By Denis Nzioka
When India’s Supreme Court – in a surprising ruling – upheld a 150 year old ban on same sex acts among consensual adults, the world reacted with shock at how, in just under four years – it was in 2009 that the High Court decriminalized consensual same sex acts – the law can change easily against homosexual persons.
Unfortunately, as the world – and by large, the global LGBTI, and to some extent, the sex work community – focused on the ruling, there is a worrying trend in the African continent as countries formulate new laws or amplify existing ones to further criminalize same sex persons.
In five countries around the world, same sex sexual conduct carries the death penalty while across the Commonwealth – with most African countries being members – penalties for homosexuality include jail sentences, flogging or death. According to the Human Dignity Trust (HDT), half a dozen Commonwealth countries specify life imprisonment.
38 African countries criminalize homosexuality . This criminalization stems from imported British laws in place in the late nineteenth century that, at that time, outlawed homosexual acts. Despite a 1967 Sexual Offences Act in England and Wales that repealed its own legislation and until the 1980s before Scotland and Northern Ireland did the same, these laws originally imposed during colonial times remain largely in place in these African, even in a post-independence era.
Of these 38, 10 have taken the extraordinary step of targeting LGBTI persons by strengthening existing sexual offences laws, or formulating ‘moral’ Bills that outlaw all forms non-heterosexual conduct or create anti-homosexuality specific laws. Here are some of them.
DEMOCRATIC REPUBLIC OF CONGO (DRC)
The DRC has joined the league of African nations proposing for ‘preserve African cultural values’ by outlawing non-heterosexual practices from pornography to zoophilia to homosexuality. Recently, the National Assembly Member Steve Mbikayi, sponsored a Bill in Parliament which, he insists is meant to avoid “moral depravity” and protect the Congolese youth from “western morals.” The bill is necessary in order to “preserve African values,” which, he insists, “have never tolerated romantic relationships between persons of the same sex.” The bill ‘complements’ a 2010 proposed legislation, Sexual Practices Against Nature Bill, that was presented before Parliament aiming to criminalise homosexuality and zoophilia as sexual practices ‘against nature.’ Section 2 of the proposed Bill singles out zoophilia (sex with animals) and homosexuality as sexual practices against nature. It also criminalises any activities that directly or indirectly aim to promoting the rights LGBTI persons, therefore, in accordance with section 174h3 of the Bill, “all publications, posters, pamphlets, (or) films highlighting or likely to arouse or encourage sexual practices against nature are forbidden within the territory of the DRC (Section 174h3)” and “all associations that promote or defend sexual relations against nature are forbidden within the territory of the DRC.”
In May 2013, Nigeria’s House of Representatives passed a Law that further criminalised homosexuality by punishing those who try to enter same-sex marriages with a possible 14 years prison term. The bill, Prohibition of Same Sex Act, which passed through the Senate – Nigeria’s highest chamber – in December 2011 also punishes those “witnessing” or “abetting” same sex relationships with custodial sentences of at least eight years, and groups that advocate for LGBT rights were also penalised by the new bill. The bill – which was awaiting President Jonathan’s Goodluck signature to make it into law – re-emerged this December when reports said the Nigerian Senate ‘unanimously’ passed a harmonised Conference Committee report banning same sex marriage in Nigeria. It is also reported pressure is mounting on Goodluck to sign the Bill with Senate President, David Mark calling on him to sign the Bill into law. “We have been under series of attack from different quarters. I think we believe in this Bill. The earlier we sign it into law, the better. We (Nigeria) have many shortcomings, we don’t one to add this one (same sex marriage) to it,” Mark is reported to have said.
Since 1995, the Zimbabwe government has carried out campaigns against both homosexual men and women. However, in 2006, the Government – under President Robert Mugabe whose own anti-gay public speeches are described as fiery and explicit (at one point, he called for the beheading of gays) – passed laws that criminalize any actions perceived as homosexual. It is now a criminal offense for two people of the same sex to hold hands, hug, or kiss. The “sexual deviancy” law is one of 15 additions to Zimbabwe’s Criminal Code. The sections involving gays and lesbians are part of an overhaul of the country’s sodomy laws. Before then, laws against sodomy were limited to sexual activity, and the revised law now states that sodomy is any “act involving contact between two males that would be regarded by a reasonable person as an indecent act.” In the run-up to the last elections, there was concern from LGBTI activists that following the re-election of Mugabe, who pledged during campaign rallies to impose tighter anti-gay legislation and called for gays to be jailed or beheaded, things might turn worse. Mugabe in his campaigns had been promising tougher measures against LGBTI people, including long prison sentences, and at one point called for beheading gays.
