LGBT Situation in Kenya

Last week The UN passed a resolution on Human Rights, Sexual Orientation and Gender Identity. The resolution was adopted by a vote of 23 in favour, 19 against, and 3 abstentions. It requests that the High Commissioner should establish a committee to document discriminatory laws and acts of violence against individuals based on their sexual orientation and gender identity.

The Commission will be active in all regions of the world, including Cameroon, Ghana, Nigeria and Uganda who all actively voted against its formation. The Commission will report on how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity.

In addition the UN will convene a panel discussion during the nineteenth session of the Human Rights Council which will pick over the commission’s findings and suggest follow on recommendations to the High Commissioner.

In the meantime here is CHRI’s assessment of the LGBT situation in Kenya.

Kenya

Law that Criminalises Homosexuality Penal Code of the Laws of Kenya, Rev. 2009[1] Under section 162 it is an offence to have carnal knowledge of any person against the order of nature or of an animal; or to permit a male person to have carnal knowledge of him or her against the order of nature.  Whoever commits this felony is liable to imprisonment for fourteen years, or in the case that said carnal knowledge was without the consent of the person, or with consent obtained by force, intimidation or false representations, imprisonment for twenty one years. Under section 163 it is an offence to attempt to commit any of the offences specified in section 162, whoever commits this felony is liable to imprisonment for seven years. Under section 165 it is an offence for any male, whether in public or private, to commit any act of gross indecency with another male person, or to procure or attempt to procure another male person to commit any act of gross indecency with him.  This felony is liable to imprisonment for five years. Under the Sexual Offences Act of 2006, section 3 criminalises rape by a woman or man who intentionally and unlawfully commits an act which causes penetration with his or her genital organs; and the person does not consent to this penetration, or the consent is obtained by force or intimidation.  Whoever is guilty of this felony is liable to imprisonment from ten years to life.

Practical Consequences of the law In February 2010 police crashed a ‘gay wedding’ and arrested five men.[2] GALCK – Gay and Lesbian Coalition of Kenya is a group which seeks to promote recognition, acceptance and defend the interests and rights of LGBTI organizations and their members including their health rights. http://galck.org/

Constitutional Clause on Equality or Right to Privacy Constitution of Kenya, 2010[3] Article 27 guarantees equality before the law, where equality includes the full and equal enjoyment of all rights and fundamental freedoms.  It also guarantees the right to equal protection and equal benefit of the law.  Neither the State nor a person shall discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 24. expands upon limitations to the rights and freedoms of the constitution and affirms that right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; and the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others. Article 28 guarantees the innate and inherent dignity of every person and the right to have that dignity respected. Article 31 guarantees to every person the right to privacy including having their family or private affairs unnecessarily revealed or the privacy of their communications infringed.

African Commonwealth Human Rights Weekly Update (04/06 - 10/06/2011)

Cameroon

09/06/2011 – NGO’s campaign for Mdbede’s release

NGO’s have joined together to demand the release of Jean-Claude Roger Mdbede, sentenced to three years imprisonment for homosexuality.

Entrapment is regularly used by the police in Cameroon to target and arrest gay men under anti-homosexual laws allowing imprisonment for up to five years. In Mbede’s case, he was sent text messages by an ‘acquaintance’ and was arrested by waiting police officers upon meeting him.

Last year a joint report by four human rights organisations said homosexual people in Cameroon face arbitrary detention, scant regard for due process and sentencing without evidence. The report documented abuses in detention, both pre-trial and in prison, by police and prison personnel, including beatings, torture and verbal abuse.

CHRI has covered the legal status of homosexuality in Cameroon here.

Kenya

10/06/2011 – Government makes financial commitment to police reform

The government has budgeted KSh78 billion for the implementation of police reforms over the next three years.

Internal Security permanent secretary Francis Kimemia, speaking during the launch of the Police Reforms Programme Document in Nairobi, stated that the money was to be used in the implementation of the various projects like provision of transport, housing, communication gadgets, and for re-training, capacity building and institutional support programmes for the two police services.

You can find out more about the work CHRI has done on policing in East Africa here.

