"Whose culture is it anyway?” How “African identity” is deployed against marginalized groups to make oppressive laws

 Policymakers weaponize “African culture and identity” to create oppressive laws. Broadly, African culture and identity are customs, practices, beliefs, and normative values of African people. However, the concepts of African culture and identity are complex and highly contested. They are also charged with peerless historical and political baggage.

To start with, what is Africa? Is it simply a geographical area commonly known today as the African continent, or does it extend to the African diasporas? There are historical influences from the global west and east, before and after the advent of colonialism that define the present African society. Therefore, how can we draw a clear boundary between African and non-African cultures, global cultures, and identities? The large-scale migrations, religious influence, international trade, industrial revolution, technological advances, and globalization have all influenced the way of life of the African people. However, can we amass all experiences of African people under one emblem– the African culture? In the context of thousands of languages, ethnic groups, and peoples that span the second-largest land mass on earth, an invocation of a singular “African culture” especially for law-making at the national level, requires probing.

Culture is always one step behind our lived reality. It only comes to be because we declare it existent. While many take it as self-fulfilling, it is made, and we are the makers. However, not all of us take part in the culture-making process and not all of our cultures are given recognition, much less formal institutionalization.

Law is a lot like this.  And in many ways, culture has come to define the law. Policymakers in Africa, like everywhere else, are busy law-making to address important societal challenges. However, in this attempt, they have an opportunity to answer some of the most pressing questions of our time: What is our culture(s)? Who are we? And how can we legislate our diversity better?

These are not just questions for Africans to answer.  For example, about 500 pieces of anti-LGBTQ legislation are currently in the works across the United States. Moreover, the curtailment of women’s bodily autonomy through anti-abortion policies continues to make the news. All these laws rise out of what some analysts have defined as culture wars. Thus, now as ever, appeals to culture by national leaders and lawmakers should raise eyebrows because of the impact they are having on the rights of minorities everywhere.

For Africa in particular, applications of cultural norms strongly affect policies that govern family, marriage, and relationships. Governments that lead these reforms seem to desire a reversal of the lasting impact of systemic colonial interference with African social systems, marriage, and child custody practices. Most notably, we have witnessed a proliferation of anti-LGBTQ laws that several African governments have passed. The Ugandan government is the most recent. Through its newly enacted Anti-Homosexuality Act, individuals found guilty of “aggravated homosexuality” will face the death penalty. Laws such as these, which institutionalize homophobia, are often couched in declarations defining and defending African culture, tradition, and values.

Meanwhile, several scholars and human rights activists have, through historical and anthropological research, proved that these assertions are simply not based on fact or reality. Homosexuality, gender, and sexual diversity have always been a feature of African life, society, and therefore, culture. Oddly, African governments tend to consider queer rights as the biggest threat to African cultural heritage today. The same fervor to protect African culture through policy is rarely directed towards the lack of state investment in indigenous language education, the improvement of the arts industry, and environmental protection of ancestral land, to name just a few of the more legitimate concerns threatening African life and society. Briefly put, African legislators seem to believe that a complete African culture revolves around heterosexuality. In the face of the countless economic and developmental challenges the continent faces, one wonders how African leaders can seriously argue that gay people are the biggest threat to the continent or what it represents.

While LGBTQ rights are eroded under the pretext of protecting African culture, women’s and children’s rights have fared better comparatively. However, reports reflect that there is still a long way to go.  In some cases, women’s rights are very much still a battleground on which powerful men in society fight cultural wars in a bid to entrench sexist normative orders. In Gambia, male political and religious leaders are advocating for the reversal of a 2015 law that criminalizes female genital mutilation ostensibly on the basis of Gambian religious and traditional beliefs.

