The Infamous Section 377A: How Colonial Legacy Still Affects Contemporary Sexual Freedom

Opinion piece by Ozzy Aromin, UCT Law Student

The various conquests of the British empire led to the superimposition of its legal principles onto many countries. That is inarguable. One such law is section 377A of the Singaporean Penal Code, which criminalises sex between two consenting male adults, inter alia Whilst many laws criminalising homosexual intercourse is still evident in the contemporary era, the case with Singapore is striking, yet also fascinating. Section 377A and its contents are a recurring theme between former British colonies, and such oppressive legislation was either exacerbated or introduced through the colonial legacy that remains rooted in many societies today. I, due to word constraints, limit my discussion to restrictions on same-sex interactions between two consenting males. However I also acknowledge that injustices against LGBTQ+ individuals may occur in many, often inestimable, circumstances.

The Biblical book of Leviticus, recognised for how many continue to use certain verses to condemn same-sex relations, was incorporated by the Romans into its legislation when the Empire adopted Christianity in the 4th Century. In fact, Justinian’s law consolidated this, prescribing the punishment of execution for contravention thereof. The verse often referred to is Leviticus 18:22, which, in the New International Version, states: ‘Do not have sexual relations with a man as one does with a woman. ’ This eventually coalesced, amongst other Roman legal principles, into European law. In turn, European jurisdictions mandated criminal prohibitions, eventually giving rise to the British criminalisation of same-sex acts began in 1534, through Henry VII, who coined it the ‘buggery law.’ Sodomy, and therefore same-sex relations between two consenting males, became prohibited, and the ‘buggery law’ formed part of the seminal wording for the Indian Penal Code.

Thomas Babington Macaulay, a British politician, chaired the first law commission that drafted the Indian Penal Code, which eventually influenced its Singaporean counterpart greatly; part of it was section 377A which prohibited same-sex intercourse. In Singapore, the code shockingly refers to such sexual relations as any man who ‘commits…an act of gross indecency with another male person. ’ The law itself, per Singapore’s court of appeal, is no longer enforced against male persons, and there has not been a conviction in many decades. However, the fact that the law still exists is somewhat a statue that constantly reminds and haunts Singaporean gay individuals of the restrictions on their sexual freedoms and will remain as such until 377A is altered or repealed entirely Interestingly, even the number of the section itself, number 377, is repeated in Singapore, Pakistan, Myanmar, Malaysia and Brunei, all of which criminalise same-sex relations. In Sri Lanka, Seychelles and Papua New Guinea, the same key wording is used in the penal code to restrict sexual freedom. You may question the common denominator between the aforementioned countries, and the fact of the matter remains; such laws were influenced by the enactment of the Indian penal code, due to British colonial influence. In fact, I found that both homophobia and racism amalgamated during that period, as Macaulay himself incorrectly believed that the introduction of the Indian Penal Code, and thus section 377A, would ‘modernise’ its society. Rather than actually bringing ‘modern’ reform to the subcontinent, he set in stone a code that would affect the sexual freedom of millions of individuals; a code of colonial origin that would have to be legally challenged by the descendants of societies that actually embraced same-sex relations. In fact, such relations were featured largely in South Asian literature and Hindu temple art in the Khajuraho temples, for example, depict images of women erotically embracing each other. We must acknowledge that in 2018, the case Navtej Singh Johar v Union of India led to the decriminalisation of consensual intercourse between same-sex adults. Nonetheless, such a ruling, which is relatively recent, should still be considered unnecessary; had it not been for the imposition of the Indian Penal Code by the British during the colonialperiod, sexual freedom would still have been enjoyed by the population, and landmark cases would not have been necessary to remove restrictions thereon.

The effect of British Imperialism on sexual freedom is also evident in our home continent. In fact, I find that had it not been for imperialism, many African cultures today would still enjoy the sexual freedoms that pre-colonial cultures did. For instance, strains of the aforementioned penal code can be seen in Kenya, Uganda and Tanzania, which, too, were previously under British control. Notwithstanding, many precolonial African cultures practiced same-sex activity, which is evident in the following instances. In Botswana, where same-sex activity was recently decriminalised under the landmark Letsweletse Motshidiemang v the Attorney-General, the term ‘koetsire’ is used by the Khoikhoi to refer to a man who participated in sexual activity with another man, and many San cave-painting depict intercourse between men In fact, prior to colonisation, Tswana society did not share the Western notions of sexuality and gender heterosexuality was not at the antipodal of homosexuality. Dikgosi, traditional Tswana chiefs, have even argued that homosexuality has long existed in their society, and should be accepted.

This pre-colonial mindset changed drastically after the formation of the Bechuanaland Protectorate, whereafter the vast importation of British legislation occurred. Despite the success of Letsweletse in decriminalising samesex relations, the attorney-general still appealed the High Court in 2019 to the Botswana Court of Appeal on the grounds that the Court a quo was erroneous in its ruling Another example is Namibia, where anthropologist Kurt Falk reported on homosexuality and same-sex marriage ceremonies among the Ovambo, Nama, Herero and Himba peoples. However, the prohibition of same-sex acts, albeit its criminalisation having nominally been declared unenforced, still remains illegal under Roman-Dutch law, which, unsurprisingly, was a product imported into Africa via colonialism. Thus, it is evident that the introduction of European ideals into the continent eventually led to the restriction of the sexual freedoms of Africans; a fact that only calls for the abrogation of such principles in contemporary Africa.

In South Africa, homosexual individuals still experience forms of inequality, despite the progressiveness of our country. The freedom aforementioned within Southern African peoples, which are also applicable in South Africa, was restricted by colonialism and apartheid. In fact, under the rule of the National Party, homosexuality was a crime punishable by imprisonment. However, South Africa has indeed progressed; for instance, the current Constitution, under its Bill of Rights, allowed for sexual freedoms, and the South African Constitution was the first constitution that explicitly prohibited discrimination based on sexual orientation.

Moreover, the enactment of the Promotion of Equality and Prevention of Discrimination Act and Employment Equity Act both protect South Africans against unfair discrimination with regards to public accommodation and services, as well against labour discrimination. Same-sex partnerships have also been allowed, under the Civil Union Act in 2006. However section 6, which has since been repealed by the Civil Union Amendment Act in 2020, allowed for marriage officers to object on grounds of conscience, religion and belief; South African LGBT newspaper Mambaonline reported that 421 out of 1130 marriage officers were exempted from performing same-sex marriages or unions, which arguably violates individuals’ Constitutional right, in section 195(d), which states that ‘services must be provided impartially, fairly, equitably, and without bias.’

Sexual freedom has been achieved, albeit through varying degrees, throughout the world, and moving towards a decolonised and inclusive society should involve the repealing of archaic laws that fail to allow such freedoms, and the allowing of samesex couples the same marriage and union rights as heterosexual ones. These objectives are crucial in achieving egalitarianism, not only in legal culture, but in the quotidian as well; the respective legalisation and abrogation of such will normalise relationships, and allow individuals, to put it simply, to truly understand that ‘love is love.’