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Breakthroughs and the Bench: What We Can Learn From Last Year’s Rulings on Queer Rights in Ghana, Malawi, and Namibia
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A trio of contrasting African judicial decisions in 2024 illustrates a concerning global trend: the use of tradition, culture, morality, and family as legal pretexts for the preservation of century-old colonial laws that criminalize queerness. In Nambia, Malawi, and Ghana, courts heard constitutional challenges to laws that prohibit same-sex intimacy. Often referred to as “unnatural offenses” laws throughout commonwealth jurisdictions, these restrictions on adult sexual conduct originate primarily from Victorian England and appear in criminal codes in countries ranging from Tanzania to Sri Lanka to Tuvalu.
In Namibia, the High Court decriminalized consensual same-sex relations in June, contributing to hope in the remaining 60 or so criminalizing countries that change for lesbian, gay, bisexual, transgender, and queer (LBGTQ) people is possible through the courtroom.
But in the following weeks, the High Court in Malawi and the Supreme Court of Ghana dismissed similar constitutional challenges to their “unnatural offenses” laws. Ghana’s court also declined, in December, to rule unconstitutional a new law passed by Parliament that would further strip LGBTQ people and allies of their rights.
These decisions fit a pattern according to which laws originally inflicted on Africa as part of a European imperial project have since been adopted by unscrupulous politicians who evoke them as epitomizing “African values,” which they characterize as in stark opposition to “the West.” Politicians stoke moral panic to portray such laws as a bulwark against alleged threats to traditions, families, and ways of life, concepts that are abstract, arbitrary, and immeasurable.
This piece examines the varied tapestry of recent African rulings on constitutional challenges to colonial laws criminalizing same-sex relationships. The rulings from Namibia, Ghana, and Malawi display the diverse landscape of African queer jurisprudence in 2024, encapsulating two contrasting positions on LGBTQ rights protections that have evolved in the first quarter of the 21st century. One position relies on the universality of human rights to protect LGBTQ people; the other wields the shield of “tradition,” “culture,” and “the family,” masquerading as protections of values, when they may in truth constitute protections of the state against accountability for the wellbeing of LGBTQ people and, as a corollary, other vulnerable communities. As we enter the second quarter of our century, further progress for LGBTQ people’s human rights will hinge on effectively dismantling these claims.
“Unnatural offenses”: Colonial histories
In the 19th century, the British Empire carried across the world a wave of laws aimed at regulating its subjects’ sexuality. Malawi and Ghana were among its dozens of targets.
Malawi’s “unnatural offenses” law was originally imposed by colonial overlords who copy-pasted from another British possession, India. Section 153 punishes “carnal knowledge against the order of nature” with fourteen years in prison. “Attempts” to commit unnatural offenses (Section 154) and “indecent practices between males” (Section 156) are punishable by seven and five years in prison respectively. In 2011, parliament expanded the Penal Code through the addition of a new Section 137A that punishes “indecent practices between females” with up to five years imprisonment, emblematic of several countries that have, in the last three decades, extended colonial laws to explicitly criminalize sex between women.
Ghana was similarly bestowed the Victorian “unnatural carnal knowledge” law in its Penal Code Section 104, which punishes “sexual intercourse with a person in an unnatural manner” with three years of imprisonment. The post-independence Ghana Penal Code of 1960 preserved this prohibition on sex between men, defining it elsewhere in the Penal Code as including “penetration.”
Namibia, however, inherited its “unnatural offenses” laws through a different pathway. They stem from South Africa’s adoption of Roman-Dutch and British prohibitions of “sodomy,” imposed when the League of Nations made Namibia a South African territory in 1920, and preserved at Namibia’s independence from apartheid South Africa in 1990. Namibia does not have a codified criminal code: its laws criminalizing “sodomy” are based in common law. While post-apartheid South Africa shook off its sodomy laws in 1999, Namibia’s inherited inequity persisted for 25 more years.
