At the beginning of 2011, 36 states in Africa criminalised sexual orientation, with penalties ranging from fines in Algeria and Kenya, to the death penalty in Sudan and Nigeria. The ‘criminalisation of sexual orientation’ is a blanket term that refers to criminal sanctions imposed on individuals that engage in adult same-sex conduct, which in turn promotes a wider culture of criminalisation that stigmatises, and potentially penalises, members of the Lesbian, Gay, Bisexual, Transsexual and Intersex (LGBTI) community.
The majority of states that criminalise sexual orientation do so under laws that are derived from British Common Law, which criminalise sodomy as a form of assault, whilst other states criminalise sexual orientation to reflect principles of Sharia law. Whilst there are many different social issues that impact and limit LGBTI rights, the continued criminalisation of sexual orientation is most significant because it constricts the political space available for LGBTI activists and advocates to tackle other issues affecting the LGBTI community. It should also be noted that the criminalisation of sexual orientation is entirely incompatible with international human rights law, although different international human rights bodies have found it difficult to practically implement human rights norms in this area.(2)
Over the course of 2011, Ghana, Mozambique and Sao Tome announced that they were decriminalising homosexuality or issued legal clarifications stating that same sex conduct is not criminal in their jurisdiction. In spite of the notional similarity of outcome, these three cases are radically different, and this CAI paper considers whether any of these announcements will actually lead to decriminalisation of sexual orientation.
At Mozambique’s Universal Periodic Review (UPR) hearing at the UN Human Rights Council (UNHRC) in March 2011, Justice Minister Maria Benvinda Levi, clarified the meaning of certain provisions in the penal code.(3) Article 71 of the 2006 Penal Code contains security measures that can be applied to ‘those who surrender to the usual practice of unnatural vices’ but the Minister was clear that this provision did not mean that homosexuality was criminal. She went stated that that homosexuality is not illegal in Mozambique.
Linguistically, ‘nature’ is often used in legislation to connote heterosexuality, and ‘unnatural’ to refer to ‘homosexuality’ or other forms of supposed deviant behaviour. The original draft of the Indian Penal Code, which was a template for other penal codes in Africa, criminalised sexual activity that was ‘against the order of nature.’(4) This was only the case for British colonies and Mozambique was a Portuguese Colony where the legal tradition was distinct. Until 1961, there was a sharp divide between the colonialists and the integrated population (only 2% – the assimilado) to whom the colonial laws applied, on one hand, and the indigenous population (the indigena), to whom colonial laws did not apply, on the other. Even after reforms were passed in 1968, colonial law was of limited applicability to the indigena. After independence in 1975, elements of colonial laws, such as the 1929 Criminal Procedure rules, were kept, but the 1990 redrafted Constitution saw a move away from one party dictatorship and most substantive laws were redrafted.(5) There are no documented reports of any prosecutions under this provision and despite the strong dependence upon Portuguese law for guidance, the civil law and customary law of Mozambique does not apply to common law style precedent.(6)
This is a crucial distinction between Lusophone and common law countries: in common law countries colonial law was applied widely and the legal system was by and large inherited wholesale, whereas in Lusophone countries there was a clearer break from the colonial legal system. There is uncertainty about whether same sex conduct has been formally criminalised since Mozambique became independent.
