Decolonizing Law and its Practitioner’s Minds on the Example of LGBTQI+ Rights

COMMENT Isabelle Zundel 30 July 2021

Inspired by the contributors on the series “Decolonizing Law and Legal Studies” so far, I would like to stress the point Prof. Hamoudi made on the inevitable need to decolonize one’s mind in a world of deadlocked power relations between Global North and Global South. I will elaborate this on a field more or less familiar to me: African legal studies. The common denominator to other areas of research is the importance to decolonise one’s mind as initial step towards radical transformation.

When it comes to the field of law as an object of decolonisation, I would like to share my observations in the context of my research: LGBTQI+ rights in the African context. The colonial routes and Western worldviews at that time in history stand out dominantly to this day. This field of law shows with acute clarity both the vehemence and the temporal influence of colonialization way beyond the end of colonial rule or the process of nation-building.

For example, compare the colonial routes of anti-homosexual laws vis-a-vis those of democratic constitutional African states. Section 377 of the Indian Penal Code (1861) and its amendment in regard of the passive sexual partner through Section 208 of the Griffith Penal Code of Queensland was adopted throughout the British Empire and can until today be found in a multitude of former British colonies on the African continent, as in Uganda (Uganda’s Penal Code Act of 1950, Section 145) or the Gambia (The Gambia Criminal Code of 2005, Section 144).

 Uganda’s Penal Code Act of 1950
 “145. Unnatural offences.
 Any person who—
 (a) has carnal knowledge of any person against the order of nature;
 (b) has carnal knowledge of an animal; or
 (c) permits a male person to have carnal knowledge of him or her against the order of nature,
 commits an offence and is liable to imprisonment for life.” 

In contrast, South Africa has some of the best and most protective laws in the world enshrining sexual orientation and gender identity protections and thus became a worldwide role model[1]. The comparison of LGBTQI+ laws imposed upon African communities by colonialists vis a vis the laws on this subject by the democratic South African government shows clearly that it is not the location of a legal system that determines whether it is just, fair or effective.

Based on the just exemplified colonial routes some remarks for lawyers (especially from the Global North) emerge: When looking at different legal systems and traditions it is crucial to respect their procedures and methods without comparing them obsessively with a Western, allegedly better, system. For example, the analysis of a specific African legal system has value on its own without being benchmarked with a more or less comparable system of the Global North. The idea of a model legal system that sets a benchmark and determines the standard of dogmatics and legal enforcement must be disposed of. Rather, customary legal systems, informal dispute settlement structures and indigenous philosophy of law should be given the appropriate – dominant – space they deserve when talking about African legal systems. A system with a people-centred approach to legal enforcement in contrast to a capitalist-patriarchal state enforcing rights.[2] For those doing legal comparative work, it should be a matter of course to use a matching reference, for example two enforceable legal documents on the same subject.

Finally, I would like to reflect on and thereby respectfully reject the concept of objective research in human rights as being favourable and more scientific. This indicates the idea of law being neutral thus legal scholarship attain value only through the exclusion of a certain positionality. Thereby, two facts are overlooked in my opinion. First, scholars of critical legal theory have in the past extensively demonstrated the different angles of failure towards the neutrality of law and its interpretation as well as the through politics “coloured” relationship to social reality.[3] Second, even the attempt of neutrality in research is born down through the plurality of factors, as the epistemological and social context of upbringing and set of norms and values. In the African context, Tamale asks correctly about the formal legal system imported from the colonial powers “What “seed” did they germinate from and which ground nourished them?”[4] In this light of the lack of neutrality of the law, the marginalisation and injustice citizens, as LGBTQI+ communities, experience due to multi-layered discrimination from both the state and private actors, is multiplied by legal researchers who claim the objectivity of their research and thus indirectly confirm the violation of human rights. Hence, Christof Heyn’s well-known “struggle approach” to human rights[5] comes into operation and longs for a positioned mind. Such a position again requires a decolonized mind.

Many legal scholars from the African continent are educated through and influenced by the perspective of Western scholars and scholarship. The privileged position of (legal) researchers from the Global North enables to easily talk about law and legal studies in other parts of the world, not necessarily because of our expertise, and thereby we function until today as role models and teachers for students and researchers from this particular region – even though the opposite should be the case. The least we can do in our personal scholarship is to reflect on our situation and educate ourselves in what and how we research and teach. We have to ask ourselves: To what extent is our Western entrenched perspective influencing our research? Which sources have we educated ourselves with? What model legal system do we have in mind?

[1] Se for example: Chapter 2 Section 9 (3) of the Constitution of South Africa; The Civil Union Act (2006); Section 231 (1) (a) (ii) of the Children’s Act (2005); Chapter 2 Section 6 (1) of the Employment Equity Act (1998).

[2] S. Tamale (2020), Decolonization and Afro-Feminism, 189.

[3] See for example: J. Boyle (1985), The Politics of Reason: Critical Legal Theory and Local Social Thought

[4] S.Tamale, 188.

[5] C. Heyns (2001), A “Struggle Approach” to Human Rights in Soeteman (Hg.), Pluralism and Law