Around the world, nineteenth and early twentieth-century laws attempting to govern private sexual conduct between adults have gradually been undone. Decriminalization picked up speed in the 1990s both before and after the landmark 1994 Toonen v Australia ruling, when the UN Human Rights Committee decided that Tasmania’s law against sex between men violated the rights to privacy and non-discrimination, guaranteed by the International Covenant on Civil and Political Rights. Extensive UN treaty body jurisprudence now requires all UN member states to decriminalize. Namibia, Ghana, and Malawi are all signatories to the ICCPR. But legacies of exclusion are difficult to undo: the fate of whole swathes of the population continues to be tied to their countries’ colonial pasts, weighed down by antiquated laws and values, reinvented as “African,” that serve the interests of some, not all.
Courtroom contrasts
In Namibia, laws governing “sodomy” and “unnatural offenses” were common law offenses, meaning they were based on unwritten law. Like other criminal offenses, they were neither limited nor codified in specific criminal codes but were maintained through legal precedent and judicial reasoning. The crime of “sodomy” does appear in several more contemporary statutes, including the Immigration Control Act 1993, the Defence Act 2002, and the Criminal Procedure Code 1997.
Friedel Dausab, a gay Namibian activist, filed the challenge to Namibia’s unnatural offenses laws, contending that these common law and statutory provisions “unfairly and irrationally discriminate against [the plaintiff] and other gay men on the basis of sex and sexual orientation, and thus infringe his constitutional right to equality; dignity; privacy; freedom of expression and freedom of association.”
On June 21, the High Court found, with the plaintiff, that “sodomy” offenses constitute an unconstitutional breach of the right to equality and freedom from discrimination (Article 10). The court ruled that under Namibia’s post-colonial constitution, the “inherent dignity and the equal and inalienable rights of all members of the human family”—rights that “have for so long been denied to the people of Namibia by colonialism, racism and apartheid”—are “indispensable for freedom, justice and peace.” Upon this finding, the court did not proceed to address the other violations raised by the plaintiff. In its closing paragraph, the bench declared:
We also established that [with regard to] the view that homosexuality is an abominable vice and that a section of our society cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self- suspicion). We further found that it remains possible that the ordinary man could produce no reasons for his views, but would simply parrot his neighbour who in turn parrots him. We thus find that the differentiation which the impugned laws accord to gay men, amounts to unfair discrimination and thus unconstitutional.
The Namibian decision was issued in the broader context of a long process of law reform. In 2013, Namibia’s Law Reform and Development Commission, commenced a project toward the repeal of obsolete laws and the promulgation of laws that were in line with international legal obligations and the Namibian Constitution. It recommended the abolition of “sodomy” laws. A decade of awareness campaigns and collective advocacy prepared fertile ground for the historic decision. The ruling itself relied on international jurisprudence from multiple jurisdictions and UN treaty bodies. Drafted in accessible language, it lends itself to messaging beyond the courtroom, and beyond Namibia’s borders, about the universality of human rights.
But on 28 June, the Malawi High Court in Blantyre handed down a vastly contrasting decision. In a constitutional referral, the court had been posed the same question as the Namibian courts: whether laws criminalizing same-sex relationships–namely, the “unnatural offenses” provisions in Sections 153, 154, and 156 of the Penal Code–were unconstitutional and, therefore, null and void. Its response was a resounding no. A month later, on 24 July, the Ghana Supreme Court similarly dismissed a constitutional challenge against Section 104(1)(b) of the Criminal Offences Act 1960, which criminalizes “unnatural offenses.”
Both the Malawi and Ghana courts relied on narrow interpretations of their respective constitutions and adopted “cultural” frameworks to justify the upholding of anti-LGBTQ laws, reinforcing existing blueprints for similar anti-rights movements globally. The judges encased their decisions within the iron-clad armor of “public morals” and “tradition,” alongside a rejection of what they termed foreign or Western moral standards. And they both passed the buck to the legislature–an option not as readily available to Namibia’s High Court, given that its legislature had never enshrined in law the common law prohibition on same-sex intimacy.
Malawi: Denying discrimination
The Malawi constitutional challenge was a consolidation of two different cases, cobbled together because the Malawi High Court considered that the cases involved the same constitutional questions. Unlike in Namibia and Ghana, both Malawi cases involved individuals who had been arrested and charged with unnatural offenses. Prosecutors had also charged one of the plaintiffs, Jana Gonani, a trans woman, with “obtaining [money] under false premises” by “falsely representing himself as a woman.”
