SPEAKING OUT The rights of LGBTI citizens from across the Commonwealth - OutRight Action International
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SPEAKING OUT The rights of LGBTI citizens from across the Commonwealth
1
TABLE OF CONTENTS
FOREWORD by Sir Shridath Ramphal ....................................................... 3
INTRODUCTION by Dr Purna Sen ............................................................. 5
RECOMMENDATIONS .............................................................................. 7
SPEAKING OUT ......................................................................................... 8
The rights of LGBTI citizens from across the Commonwealth..................... 9
A Commonwealth of Values?........................................................................ 10
International Law........................................................................................... 11
Criminalisation and the Commonwealth ...................................................... 12
COMMONWEALTH OVERVIEW
AFRICA........................................................................................................ 16
Botswana ...................................................................................................... 16
Cameroon..................................................................................................... 17
The Gambia .................................................................................................. 18
Ghana ........................................................................................................... 19
Kenya............................................................................................................ 20
Lesotho ......................................................................................................... 22
Malawi........................................................................................................... 23
Mauritius ....................................................................................................... 24
Mozambique................................................................................................. 24
Namibia ........................................................................................................ 25
Nigeria .......................................................................................................... 26
Rwanda......................................................................................................... 27
Seychelles..................................................................................................... 27
Sierra Leone ................................................................................................. 28
South Africa .................................................................................................. 29
Swaziland...................................................................................................... 30
Tanzania........................................................................................................ 31
Uganda ......................................................................................................... 32
Zambia.......................................................................................................... 33
THE AMERICAS ......................................................................................... 34
Antigua and Barbuda ................................................................................... 34
Bahamas ...................................................................................................... 35
Barbados ...................................................................................................... 36
Belize ............................................................................................................ 38
Canada ......................................................................................................... 39
Dominica....................................................................................................... 40
Grenada........................................................................................................ 41
Guyana ......................................................................................................... 422
Jamaica ........................................................................................................ 43
St Kitts & Nevis ............................................................................................. 44
St Lucia ......................................................................................................... 45
St. Vincent and the Grenadines.................................................................... 46
Trinidad and Tobago ..................................................................................... 47
ASIA ............................................................................................................. 48
Bangladesh .................................................................................................. 48
Brunei Darussalam ....................................................................................... 49
India .............................................................................................................. 50
Malaysia........................................................................................................ 51
Maldives........................................................................................................ 52
Pakistan ........................................................................................................ 53
Singapore ..................................................................................................... 54
Sri Lanka ....................................................................................................... 55
EUROPE ...................................................................................................... 56
Cyprus .......................................................................................................... 56
Malta ............................................................................................................. 57
United Kingdom............................................................................................ 58
PACIFIC ....................................................................................................... 59
Australia ........................................................................................................ 59
Fiji ................................................................................................................. 60
Kiribati........................................................................................................... 61
Nauru ............................................................................................................ 61
New Zealand................................................................................................. 62
Papua New Guinea....................................................................................... 63
Samoa .......................................................................................................... 64
Solomon Islands........................................................................................... 65
Tonga ............................................................................................................ 66
Tuvalu............................................................................................................ 67
Vanuatu......................................................................................................... 67
ACKNOWLEDGEMENTS........................................................................... 69
ENDNOTES ................................................................................................. 703
FOREWORD by Sir Shridath Ramphal
Sir Shridath Ramphal served as the Not so long ago, a noble spirit of our time, with whom I had worked and
Commonwealth Secretary-General prevailed in another cause, Archbishop Desmond Tutu, said in a United
from 1975-1990. Nations context:
‘All over the world, lesbian, gay, bisexual and transgender people are
persecuted. They face violence, torture and criminal sanctions because of how
they live and who they love. We make them doubt that they too are children of
God – and this must be nearly the ultimate blasphemy.’
‘All over the world, lesbian,
gay, bisexual and transgender ‘We make them doubt that they too are children of God’! In his inimical fashion,
people are persecuted. They Desmond Tutu captured the essence of the wrong we perpetrate upon these
face violence, torture and persecuted people. How akin were his sentiments to those that the Anti
criminal sanctions because of Slavery Movement turned into their slogan in the 19th century when they cried
how they live and who they out in the name of every slave ‘am I not a man, and a brother’!
love. We make them
doubt that they too are The abolitionists were pilloried, but they prevailed. The abomination was not
children of God – and this their campaign, as the plantation owners complained, but the evil of slavery
must be nearly the ultimate itself. The slaves too, every man, woman and child bound in chains, were also
blasphemy.’
‘children of God’. The blasphemy was in the system.
Archbishop Desmond Tutu
And was it any different in that cause in which I worked with Archbishop Tutu –
the struggle against apartheid. Were not its victims too – almost a whole nation
– also, all children of God? Human history is replete with these blasphemies.
When the Lord Bishop of Leicester spoke in the House of Lords, in the debate
on the ‘Treatment of Homosexual Men and Women in the Developing World’,
he mentioned something which touched a special chord within me when he
likened that present treatment to the burning of witches. In my own ancestry, is
a line through my mother’s side of the family which goes back to a settler in
Barbados who sought his fortunes in Guyana. His name was Nurse, and he
was one of the Nurses who we believe came to Barbados from the new
England Colonies as descendants of Rebecca Nurse fleeing the abominations
of the witch hunts of Massachusetts, and of Salem in particular. Rebecca was
hanged – though later pardoned for the innocence of being herself. The hand
of evil reaches out beyond our imaginings – and over generations.
