Books in rainbow colours and the scales of justice — (C) Love Matters | Rita Lino

Homosexuality and the law

To say that homosexuality is seen differently in different parts of the world is putting it mildly. Cultural and personal attitudes towards homosexuality vary widely.

Some people, usually for religious or traditional reasons, see same-sex relationships as shameful or sinful. Gays and lesbians can face prejudice and discrimination, hatred and violence.

On the other hand, many people all over the world see homosexuality as just a normal part of life. They think gays and lesbians deserve the same respect as heterosexuals.

In almost 60 per cent of countries in the world, being gay is legal. In many of them, it’s widely accepted. Gay and lesbian couples can now get married in the same way as straight couples in a long list of countries in Europe, North and South America and also South Africa and New Zealand. But in some places homosexuality is illegal, and gays, lesbians, and bisexuals can face imprisonment.

Homosexuality and the law

There are also huge differences around the world in the way homosexuality is treated in the law.

In the Netherlands, for example, homosexual couples can get married just like heterosexual couples. At the moment there are 23 countries in the world where this is possible. Most are in Europe, but they include Canada and South Africa. And many other countries have some other official form of same-sex partnership other than marriage.

On the other hand, there are also countries, most of them in Africa and the Middle East, where homosexuality is totally illegal. People found guilty of having a homosexual relationship can face prison sentences, flogging or, in countries like Sudan and Iran, the death penalty.

How does the law treat homosexuality where you live? You can check lesbian, gay, bisexual and transsexual (LGBT) rights around the world here.

The law in Kenya

Consensual sex between same-sex adults is illegal in Kenya. The law makes it clear that men who have sex with other men are committing a crime. Another law is less specific, but makes sex with ‘any person against the order of nature’ punishable by up to 14 years in prison.

In 2015, the High Court of Kenya granted LGBT organisations and welfare groups the right to be officially registered. These groups, therefore, operate legally. There is currently an ongoing court case (February 2018) to review the sections of the Penal Code that criminalise consensual same-sex activities.

Since gay and lesbian sex is considered a crime, same-sex marriage is also not permitted. Some tribal groups – the Nandi, Kikuyu, Kamba, and several others – traditionally allow women to marry other women, however, and this remains acceptable. These unions are accepted as marriages, with one woman taking the role of ‘husband’. These are not considered homosexual, however. The women live together, but the marriage is for social reasons, as a way for families without sons to keep the family land and wealth.

The law in Nigeria

In 2014, the Nigerian government passed the Same Sex Marriage Prohibition Act (SSMPA) into law, which criminalizes consensual same-sex relations – making it punishable with up to 14 years imprisonment. The act penalizes not only direct sexual relations but also indirect relations, such as holding hands. The Shari’a Penal Code of Northern Nigeria (applicable in 12 of the 19 Nigerian states) goes further: the maximum punishment is death by public stoning.

SSMPA along with harsh stigma around LGBT people in Nigeria can lead to an unwelcoming environment. People are often harassed, arrested, extorted, experience violence, and often are not able to access services. This can lead to the LGBT community not being treated well by friends, family, police, and healthcare providers.

SSMPA also outlaws the supporting, and organizing around, issues related to LGBT rights. Even people who are witnessing, aiding or abetting on this issue, such as family, friends or allies, can risk prosecution. Since the act essentially prevents the right to peaceful assembly and association, it also impacts an LGBT person’s right to health.

Another essential human right is also being violated: the right to have a consensual relationship with the person you love.

While this all sounds rather gloomy, there are organisations that are legally operating in Nigeria to support LGBT people in various ways. And there are LGBT people who have found love – so please be careful but not discouraged!

LGB in Africa

Some people are gay. This is true in every country in the world, and African countries are no exception.

Many people think that being gay is ‘un-African’, or they say that ‘it’s not our culture’. But there are 54 countries in Africa, and in Kenya alone there are more than 42 tribes. That’s a lot of African cultures, and there’s evidence that homosexuality was traditionally accepted in many of them.

There are examples from all over the continent, from the ancient rock paintings of Zimbabwe that show men having sex with men to the numerous words in African languages describing homosexuality, gay men and lesbians.

Gay relationships are not un-African, but the laws that criminalize them are. The first anti-homosexuality laws in Uganda were introduced by the British. Homosexuality was taboo in 19th century Europe, and the colonial powers brought these prejudices with them to Africa.

Cultures change! People create culture, and people can change it too. It’s only recently that many African cultures have become so intolerant of gays, lesbians, and bisexuals. It doesn’t have to stay that way.