Experience

10 countries could drop criminalising laws against homosexuality

Posted by Timothy on

Erasing 76 Crimes reports queer activists in ten countries are challenging anti-sodomy laws via courts. If successful, the tally of countries criminalising consensual sex between adults of the same sex could drop to 57. 

Legal challenges to anti-LGBTQ laws are under way in Africa and in the Caribbean. 

The Carribbean

The sodomy laws of four small Caribbean island nations are being challenged in the Eastern Caribbean Supreme Court. Those countries are Grenada, Saint Lucia, Saint Vincent and the Grenadines, and Dominica. A decision in the case was expected earlier this year.

In addition, lawyer and activist Maurice Tomlinson is challenging the anti-buggery law in his native Jamaica. An effort that has been slowed down by extensive legal maneuvering from powerful Jamaican homophobes, reports Erasing 76 Crimes. 

Unfortunately, the on 27 October the Supreme Court of Jamaica upheld our country’s archaic anti-sodomy law, claiming that only Parliament could repeal this discriminatory edict. Tomlinson has had enough and throws in the towel.

The Inter-American Commission on Human Rights ruled in late 2020 that Jamica’s sodomy laws contravene the American Convention on Human Rights, but so far that has not persuaded the Jamaican government to act.

Africa

The Human Dignity Trust, which is active in challenging anti-LGBTQ laws, maintains a comprehensive country-by-country account of the status of anti-homosexuality laws.

Tunisia

In Tunisia in December 2021, Human Dignity Trust reports, a case was filed with the Court of Cassation, challenging the criminalisation of same-sex sexual activity under Article 230 of the Penal Code. 

Courts of cassation do not re-examine the facts of a case, they only interpret the relevant law. In this they are appellate courts of the highest instance. In this way they differ from systems which have a supreme court which can rule on both the facts of a case and the relevant law. The term derives from the Latin cassare, “to reverse or overturn”. Usually, a case is then sent to another appellate court. 

In 2022, the (for some queer activists controversial) LGBTQIA+ rights group Shams reported, the Court of Cassation issued an opinion that the country’s anti-homosexuality law is unconstitutional. 

However, Shams stated, the law will remain on the books unless it is overturned by Tunisia’s Constitutional Court. In the meantime, any defendants charged under Article 230 can cite the opinion from the Court of Cassation in their defense, Shams stated.

Kenya

In Kenya in 2016, the non-governmenetal National Gay and Lesbian Human Rights Commission (NGLHRC) launched a constitutional challenge to Kenya’s anti-homosexuality laws. In 2019, the High Court rejected that challenge. The NGLHRC appealed that decision and is currently awaiting action from Kenya’s Court of Appeal.

Malawi

In Malawi, a Dutch NGO worker and a local transgender woman are challenging the country’s anti-homosexuality law. After they argued their case in July and August, a judgment is currently awaited.

Namibia

In Namibia, in 2022, Friedel Dausab, a gay Namibian man, filed a challenge to the common law offence of sodomy and related offences, on the basis that they were incompatible with his rights as protected by the Constitution of Namibia. 

Dausab, an expert in HIV prevention and treatment and an experienced LGBTQIA+ rights activist, brought the case with the support of the Human Dignity Trust. A ruling is still awaited from the High Court of Namibia.

Uganda

In Uganda, human rights activists are challenging the nation’s extreme new Anti-Homosexuality Act in Uganda’s Constitutional Court. The run-up to the law and its enactment in May 2023 have triggered extensive anti-queer violence and human rights abuses. The latest constitutional challenge does not affect a longstanding and seldom enforced Ugandan anti-homosexuality law.

Tourism

Malawi and Uganda are no tourist hotspots for LGBTQIA+ people. But Tunisia is popular with European beach and pool lovers, including gay travellers. Kenya and Namibia are popular with safari adepts. And the Carribbean hosts many (gay) cruises. 

As a queer traveller, always check the LGBTQIA situation of your destination. 

Queer human rights