Silent, Spoken, Written, and Enforced: The Role of Law in the Construction of the Post-Colonial Queerphobic State

Debates over the origins of queerphobia in post-colonial African nations are legion. The conversation is dominated by opinions that paint Africans as inherently more violent towards, and less tolerant of sexual minorities than their Western counterparts. Less present in the conversation is the view that colonially-imposed laws have played a significant role in the creation of queerphobic, post-colonial African states. However, as this Note contends, neither perspective fully accounts for regional variations in levels of queerphobia throughout the African continent. In response, this Note presents a model that tracks the role of law in the production of queerphobic sentiment prior to, during, and after colonialism. In doing so, the model accounts for regional variations and elucidates the role of colonial-era laws in creating legacies of intolerance. The model is rooted in scholarship that documents the effects of unenforced, codified sodomy laws. From there, the model branches out dyadically, explaining the role, power, and effects of unwritten laws (oral customary laws) and written laws that are enforced. This Note then applies the model to four post-colonial African societies, Uganda, South Africa, Nigeria, and Zimbabwe. It demonstrates that prior to colonial contact, several African societies did not condemn sexual minorities. With the establishment of colonially-imposed laws, indigenous attitudes shifted from tolerance of queer sexualities, to intolerance. This Note concludes that in societies where colonially-imposed anti-queer laws were routinely enforced, modern post-colonial societies experience high levels of queerphobia. In contrast, where such laws were not routinely enforced, postcolonial societies more readily accept LGBTQ persons as equal citizens