Volume 1, Issue 8 (Originally Published 23 April 2012)
The common law, with its promise of habeas corpus, jury trials and other civil liberties, is for many people a worthy legacy of the British Empire. A less glorious legal inheritance of the empire is the criminalisation of consensual homosexual conduct between adult men, and often between adult women, a fact of life in about 40 former British colonies around the world.
The first colonial ‘sodomy law’ integrated into a penal code was Section 377 of the Indian Penal Code. This provision, more than 150 years old and imposed by the colonial government during the time of the Raj, punishes ‘carnal intercourse against the order of nature with any man, woman or animal’ with imprisonment up to life.
The statute became a model anti- sodomy law for countries far beyond the subcontinent. Today, 41 of the 54 nations in the Commonwealth maintain laws against homosexual acts.
It was as the Empire was winding down, in 1957, that the UK’s Wolfenden Report urged that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence’. The report stated that ‘it is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour’.
But when England and Wales decriminalised most consensual homosexual conduct in 1967, it was too late for most of Britain's colonies. They had won independence in the 1950s and 1960s, with sodomy laws still in place. And they have shown little appetite for casting aside this relic of the Empire.
After much debate, Singapore's government refused to rid itself of its colonial law against homosexual conduct in 2007. Nigeria's President Obasanjo announced in 2004 that ‘homosexual practice’ was ‘unnatural, and definitely un- African’. And in 1983 India's Supreme Court declared that ‘neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking’. Ironically, the self-righteous stance echoes the views of the Raj who feared the influence of foreign climes and mores on sexual conduct. Lord Elgin, viceroy of India, warned that British military camps could become ‘replicas of Sodom and Gomorrah’ as soldiers acquired the ‘special Oriental vices’.
Perhaps it was predictable, then, that David Cameron’s announcement at last year’s Perth CHOGM meeting that Britain would withhold aid from countries that kept sodomy offences on their books would raise hackles. Writing under the headline ‘Jamaica must not surrender sovereignty’, Shirley Richards of the Lawyers Christian Fellowship lambasted Cameron’s ‘effrontery’. And less than a month after the British PM’s announcement, the Nigerian senate passed a law calling for a 14-year sentence for anyone convicted of homosexuality.
That former colonies will resent preaching and interference from the former imperial master is understandable. They tragedy is that by doing so, they have turned themselves into the feared and hated oppressor for their LGBT citizens.