Let me add one thing more:
It is a reminder that for most of the countries of the Commonwealth, the
desecration of our fellow citizens began in the law. The unreformed law of
England was transported through criminal codes by imperial masters to far
flung outposts of empire. Starting with the imposition of Macaulay’s Indian
Penal Code - criminalising same-sex relations was to spread throughout
the empire to the point where today 41 of 53 Commonwealth countries have
virtually the same legislation enacted almost as a matter of course by colonial
administrators – not by the societies they governed. By the time reform came to
Britain in 1967 under the influence of the Wolfenden Report, these jurisdictions4
FOREWORD by Sir Shridath Ramphal
were free of British control, and the attitudes that had followed the law
remained with the law unreformed. That law is still on our statute books – a
relic of empire that has no place in a modern Commonwealth. As with the
abolition of slavery, the decriminalisation of homosexuality in our time must be
an act of law.
The wisdom of Sir John Wolfenden which he urged on Britain in 1957 is of
universal application. I remind you of it:
‘Unless a deliberate attempt is
‘Unless a deliberate attempt is made by society, acting through the agency of
made by society, acting
through the agency of the law,
the law, to equate the sphere of crime with that of sin, there must remain a
to equate the sphere of crime
realm of private morality and immorality which is, in brief and crude terms, not
with that of sin, there must
the law’s business.’ remain a realm of private
morality and immorality which
That wisdom must now inspire us in the countries of the Commonwealth to rid is, in brief and crude terms,
ourselves of this archaic legal inheritance. We are here to call for that not the law’s business.’
decriminalising act of law, and by it an end to the wrong we do to our brothers Sir John Wolfenden
and sisters - who are, like us, all members of what Dr Rowan Williams, the
former Archbishop of Canterbury, called ‘the commonwealth of God’.
Sir Shridath Ramphal5
INTRODUCTION by Dr Purna Sen
Dr Purna Sen is the former head of This report, which has been written and compiled by lesbian, gay, bisexual,
human rights at the Commonwealth trans and intersex people from all corners of the Commonwealth, is a vivid
Secretariat and Chair of the testament to why that organisation, which claims in its Charter to be
Kaleidoscope Trust. ‘implacably opposed to all forms of discrimination’, continues to let down
www.kaleidoscopetrust.com millions of its own people.
Of the 53 member nations of the Commonwealth, 41 continue to criminalise
consensual same-sex activities between adults. Over half the countries in the
‘Of the 53 member nations of world that criminalise homosexuality are in the Commonwealth. Across the
the Commonwealth, 41 Commonwealth lesbian, gay, bisexual, trans and intersex (LGBTI) people are
continue to criminalise
denied equal access to rights, education, employment, housing and
consensual same-sex
healthcare.
activities between adults.
Over half the countries in the
world that criminalise Once again we see Commonwealth leaders gathering at the Heads of
homosexuality are in the Government meeting (CHOGM), pushing aside the urgent need to protect
Commonwealth.’ every citizen under the law. Once again the human rights of LGBTI people are
the elephant in the room.
Most Commonwealth governments refuse to engage with their own LGBTI
communities. Some try to pretend that they don’t even exist. But the voices in
this report reflect demands that are not going to go away just because
Presidents and Prime Ministers try to close their ears to them. The people
whose testimonies are contained here refuse to be silenced. Sooner rather
than later the Commonwealth is going to have to tackle the justice deficit that
leaves some of its citizens without the rights to which all are entitled.
The Commonwealth Secretary General, Kamalesh Sharma, has spoken out
with courage. He told the UN Human Rights Council:
‘With regard to sexual orientation and gender identity our position remains that,
based on shared Commonwealth principles, we oppose discrimination or
stigmatisation on any ground . . . we continue to encourage constructive
national debate in legislatures, and the examination of legal remedies, and to
work with national human rights institutions.’1
And yet the new Commonwealth Charter, formally adopted in March 2013,
states that: “We are implacably opposed to all forms of discrimination, whether
rooted in gender, race, colour, creed, political belief or other grounds.” By
refusing explicitly to reject discrimination against LGBTI people it let them down
once again.
The wording is almost identical to that in the 2009 Trinidad and Tobago
Affirmation of Values. Despite the Secretary General’s encouraging words, in
four years the organisation has made little or no real progress on the issue. In
four years time will we be forced to reach the same conclusion?6
INTRODUCTION by Purna Sen
This cannot go on. Rightly lesbian, gay, bisexual, trans and intersex people are
demanding that they be recognised and that their rights – which are exactly the
same rights to which every other Commonwealth citizen is or should be
afforded – are protected under the law. The immediate demands outlined
below are simple and speak for themselves. By themselves they would not
deliver the equality to which LGBTI people are entitled, but they would show
that the Commonwealth is sincere when it claims to be an organization that
believes in universal human rights applicable to all persons throughout the
Commonwealth in accordance with the principles of international law.
