NEW YORK – President Yoweri Museveni of Uganda has just signed a new law introducing harsher penalties for homosexual acts, including life imprisonment in some circumstances. A Nigerian law that took effect in January punishes homosexual acts in that country with 14-year prison sentences.
The fresh wave of anti-gay legislation in Nigeria and Uganda (according to Amnesty International, homosexuality is illegal in 38 of 54 African countries) follows the recent embrace of official repression of homosexuality elsewhere. Last year, Russia enacted a law banning “gay propaganda.” And, in January, India’s parliament refused to consider abolishing an 1861 law, passed under British colonial rule, that mandates ten-year prison sentences for homosexual acts. Egypt, too, has seen a crackdown on homosexuals.
What explains this slew of repressive measures?
Supporters of such legislation – including advocates in the United States of a recently proposed Arizona law that would have permitted business owners to refuse service to gays on religious grounds – argue that it reflects an organic popular backlash against a threat to “traditional” values. But legal history shows just how duplicitous this global rash of legislation really is – and whose purposes it really serves.
Yes, the Russian Orthodox Church supports the country’s law prohibiting “gay propaganda”; likewise, the right-wing Ugandan and Nigerian nationalists backing their countries’ anti-gay legislation insist that they are asserting local, as opposed to Western, values. But the rationale for supporting these laws transcends mere hatred of sexual “others.”
According to United Nations High Commissioner for Human Rights Navi Pillay, the Ugandan law is “formulated so broadly” that it can be used to crack down on anyone – including activists and health-care workers – who can be accused of advocating homosexuality. That appears to be precisely the point. The Ugandan Parliament, for example, cites “internal and external threats to the traditional heterosexual lifestyle,” while Museveni casts the legislation as a rejection of Western decadence.
It used to be quite difficult to prosecute homosexual men, at least in Britain and America. In the United Kingdom, for example, imprisonment for a homosexual act was based on ecclesiastical law – and only upon proof of a completed act of sodomy. It was legal, if frowned upon, for gay men to engage in all other forms of sexual intimacy.
But new laws passed in Britain in the first half of the nineteenth century – for example, the Offenses against the Person Act of 1828 – made gay sex and even gay relationships among men increasingly easy to prosecute. These provisions were then included in colonial penal codes.
Indeed, the Indian Penal Code of 1860, which was exported as a model by Britain to its colonies around the world (and which still today forms the basis for anti-gay legislation in countries such as Egypt), was a crucial tool in the management of empire and the control of unruly new populations. Anti-gay laws were imposed on massive, culturally disparate territories worldwide, in which homosexuality had never been criminalized – or even treated as a discrete moral crime (indeed, in colonial India, British officials were stumped by castes of men who dressed as women).
None of this repression was implemented with the primary intention of giving legal expression to organic mid-Victorian homophobia. The British state began to gain greater statutory authority to intervene in and regulate what was previously considered purely private sexual behavior at a time when grassroots movements, from Chartists to feminists to socialists, were clamoring for enfranchisement and greater influence over the distribution of political power and economic resources.
New laws began to criminalize far more than just the act of sodomy. They eventually also criminalized “attempting” sodomy, and even “conspiring” to commit sodomy, as in the notorious Labouchere Amendment, passed in 1885 in Britain, which made it illegal for one gay man to introduce another to a third, if the introduction led to a liaison. A decade later, the amendment turned Oscar Wilde’s love letters to his paramour “Bosie,” Lord Alfred Douglas, into criminal evidence against Wilde himself.
As Ugandan activists note, more than just prison sentences for gay men are at stake in the introduction of such laws. What distinguishes such legislation is that it can eventually turn any human contact or speech into a crime. Unsure of what counts as “advocacy” or “propaganda,” citizens watch their words and generally keep a low profile, reinforcing an atmosphere that depresses civic activism by turning everyone into a potential target. For example, anti-gay laws passed in Egypt in 2004 were used as part of the legal arsenal in a much broader government crackdown.
In nominal democracies, too, such laws can be a socially acceptable way for those in power to introduce the idea that some speech is unacceptable, that some forms of activism can lead to arrest, and that the state may intervene in one’s most private space and most personal choices. That was the role that such legislation played under British colonial rule, when a small number of imperial officials had to find novel ways to control millions of new, culturally diverse subjects.
In Uganda, Nigeria, Russia, and India (and, yes, in Arizona as well), anti-gay legislation has served those who are more interested in curtailing freedom in general. Stealth laws that claim to defend local values, religion, or the traditional family have nothing to do with protecting society from scary, immoral gays; they have everything to do with protecting scary, immoral oligarchs from society.