Focus Month Human Rights Pride Month

Breaking through the colonial impositions: Africa, Queerness and the Law

OPINION Isabelle Zundel 1 July 2022

In the context of this year’s pride month celebration, I would like to reflect on and relate to Prof. Nyeck’s call to “Africanize queerness”[1] in relation to the legal frameworks governing modes of sexuality and gender. I will thereby put a specific focus on sexual minorities.

Nyeck’s call to “Africanize queerness”

Prof. Nyeck develops in her new book “a framework of African(a) presence as an ethic of negotiation”[2] by analysing the interactions and negotiation styles of queer identities that feature in selected African movies. I understand the act of negotiation as the attempt to eke out spaces of power and belonging. In course of the in-depth and complex analysis of how and where to find these spaces, Prof. Nyeck relates to and reflects on the ongoing human rights discourse critically.

One of the author’s reflections is the powerful claim to “Africanize queerness” instead of “queering” Africa. I understand this claim in the way that Africa is queer without external influence or politization. However, when we think about queerness, we don’t naturally connect these thoughts to Africa. The need to establish this nexus becomes clear and shall be delivered through a serious engagement with “contemporary modes of being and becoming queer”.

This raises the question of to what extent this call can be realised in the legal context?

Legal frameworks governing modes of sexuality

Part of the cognition of non-Western perspectives of queerness is understanding the ongoing Western influence on the world in regard to law and sexuality. Especially Africa does still recover from the imposition of colonial frameworks in every area of life, such as law, that have established only one true heterosexual cis existence. Today’s (non-)perspective on sexual orientation illustrates the still existent hurdles that come with the disentanglement of these colonial frameworks. One example for this are the many still existing colonial era laws, including the Articles on Unnatural Offences, in Common Law Africa that have been imposed by and travelled through the British Empire. Just as the official terms of sexuality had been dictated, are the images and ways of being queer now still dominated by the West.

Consequently, the following few trite observations can be summarized when talking about sexual minorities in Africa:

1.           Sexual minorities regularly experience hostility in form of discrimination, marginalisation and crimes from state and non-state actors.

2.           Sexuality and gender in Africa (and beyond) are highly influenced and regulated through law, religion and culture.[3] In the context of law, normative and institutional frameworks are deployed as instrument for the “right” course.

3.           Continuous entrenched influence of colonialism is apparent, e.g., in the colonial era laws of many African countries criminalising same-sex conduct.

Detection of divergence between normativity and reality

Despite the targeted regulation and hostile environment aiming to construct a space without “indecency”, sexual minorities still exist and continue to fight for justice. Hence, the above made observations form the basis for the identification of a divergence between the normativity on and around sexual minorities in many African states on the one hand and the lived reality in these spaces, namely the existence and living out of same-sex sexual desire (and more broadly queerness) on the other hand.

This divergence between normativity and reality raises a number of questions: What exactly is the history and function of the respective normative framework? What is the connection between the identified divergence and the exercise of power to the detriment of marginalised people? Is the identification of the divergence regularly a call for justice?[4] In an African context, how can the existence of legal pluralism and the deployment of customary legal practices contend against the foreignness of normativity, i.e., of statutory legal frameworks?

Conclusion: Africanize legal frameworks

This identified divergency is also accompanied by a foreignness to the people and results significantly from the colonial and post-colonial imposition on legal frameworks. To overcome this, the existent normative frameworks urgently need to be Africanized in order to feature authentic and African (in a manifold understanding) modes of queerness beyond the Western dominant picture of the same. In this context, it seems obvious and overdue to inter alia attack the parts of the national colonial era laws on Unnatural Offences that have not yet been changed. By doing so, questions around the “Western origin” of homosexuality[5] and queerness lose grip as soon as we see beyond the westernized imaginations of how to be and who is queer. As soon as African can openly express its unique, existing queerness.

Therefore, I characterize the call to “Africanize queerness” as a multi-disciplinary challenge as well as enabling tool to which all components of society contribute and have access to, also law.

[1] N Nyeck, African(a) Queer Presence: Ethics and Politics of Negotiation (Springer eBook Collection, 1st ed. 2021, Springer International Publishing; Imprint Palgrave Macmillan 2021), 2.

[2] Ibid, 8.

[3] Sylvia Tamale, ‘Exploring the contours of African sexualities: Religion, law and power’ [2014] Afr Hum Rts LJ 150 accessed 20 May 2022.

[4] Sylvia Tamale, African sexualities: A reader (Pambazuka Press 2011), 182.

[5] Read more about “homosexuality as identity” in Vos P de, ‘Mind the gap: Imagining new ways of struggling towards the emancipation of sexual minorities in Africa’ (2015) 29(1) Agenda 39.

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