The Constitution of Mozambique guarantees equality before the law in Article 35 but does not expressly mention sexual orientation. This provision is not however, expressly constructed as a closed list declaration and Article 43 requires that rights in the Constitution be interpreted in harmony with the Universal Declaration of Human Rights. This provision invokes, at least implicitly, the International Covenant on Civil and Political Rights (ICCPR) as an interpretative instrument, meaning that a ‘formal equality’ reading would infer that sexual orientation was protected by Article 35 of the Constitution. There is further support for this reading in the wording of the 2007 Labour Law, which states in Article 4 that employment and labour laws should be interpreted in line with the principle of “non-discrimination on grounds of sexual orientation.”(7)
Reading this, in tandem with the statement from Justice Minister Levi, it is be reasonable to conclude that same-sex conduct in Mozambique is not criminal. Yet the Mozambican Association for the Defence of Sexual Minorities (LAMBDA), whilst welcoming the justice minister’s announcement, said that there needs to be a Supreme Court ruling or declaration from the Constitutional Council on this issue, and continues to advocate for a constitutional amendment that explicitly protects sexual orientation as a right.(8)
The Attorney-General and Minister of Justice of Ghana, Martin A.B.K Amidu, clarified the Ghanain Government’s position on the law about sexual orientation during a press conference on 30 August 2011. He stated that the “law does not follow you” and indicated, by omission, that private consensual same-sex conduct was in fact legal in Ghana.(9) Currently, Section 104 of the 1960 Ghanain Penal Code criminalises ‘unnatural carnal knowledge’, but section 104(2) defines such ‘knowledge’ only as ‘sexual intercourse with a person in an unnatural manner or with an animal.’(10) Section 104 (1)b actually criminalises consensual same-sex sexual conduct between adults, categorising it as a misdemeanour offence which carries a maximum of six months imprisonment, whereas non- consensual sex, covered by Section 104 (1)a, carries a maximum penalty of twenty five years.
The last recorded arrests and prosecutions were in 2003, when four men were each sentenced to terms of two years in prison.(11) Ernest Kofi Abochie, a Law Lecturer at Kwame Nkrumah University, has cast doubt on the possibility of future legal enforcement of this provision, arguing that the absence of any reference to homosexuality in the Criminal Code Amendment Act of the 1992 Constitution means that only the second part of the test, which refers to bestiality, is relevant. The Constitution of Ghana also protects the right to privacy and equality before the law in a manner that is difficult to reconcile with the continued criminalisation on sexual orientation.(12) This position becomes further confused with the statement of the Minister for the Western Region, Paul Evans Aidoo, who called for the law to be enforced more rigorously and encouraged individuals to come forward and “report those they suspect to be homosexual.”(13)
The most plausible legal reading of Attorney General Amidu’s statement is that he has responded to the obvious contradictions in the current law and issued a declaration not to prosecute sexual orientation cases, which, whilst weakening the impact of the law, is not the legal equivalent of decriminalisation. The European Court of Human Rights previously argued against the Government of Cyprus that a policy of non-enforcement still constitutes a human rights violation if the original law criminalising sexual orientation is still on the statute books.(14) In Ghana, unlike Mozambique and São Tomé, the legislative language of criminalisation is unambiguous and the law is in active operation as evidenced by the 2003 convictions, making the statement of the Attorney-General insufficient to fully achieve decriminalisation. The Chair of Ghana’s human rights commission, Lauretta Lamptey, also implicitly endorsed this reading when she stated that Ghanaian society “wasn’t ready” to give “homosexuals, lesbians, that whole category of people” rights, but indicated that there were problems with the current law.(15) In order to achieve full decriminalisation in Ghana, a strike out or a repeal of section 104(1) b of the Criminal Code is necessary.
São Tomé and Príncipe announced on the 31 January 2011 that they were going to introduce a new criminal code without any provisions relating to the criminalisation of same sex conduct.(16) Unlike Mozambique, São Tomé’s criminal code was imported wholesale from Portugal and upon independence in 1975, the 1886 Penal Code was incorporated in the law of São Tomé. The provisions of the Penal Code allowed for persistent offenders to be sent to ‘labour camps,’ though there is no evidence that this has happened in São Tomé.(17)
The announcement in São Tomé was made shortly prior to their UPR hearing and their delegate to the UNHRC stated that the current law was out of time and drawn up in time when the “situation was entirely different.”(18) The delegate stated that, given the status of rights under the 1990 Constitution of São Tomé, it was unlikely that the provision could be used to bring a conviction. At their UPR hearing on 16 March 2011, when São Tomé’s human rights record was scrutinised, the Norwegian delegate to the UNHRC and others commended São Tomé’s support of the 2008 General Assembly Statement on Human Rights, Sexual Orientation and Gender Identity.(19) The Spanish delegate present offered support to the government in their steps to decriminalise same sex conduct. Following this, a revised criminal code is in the process of being adopted. The process in São Tomé can be described as a full decriminalisation, in that the relevant law is being removed from the statute books. Whilst social issues regarding the status of LGBTI individuals remain, decriminalisation brings the criminal code in line with international human rights law.