This report owes an immense debt to those across the Commonwealth who
continue to raise their voices against oppression. Although not claiming to be a
complete account of all the many social, legal and economic challenges facing
LGBTI people in the Commonwealth, this report illustrates some of those
challenges. Most importantly however, it provides a platform for the voices of
LGBTI people from around the Commonwealth – voices that too often go
unheeded by Commonwealth governments and the institutions of the
Commonwealth itself.
There seems little doubt that the Sri Lanka CHOGM of 2013 will once again fail
to address the legitimate demand for equal rights and dignity for all. By doing
so it will call into question the Commonwealth’s credibility and relevance. The
people whose voices are contained in this report may be ignored but they
won’t go away. Governments must heed them, must meet with them and must
embrace them as full and equal members of society. Anything less will render
the fine sounding words opposing ‘all forms of discrimination’ meaningless and
condemn the Commonwealth as impotent in the face of injustice.
PURNA SEN7
RECOMMENDATIONS
This report calls on all Commonwealth governments in countries
which continue to criminalise same-sex sexual activity to repeal
this legislation in accordance with:
• The Universal Declaration on Human Rights and other
international instruments including the International
Covenant of Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights.
• Article II of the Commonwealth Charter.
• Recommendations of the Eminent Persons Group adopted
by the Foreign Ministers of all Commonwealth members.
As an immediate step towards meeting the obligations set out
in these and other commitments to equal rights for all citizens
we call on all Commonwealth leaders to:
Engage in meaningful dialogue with their own LGBTI
communities to facilitate an informed debate about the
s means to remove all legal and other impediments to the
enjoyment of their human rights.
Put in place an immediate moratorium on the enforcement
s of existing laws criminalising homosexuality.
Commit to open and free debate across the Commonwealth
s on the decriminalisation of homosexuality.
Support public education initiatives to inform the people of
s the Commonwealth about the case for LGBTI equality.
Support the right of an LGBTI Association to register with the
s Commonwealth alongside all civil society organisations and
be free to express its views and engage in public debate.
Fully include LGBTI people in development and other
s programmes on an equal basis with the rest of society.
Commit to include a discussion on equal rights for LGBTI
s citizens as a substantive agenda item at the next CHOGM.8
SPEAKING OUT “ My sexu
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al th ca re
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see a lot of
and justice. These days I
Many would say that I’m facing a t in Port
Cameroon gay people ou
Alice Nkom, losing battle here in Barbados. But g their
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it is my determination to be seen ha ve
sexuality. They
and treated just as any other
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se lf- esteem.
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“ordinary” member of society ch ange in
That is a huge
which keeps me going.
Port Vila.
I have lost tw Alex D V Hoffman, Barbados Vanuatu
o teeth, had Gillio Baxter,
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car damaged d
by two maske
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had stones I wish more people knew
thrown at me, about intersex so that other I have had
experienced to battle ag
simulated gu people like me felt more belief that ainst a
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and physical lts
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transportatio ic the ‘norma
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speak to, “Cal alled a “ch
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Tony Briffa, Australia stigmatized
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It’s been over view with so ic ed
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members spok m y family n Mataele,
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Anonym
Jamaica
Latoya Nugent,9
The rights of LGBTI citizens from across the Commonwealth
The Commonwealth, which accounts for 30% of the world population, has shown
a stubborn refusal to address the human rights of its lesbian, gay, bisexual,
transgender and intersex (LGBTI) citizens. Of the 78 countries worldwide that still
criminalise consensual and private adult same-sex sexual acts, over a half are
Commonwealth members states. Nearly 80% of the countries making up the
Commonwealth – 41 out of 53 - still maintain such laws and show few signs of
accepting that the organisation’s Charter commitment to opposing ‘all forms of
discrimination’ must include discrimination against lesbian, gay, bisexual,
transgender and intersex (LGBTI) people.*
Across the Commonwealth lesbian, like a woman’ are frequently reported. In
gay, bisexual, transgender and intersex Uganda and Nigeria recent legislative
people continue to be denied their proposals would significantly increase
human rights by the combined forces the penalties for homosexuality.
of ignorance, misunderstanding and
“Of the 78 countries worldwide oppression. Too often this occurs with As the individual country reports
that still criminalise consensual the collusion of the very states that which follow acknowledge, these
and private adult same-sex should be protecting their rights as laws are not always enforced. But
sexual acts, over a half are citizens. Across the Commonwealth even where they are not, they leave
Commonwealth members LGBTI people face criminalisation and LGBTI people open to blackmail and
states. Nearly 80% of the social discrimination. They face stigmatise them as, at best, second-
countries making up the violence. They face eviction from their class citizens.
Commonwealth – 41 out of 53 – homes, dismissal from their jobs and
still maintain such laws.” 8 estrangement from their families. Yet, as the quotations opposite
illustrate, brave individuals from across
The penalties for private, consensual the Commonwealth continue to raise
sexual conduct between same sex their voices in defiance. They refuse to
adults can be harsh. They include 10 be seen as helpless victims of
years imprisonment and hard labour in injustice. Instead they continue to fight
Jamaica, 14 years in Kenya, 20 years and to struggle, alone and together, to
plus flogging in Malaysia, and 25 years overcome these egregious – and often
in Trinidad and Tobago. Bangladesh, shocking – violations of their rights.
