Written by Garima Tiwari
While 18 countries, home to more than 10 percent of the world’s population, now recognize same-sex marriage, 77 countries still outlaw sodomy.[i] In seven of these countries, same-sex acts are punishable by death! Just recently, the Supreme Court of India reinstated a sodomy law recriminalizing same-sex relationships in a country home to 1.2 billion people. [ii] Max Fisher says that, “That’s more than the combined populations of the next 20 most-populous countries where same-sex acts are criminalized. If we assume that rates of homosexuality are consistent worldwide, then the number of gay men and women who can be jailed for their sexuality may well have just doubled.”[iii]
After decriminalising same-sex relationships in 2009, the Supreme Court of India in December 2013 upheld a 153-year old colonial ban on gay sex, maintaining that it was constitutional to prohibit “carnal intercourse against the order of nature. The Supreme Court said that the Delhi High Court overreached its authority by ruling against the ban in 2009 and it is for the legislature to look into desirability of deleting Section 377 of the Indian Penal Code. Section 377 was introduced into the Indian legal system during British colonial rule in 1861. Those found breaking the law banning homosexual intercourse can be punished by a fine and a maximum jail sentence of 10 years.
Attorney General of India G E Vahanwati said in a 2012 hearing “It would appear that the introduction of Section 377 in India was not a reflection of existing Indian values and traditions. Rather, it was imposed upon Indian society due to the moral views of the colonizers.” [iv]
When Europe began giving up its colonies after the end of World War II, most of Africa’s newly independent states decided to keep the colonial-era constitutions. Half of the world’s “sodomy laws” criminalizing homosexuality are direct hold-overs from British colonial rule; former French and Portuguese colonies retained the laws as well. Some national leaders have defended sodomy laws as reflections of indigenous cultures. Thus, Party- politics is playing a major role. Zimbabwe’s Robert Mugabe, for example, has called gays and lesbians “un-African” and “worse than dogs and pigs.” [v]
The Human Rights Watch report[vi] shows, however, that British colonial rulers brought in these laws because they saw the conquered cultures as morally lax on sexuality. The British also wanted to defend their own colonists against the “corrupting” effect of the colonies. One British viceroy of India warned that British soldiers could succumb to “replicas of Sodom and Gomorrah” as they acquired the “special Oriental vices.” The model British-era sodomy law made no distinction between consensual and non-consensual sex, or between sex among adults and sexual abuse of children. As a result, these surviving laws leave many rape victims and child victims of abuse without effective legal protection. They also legitimize police extortion, violence, and discrimination.
International human rights standards have compelled former colonial powers to acknowledge that these laws are wrong. England and Wales decriminalized homosexual conduct in 1967. They have also adopted marriage equality and has also made a much more promising progression, most notably with the Marriage (Same Sex Couples) Act receiving Royal Assent in July 2013. Same-sex marriage will come into effect in mid-2014, giving Lesbian, Gay, Bi-sexual Transgender (LGBT) couples in England and Wales the freedom to marry those of either gender on equal terms.[vii] In 1994, the UN Human Rights Committee – which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) – held that sodomy laws violate the rights to privacy and to non-discrimination. [viii] The European Court of Human Rights found in 1981 that a surviving sodomy law in Northern Ireland violated fundamental rights protections.[ix]
Countries that retain the versions of the British sodomy law include[x]:
- Asia and the Pacific: Bangladesh, Bhutan, Brunei, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar (Burma), Nauru, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa.
- Africa: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe.
- Eleven former British colonies in the Caribbean also retain sodomy laws derived from a different British model than the one imposed on India.[xi]
Punishments vary from death penalty, life imprisonment to fine. In Mauritania for example, Article 308, Penal Code of 1984 says, “Any adult Muslim man who commits an indecent act or an act against nature with an individual of his sex will face the penalty of death by public stoning.”
In June 2013, Russia passed a law that banned the promotion of homosexuality to minors, effectively outlawing any public demonstrations or speeches on gay rights, and the terms of the ruling are so euphemistic and broad that this could even extend people being fined or arrested for public displays of homosexuality. It’s a startling reversal from the country’s decriminalisation of homosexual relationships in 1993. The speed with which the anti-gay laws and sentiment in Russia have taken hold is startling. The court reversals in India and Australia are troubling. And gays in many other nations are facing just as serious or even worse circumstances as their governments and neighbours persecute and prosecute them because of who they are. [xii]
In March 2013, Zimbabwe voted to ban same-sex marriage when they ratified a new constitution.[xiii]
Nigeria, another former British Colony is also on its way to make a law which would not only send same-sex couples to jail for performing a wedding ceremony, but also makes it a crime to support LGBT rights in any way. It is called the “Anti Same-Sex Marriage” bill.[xv] The bill has been in process since 2006, and both the House and Senate had passed versions, with a compromise version being passed on December 19, 2013, which now needs assent of the President.
Uganda, passed an anti-homosexuality bill to toughen the punishment for homosexual acts, introducing a law that would include life imprisonment for homosexuals and extensive sentences for those who fail to report them. Uganda’s parliament unexpectedly passed its long-pending “Kill the Gays” bill (though penalties were revised down to life in prison in the final version). An American judge ruled earlier this year that the proposal is so extreme that an American supporter of the initiative, Scott Lively, can be tried for crimes against humanity in U.S. courts.
