EXPLORING THE CONTOURS OF AFRICAN SEXUALITIES: Statutory, Customary and Religious Laws Sylvia Tamale Makerere University Paper Presented at the Conference on “Law and Religion in Africa: Comparative Practices, Experiences and Prospects” held at the University of Ghana, Accra, January 14-15, 2013. Abstract This paper explores of the diverse ways through which organised religion, personal spiritual convictions, culture and the law shape, challenge and potentially transform the sexualities of African peoples. I argue that through the intersection of religion, statutory law and reinterpreted traditional customs, the complexity of African sexualities (particularly those of women) is instrumentalized, controlled and regulated by the patriarchal state. As sources of power, the institutions of culture, religion and law structure sexual morality in such a way that it congeals into states of domination. Attempts to assert sexual citizenship have spawned social movements on the continent challenging the dominant sexual discourses and demanding increased sexual autonomy and freedom. These movements have the potential to profoundly reshape our understanding of the links between sexualities and religion. I. INTRODUCTION Plurality is simultaneously the boon and the bane of Africa. The cultural diversity and richness found between and within the continent’s communities lends to its versatility and beauty. Our historical and colonial legacy of pluralistic legal systems and multi- religious traditions hold both advantages and disadvantages. The plurality is further multiplied and problematized by the many permutations of religious beliefs/jurisprudence and the evolution of culture. It becomes even more complicated when one considers that organised religions on the continent operate at a global scale, albeit with a distinctly African flavour when transplanted to the continent. Nevertheless, the African plurality spawns many contradictions and some absurdities. So one can only imagine the complexity involved in exploring varied African sexualities within such shifting paradigms and crosscurrents of discourses.1 In order to make sense of such exploration, we approach the topic from a common ground where the plurality of laws, culture, religions and religiosity finds convergence in their engagement with African sexualities. Such common ground can be found in the twin forces of patriarchy and capitalism—forces that support and reinforce each other, while also introducing new tensions and contradictions to the situation. 1 Sexuality, as used in this paper, encompasses a wide array of complex elements, including sexual knowledge, beliefs, values, attitudes and behaviours, as well as procreation, sexual orientation, and personal/interpersonal sexual relations. It touches a wide range of other issues including pleasure, the human body, dress, self-esteem, gender identity, power and violence. It is an all-encompassing phenomenon that involves the human psyche, emotions, physical sensations, communication, creativity and ethics. The pluralistic use of the term is in recognition of the complex structures within which sexuality is constructed as well as its pluralistic articulations (Tamale 2011). 1 Linking Religion, Culture, Law and Sexuality A careful mapping of religions on the continent reveals that 86 percent of its population subscribe to the imported monotheistic Abrahamic religions of Islam and Christianity (Pew Forum 2010; Barrett 2001).2 All Abrahamic faiths believe that God is male, described in their different holy scriptures. They are also messianic in that they anticipate the coming of a God-sent messiah. Islam had penetrated the continent by the twelfth century while serious attempts to introduce Christianity only happened in the eighteenth century (Trimingham 1968). Historically, the process of proselytization subverted, overthrew and demonized African traditional religions (ATR) which formed an integral part of African sexual culture (Mutua 2002). Nevertheless, and despite the concerted effort to undermine its relevance to the African psyche, it is important to note that ATR currently exercises considerable influence on the populations and the tendency is for a significant number of people to practise them concurrently, even if discreetly, with the messianic religions (Izugbara 2011; Pew Forum 2010; Sanneh 1980). Makau Mutua refers to this debilitating phenomenon as being ‘suspended between a dim African past and a distorted, Westernized existence’ (Mutua 2002: 110). This constitutes one of the inherent contradictions (and hypocritical deceptions) of plurality referred to earlier. Although most African traditional religions are also monotheistic (Evans-Pritchard 1956), their Supreme Being is beyond gender—being neither male nor female and they are nonmessianic (Mbiti n.d.). Moreover, ATR is not located in a sacred text and cannot be isolated from people’s holistic and everyday existence. In that sense, ATR can be viewed as ‘religion-plus’, a modus vivendi. It is, as John Mbiti tells us, “lived (not read), it is experienced (not meditated), it is integrated into the life of the people: wherever they are, their religiosity, their religion, is with them” (Mbiti n.d.). In other words, African traditional religions cannot be delinked from culture. For that reason, it is important to emphasize the distinction made in this paper between ‘religion’ and ‘religiosity.’ Religion refers to ‘a system of beliefs, practices, institutions, and relationships that provides the primary source of moral guidance for believers’ (an-Na‘im 2005: 24) (e.g., 2 Out of a total population of 820 million in Africa, approximately 234 million (28%) are Muslims, while 470 million (57%) are Christians (Pew Forum 2010: i), with the remainder professing ATR???. 2 Christianity, Islam, Hinduism & Judaism). On the other hand, religiosity is one’s pious conformity to a religion through practice and conduct (e.g., how often one goes to church/mosque) (McGuire 1997). Both are of significance in understanding the diverse ways in which African peoples translate their sexualities within the contemporary world. While noting the above distinction, it is also important to recall that several philosophers of ATR argue that there is continuity between the Abrahamic religions and ATR, and indeed there are elements of convergence and mutual appropriation in the two forms of religion (Wijsen 2000; Ojo 1988; Sanneh 1980; Kato 1975; Mbiti 1972, 1980). The positive convergence between ATR and notions of Christianity include the belief in a Supreme Being that is responsible for the creation of humans and other living things and communication between the Supreme Being and the spirits on behalf of humans. But perceived negative spiritual entities of ATR have also been actively incorporated into the image of the Christian devil (Meyer 2004; Droz 1997). The commonalities between Islam and ATR culture are seen in the practices of polygyny, male circumcision and bridewealth and their admission to evil forces (Arens 1975). However, a significant rapture between Abrahamic religions and ATR is that while the former often views the female body as the seat of sin, moral corruption and a source of distraction from Godly thoughts (Entwistle 2000: 84; Bakare-Yusuf 2011: 122), ATR celebrates and valorises the female body as a reproductive/sexual icon. The influence of messianic religions on African sexualities (practices, feelings, ideas, fantasies, excitements and aesthetics) has been enormous. Traditional sexual practices that were informed by ATR and indigenous culture have been seriously threatened. This paper will demonstrate that the positive conceptualizations of African sexualities (including the African female body) have largely been negated and overtaken by the state-supported advocacy of the messianic religions. Mutua explains how African traditions were delegitimized by a new socio-political and religious order: Africa—from top to bottom—was remade in the image of Europe complete with Eurocentric modern states. Christianity played a crucial role in this process: weaning Africans from their roots and pacifying them for the new order. Utilizing superior resources, it occupied most political space and practically killed local religious traditions and then closed off society from other persuasions… Islam, which had invaded Africa at an earlier date, was equally insidious and 3 destructive of local religions. Its forceful conversions and wars of conquest together with its prohibition of its repudiation, were violative of the rights of Africans as well… Progress, culture, and humanity were identified entirely in Islamic or Christian terms never with reference to indigenous traditions. (Mutua 2002: 109, 110) Far from suggesting that African cultural norms or ATR were universally egalitarian, I argue that many sexual practices that were acceptable in pre-colonial, pre-Islamic and pre-Christian Africa were encoded with the distinctive tags of ‘deviant,’ ‘illegitimate' and ‘criminal’ through the process of proselytization and acculturation. African sexualities were reduced to an universalized essentialized culture and integrated into the wider ‘enlightened’ culture. Apart from the social and historical contexts that inform African sexualities and its relationship to law, culture and religion, there are also some developments at the international level that have cast their shadow over this phenomenon. During the past fifty years or so in North America and Europe there has emerged a new-fangled school