24
the barrister
The Tenacity of British Colonial Laws in the Lives
of Sexual Minorities in the Commonwealth
By Treva Braun, Legal Director, Human Dignity Trust
I
n 2017, the gay community of
the
persecution
and dependencies. As a result, virtually
England and Wales will be able
they enable have their roots in English
all of the countries of the European
to celebrate 50 years of freedom
law. The UK’s 1861 Offences Against
empires, other than the British, never
from being criminalised for
the Person Act punished sodomy with
imposed criminal sanctions specifically
who they are. The prohibition
ten years to life, abolishing the death
on adult same-sex consensual activity in
private3.
discrimination
and
on consensual sexual relations
penalty which had been in place for this
between men in private was repealed
through the Sexual Offences Act 19671.
crime from as early as 1533. A more
That timing, however, is an accident of
added to English law via the Criminal
history that comes a few years too late
Law Amendment Act of 1885, making
There is a wide variance in the extent
for many others around the world.
it a misdemeanour, only applicable to
to
men, to engage in any kind of sexual
enforce their criminal provisions and
intimacy with another man, for which
the impacts local lesbian, gay, bisexual
the punishment was imprisonment of up
and transgender (LGBT) people face
to one year with or without hard labour.
in addition to the threat of criminal
THE COLONIAL LEGACY
Criminalisation of consensual same-
generic offence of ‘gross indecency’ was
sex acts variously called ‘buggery’,
‘unnatural
intercourse
which
Commonwealth
countries
prosecution.
the
In the 19th century, Britain spread
order of nature’ and ‘gross indecency’
these laws around its colonies, most
In Cameroon, a male university student
occurs in about 80 jurisdictions across
of which had no previous concern
was sentenced in 2011 to three years
the globe. The Commonwealth is front
with homosexuality and indeed some
in prison after sending a text message
and centre in this figure: there are 54
of which openly acknowledged and
to another man saying “I'm very much
Commonwealth countries representing
accepted it. The 20th century repeal of
in love with you”. His conviction and
just over 25 per cent of all countries
these laws in Britain came a few years
sentence were upheld on appeal in
in the world, yet the Commonwealth
after most British colonies had won
December 2012, on the strength of email
represents over 50 per cent of the
jurisdictions that criminalise2.
their independence, so the repeal here
admissions to sexual relations with
had no impact or influence in what were
other men. Two women are currently
by then the former colonies. And by
awaiting trial for engaging in sexual
countries
that time, the staunch homophobia that
intimacy, and will be the first-ever
criminalise
Victorian England generated around the
females in Cameroon to be prosecuted
world had been firmly entrenched.
under the provision proscribing ‘sexual
Forty-two
(almost
against
IMPACTS
Commonwealth
80
consensual
per
same
cent)
sex
relations.
In
some countries both women and men
relations between persons of the same
are criminalised, while in many the
In contrast, other colonising nations
sex,’ which carries a sentence of up
laws apply only to men. The severity
either
criminal
to five years in prison. In Grenada, a
of the prescribed punishment varies,
provisions or had much earlier removed
man was convicted in December 2012
from
them from their statute books. Notably,
and sentenced to six years in prison
Singapore to 14 years with or without
Napoleon’s
of
after a trial in which he had no legal
corporal
to
1810 abolished the crime of sodomy,
representation, and another man was
life imprisonment in Sierra Leone,
with various countries then adopting
indicted in January 2013. The Gambia
Tanzania, Uganda, Zambia, Bangladesh,
the
the
was in the spotlight in 2011 when its
Pakistan, Guyana and Barbados.
Netherlands, Belgium, Spain, Portugal,
Western Region Minister ordered the
Scandinavia, Germany, Russia, China
immediate arrest of all homosexuals in
and Japan and their respective colonies
the region.
two
years
imprisonment
punishment
in
Malawi
in
All of these criminal provisions and
never
French
had
French
model
such
Penal
Code
including
26
the barrister
Many other countries either have stated
research
of
Legislative reform remains elusive in
non-enforcement policies or simply do
homosexuality "both causes and boosts"
most Commonwealth countries. During
not use the criminal provisions, while
the rate of HIV among men who have
their Universal Periodic Review before
still maintaining them on the statue
sex with men (MSM). This is borne out
the UN Human Rights Council, 32 of
books. Ackermann J of the South
by the statistics. In Caribbean countries
the
African Constitutional Court highlighted
where homosexuality is criminalised,
criminalise
the legal fiction of non-enforcement
namely most of the Commonwealth
rejected recommendations to repeal
policies, noting that the provisions
Caribbean countries and none of the
these laws, with four others giving no
themselves “reduce gay men … to …
‘unapprehended felons’…”4.
non-Commonwealth countries, almost
clear response. Only four agreed to
one in four MSM is infected with HIV. In
examine the recommendations, and only
two (Nauru and Seychelles) accepted the
that
criminalisation
Commonwealth
countries
homosexuality
that
expressly
regularly
the absence of such laws, the prevalence
is only one in 15.5 Similarly, the odds
used by police to harass LGBT people
of HIV infection in black MSM relative
and deny them access to justice. In
to general populations were found to
As a result of this legislative lethargy,
Singapore police warned a man, who
be nearly two times higher in African
the courts are increasingly being used to
reported a theft by a male partner,
countries that criminalise homosexual
have these laws struck out as a breach
under
activity than for those living in countries
where it is legal6.
of human rights law, notably the rights
These
criminal
the
laws
Penal
are
Code
provision
outlawing homosexuality, rather than
investigating the theft. Others have
recommendations.
to
equality
and
non-discrimination,
privacy and dignity.
