Interrogating the Criminalisation of Same-Sex Sexual Activity: A Study of Commonwealth Africa: A Study of Commonwealth Africa

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Abstract

The Abrahamic faiths and received colonial law have been identifed as the driving
force behind the criminalisation of homosexual activity in most of the Commonwealth States of Africa. This article, therefore, seeks to question the role of criminal law in proscribing sexual activities amongst consenting adults of the same gender in Commonwealth African states. A recurring question in the paper is the propriety of criminalising a consensual conduct amongst consenting adults in private when no harm or injury is done to other citizens or the state in line with JS Mill’s principle of harm. The article fnds that the misconception that the main aim of criminal law is to legislate the moral values of the majority, forms support for the view that homosexuality can be learned and unlearned and if this is the case, a paternalistic approach by the state would help mould citizens’ behaviour. A comparative and case study approach was adopted for the discussion in the article. Four Commonwealth African states, namely, Ghana, Kenya, Nigeria and Uganda were selected as case studies. The article recommends a much more robust approach for the support of sexual minorities in the Commonwealth.

© 2021, The Author(s). This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/
Original languageEnglish
Pages (from-to)379-399
JournalLiverpool Law Review
Volume42
DOIs
Publication statusPublished - 27 Apr 2021

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