Sunday, 22 June 2014

Rant about Sodomy and the British Empire

One of our projects at the Legal Assistance Centre concerns LGBT rights in Namibia.  The struggle is all uphill as not only is sexual orientation unfortunately not an express ground on the basis of which discrimination is prohibited under the Namibian Constitution, but the common law actually prohibits “sodomy”, which is the code word for criminalising (male) homosexuality.  It is a dead letter in the law that has not been enforced in years, but there it stands, nonetheless.
Namibia is a young country that has been trying to get the critical laws passed for the society to function and provide for the citizens.  So where did it find the time to legislate against homosexuality?  
Well, turns out it didn’t need to find the time.
When I was beginning my legal studies in England back in 1998, I learnt in my criminal law course that “sodomy”, as well as “gross indecency” (code for non-penetrative sexual acts between men), were still crimes in England.  The exception was that if only two men, who were both over 21, were involved and it all happened in private, then it was ok.  In 2000 the age of consent was lowered to match that for heteros, but group gay sex in a public toilet remains illegal to this day.  Famous British men have been convicted for homosexuality in trials that can only be described as political, e.g. the playwright Oscar Wilde in 1895 and physicist (and genius) Alan Turing as late as 1952.*  Shame on the nation.
However, even bigger shame on the nation that this insidious and hateful law was one of the most lasting exports from the motherland to the rest of the British Empire.  Have you noticed the fact that the current wave of public homophobia has inflicted hardly any countries in Francophone Africa,** but only former British colonies?  Well this is in large part why.  The Napoleonic Code did not criminalise homosexuality.  When the newly independent West African countries began replacing and complementing that with their own laws, they had more important fish to fry than regulate what consenting adults could or could not do in their bedrooms.
Not so in former British colonies.  These laws were exported to other parts of the world with the view of bringing European Christian morality to the indigenous populations.***  As a result, rather than having to make the effort to legislate against homosexuality, former British colonies should actually have taken positive steps to DE-criminalise it upon independence.  Again, they presumably had more important questions on their plates.  So here we are, in a situation where half of the just under 80 countries that still criminalise homosexuality do so on the basis of British colonial legislation (which has in some countries been updated and amended, but still).
Namibia inherited British legislation in a roundabout way.  South Africa became a British colony in 1806, but it retained the Roman-Dutch common law, which criminalised homosexuality.  Three years later the Dutch (and their colonies) abolished the law, but the British rulers of South Africa were keen to keep it, and so it also became part of the laws of Namibia when the country, known as “South-West Africa” back then, became South Africa’s mandate after World War I.  Pre-independence laws were retained upon independence, as the country couldn’t exactly start from zero as far as legislation was concerned.  So there it still is, the crime of “sodomy”.  
I ranted a few weeks ago that I though it commendable that Namibians appeared in general less bitter towards their former colonial oppressors and more forward-looking than Kenyans.  Well the exception is the gay community.  The Brits have a lot to answer for to the Kenyan as well as the Namibian sexual minorities for making their lives more difficult and providing the breeding ground for the current wave of homophobia that is sweeping across parts of Africa.
(The key facts in this rant come from two excellent reports on the subject of homosexuality and the British empire, a short and engaging one by Michael Kirby which can be found here, and a comprehensive one by the Human Rights Watch available here.)
*This can be compared with the 5-year jail term handed down in Malaysia in March this year to opposition politician Anwar Ibrahim for sodomy, after his party gave its best performance in the polls in the December 2013 elections.
**Or in former Belgian, Portuguese, Spanish, Dutch or German colonies for that matter.
*** Robert Mugabe and other nutjobs appear to fail to see the irony when they rant against homosexuality as “un-African”, or a “white man’s disease”, thus defending the colonial laws.

Monday, 9 June 2014

Rant about Mud Huts and Witch Doctors

I have found myself surprised by Namibia on several fronts.  I have been surprised by how good the roads are.  I have been surprised by how barren the land is, and how there is little local fresh produce, most of it coming from South Africa in exactly the kind of excessive plastic wrapping we buy our fruit and veg in Europe.  I have been surprised by how forward-looking the people are, not holding grudges against their former colonial masters but excited about the prospects for their young country and confident that they will not repeat the mistakes of some of their neighbours.
 Why have I been surprised by these and many other things?
 Because they are different in Kenya.  Kenyan roads are on the whole dreadful.  Kenya is a lush and fertile country that grows amazing fruit and veg.  Kenyans are, I feel, held back by their bitterness towards the injustice they were subjected to during colonisation.
 Kenya is my only other experience of Sub-Saharan Africa.  So I had subconsciously assumed that Namibia would be like Kenya.  This is about as smart as assuming that one knows what Lithuania is like on the basis of having visited Spain.  In other words: pretty stupid.
 It made me wonder, though.  Is this a particular, slightly racist, problem we have with Africa, or is it a more general, human reaction?  Or is it just me?
 I am beginning to suspect that it is the first of these options.  “Black” (ie Sub-Saharan) Africa has held this special place in the imagination of westeners since the times of Dr Livingstone.  It is exotic and it is mysterious.  But it is all one.  We cannot tell one country from another, let alone one tribe from the hundreds of others that exist.  We assume that all Africans are Masai,* wear loin cloths, live in mud huts and consult their local witch doctor for their medical needs.  They can all run a marathon in two hours flat, in bare feet.  Development since the times of Dr Livingstone has been minimal – not in Africa, but in the mindsets of us westerners.
 I would have thought that I was a bit better than the average westener in this regard, but, alas, I was not.  Time for some self-reflection, I fear …
*Case on point: the tribe that Corinne Hofmann joined, and discussed in her Memoir The White Masai (Die weisse Massa├»), was actually not the Masai at all, but the Samburu.  I suppose The White Samburu just wouldn’t have had the same ring to it.