The Criminalisation of Homosexuality and Secular African States

 The Criminalisation of Homosexuality and Secular African States

ES Nwauche (Prof)

Many liberal democratic African countries protect the dignity of their citizens but also criminalise homosexuality. This seeming paradox is plausible in many of these states where it is argued that homosexuality is an affront to African culture and Christianity. On these grounds, it may be argued that protecting public morals may be a good reason to treat their citizens undignifiedly. On the grounds of African culture, it is clear that such a nebulous term is too vague to justify such unconstitutional acts. Respect for all human dignity is a basic tenet of African culture. That respect recognises that people are different in identity matters, including sexual orientation. Respecting and recognising differences is a measure of tolerance rather than approval. At the least, tolerance requires Africans to respect the privacy of sexual relationships further. We are all at liberty to manage our contact with others to the point that we do not break laws. Many states have sought to establish acceptable behavior in our civil relationships with gay and lesbian persons. Can we deny them our skills if we are professionals and our goods and services if we are merchants? Can we expel them from our associations or refuse to provide them rental accommodation?   These and other questions will remain with us for a long time, but to legislate to permit our States to throw sexual minorities into jails and even execute them is a bridge very, very far. It is easy to imagine how the views of some sections of African societies are now regarded as orthodoxy and African culture. Even if these views are in the majority, it is wrong to use these views to punish sexual minorities.

Speaking during a recent visit to South Sudan, Pope Francis reiterated his opposition to the criminalization of homosexuality, saying in part that the criminalization of homosexuality is an issue that must not be allowed to pass by. He warned against the death penalty because people with homosexual tendencies are children of God.   Pope Francis acknowledged that some of these tendencies have arisen because of various unwanted situations and argued that condemning such people is a sin; and an injustice. Archbishop Welby of the Church of England, the Anglican Communion traveling with the Pope, agreed with him and pointed out that the Church of England has passed resolutions at two Lambeth conferences against criminalization.

Many African Christian organisations and their global partners support the criminalisation of homosexuality and have openly advocated and lobbied parliaments to retain and revise such criminal conduct in Statute books. Indeed, parliamentary commentary in many African States regularly invokes the catechism of conservative sections of Christendom to justify their action. Uganda is an example where the advocacy of the Religious Right significantly supported the Anti-Homosexuality Act 2014, which prohibited sexual relations between persons of the same sex and imposed a life sentence for certain offences that would have otherwise attracted a 14-year term of imprisonment. The Ugandan Supreme Court struck down the act on procedural grounds. The Ugandan Parliament passed a 2023 Anti-Homosexuality Bill on 21 March 2023 and has been forwarded to President Yoweri Museveni for his assent. The 2023 Bill reintroduced the death penalty and included an offence of promoting homosexuality. Outrage about the Bill is global, with the hope that President Museveni will withhold his assent. Ghana is likely to follow the Ugandan example and toughen its anti-homosexuality ban. A private member’s Bill titled Promotion of Proper Human Sexual Rights and the Ghanian Family Values Bill is working through the Ghanian Parliament. This Bill further criminalises same-sex relationships that are already banned in that Country. Other banned conduct includes any public show of affection between persons of the same sex, identification as an LGBTQ+ person, and cross-dressing. The Bill provides that the State can recommend corrective therapy or surgery for intersex people. There are encouraging signs that a less draconian revised version will become law.

Many African States, including Ghana and Uganda, proudly claim a secular status. As secular states, religions should lobby, advocate, and mobilise their views and opinion in articulating and developing public policy. There are many areas of public life where religious values and views are welcome and have influenced the African States. The criminalisation of same-sex relations is not one of them. It is wrong to telegraph religious positions that punish sexual minorities into state policy. Only religious States do that.