LGBT Situation in Mozambique

Mozambique is one of the few members of the Commonwealth without a direct link to the former British Empire.

The country has bounced back well from decades of Civil war and series of deadly floods in the first decade of the 21^st century. The economy is growing well whilst infrastructure is being rebuilt by South African and Chinese finance. Today it is generally to be viewed as an “African success” story.

However the country has recently hit the headlines for a series of violent protests against high prices and subsequent police clamp downs.

Here is a look at its LGBT record...

Law that Criminalises Homosexuality Codigo Penal[1] ARTIGO 71º (Aplicação de medidas de seguranças) (Application of Security Measures) São aplicáveis medidas de segurança: (Applying security measures to:) 4°. – Aos que se entreguem habitualmente à pratica de vícios contra a natureza; 4°. – Those that deliver themselves habitually to practice vices against nature.

Practical Consequences of the law One of the few members of the Commonwealth whose laws is not informed by colonial era British laws. (Mozambique is a former Portuguese colony) Conflicts with... African Charter on Human and People’s Rights (?) ICCPR (21 Jul 1993)

Constitutional Clause on Equality or Right to Privacy Constitution of Mozambique (Approved and enacted in November 1990.)[2] Under Article 6 the fundamental aims of the Republic of Mozambique are the defence and promotion of human rights and the equality of citizens before the law; the affirmation of the Mozambican character, its traditions and other social and cultural values. Under Article 56 it is required that the family and the State ensure that children receive a comprehensive education, bringing them up in the values of national unity, love for their country, human equality, social respect and solidarity. Under Article 81 all citizens may contest acts that violate their rights recognized under the Constitution and other laws. Under Article 82 all citizens shall have the right of recourse to the courts against any act which violates their rights recognized by the Constitution and the law. Under Article 96 individual rights and freedoms are guaranteed by the State and may only be limited where the public order or individual rights, freedoms and guarantees are endangered, or where force is used or threatened.

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[1] http://www.portaldogoverno.gov.mz/Legisla/legisSectores/judiciaria/codigo_penal.pdf

[2] http://confinder.richmond.edu/admin/docs/moz.pdf

LGBT Situation in Mauritius

Mauritius lies to the east of Madagascar in the Indian Ocean. It is a populous island of just under 1.3 million people. In recent decades it has become a popular tourist destination for South African and European holiday makers.

Homosexuality is still illegal in Mauritius. Its laws are still informed by old colonial sodomy laws. Here is a summary of the LGBT situation on the island.

Law that Criminalises Homosexuality Criminal Code Cap 195 – 29 December 1838 Amended 25/01; 30/01; 5/02; 12/03; 22/03; 30/03; 34/05; 24/06[1] Section 249 criminalises rape, attempt upon chastity and illegal sexual intercourse.  Any person who is guilty of the crime of rape, shall be liable to penal servitude for a term which shall not be less than 5 years.  And any person, who commits an indecent act [‘attentat à la pudeur’] by force or without consent upon a person of either sex, shall be liable to penal servitude for a term not exceeding 5 years. Section 250 criminalises sodomy and bestiality, finding that any person who is guilty of the crime shall be liable to penal servitude for a term not exceeding 5 years.

Practical Consequences of the law Popular tourist destination for western holiday makers- cultural clashes.

Constitutional Clause on Equality or Right to Privacy Constitution of Mauritius 1968[2] Article 3 guarantees fundamental freedoms without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest.  Rights protected include  the right of the individual to life, liberty, security of the person and the protection of the law; freedom of conscience, expression, of assembly and association; and freedom to establish schools; protection for the privacy of the home and other property Article 9 reaffirms the right to the privacy of the home and right not to be searched on his premises, subject to interests of defence, public safety, public order and public morality.

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LGBT Situation in Malawi

Malawi recently had its aid from Britain suspended due to its poor human rights record. Here is the CHRI take on its homosexual human rights track record.

Law that Criminalises Homosexuality Penal Code Cap. 7:01 Laws of Malawi Section 153 defines unnatural offences as carnal knowledge of any person against the order of nature or permitting a male person to have carnal knowledge of [a male or female person] against the order of nature.  Whoever commits this felony is liable to up to fourteen years imprisonment, with or without corporal punishment. Section 156 criminalises Gross indecency of one male person with another male person in public or private and carries a liability of up to five years imprisonment.[1] Under Malawi’s current law, rape is non-consensual sex with a member of the opposite sex who is not one’s spouse. Forcible sex with one’s spouse is not illegal.[2]

Practical Consequences of the law December 30, 2009 -Tiwonge Chimbalanga and Steven Monjeza: were arrested after holding a traditional engagement ceremony, and charged with public indecency. February 3, 2010 -Peter Sawali: arrested for putting up posters that stated ‘gay rights are human rights’; charged with causing a ‘breach of the peace’. May 20, 2010 - Tiwonge Chimbalanga and Steven Monjeza were convicted and sentenced to the maximum sentence allowed by law, of 14 years with hard Labour for engaging in acts of sodomy and acts of indecency. May 29, 2010 – Tiwonge Chimbalanga and Steven Monjeza: Presidential pardon on ‘humanitarian grounds’. February 9, 2010 – Peter Sawali: sentenced to community service, to clean the premises of Blantyre Magistrates Court for 60 days.

Constitutional Clause on Equality or Right to Privacy Republic of Malawi (Constitution) Act 1994[3] Under Article 20 Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.  Further, legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the courts. Article 21 guarantees, to every person the right to personal privacy, including protection against searches of his or her person, home or property; the seizure of private possessions; or interference with private communications, including mail and all forms of telecommunications.

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[1] http://www.gaylawnet.com/ezine/crime/ILGA_2008.pdf

[2] http://www.equityfeminism.com/articles/2002/bill-to-criminalize-marital-rape-creates-controversy-in-malawi/

[3] http://www.sdnp.org.mw/constitut/dtlindx.html

LGBT Situation in Lesotho

Whilst Homosexuality is still illegal in Lesotho there has a gradual softening in attitudes. In November 2010 the first gay support group called MATRIX was registered as an official NGO in the county.

A recent UNDP report recognised that such a gay community existed in Lesotho. This study further identified the group as a population at very high risk of HIV infection. There was a self-reported HIV prevalence of 11.6% of the young men sampled who admitted to having sex with other men.

The report  also revealed that the group perceive themselves as having very little access to targeted HIV prevention programs. This study was commissioned as part of UNDP’s HIV & Sexual minorities. For further information click here.

Law that Criminalises Homosexuality Sodomy is prohibited as a common-law offence. It is defined as “unlawful and intentional sexual relationship per anum between two human males”[1]

Practical Consequences of the law Neighbouring SA has legalised homosexuality. Issues of tourists crossing the border without knowledge of difference in law.

Constitutional Clause on Equality or Right to Privacy The Constitution of Lesotho (1993)[2] Fundamental human rights and freedoms are protected under Article 4 and are entitled to every person in Lesotho, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to.  These rights include the right to life; the right to personal liberty; the right to respect for private and family life; freedom of peaceful assembly; freedom of association; freedom from discrimination; and the right to equality before, and the equal protection of, the law. These freedoms are limited by limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.

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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.