Sex, law and culture in Africa: a jurisprudential, philosophical and socio-legal inquiry

Abstract

African law has a sexuality problem. This is not a polite observation. It is a precise and urgent diagnosis. Consider the following. Section 145 of Uganda's Penal Code Act criminalises "carnal knowledge against the order of nature" — a provision copied verbatim from the Indian Penal Code written by Lord Macaulay in 1860 for British India. The United Kingdom repealed the equivalent provision in England and Wales in 1967. Uganda retains it to this day, using it — alongside the Anti-Homosexuality Act of 2023, which imposes life imprisonment — to criminalise the intimate lives of thousands of Ugandans. The same provision, in almost identical language, appears in the penal codes of Kenya, Tanzania, Nigeria, Zimbabwe, and twenty-five other African countries. Now consider this. Approximately 125 million African girls are or have been married as children, many before the age of fifteen. Female genital mutilation has been performed on an estimated 200 million women and girls globally, with sub-Saharan Africa and North Africa accounting for the overwhelming majority of cases. Approximately 45.6 percent of African women experience intimate partner violence in their lifetimes — more than double the global average. In many African countries, a husband cannot legally be convicted of raping his wife. In several, adultery is a criminal offence for women but not for men. These are not coincidental failures. They are structural. They reflect the intersection of three forces that this book analyses in depth:colonial legal transplants that imposed Victorian sexual morality on African societies without consent or cultural grounding;patriarchalpo werstructures that selectively deploy "culture" and "tradition" to maintain male control over female sexuality; and legal pluralis 1 m 'sdarker face, in which multiple legal orders — state law, customary law, religious law — compete to regulate sexuality, with women and sexual minorities bearing the costs of every contradiction. The result is a continent where sexuality is simultaneously over-regulated and under-protected. Over-regulated, because consensual adult conduct is criminalised on the basis of colonial-era morality. Under-protected, because the sexual violence, exploitation, and subordination that actually harm real people go largely unremedied.