Barbados, Guyana, Pakistan, Sierra Across the Commonwealth LGBTI
Leone, Tanzania and Uganda have a people are organising and resisting
maximum sentence of life laws and attitudes that discriminate
imprisonment, while in the 12 northern against them. They are changing
states of Nigeria the maximum penalty hearts and minds in their families and
for male homosexuality is death.2 In in their communities. But, within the
some countries, for example institutions and governments of the
Cameroon, arrests and imprisonment Commonwealth, are their voices being
for acts that indicate homosexuality heard?
such as amorous texts or ‘appearing
* Categorising and naming difference that runs along the spectrum of sexual orientation and gender identity remains a challenge to activists, policymakers
and politicians alike. This report uses the term LGBTI (lesbian, gay, bisexual, trans and intersex). There are, however, distinctions between the issues
faced by LGBTI people and this report hopes not to subsume this specificity of struggle under the rubric of LGBTI. Within the Commonwealth there are
any number of identities and practices that are not included in - or directly translatable - to LGBTI identities, despite sharing similar struggles. This report
does not use LGBTI as an equivalent for these diverse identities and wherever possible is cognisant of local configurations of sexual orientation and
gender identity, such as hijra, leiti, Takataapui and fa’afafine identities and practices.10
The aim of this report is two-fold. include a commitment to fundamental explicitly mention human rights.”4
Firstly it attempts to provide a human rights, including equal rights These values were re-iterated, and
platform for some of these unheard and opportunities. The recent indeed extended upon, in the 1991
voices. Compiled by contributors from Commonwealth Charter yet again Harare Commonwealth Declaration.
across the Commonwealth, this report states the commitment to human rights, With the Harare Declaration the
exposes some of the struggles faced tolerance and freedom of expression Commonwealth Heads of
by LGBTI people in their fight for and opposition to discrimination on any Government affirmed their
respect, equality and dignity and grounds. The demands of LGBTI commitment to “fundamental human
identifies some of the many barriers people in the Commonwealth are not rights, including equal rights and
they face in accessing the full benefits for an extension of these core opportunities for all citizens
of citizenship. Wherever possible Commonwealth ideals and values, but regardless of race.”5 This was the first
‘Speaking Out’ has been written by to be included in what the explicit endorsement of human rights
and with those at the forefront of the Commonwealth itself says it believes in. by the Commonwealth. The
battle for equal rights. Rightly it is their Commonwealth’s commitment to
voices that are to the fore. The advancement of equality for equal rights has been developing and
LGBTI people could become a deepening for the past 40 years.
The second aim is perhaps bolder. significant contemporary achievement However across that time there has
‘Speaking Out’ argues that it is for the Commonwealth, one that been no explicit mention of the rights
imperative that the leaders, would rank alongside its opposition to of LGBTI people.
governments and institutions of the apartheid and the role it played in
Commonwealth listen to the voices of supporting the struggle in South Arising out of CHOGM 2009, a
their own LGBTI citizens and respond Africa. And indeed, the institutions of Commonwealth Eminent Persons
to their concerns. This is not a the Commonwealth may be Group (EPG) consisting of 10 leading
demand that is coming from outside particularly well-suited to advance ‘an figures from around the Commonwealth
of the Commonwealth – although in equality for all’ agenda. The voluntary chaired by former Malaysian Prime
this regard international law is nature of the association and its Minister, Tun Abdullah Badawi, was
increasingly clear. Nor, as is sense of family can make it a forum commissioned to examine key areas of
sometimes claimed, is it a demand where serious disagreement about reform for the Commonwealth.6 The
that comes only from those members values and outlook is debated. And if EPG unanimously recommended in its
that are situated in the global North – conducted with respect for its Report published in 2011 that steps be
where despite recent advances members’ history and experience, a initiated to repeal laws criminalising
LGBTI people still face struggles better understanding can be homosexuality, noting:
against discrimination and achieved, with the greater tolerance
stigmatisation.† It is a demand that is that should flow in its wake. We have … received submissions
being made from every corner of the concerning criminal laws in many
Commonwealth, from LGBTI citizens A Commonwealth of Values? Commonwealth countries that penalise
and human rights defenders in every The key ideals and values of the adult consensual private sexual
region and on every continent. Commonwealth were first articulated conduct including between people of
in 1971 in the Singapore Declaration the same sex. These laws are a
Throughout its recent history, the of Commonwealth Principles, arising particular historical feature of British
Commonwealth has repeatedly from that year’s CHOGM. The colonial rule. They have remained
committed itself to the values of Declaration stated a commitment to unchanged in many developing
equality, liberty and human dignity. “liberty of the individual [and] equal countries of the Commonwealth
These values were at the heart of the rights for all citizens regardless of despite evidence that other
1971 Singapore Declaration. They were race, colour, creed or political belief.”3 Commonwealth countries have been
reiterated in the 1991 Harare As pointed out in Lennox and Waites, successful in reducing cases of HIV
Declaration and expanded upon to “notably this declaration did not infection by including repeal of such
† The terminology of the ‘global north’ and the ‘global south’ remains problematic, especially given the geographic dimensions of the Commonwealth and
the power and wealth of some of its geographically southern members .The distinction is used here due to growing the political significance of the term
and as it forms such a large part of the discussion on the rights of LGBTI people.11
laws in their measures to combat the With regard to sexual orientation and The Commonwealth Charter, agreed
disease. Repeal of such laws facilitates gender identity our position remains by the Commonwealth Heads of
the outreach to individuals and groups that, based on shared Government in March 2013, though
at heightened risk of infection. The Commonwealth principles, we good, is not good enough. Article II of
importance of addressing this matter oppose discrimination or the Charter, reinforces the
has received global attention through stigmatisation on any grounds… we commitment by all Commonwealth
the United Nations. It is one of concern continue to encourage constructive countries to the Universal Declaration
to the Commonwealth not only national debate in legislatures, and of Human Rights. It repeats previously
because of the particular legal context the examination of legal remedies, agreed language and states: “We are
but also because it can call into and to work with national human implacably opposed to all forms of
question the commitment of member rights institutions. Work alongside discrimination, whether rooted in
states to the Commonwealth’s member states on the Universal gender, race, colour, creed, political
fundamental values and principles Periodic Review offers scope for belief or other grounds”. It speaks of
including fundamental human rights criminal codes to be brought into upholding democracy and opposing
and non-discrimination.7 conformity with Commonwealth “all forms of discrimination”. But it
commitments and international does not explicitly name
On 19 December 2012, Foreign human rights law supporting the discrimination against LGBTI people.
