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Making Love a Crime Criminalization of Same-Sex Conduct in Sub-Saharan Africa

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Making Love a Crime Criminalization of Same-Sex Conduct in Sub-Saharan Africa MAKING LOVE A CRIME CRIMINALIZATION OF SAME-SEX CONDUCT IN SUB-SAHARAN AFRICA Amnesty International Publications First published in [YYYY] by Amnesty International Publications International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom www.amnesty.org © Amnesty International Publications [YYYY] Index: [Index Number] Original Language: English Printed by Amnesty International, International Secretariat, United Kingdom [ISBN:] [ISSN:] All rights reserved. This publication is copyright, but may be reproduced by any method without fee for advocacy, campaigning and teaching purposes, but not for resale. The copyright holders request that all such use be registered with them for impact assessment purposes. For copying in any other circumstances, or for reuse in other publications, or for translation or adaptation, prior written permission must be obtained from the publishers, and a fee may be payable. To request permission, or for any other inquiries, please contact [email protected] Cover photo: [Credit] Amnesty International is a global movement of more than 3 million supporters, members and activists in more than 150 countries and territories who campaign to end grave abuses of human rights. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations. CONTENTS Methodology .............................................................................................................6 Executive Summary ...................................................................................................7 1. INTRODUCTION .......................................................................................................9 2. SEXUAL ORIENTATION AND GENDER IDENTITY IN RECENT INTERNATIONAL HUMAN RIGHTS LAW..............................................................................................................11 3. HISTORICAL CONTEXT OF CRIMINALIZATION IN AFRICA .........................................14 3.1 The colonial era.................................................................................................15 4. RECENT LEGAL DEVELOPMENTS IN SUB-SAHARAN AFRICA....................................17 4.1 Positive legal developments ................................................................................17 4.2 Regressive legal developments ............................................................................18 4.3 The impact of laws criminalizing consensual same-sex conduct ..............................20 5. VIOLATIONS BY STATE ACTORS..............................................................................21 5.1 Arbitrary arrests, detention and deprivation of liberty.............................................21 5.1.1 Recent arrests in Cameroon ..........................................................................22 5.1.2 Right to a fair trial in Malawi ........................................................................26 5.2 Police abuse .....................................................................................................27 5.3 Freedom of expression and assembly ...................................................................30 5.4 Incitement to discrimination and hatred...............................................................32 6. VIOLATIONS BY NON-STATE ACTORS......................................................................34 6.1 Violence, harassment, intimidation and discrimination ..........................................34 6.2 Risks for human rights defenders ........................................................................38 6.3 The gap between law and lived reality in South Africa............................................39 6.4 The role of the media .........................................................................................40 6.5 The role of religion ............................................................................................ 42 7. GENDER NORMS, LESBIANS AND TRANSGENDER AND INTERSEX INDIVIDUALS ..... 47 7.1 Gender norms ................................................................................................... 47 7.2 Lesbians .......................................................................................................... 48 7.3 Transgender and intersex individuals................................................................... 53 8. ECONOMIC AND SOCIAL IMPLICATIONS OF CRIMINALIZATION................................ 57 8.1 Health Implications........................................................................................... 57 8.2 Socio-economic impact...................................................................................... 62 9. RIGHTS UNDER INTERNATIONAL AND REGIONAL HUMAN RIGHTS LAW ................. 64 9.1 Rights articulated.............................................................................................. 64 9.1.1 The right to non-discrimination and equality before the law ............................. 64 9.1.2 The right to life........................................................................................... 64 9.1.3 Freedom from arbitrary deprivation of liberty.................................................. 65 9.1.4 Conditions of detention................................................................................ 65 9.1.5 Freedom from torture and other cruel, inhuman or degrading treatment or punishment......................................................................................................... 66 9.1.6 The Right to A fair trial................................................................................ 66 9.1.7 The right to freedom of expression ................................................................ 66 9.1.8 The right to freedom of assembly and association........................................... 66 9.1.9 The right to private life ................................................................................ 67 9.1.10 The right to security of the person .............................................................. 67 9.10.11 The right to marry and found a family........................................................ 67 9.2 Recent UN developments................................................................................... 68 9.3 Regional human rights law and mechanisms ........................................................ 70 10. CONCLUSION...................................................................................................... 72 11. RECOMMENDATIONS ...........................................................................................74 12. APPENDICES .......................................................................................................76 12.1 Laws criminalizing consensual same-sex conduct in African Countries...................76 12.2 Terminology used in this Report ........................................................................96 ENDNOTES................................................................................................................98 6 MAKING LOVE A CRIME: CRIMINALIZATION OF SAME-SEX CONDUCT IN SUB-SAHARAN AFRICA METHODOLOGY The report has benefited from extensive desk-based research into national laws, academic materials, court judgements, international and regional human rights law, as well as Amnesty International’s ongoing engagement with international and regional human rights advocacy. This report is also based on over 60 interviews with activists, survivors of violence, academics, human rights defenders, and legal and medical professionals in Uganda, Cameroon, Kenya and South Africa, which took place in 2011. The intent of these interviews is not to generate region-wide trends, but to provide specific examples of how the legal framework in these selected countries affects the enjoyment of human rights for LGBTI people. Amnesty International would like to thank Professor Matthew Weait for his extensive contributions to this report, as well as the numerous people who agreed to be interviewed for this report. Activists, academics and others generously gave their time to share their advice and experiences, which have informed the content of, and greatly enriched, this report. Amnesty International April 2013 Index: AFR 01/001/2013 MAKING LOVE A CRIME: 7 CRIMINALIZATION OF SAME-SEX CONDUCT IN SUB-SAHARAN AFRICA “Our old neighbours said to me, ‘Why are you still alive?’” Frank, Uganda EXECUTIVE SUMMARY This report provides an analysis of the legal environment and wider context of human rights violations against lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in sub- Saharan Africa. Recent years have seen increasing reports of people being harassed, marginalized, discriminated against and attacked because of their real or perceived sexual orientation or gender identity. This is occurring in countries whose legal systems still condone the criminalization of consensual same-sex behaviour, and in countries where the police and justice systems are failing to prevent these crimes from happening. The continued criminalization of consensual same-sex conduct in 38 African countries is a serious cause for concern. The existence and implementation of these laws violates a raft of international and regional human rights norms, and serves to marginalize
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