Pride and prejudice: how not to fight homophobia in Africa

It is simplistic to suggest that African homophobia stems only from colonisation.

The coverage of the recent conviction of two gay Malawians (subsequently pardoned) for homosexuality was dominated by western human rights activists' self-serving -- but ultimately self-defeating -- dismissal of African homophobia as "the desperate defence of western mores in indigenous clothing".

Writing in the Independent, the British activist Peter Tatchell, who is heavily involved in the Malawian test case, claimed that "the minds of many . . . Africans remain colonised by the homophobic beliefs that were drummed into their forebears by the western missionaries who invaded their lands". He reiterated this viewpoint on The Staggers.

To save the situation, Tatchell rallied the troops for a remedial invasion. "It is time to finish the African liberation struggle by ending the persecution of gay Africans," he declared.

The works of Marc Epprecht and Neville Hoad show that homosexuality and homophobia existed in pre-colonial Africa. Yet, ironically, western activists persist in challenging the prejudiced claims by some Africans that homosexuality is "un-African" with the equally prejudiced counterclaim that homophobia is "un-African".

The leading authority for this fallacy, which has been pontificated to the point of infallibility, is a 66-page report by Human Rights Watch (HRW). It provides an accurate account of the colonial origins of most of the statutes that criminalise homosexuality in Africa today.

For example, Nigeria's federal sodomy statute remains identical to the original provision of the 1899 Penal Code of the Australian colony of Queensland.

However, it is a fallacy for HRW to conclude that "sodomy laws throughout . . . sub-Saharan Africa have consistently been colonial impositions", simply because "no 'native' ever participated in their making".

Different blends

Rich and varied systems of indigenous law, which are now collectively called customary law, existed in pre-colonial Africa. Customary criminal law applied wherever there was a political entity requiring the enforcement of certain standards of behaviour and imposing sanctions for their breach.

Although there was no single body of law that applied throughout the continent, a degree of basic uniformity of content existed over a wide range of matters, including the suppression of homosexuality, as was indeed the case among the rest of mankind.

Customary law was affected in many parts of Africa by Islam long before European colonisation. Thus, the British colonialists met different systems, ranging from relatively simple indigenous systems of social norms based on the family, the village, or group of villages, to the highly systematised and sophisticated sharia law of crime. Some systems blended customary with sharia law to varying degrees.

The fundamental feature of customary law was that it was unwritten. Although sharia law was written, it was and still is embodied in disparate rulings of jurists of the various schools. Therefore, the criminalisation of homosexuality in pre-colonial Africa was not embodied in comprehensive codes.

However, a vast majority of Africans of all faiths and cultures are united today in their hostility towards homosexuality and this is a reflection of the similarity of the various systems of customary law to each other and to the foreign codes on the subject.

Customary law continues to regulate many areas of people's lives in Africa today. Though largely superseded by legislation, it still governs issues such as family relations. Also, where conflicting legislation exists, lack of access to legal resources and a general absence of the institutions of government may mean that, in practice, customary law still applies.

More significantly, customary law on issues such as homosexuality negates the enforcement of contradictory statutory law. This happens, for instance, in South Africa, where the legal recognition of homosexuality has resulted in a backlash against gays and their perceived assertiveness.

So the fact that the legislation which criminalises homosexuality is in apparent breach of the respective countries' constitutions, and international treaties such as the African Charter on Human and Peoples' Rights, which guarantee the right to privacy and prohibit discrimination (as held by the United Nations Human Rights Committee and the courts in South Africa and India), does not necessarily mean that a change in legislation will end the persecution of gay people in Africa.

It should also be noted that some African constitutions guarantee the right to culture and oblige the courts to apply customary law in certain circumstances. Similarly, the African Charter provides that "the rights and freedoms of each individual shall be exercised with due regard to morality and common interest", and prescribes that "the promotion and protection of morals and traditional values recognised by the community shall be the duty of the state".