Ministers of all Commonwealth principles of equality and non- Furthermore, there is no institutional
countries adopted recommendation discrimination.9 mechanism for citizens of member
60 of the Commonwealth EPG that: states to petition about its violation.
Following on from the report of the
Heads of Government should take EPG, the last CHOGM in Perth in 2011 It is clear, however, that “gender” and
steps to encourage the repeal of did not directly address the issue of “other grounds” must include LGBTI
discriminatory laws that impede the LGBTI rights publicly in its formally persons – a clarity that is supported
effective response of CW countries to reported proceedings. However the by international human rights law.
the HIV/AIDS epidemic, and commit Australian and Canadian leaders were
to programmes of education that reported as raising it directly in plenary International Law
would help a process of repeal of sessions and the UK PM, David International law is increasingly
such laws.8 Cameron, said he had raised it supportive of the rights of LGBTI
consistently in his bilaterals. In people. Laws that criminalise
However, this was qualified by an evidence to the Foreign Affairs homosexuality violate fundamental
accompanying caveat that: Committee, the lead FCO official, and universal rights contained in the
Kirsty Hayes, claimed the PM made “a Universal Declaration of Human
[m]ember governments have the very strong speech on these subjects.” Rights and other key instruments
discretion to identify which, if any, David Cameron’s intervention had such as the International Covenant of
laws are considered discriminatory, mixed reactions. His suggestion that Civil and Political Rights, which most
and the steps deemed appropriate to aid should be linked to the human Commonwealth members have
address these. rights record of a beneficiary state met ratified.10
with fierce resistance from
Despite this caveat, concrete and governments of criminalising countries It is clear that the laws that criminalise
proactive measures must be taken and from some activists on the homosexuality, and the laws and
towards progressive ground. But the demand for human practices that support criminalisation,
decriminalisation. As the rights does not come solely from its violate a raft of internationally
Commonwealth Secretary Genereal wealthy and powerful members. It is a recognised rights. In particular, the
Kamalesh Sharma has noted at the demand that comes from across the rights to:
High-Level Segment of the UN Commonwealth and is inherent in the • non-discrimination11 and equality
Human Rights Council: values to which the Commonwealth before the law/equal protection of
has time and again committed itself. the law;1212
• privacy;13 To that end, in 2011, the United Criminalisation and the
• freedom from torture and inhuman Nations Office of the High Commonwealth
and degrading treatment;14 Commissioner for Human Rights and The effects of criminalisation of LGBTI
• freedom of expression;15 the Joint United Nations Programme citizens reach into every aspect of
• freedom of assembly16 and on HIV/AIDS jointly recommended their lives and have ramifications for
association;17 that “criminal law prohibiting sexual the lives of their families and for their
• liberty and freedom from arbitrary acts (including adultery, sodomy, communities.
arrest and detention;18 fornication and commercial sexual
• life;19 and encounters) between consenting Even in countries where
• dignity.20 adults in private should be reviewed, criminalisation is rarely enforced,
with the aim of repeal”.23 Similarly, the having legislation that brands LGBT
The High Commissioner for Human United Nations Development people as criminals stigmatises them
Rights, Navi Pillay, issued her report Programme’s Global Commission on as second class citizens and signals
pursuant to a resolution of the UN HIV found that criminalisation “both that the state has singled out this
Human Rights Council causes and boosts” the rate of HIV group of individuals as outcasts of
recommending that all member infection.24 Moreover, it found that the society. These laws are often seen as
countries: failure to repeal laws criminalising justification for discrimination,
homosexuality would significantly blackmail, harassment, extortion and
Repeal laws used to criminalize heighten the overall HIV infection and violent attacks on LGBTI people and
individuals on grounds of transmission rate for all adult they create an atmosphere of fear
homosexuality for engaging in groups.25 Ultimately, the Global and intimidation. It has also become
consensual same-sex sexual Commission on HIV recommended Increasingly common for state actors
conduct, and harmonize the age of that countries “repeal all laws that to deny human rights defenders
consent for heterosexual and criminalise consensual sex between advocating for LGBTI rights from
homosexual conduct; ensure that adults of the same sex and/or laws registering civil society organisations,
other criminal laws are not used to that punish homosexual identity” to assembling and organising and
harass or detain people based on ensure that an “effective sustainable expressing themselves.