The petitioners questioned whether the laws criminalizing anal sex adhered to numerous fundamental rights articulated in Malawi’s constitution: the rights to non-discrimination, liberty, dignity, health, life, privacy, and freedom from torture and cruel, inhuman and degrading treatment.
The court roundly and unanimously dismissed all claims. It found that the Malawi Constitution’s equality provision was not violated, selectively citing a 2018 Kenya High Court ruling dismissing a similar challenge on grounds that Kenya’s sodomy law “does not target any particular group of persons,” such as homosexuals. This finding was despite extensive evidence submitted to the court that criminalization subjects LGBTQ individuals to systematic discrimination. The court further asserted that since Malawi’s penal code also criminalizes sex between women, such laws are not discriminatory.
The Malawian court claimed that rights to liberty, dignity, and privacy are subject to societal standards. It reinforced the notion that Parliament possesses the authority to legislate in this area:
[The right to liberty] cannot be extended to mean an individual has a right to be left alone or to live as they please. That would be getting into the legislative realm of Parliament.
The court interpreted Section 44 of the constitution, which states there may be no limitation on rights “other than those prescribed by law, which are reasonable, recognized by international human rights standards and necessary in an open and democratic society,” to mean that constitutional freedoms can be curbed when “public morality” is stake: “Parliament is entitled to make law that would enhance the moral fabric, collective security and common interests of the society.”
The court dismissed a study about the impacts of criminalization on queer people’s access to health as “unreliable” because “some of the participants were found on the internet.” It maintained that the right to life was not infringed because the impugned law did not target a specific group of people, and dismissed claims related to torture and cruel, inhuman, and degrading treatment on grounds that the plaintiffs themselves had not experienced this. In conclusion, said the court, “If the claimants feel that the said provisions unfairly target them, the best option for them is to lobby Parliament to change the law.”
Ghana: Dismissing precedent
Dr. Prince Obiri-Korang, a law lecturer, challenged Ghana’s unnatural offenses law in 2021, arguing that the law violated constitutional rights to privacy, non-discrimination, and liberties of a person.
In adjudicating the case, Ghana’s court acknowledged precedents from countries like India, where the British-imposed Section 377 was struck down in 2018, and the United States. Yet, the seven-judge bench dismissed the plaintiff’s claims that the law is discriminatory and that it infringes on personal liberty to be "far-fetched and speculative.” It concluded that the state’s reasoning in maintaining the law was consistent with public morality and justified the override of personal privacy.
Ghana's meticulously crafted decision seems to draw from a script used by anti-rights movements worldwide, with legal arguments couched in claims around the country’s “unique traditional and cultural identity” and the rejection of “alien cultural values.” Similar to Malawi, the Ghanaian bench interpreted constitutional rights in a constrained manner rather than drawing on decades of protective international jurisprudence to advance a proactive, human rights-based approach.
The disregard for international law undermines Ghana's commitments under international human rights frameworks, including the International Covenant on Civil and Political Rights (ICCPR). Indeed, the ruling explicitly sets Ghana apart from legal developments in other common law and Commonwealth jurisdictions, disparaging evidence related to, for example, the Wolfendon report, a study that eventually led to decriminalization in England and Wales, as irrelevant to Ghana. The bench concluded,
Whilst the constitutions and laws of other nations may have expressly legalized homosexuality, glorified gay marriages and… promulgated legislation to propagate, outdoor, evangelize, preach and sell the notions of homosexuality to every fabric of those societies, Ghana as a nation, and for that matter this Court, cannot by ‘peer pressure’ be cajoled into adopting similar stance. Our Constitution is sui generis and the only one of its kind. Thus, citizens who ply this Court must do more than merely citing and referring to Constitutions of other states as well as their case law into persuading us on what the law is or ought to be in Ghana.
Rising tides: Growing global repression
The trio of rulings has landed at a time when a wave of new repressive laws criminalizing sexual freedom, gender nonconformity, and freedom of expression and association is crashing over the lives and bodies of LGBTQ people in contexts ranging from Sub-Saharan Africa to Europe to Central and Southwest Asia.