Swaziland

08/06/2011 – Campaign launched to free president of NUS

A campaign has been launched to free Maxwell Dlamini, the president of Swaziland's NUS (SNUS). Dlamini was arrested, along with political activist Musa Mgudeni, on the eve of the pro-Democracy protests on April 12, and charged with possession of illegal ammunition, although he denies this charge.

His supporters say that the Swazi government is trying to smear Dlamini following the many battles with the government on behalf of the students since he took office.

Dlamini was voted in as president of the NUS late last year. In office he has led campaigns against increased tuition fees and proposed cuts to scholarships. He has also urged the Swazi government to honour its constitutional commitment to introduce free primary school education.

LGBT Situation in Cameroon

As we mentioned a couple of weeks ago homosexual acts are illegal in seventeen of the nineteen African members of The Commonwealth. Week by week we will continue to give you a rundown of the LGBT situation in each of these states.

This week is the turn of Cameroon which was criticised by a number of human rights organisations in March for imprisoning Roger Jean-Claude Mbede because he was gay.

Cameroon

Law that Criminalises Homosexuality Penal Code (Law No. 65-LF-24 of 12 November 1965 and Law No. 67-LF-1 of 12 June 1967  Article 347 makes it an offence for any person to have sexual relations with a person of the same gender, with the liability of imprisonment from 6 months to five years and a fine up to 200 000 CFA francs.

Practical Consequences of the law In February 2006 a court in Cameroon jailed two men for a year after they confessed to having gay sex.[1]. On June 14, 2006 seven men who have been on trial for homosexuality in the African nation have been sentenced to a 10-month jail term.    Four women are awaiting trial on the same charges.[2] Association for the Defence of Homosexuals http://www.alicenkom.com/  is a local group which seeks to advocate greater recognition of LGBT rights in Cameroon.

Constitutional Clause on Equality or Right to Privacy The General Assembly proclaims that  The Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to propose respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.  Article 1 affirms that all human beings are born free and equal in dignity and rights.  Under Article 2 all the rights and freedoms set out in the declaration are guaranteed to everyone without distinctions, including: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.   Article 7 guarantees equality before the law and freedom from discrimination.

LGBT Situation in Africa

Reports that new the anti homosexuality bill could be debated in the Ugandan Parliament last Friday appear to have been false. Nonetheless gay rights remain a very contentious issue in Africa at the moment.

Last year a gay couple in Malawi were sentenced to 14 years in jail for attempting to conduct a gay marriage whilst in March of this year Roger Jean-Claude Mbede was imprisoned for three years in Cameroon for being homosexual.

Seventeen of the nineteen African Commonwealth criminalise sexual practices not thought proper. (South Africa and Rwanda are the only two who do not). Most countries use a variation of the sodomy laws from the colonial era. The typical sodomy law criminalises a man performing an “unnatural act” upon any man or woman, as well as any man or woman that allows a man to perform an “unnatural act” upon them.  An important factor of these provisions is that they negate the possibility of males suffering rape, unless as a minor, making the LGBT population vulnerable. The victims would potentially be criminalised for allowing a man to perform unnatural acts upon them.

Throughout the African members of the Commonwealth Christianity and Islam are prominent religions. Religious texts are clear in the condemnation of those who engage in same sex relations and these religious views have continued to inform the laws on the African homosexual community.

The London office of CHRI are currently doing some great research on LGBT issues throughout the Commonwealth, and are hoping to draft an official report soon. In the meantime we are going to give regular summaries of their research, in particular the legislation directed towards homosexuals. To start off with here is the status in relation to homosexuality in Uganda.

UGANDA

Law that makes Homosexuality illegal The Penal Code Act of 1950 (Chapter 120)[1] Section 145 criminalises carnal knowledge of any person against the order of nature or of an animal; or permitting a male person to have carnal knowledge of him or her against the order of nature.  Whoever is guilty of this felony is liable to imprisonment for life. Under section 146 any person who attempts to commit any of the offences specified in section 145 commits a felony and is liable to imprisonment for seven years. Under section 147 it is an offence to unlawfully and indecently assault a boy under the age of eighteen.  Whoever commits this felony is liable to imprisonment for fourteen years, with or without corporal punishment. Under section 148 it is an offence for any person who, whether in public or in private, commits any act of gross indecency with another person or who procures, or attempts to procure, another person to commit any act of gross indecency with him or her.  Whoever commits this offence is liable to imprisonment for seven years. Under section 123 rape is defined as unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats, intimidation, or false representation. Under section 124 a person convicted of rape is liable to suffer death. Under section 125 any person who attempts to commit rape commits a felony and is liable to imprisonment for life with or without corporal punishment.