their sexuality or gender identity and response to HIV that is consistent
expression, and abolish the death with human rights obligations”.26 When compared with other
penalty for offences involving Commonwealth citizens, LGBTI
consensual sexual relations …21 Laws criminalising same-sex sexual people are disproportionately
activity per se have been held to be in subjected to invasions of their
In light of the disproportionate violation of the abovementioned privacy, restrictions on freedom of
adverse impact of the global human rights standards by several assembly and expression, and other
HIV/AIDS crisis on LGBTI people, the international courts,27 international human rights violations. The
right to the highest attainable human rights bodies28 and national decriminalisation of same-sex sexual
standard of physical and mental courts.29 This is true particularly in relations is unlikely in itself to be
health is also a key right relevant to regard to the right to equality, non- sufficient to deal with the wide
decriminalisation.22 The right to health discrimination and privacy. spectrum of harms which LGBTI
includes the rights to privacy and Additionally, due to the people suffer. We first have to
access of information, an available interdependent and indivisible nature understand the lived experiences of
and accessible system of health of rights, criminalisation hampers LGBTI people in the Commonwealth
protection, a right to preventative governments in respecting, and then devise strategies for change
health care and information and a protecting and fulfilling other human which look beyond decriminalisation
right to health facilities on a non- rights enjoyed by LGBT people to take account of broader human
discriminatory basis which including the right to employment, rights issues and standards, for
recognises and provides for the housing, education and protection. example, the right to employment as
specific needs of population groups well as access to housing, education,
such as LGBTI persons. healthcare and protection.13
A focus on decriminalisation alone Impact of criminalisation laws and Employment discrimination
might not always be the most stigmatisation of LGBTI on In terms of employment
effective way to make progress HIV/AIDS prevention discrimination, the Commonwealth
towards ending discrimination Alarmingly, the continued criminalisation states perform poorly by global
against LGBTI people. Each country’s of homosexuality in Commonwealth average standards. Currently, 52
context is different and local activists countries has a major impact on the states worldwide provide protection
might want to prioritise different global efforts to halt the spread of against employment discrimination for
rights, for example focus on hate- HIV/AIDS as over 60% of people living sexual orientation, but only 12 are in
crimes or employment legislation, with HIV globally are in Commonwealth the Commonwealth. With respect to
privacy rights or freedom of assembly countries. By driving same-sex employment discrimination related to
and expression, to pave the way for behaviour underground, effective gender identity, only two
wider legal reforms. prevention and treatment of HIV/AIDS is Commonwealth states – Australia and
severely undermined. Public health is the United Kingdom – offer protection
Lack of hate crime legislation best served by removing discrimination compared to 19 states worldwide.31
Commonwealth states are much less and prejudice against LGBTI persons
likely than others to have anti-hate and thereby ensuring they are better Recent developments give hope for
crime legislation. A recent able to access HIV services without fear. more progress on this issue in the
comparative analysis by Lennox and Commonwealth with member states
Waites ((eds.) 2013), highlighted that: In 2011, the Office of the United such as the Seychelles (2006), Fiji
Nations High Commissioner for Human (2007), Mozambique (2007),
Hate crimes based on sexual Rights and the Joint United Nations Mauritius (2008) and Botswana
orientation are considered an Programme on HIV/AIDS (UNAIDS) (2010) introducing legislation against
aggravating circumstance under the issued the International Guidelines on employment discrimination on sexual
law in 20 states worldwide, of which HIV/AIDS and Human Rights which orientation.
most are in Europe or Latin America warn that the threat of criminal sanction
but only three are in the can be a deterrence towards Freedom of Association
Commonwealth: Canada (1996), New accessing HIV services: “people will Increasingly, laws criminalising
Zealand (2002) and the United not seek HIV-related counselling, homosexuality are used as a pretext
Kingdom – Northern Ireland (2004), testing, treatment and support if this to deny official registration or
England and Wales (2005), Scotland would mean facing discrimination, lack recognition to human rights defenders
(2010). That is only 5.6 per cent of of confidentiality and other negative and civil society advocating for LGBTI
Commonwealth states. ‘Hate crimes consequences.” Along the same lines, rights. As this report shows, in many
based on gender identity’, however, only last year, the United Nations countries civil society organisations
are considered an aggravating Development Programme’s Global that advocate for the rights of LGBTI
circumstance in only five states Commission on HIV declared that people often have difficulty registering
worldwide including four in Latin criminalisation ‘both causes and with their governments. Even in
America but only one, the United boosts’ the rate of HIV infection.30 jurisdictions that don’t criminalise,
Kingdom, is in the Commonwealth. Mozambique for example, civil society
[…] In relation to gender identity, 18 organisations struggle for official
states worldwide grant legal recognition.