In November 2013, the Botswana Government was harshly criticized by human rights, sex workers rights and LGBTI groups after a new national policy draft HIV “Strategies to Address Key Populations” was said to provide for the police and immigration authorities to “arrest” local MSM and sex workers and “deport and evoke permits” of foreigners – with the authorities “even availing themselves over weekends” to enforce the crackdown. The policy was an HIV survey of MSM, female sex workers (FSW), and people who inject drugs (PWID) in the country and these provisions were part of the recommendations of the policy. Despite the Botswana Government refuting this, Botswana Network on Ethics, Law and HIV/AIDS (BONELA), said the government did the ‘totally unexpected and deviated from the study findings by taking punitive, discriminatory, homophobic and xenophobic measures.’ However, the most surprising thing is that the Employment Act of Botswana has prohibited employment discrimination on the basis of sexual orientation since 2010 even though same-sex sexual acts remain illegal.
In November 2012, it was reported that President Joyce Banda had suspended all laws that criminalized homosexuality. This was after Malawi’s justice minister said the government would review anti-gay legislation “in view of the sentiments from the general public and in response to public opinion regarding certain laws.” Surprising, the government later denied issuing the statement thus the laws that criminalise same sex acts remain in place.
Lawmakers in Liberia introduced two bills in 2012 that would strengthen existing anti-gay provisions in the criminal code. One of the bill, prohibiting and criminalizing same-sex marriages, was unanimously passed in the Senate but has yet to be taken up by the House of Representatives. Another bill in the House of Representatives is much broader, and includes a provision banning the “promotion” of gay sex. The bill has yet to be voted on.
Often said to be the only country in the world that ‘actively’ persecutes homosexual people, Cameroon occupies a unique place as the only country that has arrested more real or perceived gay persons than any other African nation. In addition to sustained media outings – of as many people as 50 – the justice system has jailed persons suspected of same sex acts. Further, a national association has now decided to mark the 21 of August as a national anti-gay, promising a homophobic parade through the streets of the capital in a bid to push for enactment of stricter anti-gay laws. Several human rights and LGBT groups criticized plans by Cameroon to increase the penalties for consensual same-sex sexual acts under the law to 15 years’ imprisonment and a fine of 2 million francs CFA (£2660 GBP or $ 4104 USD).
Gambia’s President Yahya Jammeh said in 2008 that laws “stricter than those in Iran” against homosexuals would soon be introduced and vowed to “cut off the head” of any homosexual caught in the country. He further gave homosexuals 24 hours to leave the country. “Those who promote homosexuality want to put an end to human existence,” he told a gathering of world leaders. “It is becoming an epidemic and we Muslims and Africans will fight to end this behavior.” Jammeh even went further and ordered the director of the Gambia Immigration Department to “weed bad elements in society.” He further advised army chiefs to monitor the activities of their men and deal with soldiers practicing lesbianism in the military.
Uganda’s Anti Homosexuality Bill was a private member’s bill by MP David Bahati in 2009 causing worldwide condemnation. Provision of the bill include the death penalty for same sex acts in certain circumstances. People who are caught or suspected of homosexual activity would be forced to undergo HIV tests; Ugandans who engage in same-sex sexual relations outside Uganda will likewise fall under the jurisdiction of this law, and may be extradited and charged with a felony. It also provided anyone who is aware of a person who is gay to report them within 24 hours lest they face imprisonment. After much international pressure, the Bill was shelved and is awaiting a committee report that some optimists say may have ‘watered it down.’ It has been reported that the members of the Ugandan Parliament are looking to hold debate behind closed doors due to what one legislator said was the ‘sensitive nature of the bill.’
*Denis Nzioka is a LGBTI rights activist based in Nairobi, Kenya
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