As in many places across the world, it’s no coincidence that culture and tradition are often wielded against the interests of women, and rarely as an attack against the values and sometimes harmful practices perpetuated by heterosexual men. While many African politicians are quick to call out Western influences related to curbing women’s and queer rights, they are slow to challenge, especially on a public and institutional level, the fundamentalist religious and patriarchial values, inherited from Western countries through colonialism that often give them money and power. 

It is important to underscore though, that this process of using culture to change law, can also happen to achieve equality. Progressive policies can also become institutionalized through an appeal to culture. Not just by assertions of what our culture is, but through expressions of what our culture is not. For example, significant inroads have been made to protect women's and children’s rights across the continent through regional instruments that have informed national policies. These include the Maputo Protocol, which provides for “the right to a positive cultural context” (emphasis added) for African women, and the African Charter on the Rights and Welfare of the Child, which refers to “the virtues of …cultural heritage, historical background and the values of the African civilization” and prohibits child marriage – an unfortunate, but common practice in African countries).

Laws to end child marriages have recently been enacted in Zimbabwe, campaigns to end gendered land dispossession and against other forms of gender-based violence, exhibit the voices of the oft-oppressed in African societies fighting to redefine, reclaim, and in some cases reject whatever “African culture” is said to be. Therefore, in the examination of contemporary law-making in African and global human rights, we should take note of whose voices are loudest and whose are silenced in determining the cultures that find themselves in the law.

Some historians argue that generalized concepts of African tradition and culture stem in large part, from a colonial period where administrators, constructed convenient but homogenized definitions of what was “African” to create policies that suited their imperialistic agenda. Some of these policies entrenched capitalist-patriarchal systems and oppressed especially women, children, and queer communities. Others argue that powerful forces indigenous to African societies were complicit in this process of vying for power to establish normative orders that would protect their interests. In any case, we must grapple with the work that these abstract and malleable concepts do to impact the material conditions of a so-called “post-colonial” Africa. Not doing so keeps hidden the disquieting ways that legislators and legal institutions are informally relying on this label to justify various policy decisions. Institutions across the continent continue to make laws using “African culture and identity” as a guiding principle and we need to ask, whose culture is recognized and protected; and who is left behind?

In the face of colonial interference and the erasure of African ways of living, there has been an undeniable need to reclaim and protect the notion of African identity and culture. Historically, in the area of African personal and family law especially, the customs of African people came under some scrutiny and attack through a series of legal ordinances aimed to control social life and deepen gender divides. Colonial policies institutionalized patriarchy by making women perpetual minors in the eyes of the law. Marriage systems were divided into two or more with colonial marriages acquiring superior status and official recognition, while customary marriages went unrecognized. Colonial versions of customary law were codified in ways that often benefited men (e.g. Women could not inherit marital property and children belonged to the father during custody battles, while ‘illegitimate’ children had no rights). However, what is equally undeniable, is that since colonial independence some of those laws remained in the books in whole or in part. Where efforts were made to recognize indigenous values and practices through legislation, only a few members of society were left as the gatekeepers –– “custodians” of African tradition and culture. These custodians, invested in a limited and perhaps even harmful kind of “Africanness”, continue to work in governments. They are judges, they are in enforcement, and they are religious leaders. Every day, these groups of individuals impose “their” ideas of Africanness on others through law.

We must pause to examine with a microscope, these moments in time within law-making where culture is being reasserted, re-reinvented, renegotiated, and redefined through structural systems. By doing this, we get a chance to understand how harmful social institutions become embedded in our society. While “Africanness” and any notions of African culture that stem therefrom, are undoubtedly useful, tangible concepts as units of analysis of what is uniquely “African”, they can also have slippery definitions and are thus liable to contestation. At the local, regional, and global levels, the current developments in minority rights are an opportunity for stakeholders to think critically about whose definitions of culture and identity prevail, and whether those definitions, realized in legislation, work to create societies that are safe for us all. 

The views expressed in this article are those of the author and do not represent those of any previous or current employers, the editorial body of SIPR, the Freeman Spogili Institute, or Stanford University.