal sex between heterosexual and homosexual adults, with the primary target being sexual conduct between male adults. In Zambia, anti-sodomy laws were introduced in 1935 when the Criminal Code was adopted. After 1991, with the coming of the wave of democratisation in Africa, the discourse of sexual and gender minority rights emerged in Zambia, and with political and religious leaders being heteronormative socialised, Christianity and anti-sodomy laws became the weapon used in queer lawfare. Identifying itself as a Christian nation, Zambia has taken anti-sodomy laws as necessary to preserve its Christian identity, thereby producing heterosexual nationalism grounded in culture, religion and morality. Seen through the eyes of heterosexual nationalism, anti-sodomy laws in Zambia are mischaracterised as laws against homosexual orientation and gender non-conforming identity rather than the actual sexual conduct described in the provisions. Thus, heterosexual nationalism and the mischaracterisation of anti-sodomy laws is contrary to the African traditional forms of criminology, the culture of tolerance for sexual diversity and the original intention for the anti-sodomy laws as introduced and contained in the Criminal Code. Further, Christianity, the strongest pillar of heterosexual nationalism in Zambia, teaches tolerance, love and acceptance and not the hate and marginalisation produced and justified through heterosexual nationalism.

The mischaracterisation of anti-sodomy laws results in the violation of the rights of sexual and gender minorities in breach of Zambia’s domestic and international human rights obligations. However, Zambia takes a human rights exceptionalism approach regarding sexual and gender minority rights, thereby dismissing calls for decriminalisation. For this reason, it is unlikely that decriminalisation will occur through direct parliamentary repeal in Zambia. As such, the local sexual and gender minority rights movement in Zambia can learn from countries like Botswana and South Africa and engage in lawfare aimed at decriminalisation through strategic litigation. While the factors that lead to successful strategic litigation and consequent decriminalisation may not be fully in place in Zambia, there is sufficient ground from which these factors can grow and incrementally place the sexual and gender minority rights movement in a position to succeed. Decriminalisation is the first step towards rebuilding the traditional African queer criminological perspectives that existed in pre-colonial African societies. In this regard, decriminalisation is not only a step towards decolonisation but towards decoloniality. Learning from other jurisdictions, decriminalisation is both an end in itself and a means to an end. It is an end in itself because it brings to an end an inherent discriminatory law that negatively impacts on the rights of sexual and gender minorities. It is a means to an end because it is a steppingstone towards social, political and other legal reforms that can improve the wellbeing of sexual and gender minorities.