recognition of gender after gender
reassignment surgery, within the
Commonwealth these include four
states, which is only 7.4 per cent of
those in the Commonwealth: New
Zealand (1995), Australia (federal
states changed 1996–2001), South
Africa (2004), United Kingdom (2005),
plus most of Canada.14
Progress is possible Dane Lewis, Executive Director of J- In March 2011, at the UN Human
Some Commonwealth countries have FLAG called on Miller ‘to listen to the Rights Council, 85 states endorsed a
shown that progress can be made, cries and needs of members of our groundbreaking joint statement to end
regardless of historical and cultural community who continue to be acts of violence and related human
antipathies to homosexuality. Over subjected to discrimination and rights violations based on sexual
the past twenty years, member states violence, have nowhere to live and no orientation and gender identity (UN
such as The Bahamas (1991), South food to eat because of their sexual Human Rights Council 2011). This
Africa (1998), Vanuatu (2007), India orientation and or gender identity’.33 declaration was signed by 16
(2009) and Fiji (2010) have Senator Sandrea Falconer, Minister Commonwealth states including a
decriminalised homosexuality. with responsibility for Information, number, which have not
announced in June 2013 that the decriminalised same-sex sexual
Other promising signs in the last government is to review the country’s behaviour, such as Dominica, Nauru,
two years have been: Buggery Law shortly.34 Jamaica’s Samoa, Seychelles, Sierra Leone and
In Belize, LGBT activists have started sodomy law is also to be challenged Tuvalu. Rwanda also backed the
a legal challenge to the country’s at the Inter-American Commission on motion. For many observers this vote
colonial era anti-buggery laws on Human Rights. represented ‘a breakthrough and
constitutional grounds. In May 2013, suggested possibilities for progress in
the Belizean judiciary started hearing Elsewhere, Prime Minister Kamla these states in the future.’((eds.) 2013)
a case where it will be asked to weigh Persad-Bissessar of Trinidad and
up whether or not laws that penalise Tobago has written directly to the These encouraging examples show
homosexuality in the country are Kaleidoscope Trust vowing to end that national leaders in the
constitutional. anti-LGBTI bias in her country, Commonwealth, and those who
signalling that she wants to ‘put an aspire to leadership, should refrain
In Jamaica Prime Minister Portia end to all discrimination based on from attacking LGBTI people as a
Simpson Miller made statements gender or sexual orientation’. The way of winning cheap popularity.
indicating that efforts to decriminalise statement came in a letter to the They should examine the damage
will be made. During her election Kaleidoscope Trust's Executive done to individuals, communities and
campaign in late 2011 Miller stated Director, Lance Price, who met her in economies when a section of their
that she ‘believes in protecting the Port of Spain in June 2012. Mrs population is marginalised and
human rights of all Jamaicans. No Persad-Bissessar said the criminalised for no good reason. As
one should be discriminated against stigmatization of LGBT people had to Desmond Tutu said so eloquently ‘an
because of their sexual orientation. be ‘addressed on the grounds of injustice to one is an injustice to all’.
Government should provide the human rights and dignity to which
protection.’32 every individual is entitled under The Commonwealth’s credibility is
international law. vulnerable if it doesn’t move from
broad and top-line commitments on
Until just over a year ago, Malawi was values to actions that make a change
considered amongst the most in the lives of citizens. The new
unreformed countries in the Charter is welcome but it does not go
Commonwealth. President Joyce far enough to protect those who still
Banda announced in her State of the experience discrimination “whether
Nation address in 2012 that her rooted in gender, race, colour, creed,
government wants to repeal laws political belief or other grounds”.
criminalising homosexuality.35 This
came after a period of increasing
hostility against LGBTI people in the
country and could inspire more
positive developments in the region.15 COMMONWEALTH OVERVIEW Wherever possible the accounts below have been produced by and with activists and organisations in the countries or regions concerned.
16
AFRICA
Botswana
James41 is a 24 year old gay man
The Penal Code states that; “any Recent Developments from Gaborone. His mother found
person who has carnal knowledge of The recent global financial crisis, he was gay and she got really
any person against the order of which has affected the country’s mad. She would insult him and
nature, has carnal knowledge of an diamond industry, has put a strain on call him all sorts of things. She
animal or permits any other person to the national economy and also called her brother from the
have carnal knowledge of him or her expenditure. This has combined with village to come and “beat the gay
against the order of nature, is guilty of decreased funding from international out of him”. She brought in
an offence and is liable to agencies, as Botswana was regarded people from a Church to attack
imprisonment for a term not as a middle-income country, to him while he was in his room to
exceeding seven years.”36 This worsen the situation for NGOs try to exorcize the gay demons
section has been used to criminalise working on LGBTI issues, such as the out of him. She would call many
homosexuality and has created a Lesbians, Gays and Bisexuals of of his friends together with his
stigmatising and unsafe environment. Botswana (LEGABIBO). sister to torment them about
In 2008, the Botswana Parliament making her son gay. He fled
reviewed and amended some In 2011 the Deputy Speaker of the home. He was moved from one
sections of the Employment Act to National Assembly Mr. Pono friend’s house to the other. He fell
prohibit employment discrimination Moatlhodi said that homosexuals into depression and flunked out
on the basis of sexual orientation. should be killed.37 Utterances like of university. He went for
these are still moulding and shaping counselling and somehow his
There is a general lack of political will the consciousness of the general mother found out and started
to debate or support issues deemed public and their attitudes towards getting to the counsellor because
as controversial, such as the rights of LGBTI people. the counsellor also started
sexual minorities. Homosexuality in preaching the Bible to him telling
Botswana is not discussed and is In 2013 members of LEGABIBO him that the mother was right.
