Prosecution of same-sex love has been escalating in African countries in recent years. Governments use six legal strategies with devastating impact on LGBTQ+ communities leading to super-criminalisation.
In recent years, governments in East and West Africa have introduced new, harsher penalties for same-sex love, while also maintaining colonial-era laws. This has resulted in the practice of ‘super-criminalisation’, which refers to intensifying existing laws to further marginalise same-sex relationships.
Governments employ six key models for doing this: constitutional amendments, strengthening existing laws, introducing new criminal laws, enforcement of dormant laws, enacting broader laws, and judicial interpretations. This goes beyond mere criminalisation – it deepens discrimination and legitimises violence, underpinned by the misguided belief that harsher punishments will deter LGBTQ+ activities.
Legal models of super-criminalisation
The first model – constitutional amendments – is applied by governments like Uganda. They have embedded anti-LGBTQ+ clauses directly into their constitutions, preventing courts from ruling in favour of LGBTQ+ rights. This tactic is among the most damaging, as it cements prejudice in the highest legal document.
Strengthening existing laws is the second model. Some nations have toughened their pre-existing laws on same-sex conduct, adding new offences or increasing penalties. In Gambia, the 2014 Criminal Code mirrors Uganda’s Anti-Homosexuality Act, while Burundi expanded its criminal code in 2009 to explicitly criminalise consensual same-sex relations.
Third, introducing new criminal laws. Certain countries that historically did not criminalise homosexuality, such as the Democratic Republic of the Congo (DRC), are now proposing laws targeting same-sex relations. Despite DRC never having legislated against homosexuality, multiple attempts to do so have been made since 2010.
The fourth model consists of enforcing dormant laws. In countries like Nigeria, Uganda, and Zimbabwe, governments have revived colonial-era laws criminalising same-sex conduct that had largely been ignored for decades. This sudden enforcement has led to widespread persecution of LGBTQ+ individuals.
Next, enacting broader laws that target LGBTQ+ communities. Some governments enact laws with broader scopes that indirectly target LGBTQ+ groups. Uganda’s Non-Governmental Organizations Act (2016) and the Public Order Management Act (2013) have hindered LGBTQ+ advocacy. These laws do not explicitly mention LGBTQ+ individuals, but are used to suppress their organisations and limit their freedoms.
The last model is judicial interpretations. Courts in some countries, such as Ghana, have expanded the reach of anti-LGBTQ+ laws through broad judicial interpretations, effectively extending their scope without legislative change.
The historical context of anti-LGBTQ+ laws in Africa
The roots of anti-LGBTQ+ laws in Africa can be traced back to colonial times, when European powers imposed their own legal systems, including laws criminalising homosexuality. Prior to colonisation, African societies had more fluid understandings of gender and sexuality. Unfortunately, post-independence, many nations retained and even amplified these colonial-era laws.
Key drivers of super-criminalisation
Behind super-criminalisation lie four key drivers. First of all, a colonial legacy. Countries like Nigeria and Uganda inherited anti-LGBTQ+ laws from British rule. Rather than abolish them, many African governments have fortified these laws. Another driver is cultural and religious influences. Deep-seated religious and cultural views fuel anti-LGBTQ+ sentiment. Religious leaders often condemn same-sex relations as being contrary to ‘African values’ and mobilise opposition to LGBTQ+ rights. The third driver consists of political manipulation. Politicians frequently exploit homophobia to galvanise support, especially during election periods. The passage of anti-LGBTQ+ legislation often coincides with times of political unrest. Harsher legislation and enforcement form the fourth driver of super-criminalisation. Countries like Uganda and Nigeria have enacted or proposed harsher penalties for same-sex conduct, reflecting an alarming trend of legal regression.
Case studies: Nigeria, Ghana, Uganda, and beyond
Nigeria’s Same-Sex Marriage (Prohibition) Act (2014) has led to an increase in violence and discrimination against LGBTQ+ individuals. In Ghana, new legislation threatens even more aggressive criminalisation, while Uganda continues to reintroduce draconian anti-LGBTQ+ laws. Across these countries, LGBTQ+ communities face constant threats to their safety, rights, and dignity.
The human cost of super-criminalisation
Super-criminalisation has dire consequences for LGBTQ+ communities. From arbitrary arrests to extrajudicial killings, the laws have legitimised violence. LGBTQ+ individuals are often denied healthcare, fearing persecution, while social and economic marginalisation leaves many homeless or unemployed. The mental health toll is severe, with heightened rates of anxiety, depression, and suicide.
The way forward
The super-criminalisation of same-sex love in East and West Africa is a tool of oppression that threatens human rights and civil liberties. These laws serve political and religious elites while devastating LGBTQ+ communities. The international community and local advocates must intensify efforts to combat this legal regression and promote LGBTQ+ rights across the continent.
Photo Andy Quezada via Unsplash