LGBT Situation in The Gambia

As part of our weekly look at the LGBT situation in African here is the situation in The Gambia.

The Gambia, ironically home of The African Union’s Court on People and Human’s Rights, has one of the worst human rights records in West Africa. President Jammeh has been criticised for electoral malpractice, ordering arbitrary arrests and hounding journalists.

As a popular holiday destination there has also been growing conflicts between the country’s Muslim society and the conduct of European holiday makers. In June 2009 two Spanish men were arrested for allegedly “making homosexual proposals” to a taxi driver. (Amnesty International)

Gambia

Law that Criminalises Homosexuality The Criminal Code of 1965, Revised Laws 1990, as amended in 2005[1] Article 144 criminalises ‘unnatural offences’ which are described as any person who has or permits another to have of him or her ‘carnal knowledge of a person against the order of nature’, or with an animal.  Carnal knowledge includes knowledge of the person, or inserting any object or thing through the mouth, vulva or anus for the purpose of stimulating sex, as well as any other homosexual act.  Whoever commits this felony is liable to up to 14 years in prison. The amendment of 2005 expands the definition of unnatural carnal knowledge to also include women. Section 147 criminalises any female who whether in public or in private commits any act of gross indecency, or procures or attempts to procure a female for that purpose.  Whoever is guilty of this felony is liable to five years imprisonment. In the amendment of 2005 section 147adds the crime of female indecency, where presumably before it only applied to males.

Practical Consequences of the law President Jammeh is reported to have given gays and lesbians 24 hours to leave the country while speaking in the town of Tallinding on May 15, 2008, during a presidential “Dialogue with the People” tour. According to the Gambian newspaper, The Daily Observer, Jammeh was quoted as saying, “We are in a Muslim dominated country and I will not and shall never accept such individuals [homosexuals] in this country.” During the speech he also vowed to “cut off the head” of any homosexual caught.[2] Gambia has a high Muslim population. This could well be a reason for the reluctance amongst the public to view homosexuality as being anything other than a crime. 1,084,000 follow the religion of Islam, constituting 90% of the overall population.

Constitutional Clause on Equality or Right to Privacy Constitution of the Republic of the Gambia, 1997, Reprinted 2002[3] Fundamental Freedoms are guaranteed under Article 17 wherein it is decreed that all fundamental rights and freedoms are enforceable in the Courts in accordance with the constitution.  Subsection (2) affirms the entitlement of every person in the Gambia to the fundamental human rights and freedoms contained in the chapter, whatever his race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status, but subject to respect for the rights and freedoms of others and for the public interest. This right can be limited for public interest reasons. Privacy is protected under Article 23 wherein it is affirmed that no person shall be subject to interference with the privacy of his or her home, correspondence or communications save as is in accordance with law and, in the interest of national security, public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights and freedoms of others. This right can however, be limited for public safety reasons. The right to protection from discrimination is guaranteed under Article33, where the expression “discrimination” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status.

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‘Keeping their promises – human rights in the AU’

Today marks the annual commemoration of the founding of the African Union.

 

Amongst the objectives of the AU's leading institutions is a commitment to promoting and protecting human rights in accordance with the African Charter and other relevant human rights instruments. And this Africa Day sees cause for celebration with Nigeria, Rwanda, Uganda, Lesotho and the Seychelles having recently ratified all eight of the main human rights conventions. We are seeing increased attention and commitment to improving disability rights across the continent. Great strides are being made to reduce maternal mortality. On the surface it would seem that the commitment of the AU and its members to human rights is to be applauded. However, running parallel to the human rights rhetoric of the AU is an entrenched failure to hold the governments of its members accountable for failures to uphold promises made under this human rights agenda.

On a day that commemorates the founding of a union, we look to the values that we share. The clear answer to the question of what the members of the AU have in common is poverty. Therefore the need for the fundamental rights enshrined in the UDHR is paramount. Access to education, work, healthcare, the right to vote, and religious freedom are basic rights that are often guaranteed in theory, but not evidenced in practice. We need only look next door to our West African neighbours to see examples. Severe repression of journalists and demonstrations continues in The Gambia, a country that paradoxically provides the base for the AU’s key human rights body – the African Commission on Human and Peoples' Rights. Extra-judicial killings continue in Cameroon. Even on our own doorstep forced evictions continue to occur. And what response do we see to these abuses? Accountability rests neither with law enforcement agencies, local or central authorities, nor with the government. An example of the most grave human rights abuses in recent times, the murder of over one thousand Kenyans in post-election violence in 2007/2008, saw not the Kenyan government step in to hold the perpetrators accountable, nor the AU, but the international community through the International Criminal Court (ICC). 

The AU declares its commitment to international justice to ensure the accountability for gross violations of human rights. But this quest for accountability frequently acquiesces to the notion of ‘regional solidarity’ and the multifarious political agendas that exist between its members. The initial response of the AU and its members to the issuance of Sudanese President Omar al-Bashir’s arrest warrant for war crimes and crimes against humanity provides a disquieting example. Several members chose to ignore the warrant and some actively invited Bashir to visit their countries. The AU itself sought suspension of the proceedings against Bashir from the UN Security Council and stated that they would not co-operate in with the ICC in his arrest. This response contradicted the commitments made by the AU to uphold human rights and constituted an absolute failure to respect and protects the rights of the victims of these crimes and their families.