often seen as a ‘Western’ disease, engaged in an attempt to force the Once he recovered partially, he
‘un-African’ and ‘un-Godly’. Such government to recognise their tried to go back to school but she
perceptions have perpetuated stigma association. LEGABIBO has been wouldn’t pay his school fees.
and discrimination, violence, and denied registration twice, in 2005 and Only almost 2 years later he is
homophobia. Policies and other in 2012, with the registrar saying that now back in school but to date,
interventions have done very little to the country’s Constitution does not the verbal abuse still continues.
address these rights violations and recognize homosexuality.38 The He avoids them by staying away
protect LGBTI. applicants say the refusal to register from home as long as possible
LEGABIBO violates their right to form and disconnects his phone calls
and join an association and that it when she calls and starts
transgresses the rights provisions in shouting at him.
the Botswana Constitution.39
Since leaving office, former President
Festus Mogae has repeatedly
challenged the country’s anti-
homosexuality laws, particularly the
way in which they impede the fight
against HIV/AIDS.4017
Cameroon
Alice Nkom, Human Rights
Article 37 of Cameroon’s penal code Recent Developments Lawyer, who regularly defends
punishes homosexual conduct with A recent report by Human Rights men facing homosexuality-
jail terms ranging from six months to Watch found that at least 28 people related charges
five years and fines from 20,000 to have been prosecuted for same-sex “LGBT people in Cameroon face
200,000 francs ($US 40 to $US conduct between 2010 and 2012.44 many risks. They are generally
400).42 The laws are often abused Six new convictions have already considered as animals or devils,
and used to settle scores. Dozens of taken place in the first half of 2013, so when you know that you see
Cameroonians find themselves among them three women (one of that they are in permanent
prosecuted and jailed solely because whom received a sentence of 5 danger. They can be injured, they
they are suspected of being gay or years). LGBTI people remain can be killed, and they can be
lesbian. More often than not little or vulnerable to violence by members of discriminated against. They can
no evidence is presented.43 their local community. In July 2013, be rejected from healthcare and
prominent LGBTI activist and reporter, justice. So they are living in very
Eric Lembembe was found tortured bad situation in Cameroon – and
“They [LGBTI people] are and beaten to death in his home.45 they have nowhere to go and
generally considered as animals nowhere to complain.”
or devils, so when you know Two Cameroonian human rights
that, you see that they are in lawyers, Alice Nkom and Michel
permanent danger. They can be Togué, received death threats against
injured, they can be killed, and themselves and their children when
they can be discriminated two cases in which they were
against. They can be rejected defending clients accused of
from healthcare and justice.” homosexuality attracted national and
Alice Nkom international attention.46 In one of the
cases, Jonas Singa Kumie and
Franky Djome were sentenced to five-
years in prison after a judge found
them guilty of ‘homosexual
behaviour’. His decision was based
on their speech, clothes and drink
preferences, reportedly their
consumption of Baileys, an Irish
whiskey and cream liqueur.47 They
were released in early 2013 after a
year-and-a-half in prison.48 In another
case, a young man, Jean Claude
Roger Mbede, was sentenced for
having sent a sexually suggestive text
message.4918
The Gambia
(recently left the Commonwealth) The U.S. Department of State’s 2011
Both male and female same-sex Human Rights Report found that
sexual activity is illegal in The “there was strong societal
Gambia. According to the Gambian discrimination against LGBT
Criminal Code, any person who has individuals, some of whom were
carnal knowledge of any person shunned”, although “there were no
against the order of nature or permits reported incidents of physical
a male person to have carnal violence against LGBT individuals
knowledge of him or her against the during the year”. The report also
order of nature is guilty of a felony found that there were no LGBTI
and is liable to imprisonment for a organisations active in the country.53
term of 14 years. “Carnal Knowledge
against the order of nature” is defined In April 2012, a court remanded 15
in the code as including homosexual alleged homosexuals who were
acts.50 None of The Gambia’s laws arrested at a bar in the Tourism
protect against discrimination based Development Area.54 They were
on sexual orientation or gender charged with “indecent practice
identity. among themselves at a public place.”
According to police testimony in court
Recent Developments in July 2012, the arrests were made
President Jammeh has a history of because men were wearing women’s
making inflammatory statements clothes, carrying handbags, and
about LGBTI people. In 2008 he “walking like ladies.” On 1 August
demanded that gay people leave the 2012, the prosecutor dropped all
country and threatened to “cut off the charges in the case.
head” of any homosexual caught in
his country.51 In 2013 he used his On the 3 October 2013, Gambia
speech to the opening of parliament announced that it was leaving the
to state that, “Those who promote Commonwealth, stating it will “never
homosexuality want to put an end to be a member of any neo-colonial
human existence. It is becoming an institution.”55 Some commentators
epidemic and we Muslims and pointed to increased pressure put on
Africans will fight to end this the Gambian government over its
behaviour.”52 human rights record, including its
record on the rights of LGBTI people,
as a contributing factor to its
withdrawal from the Commonwealth.You can also read