Practical Consequences of the Law SMUG – Sexual Minorities Uganda came together so as to create one big strong LGBT community in Uganda; to provide the LGBT community with organized representation so as to achieve a liberated LGBT community. http://www.sexualminoritiesuganda.org/ In 2010, the Ugandan newspaper The Rolling Stone was guilty of exposing the faces of members of the LGBT community within Uganda. David Kato, a gay activist and the advocacy officer for SMUG was one of three complainants who sought and succeeded in being granted an injunction which had the effect of preventing the newspaper from exposing details such as addresses and names. On Wednesday 26th of January, David was murdered just weeks after his victory in court. It was revealed that for weeks David had been harassed and was threatened on several occasions, being told that he would be dealt with.[2]

Constitutional Clause on Equality or Right to Privacy Constitution of the Republic of Uganda, 1995[3] Article 21 protects equality, whereby all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law. A person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability, where ‘discriminate’ is defined as giving different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability. Article 27 protects the right to privacy of person, home and other property, whereby no person shall be subjected to unlawful search of the person, home or other property; unlawful entry by others of the premises of that person; or interference with the privacy of that person’s home, correspondence, communication or other property.

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What are Human Rights and what is CHRI?

Welcome to the brand new blog for the Commonwealth Human Rights Initiative (CHRI) in Africa. We hope you enjoy reading and discussing our posts as much as we enjoy writing them!

So what are Human Rights, what is CHRI, and what is the purpose of this blog?

Human Rights are set out in the United Nations’ Universal Declaration of Human Rights (UDHR). The thirty articles of the UDHR establish the civil, political, economic, social and cultural rights of people. These rights include the right to life, food and shelter, freedom of expression, the right to not be arrested and detained without being charged and the right to privacy.

CHRI is an independent non-governmental organisation created to ensure the practical realisation of these basic rights in the countries of the Commonwealth. We have been operating since 1987 and have three offices in Delhi, London and Accra.

The Africa office was opened in Accra in 2001 and is at forefront of the fight to uphold basic human freedoms in the region. We work in three main areas of human rights: Human Rights Advocacy; Access to justice and The Right to Information.

The Advocacy programme is involved in bringing to light breaches of human rights in the African members of the Commonwealth and applying pressure for change. One of the biggest feats of the CHRI advocacy team was its involvement and investigation into the case of the extra-judicial disappearances and killings of approximately 50 Africans that took place in the Gambia in 2005. We are currently looking at elections in the region. For example The Gambia, Nigeria, Cameroon, Ghana and Sierra Leone all have presidential elections in 2011/2012 and we hope to ensure that people are allowed “to frame the society in which he or she lives”. This right is set out in the Commonwealth’s Harare Declaration.

The Access to Justice Programme has been involved in monitoring the accessibility of justice to Ghanaians and other Africans nationals in terms of accessibility to the judicial system, especially the right to fair trials. CHRI has also endeavoured to ensure the availability of courts and the provision of legal aid to guarantee the right to fair trial. As part of this programme CHRI have held police workshops and set up Justice Centres.

The CHRI Right to Information Programme is the secretariat of the Coalition on the Right to Information. CHRI understands that the right to information is fundamental to the process of democracy and is working tirelessly to achieve the passing of the Right to Information Bill which would help to create a more transparent and accountable government in Ghana and beyond.

So what is the purpose of this blog? This blog aims to provide an up-to-date civil society perspective of what is going on in the African members of the Commonwealth. It will be a forum for discussion on human rights and the pressing issues for Africans today. We want and need your involvement and comments to help make the Commonwealth a place where human freedoms are adhered to in letter and in spirit.