While Ghana’s Supreme Court was deliberating on the challenge to Section 104, it was also seized by a case regarding a contemporary piece of oppressive legislation, the Human Sexual Rights and Ghanian Family Values Bill. The bill, passed by Parliament in February 2024, would build on the unnatural offenses laws’ exclusionary legacy through increased penalties for same-sex relations and new penalties for advocacy and allyship on LGBTQ people’s rights. On December 18, the court dismissed challenges to the bill on procedural grounds, clearing way for its enactment into law. Outgoing president Nana Akufo-Addo, however, neglected to sign the bill before the end of his term in January 2025, leaving it in legal limbo. Regardless of the outcome, efforts in support of the bill are emblematic of a pivot in hostile legal environments from simply maintaining colonial provisions banning sexual acts to advancing all-encompassing laws that stigmatize and criminalize all facets of being queer or even perceived as queer.
Uganda set the bar for hostile legislation with its 2023 Anti-Homosexuality Act, which punishes not only same-sex acts but also human rights advocacy, fostering an environment of increased discrimination and fear for LGBTQ individuals and their allies. In September 2024, Georgia passed a new law purportedly on “family values and protection of minors” that restricts freedom of expression and association in relation to LGBTQ issues and bans legal recognition of same-sex couples and trans people, following passage of a similar law in Kyrgyzstan in 2023. Bulgaria in August 2024 passed a law prohibiting discussions on sexual orientation and gender identity and expression in schools, much like the “Don’t Say Gay” law passed in the U.S. state of Florida in 2022..
This reactionary new wave of laws, which echoes repressive practices from the Kremlin and transcends geographical regions, appears to draw on the fears of those invested in cisheteronormative patriarchy that an increasingly vocal LGBTQ human rights movement, if not quashed, will ultimately prevail worldwide. The human rights movement, despite recent setbacks, has borne fruit: activists, lawyers, and supportive politicians brought about the decriminalization of same-sex intimacy in at least 30 countries in the first quarter of the 21st century, with Namibia just the latest in a long line of victories. The goal of the new laws appears to be to silence LGBTQ people and their allies, shortcircuiting further progress. They underscore the critical need for reinforced legal advocacy in support of the fundamental human rights of LGBTQ people.
Conclusion
Colonialism is history, but its “unnatural offenses” legacy is tenacious. While many of these offenses have been abolished after a century of being embedded in domestic criminal law, they remain entrenched in Ghana, Malawi, and dozens of other countries, primarily in Africa and Asia. A surge of positive change, with African countries such as Mozambique, Seychelles, Botswana, Angola, Mauritius, and Namibia decriminalizing same-sex intimacy in the last decade, has been offset by negative court rulings in Kenya, Ghana, and Malawi and by the introduction of sweeping new anti-queer legislation in Ghana, Uganda, and beyond. Across Africa, LGBTQ communities are now embattled by both hostile new legislation and regressive judicial rulings upholding colonial anti-LGBTQ laws.
In some sense, every community-driven attempt to challenge a piece of oppressive legislation, modern or antiquated, is a victory in itself, because it shows LGBTQ people’s resolve to claim and defend their constitutional rights and the rights due to them under international law. These cases are also vital to dismantling the myths that anti-LGBTQ laws cause no harm. It must be repeated around the world that exclusionary laws do not protect the people; they only fortify those who wield power, whether over the patriarchal family, religious institutions, or the traditional dominions of the state. And a larger question must be asked for judiciaries around the world: how adequately protected are our fundamental freedoms when many judges entertain constitutional interpretations that allow for “escape routes” for the repressive state on the basis of public morality?
Decriminalization is crucial to ensuring the safety and security of queer people. Laws against same-sex intimacy deprive people of liberty and are almost universally deployed as a tool to extort, harass, arbitrarily detain, and reinforce the second-class citizenship of anyone perceived to be queer. They serve as a proverbial “sword of Damocles” over the heads of LGBTQ people as long as they remain on the books.
The three rulings point to the necessity of continuous reform and sensitization efforts within criminal legal systems and judiciaries. Recent queer-friendly jurisprudence from Namibia and around the world provides important guideposts: it suggests that all laws, policies, and practices must be evidence-based and viewed through a critical lens centering the need to protect real people, instead of abstract ideas like “culture” or “public morality.” Real lives are in the balance.
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