In Burkina Faso, since the 1st of September 2025, homosexuality is illegal and punishable by five years in prison, under a law passed unanimously by the 71 unelected members of the Transitional Legislative Assembly. The Minister of Justice and Human Rights, Edasso Rodrigue Bayala said of the new law that it is "a response to the deep aspirations of our society" which reflects "respect for cultural values."
The news site Afrik.com, however, echoing the views of many activists, pointed out that "far from being an affirmation of African authenticity, the law constitutes a return to colonial sources."
"In pre-colonial cultures, diversity was the norm"
The criminalisation of consensual sexual relations between adults of the same sex and of gender expression or identity that differs from their biological sex violates international law and breaches a range of human rights, including respect for dignity, privacy, equality, and non-discrimination. Despite this, homosexual relationships are now illegal in 63 countries, 12 of which apply the death penalty. Legislation in 20 of these countries targets transgender people through laws that ban "cross-dressing", "impersonation" and "wearing disguises".
In most cases, oppressive laws were introduced by colonial authorities. Victor Madrigal-Borloz, a United Nations Independent Expert on sexual orientation and gender identity, explains that in "pre-colonial cultures, diversity was the norm". He believes that colonialism is one of the main causes of violence against gender and sexual orientation minorities. [1]
In what is now Nigeria, certain communities assigned gender on the basis of age rather than external genitalia. In Ethiopia, the Omoro changed gender every eight years during their lifetime. In Ghana, the Dagaaba used "the energy a person exude" to define gender, rather than anatomical criteria.
Numerous studies have focused on acceptance and societal appreciation of people considered to belong to a third gender, such as the "two-spirited" people of tribes in Canada, Muxes in Mexico, Hijras in India and Bangladesh, Takatāpui in New Zealand, and the sisters and brothers of the Aboriginal peoples and Torres Strait Islander peoples in Australia. In Senegal, góorjigéen people, or "man-woman" in the Wolof language, had a recognised status within Senegalese society, often acting as masters of ceremony at weddings and baptisms, and occasionally playing a political role. Gradually, the term became a synonym for homosexual. Today, it is used as an insult. [2]
Like diverse gender identities, same-sex relationships were also accepted in many pre-colonial societies and cultures. Certain Kenyan tribes recount traditions of same-sex unions: the Meru (marriages between men) and the Kalenjin (marriages between women). [3]
An oppressive colonial legacy
Laws criminalising homosexual relations were introduced from the very beginning of European colonialism. Notably laws on "sodomy", or "infamous crimes" or "acts against the natural order", derived from Judeo-Christian customs and canon law, in which non-procreative acts were deemed "abominable" or "perverse".
The first texts prohibiting sexual relations between men in the West Indies were imposed by Spain. The colonists encountered communities with different social, sexual, and family customs, which were very different from Judeo-Christian norms. Colonists described nudity, polygamy, homosexuality, and transvestism as signs of barbarism and justified banning these practices in the name of civilisation. Committing "abominable sin" was one of the arguments put forward by Juan Ginés de Sepulveda in his treatise, On the Just Causes for War against the Indians. [4]
At the time of the British Empire, Section 377 of the Indian Criminal Code criminalised "sexual acts against the order of nature", which included homosexual relations. This law was gradually extended to colonies in Asia, Africa, the Pacific, and the Caribbean [5] and profoundly changed the way people lived their lives. In India, the Hijra, defined as people belonging to the third gender, a group in contradiction with Western morality and the Western concept of gender, were marginalised, the object of police files, and abused by the police.
Colonial legacy is still visible today. More than half of the countries where homosexual relations are illegal are members of the British Commonwealth. Section 377, which is rooted in colonial English law remains, almost intact, in the laws of some 20 African countries, among them Botswana, Gambia, Kenya, Lesotho, Malawi, Mauritania, Nigeria, Somalia, Eswatini, Sudan, Tanzania, and Zambia. [6]
The Napoleonic Code was applicable law in French colonies. But it did not prohibit homosexual relations between consenting adults because homosexual relations had been decriminalised in France in 1791. To this day, several French-speaking countries do not have laws that specifically criminalise homosexuality, among them Benin, Côte d’Ivoire, and the Democratic Republic of Congo. Overly zealous colonial administrators, however, have pushed for or helped pass laws that criminalised "sodomy" in countries such as Tunisia.
A legacy that is sometimes overlooked
In 2018 the Supreme Court of India ruled that, "A hundred and fifty-eight years ago, a colonial legislature made it criminal, even for consenting adults of the same gender, to find fulfilment in love. […] The law deprived them of the simple right as human beings to live, love and partner as nature made them. […] Eighty-seven years after the law was made, India gained her liberation from a colonial past. […] Citizens of a democracy cannot be compelled to have their lives pushed into obscurity by an oppressive colonial legislation". [7]
South Africa has also broken free from colonial norms for gender diversity and sexual orientation. At the end of apartheid, South Africa became the first country to amend their constitution by adding an anti-discrimination clause. The amendment brought about various advances: the prohibition of discrimination in the work place (2006), identical age of sexual consent regard-less of gender and sexual orientation (2007), the banning of incitement to hatred based on sexual orientation (2000), and the legalisation of same-sex marriage (Civil Union Act, 2006). [8]
Many countries, however, are unaware of this facet of colonial heritage, or choose to deny it so they can promote alleged traditions or cultural values that must be defended against a neo-colonial "Western agenda" that would impose respect for LGBTQ+ rights.
Anti-rights agents exploiting decolonisation
Invoking "cultural values" to justify discrimination and violence against LGBTQ+ people is a strategy used across the globe: Russia, Hungary, Georgia, the United States, Egypt, and elsewhere.
In some countries that are former colonies, the colonial legacy of criminalisation has been glossed over in favour a form of pseudo neo-colonialism that calls for the exercise of universal rights, particularly for LGBTQ+ people. Sociologist and writer Nadia Chonville explains, "homophobic argumentation of colonial origin is thus embedded in homophobic argumentation against neo-colonialism". The United Nations Special Rapporteur in the field of cultural rights, Alexandra Xanthaki, has worked on the instrumentalisation of anti-colonial discourse to justify the denial of human rights for certain groups. She explains that the misuse of colonial history to "justify contemporary human rights violations" is an insult to the memory of liberators and undermines their achievements. [9]
These conservative, sovereigntist narratives are also encouraged by third countries, which use them in their international relations as a soft power tool for economic and political ends. Russia, for example, organised an event during the 2019 Russia-Africa Economic Forum to promote sovereignty and traditional values as crucial elements of strategic development on the continent. Various African political figures participated in the forum. In October 2020, Open-Democracy reported that 28 right-wing Christian organisations in the United States, often closely linked to the Trump administration, have spent more than $280 million to influence laws, policies, and public opinion against sexual and reproductive rights. Outside the United States, these groups have spent more money in Africa, at least US$54 million, than anywhere else in the world, with the exception of Europe. [10]
We are living in a post-truth era, which means we constantly have to re-establish the facts. Colonial powers imposed exclusionary norms, thereby breaking with the historical forms of diversity that existed in pre-colonial societies. Deconstructing this legacy is essential for the promotion of genuine decolonisation. The universality of human rights, and in particular those of LGBTQ+ persons, is not a colonial concept. Quite the contrary, colonisation imposed unjust laws, and returning to inclusive legal norms is an act of decolonisation.