Same-Sex Marriage and the Development of the T.A.P.P. Theory

The incrementalist theory toward the legalisation of same-sex marriage, as theorised by Kees Waaldijk, typically moves from the decriminalisation of homosexuality to anti-discrimination laws and finally to legal recognition of same-sex unions, with the Netherlands being the first to introduce marriage equality in 2001. This step-by-step model, while reflecting the path of many European nations, has been criticised for its generalised approach which does not account for the legal, political, religious, and cultural nuances that are specific to non-European countries, such as in sub-Saharan Africa. The diverse norms and beliefs in this region challenge the linear European sequence. This chapter first introduces the T.A.P.P. theory, a theoretical framework designed to accommodate these nuances. This new framework serves as a mechanism to identify the specific alternative factors that must be present for marriage equality to be achieved or, at the very least, progress towards attainment of that goal: Transformative Constitutionalism; Activism; Political Will; and Public Support. The second part of this chapter will set the stage for exploring this theory’s applicability in four selected sub-Saharan African jurisdictions: Botswana, Kenya, Nigeria, and South Africa. A more detailed examination of each jurisdiction will be provided in the subsequent chapters.