Sadly Uganda and Nigeria are not isolated. Similarly extreme legislation has been mooted in Liberia, Burundi and South Sudan and prosecutions of gay men and lesbians in Cameroon have sharply increased.
The majority of Croatians have voted to outlaw same-sex marriage in a referendum held by the newest European Union member state on December 1, 2013. This was a bit of an embarrassment to the country, whose LGBT rights record was under close scrutiny in the run-up to its joining the European Union. Following the referendum, Croatia will have to amend its constitution to define marriage as a “union between a woman and a man”. At present, the constitution in predominantly Catholic Croatia does not define marriage.[xvi]
Australia’s highest court overturned a law in the national capital territory that allowed same-sex couples there to marry in October, 2013. Australia has had a version of Defence of Marriage Act since 2004. It ruled void all current same-sex marriages and declared the move a “comprehensive and exhaustive statement of the law of marriage”.[xvii]
While the countries with a former colonial past, are struggling, Britain and France’s votes to enact marriage equality, alongside the U.S. Supreme Court ruling[xviii], ordering federal recognition of same-sex marriages performed under state law, were the clearest sign that the LGBT rights movement had entered a new era. Brazil’s National Council of Justice also issued a ruling establishing marriage equality in May, 2013. Judges in several Mexican states granted marriages to same-sex couples. Judges have also begun marrying same-sex couples in Colombia under a 2011 Constitutional Court ruling that took effect in June 2013. South Africa, that has a constitution that prohibits discrimination based on sexual orientation. In April 2013, New Zealand became the first country in the Asia-Pacific region to legalise gay marriage. Gay marriage is also legal in countries including Canada, France, Argentina, and Uruguay. Botswana, Cape Verde, Mauritius, Mozambique, Seychelles also offer legal protection to them.
The result of these legislations’ and rulings banning same-sex relations can be devastating. The range of abuse is limitless and it contravenes the fundamental tenets of international human rights law. Human rights abuses based on sexual orientation or gender can include violation of the rights of the child; the infliction of torture and cruel, inhuman and degrading treatment Article 5 of Universal Declaration of Human Rights (UDHR) ; arbitrary detention on grounds of identity or beliefs (Article 9 UDHR); the restriction of freedom of association (Article 20 UDHR) and the denial of the basic rights of due process. Examples include: Execution by the state , denial of employment, housing or health services, Loss of custody of children, Denial of asylum, Rape and otherwise torture in detention, Threats for campaigning for gay human rights and Regular subjection to verbal abuse.
The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, developed in 2006 by a group of LGBT experts in Yogyarkarta, Indonesia in response to well-known examples of abuse, provides a universal guide to applying international human rights law to violations experienced by lesbians, gay men, bisexual and transgender people to ensure the universal reach of human rights protections.[xix]
The world seems to be pulling in two directions on LGBT rights. International human rights, are today standing in loggerheads with the past colonial-Victorian morality. It is not a mere question of right to privacy or personal choice anymore, it is an international concern of how deeply a country is impacted by legal imperialism. In many countries, the refusal of governments to address violence committed against LGBT people creates a culture of impunity where such abuses can continue and escalate unmitigated. Often, such abuses are committed by the state authorities themselves, with or without legal sanction. The laws made during the colonial times, not just changed how the legal system dealt with homosexuals, but also changed the societal outlook towards these groups.
[ii] Suresh Kumar Koushal and another v. NAZ Foundation and others, CIVIL APPEAL NO.10972 OF 2013,[online][accessed 28 December 2013]
[iii] Max Fisher, A Map of the Countries Where Homosexuality is Criminalised, December 11, 2013 [online][accessed 29 December 2013]
[iv] India Supreme Court upholds colonial ban on gay sex, December 11, 2013 [online][accessed 28 December 2013]
[vi] This Alien Legacy : The Origins of Sodomy Laws in British Colonialism , December 17, 2008 [online][accessed 29 December 2013]
[vii] Two Steps Forward, Three Steps Back: LGBT Rights in 2013 [online][accessed 29 December 2013]
[ix]Dudgeon v United Kingdom (1981) 4 EHRR 149 [online][accessed 28 December 2013]
[x] An interactive map showing legal reaction to same-sex relations and the type of punishment imposed in different countries [online][accessed 28 December 2013]
[xi] India: Supreme Court Ruling Undermines LGBT Rights, Parliament Should Promptly Amend ‘Sodomy’ Law to Ensure Equality, DECEMBER 12, 2013 [online][accessed 28 December 2013]
[xi] Wendy Zeldin, Zimbabwe: Draft New Constitution Approved in Referendum, [online][accessed 30 December 2013]
[xiv] Section 377A, High Court rejects arguments in second case involving S377A, October 2, 2013, [online][accessed 30 December 2013]
[xvii] Australia high court overturns ACT gay marriage law, 12 December 2013,[online][accessed 29 December 2013]
[xviii] United States v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808, 118 FEP Cases 1417 (2013) [2013 BL 169620]