Beyond legislation

As such, while current efforts to strike down the sodomy laws through the institution of test cases are an important step in the right direction, there is a need for a more informed and culturally aware strategy that goes beyond litigation and legislation.

Critical in this regard is an understanding of the various brands of Christianity practised today in Africa. These are, to varying degrees, a blend of Judaeo-Christian and African traditions.

HRW's claim that African Christians who oppose homosexuality appropriate "the most stringent moral anathemas of the missionaries' faith, along with an imported law against homosexuality, as essential bulwarks of true African identity", illustrates the sort of fundamental misunderstanding of contemporary Africa that has undermined many well-intentioned western interventions.

Perhaps a more pragmatic way to serve the interests of gay Africans in the short term is to appeal to the humanity of a sufficient number of their brothers and sisters. This could reduce homophobia in the continent to a level similar to the one deemed tolerable in the west, where, as the Sun's poll after the David Laws story shows, homophobia remains rife.

Africa cannot afford to face this problem with yet another imported and, in its own way, blinkered attitude, which refuses to acknowledge the existence and influence of home-grown prejudice.

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As Donald Trump once asked, how do you impeach a President?

Starting the process is much easier than you might think. 

Yes, on Friday, Donald Trump will be inaugurated as the 45th President of the United States. And no, you can’t skip the next four years.

But look on the bright side. Those four years might never happen. On the one hand, he could tweet the nuclear codes before the day is out. On the other, his party might reach for their own nuclear button – impeachment. 

So, how exactly can you impeach a President? Here is our rough guide.

OK, what does impeachment actually mean?

Impeachment is the power to remove an elected official for misconduct. Here’s the relevant clause of the US Constitution:

“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Impeachment is actually a legacy of British constitutional history, and dates back as far as 1376, but according to our own parliamentary website, in the UK “this procedure is considered obsolete”. 

It’s up to the US Congress to decide whether to impeach and convict a President. Both houses are controlled by the Republicans, so impeaching Trump would mean turning against one who is – technically at least – one of their own. Since he’s already insulted the neighbouring country, supported discrimination against Muslim immigrants and mocked a disabled reporter, their impeachment threshold seems pretty high. But let’s imagine he surpasses himself. What next?

The impeachment process

Members of the House of Representatives – the lower chamber of the Congress – can start the impeachment process. They in turn may be encouraged to do so by voters. For example, there is a whole Wikipedia page dedicated to people who tried to impeach Barack Obama. One Impeach Obama supporter simply gave his reason as stopping the President from “pushing his agenda”. Another wanted to do so on the grounds of gross incompetence...

But for an impeachment attempt to actually work, the impeacher needs to get the support of the house. If a majority agree with the idea of impeaching the elected official, they nominate members to act as prosecutors during the subsequent trial. This takes place in the Senate, the upper house of Congress. In most impeachments, the Senate acts as judge and jury, but when a President is impeached, the chief justice of the United States presides.     

Two-thirds of the Senate must vote for impeachment in order to convict. 

What are the chances of impeaching Donald Trump?

So if Trump does something that even he can’t tweet away, and enough angry voters email their representatives, Congress can begin the process of impeachment. But will that be enough to get him out?

It’s often assumed that Richard Nixon was kicked out because he was impeached for the cover up known as the Watergate Scandal. In fact, we’ll never know, because he resigned before the House could vote on the process.

Two decades later, the House got further with Bill Clinton. When it emerged Clinton had an affair with Monica Lewinsky, an intern, he initially denied it. But after nearly 14 hours of debate, the Republican-controlled House of Representatives decided to impeach him on grounds including perjury and obstruction of justice.

In the Senate trial, Clinton’s defenders argued that his actions did not threaten the liberty of the people. The majority of Senators voted to acquit him. 

The only other Presidential impeachment took place in 1868, when President Andrew Johnson, removed a rabble-rouser from his Cabinet. The guilty vote fell short of the two-thirds majority, and he was acquitted.

So, what’s the chances of impeaching Trump? I’ll leave you with some numbers…

 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.