As these three examples make clear, decriminalisation is very difficult to define and to an extent depends on subjective factors that apply in individual countries and legal systems. Some basic features, or benchmarks, can however be used to determine whether a country has actually decriminalised sexual orientation. First, there must be a clear constitutional procedure making it impossible for a civil or criminal penalty to be attached to adult sexual orientation. This can either be done by a strike out or a read down of the legislation, as was the case in India and Fiji,(20) or through a process of constitutional reform or parliamentary vote, as in Rwanda and South Africa.
Second, measures need to be in place, either through anti-discrimination legislation or other primary legislation, to ensure that law enforcement agencies do not harass or arrest members of the LGBTI community and to ensure that they provide adequate protection for the LGBTI community from other forms of societal harassment. This is the next step for both Mozambique and São Tomé. In Mozambique, LAMBDA is actively involved in campaigning for better protection for the LGBTI community. Finally, the legal culture of the country in question must be taken into question. The more entrenched the law that criminalises same sex conduct is, the greater the repeal mechanism will need to be. Given the wildly divergent legal systems and traditions in African countries, it is important not to adopt a ‘one size fits all’ template for decriminalisation.
(2) In Toonen v Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992, on 31 March 1994, it was held that criminalisation of sexual orientation was incompatible with the International Covenant on Civil and Political Rights but it wasn’t until 2011 that the UN High Commissioner on Human Rights was able to issue a declaration on the interconnectedness of LGBTI rights and Human Rights. See UNHRC ‘Human rights, sexual orientation and gender identity’, 15 June 2011, A/HRC/17/L.9/Rev.1.
(3) ‘Mozambique: Praise for recognition that gay sex not illegal’, Agencia de Informacao de Mocambique, 1 March 2011, http://allafrica.com.
(4) Gupta, A. 2008. This alien legacy: The origins of “sodomy” laws in British colonialism. Human Rights Watch: New York.
(5) ‘Mozambique: Justice sector and the rule of law’, Open Society Initiative for Southern Africa, 2006, http://www.afrimap.org.
(6) Paul Fauvet, ‘Mozambique: The nation, gays and UN human rights bodies (analysis)’, The Norwegian Council for Africa, 3 February 2011, http://www.afrika.no.
(7) Labour Law No. 23/2007 of 1 August 2007, http://www.ilo.org.
(8) ‘Mozambique gay rights group wants explicit constitutional protections’, Care2MakeaDiffferece News, 2 March 2011, http://www.care2.com.
(9) ‘Homosexuality is not illegal – Attorney-General’, Ghana News Now, 30 August 2011, http://www.ghananewsnow.com.
(10) Criminal Code, 1960 (Act 29).
(11) ‘Concern over arrests in Ghana’, Gmax, 19 September 2003, http://www.gmax.co.za.
(12) Constitution of the Republic of Ghana, 1992, Articles 12(2), 17 and 18, http://www.kituochakatiba.org.
(13) ‘Paul Evans Aidoo’s Ghana gay spy call ‘promotes hatred’’, BBC News Africa, 22 July 2011, http://www.bbc.co.uk.
(14) Modinos v. Cyprus, 7/1992/352/426, Council of Europe: European Court of Human Rights, 23 March 1993, http://www.unhcr.org.
(15) Human Rights Monitor, ‘Ghana rights says she will not fight for the rights of homosexuals’, Behind the Mask, 15 August 2011, http://www.mask.org.za.
(16) ‘São Tomé and Príncipe set to decriminalise homosexuality’, African Activist, 14 February 2011, http://www.africanactivist.org.
(17) ‘State-sponsored homophobia: A world survey of laws prohibiting same sex activity between consenting adults’, The International Lesbian, Gay, Bisexual, Trans and Intersex Association, www.ilga.org.
(18) ‘African country to legalise homosexuality’, Mamba Online, 24 February 2011, http://www.iamgay.co.za.
(19) Human Rights Council, ‘Report of the working group on the universal periodic review’, UN General Assembly A/HRC/17/13, 16 March 2011.
(20) McCoskar v The State, FJHC 500; HAA0085 & 86.2005 (26 August 2005) & Naz Foundation v. Government of NCT of Delhi and Others WP(C) No.7455/2001, 2 July 2009.
by Frederick Cowell – CAI