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Making Love a Crime

    June 28, 2013

    Criminalization of consensual same-sex behaviour in sub-Saharan Africa

    This report provides an analysis of the legal environment and wider context of human rights violations against lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in subSaharan Africa. Recent years have seen increasing reports of people being harassed, marginalized, discriminated against and attacked because of their real or perceived sexual orientation or gender identity. This is occurring in countries whose legal systems still condone the criminalization of consensual same-sex behaviour, and in countries where the police and justice systems are failing to prevent these crimes from happening.

    The continued criminalization of consensual same-sex conduct in 38 African countries is a serious cause for concern. The existence and implementation of these laws violates a raft of international and regional human rights norms, and serves to marginalize one group of Africans based on their sexual orientation and gender identity alone. The last decade has witnessed efforts in some sub-Saharan African countries to further criminalize LGBTI individuals by ostensibly targeting their behaviour, or to impose steeper penalties and broaden the scope of existing laws. Uganda has seen repeated attempts since 2009 to introduce the Anti-Homosexuality Bill – a bill which would seek to impose the death penalty for ‘aggravated’ homosexuality, and which would criminalize anyone in Uganda who does not report violations of the bill’s wide-ranging provisions within 24 hours to authorities. South Sudan, on becoming independent in 2008, criminalized consensual same-sex conduct for women and men with up to 10 years’ imprisonment. Burundi criminalized same-sex conduct for men and women in 2009 by revising the criminal code to outlaw ‘sexual relations with someone of the same sex’. In 2011 and 2012, Nigeria and Liberia respectively introduced bills to toughen penalties for same-sex conduct. And Mauritania, northern regions of Nigeria, the southern region of Somalia and Sudan, retain the death penalty for the same.

    Laws criminalizing consensual same-sex conduct affect LGBTI Africans on a daily basis. In some countries, like Cameroon, individuals are regularly arrested after having been denounced to authorities as being gay or lesbian. Individuals are usually arrested, charged and sentenced without evidence of same-sex conduct, and sometimes invasive medical examinations are performed in an attempt to obtain ‘evidence’ of such. Even in countries where anti-homosexuality laws are not routinely implemented, the existence of the laws alone provide opportunities for abuse, including blackmail and extortion, both by police and by non-state actors. Furthermore, the existence of laws that criminalize one group of people based on who they are and who they (are presumed to) have consensual sex with, sends a message to the broader population that discrimination on the basis of sexual orientation and gender identity is acceptable, and that human rights do not apply to LGBTI people. This creates an environment in which harassment, intimidation and violence against LGBTI people can flourish, and people can perpetrate such acts with impunity.

    The continued existence of punitive laws and policies targeting people on the basis of sexual orientation and gender identity is not the only human rights issue facing LGBTI individuals in sub-Saharan Africa. High levels of sexual and other violence targeting people because of their sexual orientation and gender identity are endemic in some areas. In South Africa for example, Amnesty International has documented 7 rapes and murders of LGBTI people since June 2012. The actual numbers are likely much higher, according to reports from various NGOs in the country. In the case of South Africa, it is the absence of an adequate police and government response to the proliferation of such crimes that is cause for ongoing concern, and a source of human rights violation in that the state is failing in its duty to protect one part of its population from violence.

    Hope for change

    However, there is reason to be optimistic. Many NGOs and grassroots LGBTI and community-based organizations throughout sub-Saharan Africa continue to push for the broader recognition and protection of the human rights of LGBTI individuals. This work goes on despite the great risks faced by human rights defenders working in this area. No doubt these individuals and organizations have contributed to the several positive developments that the last decade has seen in the fight for rights based on sexual orientation and gender identity.

    In 2004, Cape Verde eliminated offences related to same-sex activity. In 2009, Mauritius committed to decriminalize homosexuality, and in 2011, Sao Tome and Principe, along with the Seychelles, committed to doing the same. The new Kenyan constitution came into force in August 2010, heralding positive developments for LGBTI rights in a number of important ways. Furthermore, a number of African countries have introduced legislation to explicitly outlaw discrimination on the basis of sexual orientation, or removed discriminatory provisions of existing employment legislation: the Seychelles in 2006, Mozambique in 2007, Cape Verde and Mauritius in 2008, and Botswana in 2010. South Africa has also seen a number of positive legal developments over the past decade, including allowing joint adoption by same-sex couples in 2002, introducing a law on legal gender recognition in 2004, and providing for same-sex marriage in 2006.

    These positive developments need to be built upon, particularly at local and regional levels. Regionally, there are growing efforts amongst civil society to persuade the African Commission on Human and People’s Rights to recognize sexual orientation and gender identity as grounds of discrimination in their work. Internationally, South Africa has taken a leadership role in calling for an inclusive human rights agenda at the UN. Slowly, more African governments are supporting South Africa in this work.

    Amnesty International, in this report, recommends that: that States repeal all laws that criminalize or otherwise impose punitive sanctions on consensual same-sex sexual conduct, along with all discriminatory laws and policies that adversely affect or target LGBTI people; that allegations of human rights violations based on sexual orientation or gender identity are promptly and impartially investigated by competent authorities and perpetrators held accountable and brought to justice; and that States introduce ongoing training for health professionals and legal professionals, as well as the police, media and education workers, on diversity and the human rights of all as including the rights of LGBTI persons. It also calls on the African Commission on Human and Peoples’ Rights to fulfil its mandate to protect the human rights of all Africans, including those of LGBTI people.