—Kwame Frimpong, Founding Dean and Professor of Law, GIMPA Law School (Accra, Ghana)
The issue of same-sex marriage is not only controversial but also highly emotive, particularly within the African context. On the one hand, it raises both religious and traditional undertones. On the other hand, there is Africa that is haunted by its colonial past. Furthermore, we are faced with Africa that is striving to be a member of the global village, with all the issues of modernity. The question is how does Africa manage to steer a path that meets the needs and aspirations of competing interests?
Most African countries have experienced colonial past, with which came the imposition of foreign laws, customs, cultures, practices and ideologies. As was stressed by Joseph Chamberlain, colonization from the point of view of the British was a form of domination: “We develop new territory as trustees for civilization, for the commerce of the world.” (Lugard, The Dual Mandate, at p. vi.).
This period witnessed the subjection of most African countries to aggressive policies of “enlightening the heathen,” which involved the use of the laws, particularly the criminal law, to bring about a large scale abolition of the life styles of the peoples of the continent. The use of the so-called repugnancy clause by the British colonial judges, for instance, meant that any native or traditional law, custom, or practice that was deemed to be “repugnant to natural justice, equity and good conscience” was declared to be null and void.
This resulted in a conflict between tradition and modernity, which has bedeviled the continent to this day. On the one hand, the Africans were pursuing what they deemed legitimate customs and practices. On the other hand, the colonial authorities wanted to impose what they perceived to be a better way of life for the natives. This has been recognized as an “ethical dilemma” that has plagued the continent beyond colonial period, transcended the post-colonial era and has become a perennial problem. Two sets of practices operated in most of the countries. At the official level the colonial laws and policies operated, while at the grass-roots level African traditions continued unabated.
Post-independent African states were bequeathed with written constitutions that protected fundamental human rights. Paramount among such rights are equality before the law, the rights of minorities, and women rights. Since all these countries emerged after the signing of the Universal Declaration of Human Rights in 1948, the colonialists ensured that the emerging new states lived up to the expectations of the comity of nations. Thus the political leaders who fought for and won independence find themselves obliged to defend the constitutions that determine their positions in power. The judiciary is in a similar state, as it has to interpret the law as mandated by the constitutions. However, on the other hand, it has to recognize the aspirations of a large majority of the population that is deeply settled in its traditions which the colonial power could not destroy.
It is in this context that one has to view the defense and protection of rights of gays and lesbians. Some political leaders may find it difficult to distance themselves from the demands of the population to whom they are accountable in terms of ascendancy to power. The judiciary, on the other hand, is mandated by the constitution to uphold the law and enforce the constitutional mandates.
The continent is polarized from many angles. First, some political leaders who may be described as the orthodox conservatives align themselves with the interests of the majority of the population who are unwilling to recognize gay and lesbian rights. Such practices are seen as serious aberrations and do not conform to African values and traditions. Zimbabwe, the Gambia, Uganda and Malawi are a few examples. The second set of politicians seems to have some understanding for such practices, but lack the courage to speak out boldly in favor. They are the Nicodemus type in the Bible and are described as the moderates. Beyond the political terrain are the academics who also fall within the two camps. Only human rights advocates tend to be outspoken and defend those rights. They are however in the minority and often become the object of attacks from all corners.
The position taken by the few who want to defend those rights becomes more difficult when their efforts are openly supported by leaders in the Western world. It makes it easier for politicians to satisfy the local opposition by arguing that those are foreign imposed ideas, values and practices. This was the case when the British Prime Minister, David Cameron, openly threatened to withdraw aid from countries that refused to recognize gay and lesbian rights. The reactions from most Africa countries clearly reinforced the already entrenched positions that this is another form of colonial impositions.
The judiciary is thus torn between two extreme camps. While strict interpretation of the constitutional provisions in most African countries will support gay and lesbian rights, including same sex marriage, the reality on the ground is that they have to walk a very tight rope, trying to balance what the law demands with what the majority want. At the end of the day, they are within a continent that is still rigidly glued to their traditions and values that neither colonial rule nor post independence has been able to eradicate. It requires education and sensitization. Any attempt to impose what is perceived to be an alien culture and practice is generally confronted by strong and angry reaction. It is therefore no wonder that leaders of countries like Zimbabwe and Uganda can openly defy any western pressure.
The South African Constitutional Court has taken the lead in legalizing same-sex marriage (Minister of Home Affairs and Another v. Fourie and Another (2005)). It is yet to be seen whether the rest of the continent will follow the South African example by putting new wine into old traditional African wine skins.