Accountability for these human rights abuses needs to be based on legal commitments that AU member governments have made to meet these obligations. Mechanisms must exist by which these governments can be held to account, and when they are found to have failed to respect the rights if their citizens, remedies must be available. There is a real opportunity here for the AU to lead by example. However, as long as this politicisation is tolerated in the context of human rights abuses, it will continue to act as an obstacle to pursuing the rights agenda that the AU itself espouses.

Challenging politicisation in the context of the AU’s commitment to accountability for human rights abuses is of utmost importance. This is because the rights enshrined in the UDHR and associated treaties have global applicability. They are common to all people respective of cultural or economic differences. It is a poor excuse to hide behind the idea of cultural relativism when it comes to rights such as access to education or healthcare. And it is important to note that these rights are not stand-alone. Take the example of last year’s ruling in the ECOWAS Community Court of Justice in Abuja on the right to education. The judgment stated that Nigerians have a legally enforceable right to education, dismissing the government’s assertion that education is ‘a mere directive policy of the government and not a legal entitlement of the citizens’. This was a laudable statement. However, this right cannot be realised in a country where a child’s right to secure home is not respected and children cannot travel to school safely. The AU needs to work with its members to shift towards a reality where all rights are respected collectively, rather than parceled off on a piecemeal basis.

Any union is only successful if it respects the values that bind it together. What good is it for a man to sit on a committee against domestic violence and then go home and beat his wife? The power in a union is a commitment to shared values, and practicing what you preach. 

On Africa Unity day we call for the AU to practice what they preach and use this union for good. We petition them to connect better across the physical and political borders of its members and act in solidarity to fulfil the human rights commitment it has made to Africans across the continent.

Alison Picton, Human Rights Advocacy, CHRI Africa

Also published on modern ghana - click here

African Commonwealth Human Rights Weekly Update (14/05 - 20/05/2011)

Rwanda

Tuesday 17/05: Bizimungu convicted if War Crimes: Former Rwandan army chief Augustin Bizimungu has been sentenced to 30 years in prison for his role in the 1994 genocide. Until his capture in Angola in 2002, Bizimungu was the most wanted man in connection with the 1994 genocide.

The 59-year-old was on trial in a specially commissioned court in Tanzania. The judge ruled that he had control of forces that carried out the widespread rape and killing of Tutsis and Hutu moderates.

In the 100 days of genocide an estimated 800,000 Rwandan’s lost their life

The Seychelles

Monday 15/05: Observer Group to be dispatched: Commonwealth Secretary Gereal Kamalesh Sharma announced on Monday that a commonwealth observer team will be dispatched to the Indian Ocean state for the Presidential election which take place between the 19-21 of May.

The team will be headed by the former foreign minister of St Lucia, Dr Julian Hunte.

Swaziland

Saturday 14/05: Political Activists Arrested: The Swaziland Democracy Campaign, a South Africa based organisation pushing for greater political freedoms in Swaziland, report that a number of trade unionists have been arbitrarily arrested. They report that on Saturday members of the new democratic trade union federation, The Trade Union Congress of Swaziland (TUCOSWA) were arrested and detained by police after attending a meeting in the Lubombo Region.

TOCOSWA was launched on May Day of this year and brings all trade unions in Swaziland into a single organisation. Political parties are banned in Swaziland and trade unions remain the main source of organised opposition to King Mswati’s autocratic state.

On Sunday the funeral of political activist Sipo Jele ended in ugly scenes when police ripped a flag of the banned political party, People’s United Democratic Movement (PUDEMO) and arrested three mourners wearing PUDEMO T-shirts.

Saturday 14/05: Bushfire Festival Boycott Still on: The Swaziland Solidarity Network, reiterated that it will boycott the Bushfire Music Festival which will be held in Malkerns between 27-29 May. The event is due to feature artists from USA, Canada, South Africa, Mozambique, Mali, Zimbabwe, Botswana and France as well as local acts from Swaziland.

The Swaziland Solidarity Network has asked called artists to refuse to attend and has called on Swaziland to be isolated from the cultural mainstream (similar to what happened to Apartheid South Africa). However, Swazilands other large civil society campaign group, The Swaziland Democracy Campaign has called off its boycott after meeting with event organisers. They claim that the the event provides an opportunity for young Swazi musicians to get international exposure.

Sunday 15/05: Swaziland Referred to the African Court on Human People’s Rights: The Sunday Times an independent newspaper in Swaziland, reported on Sunday that the African NGO Forum has referred Swaziland to the African Union’s African Court on Human People’s Rights (ACHRP).

The Swazi Government is accused of violating nine separate articles of the African Charter. In particular the ACHPR is being urged to call on Swaziland to stop police brutality, arbitrary detentions and torture. Swaziland is being urged to amend the Suppression of Terrorism Act and repeal the Sedition and Subversive Activities Act.

Uganda

Thursday 19/05: Besigye Under House Arrest: Ugandan opposition leader Kizza Besigye has been prevented from leaving his house by police as the new parliamentary session opens. The police claim his was planning to cause unrest and call his detention “a preventative arrest”.