At the domestic
been
received stern warnings by police about
As an example of why this is so, in
level,
their consensual homosexual activity. In
Kenya where "carnal knowledge against
constitutional challenges in the last 10-
Jamaica, gay men are driven to bank
the order of nature" is criminalised,
15 years in jurisdictions as diverse as
machines by police officers so they
a medical research institute had its
South Africa, India, Fiji, Nepal, Peru,
can pay bribes to avoid prosecution,
HIV
church
the United States and Hong Kong. There
and lesbians reporting rape are told by
leaders claimed that it was providing
is on-going litigation in Belize, Grenada
police they deserved it for living the gay
"counselling services to criminals."
and Singapore, with others in the
work
disrupted
after
‘lifestyle’.
there
have
successful
planning stages.
It is not surprising then that the
Such laws are also used to prohibit LGBT
Commonwealth
people from associating and assembling.
implicated in the global HIV crisis.
was
In February 2012, a government Minister
While the Commonwealth represents
Rights
in Uganda shut down an LGBT advocacy
30 per cent of the world's population,
implementation of the International
workshop, claiming it was ‘promoting
it contains more than 60 per cent of
Covenant on Civil and Political Rights,
and encouraging’ homosexuality which
people living with HIV globally.
leading to the 1994 decision in Toonen v
Australia7 that Tasmania’s maintenance
is
particularly
is a criminal offence. A month later in
At the international level, a complaint
brought
to
the
Committee,
UN
which
Human
monitors
Cameroon, armed police broke up a
Even
have
of criminalisation constituted a breach
planned three-day meeting on HIV and
decriminalised, of course, discrimination
of Australia’s obligation to respect the
sexual minorities.
remains.
Article 17 right to privacy and the Article
in
countries
The
1996
that
South
African
Constitution was the first in the world
2(1) right to non-discrimination.
The mere fact of criminalisation also
to expressly prohibit discrimination on
provides a license to discriminate in
grounds of sexual orientation, and the
At the regional level, successful cases
employment, housing, healthcare and
Constitutional Court in 1998 struck down
before the European Court of Human
other social services, and incites systemic
the sodomy laws as a violation of the
Rights
hatred, violence and stigmatisation.
Constitution’s human rights guarantees.
Yet homophobia, often violent, remains
Northern
Cyprus10 based on the ECHR Article
The ability to prevent the spread of
rampant. For instance, there are reports
8 right to privacy led to the repeal of
HIV is widely recognised to be directly
that at least 500 lesbians become victims
criminal provisions in those countries.
compromised
of so-called ‘corrective rape’ every year.
A case against Turkey in respect of
by
criminalisation.
A
Global Commission on HIV and the
Law in 2012 concluded after extensive
against
the
Ireland)8,
UK
(regarding
Ireland9 and
Northern Cyprus – the last pocket within
ROLE OF THE COURTS
the Council of Europe to criminalise – is
the barrister
27
currently before the European Court.
but it is one tool being used by a
Commonwealth Criminal Law (2011) at
Two cases have been lodged before
movement seeking to bring that figure
25-26.
the
on
of 80 per cent of the Commonwealth
4 National Coalition for Gay and Lesbian
Human Rights to challenge Jamaica’s
criminalising homosexuality into the
Equality v Minister for Justice, South
criminalisation of same-sex relations.
same decline that colonialism itself
African Constitutional Court, CCT 11/98
They will be the first-ever cases on
faced so many years ago.
(1998).
Inter-American
Commission
criminalisation of homosexuality in the
Inter-American system.
5 UNAIDS, Global Report on the AIDS
1 Though only for men over the age of 21.
Epidemic (2008).
It was over 30 years later, with passage
6
of the Sexual Offences (Amendment)
contextual review of HIV epidemics
Act 2000, that the age of consent was
in black men who have sex with men
British colonialism, imbued as it was
equalised to 16 for both heterosexual
across the African diaspora, Vol. 380,
with
and homosexual intimacy. The final nail
Issue 9839, pp. 411-423 (28 July 2012)
CONCLUSION
Victorian
continues
to
puritanical
govern
the
values,
lives
The
Lancet,
Common
roots:
a
of
in the coffin of criminalisation came
7 Communication No. 488/1992, CCPR/
hundreds of thousands of LGBT people
10 years ago when the current Sexual
C/50/D/488/1992 (1994).
around the Commonwealth. As such,
Offences Act 2003 repealed the offence
8
the Commonwealth, as an institution,
of homosexual sex "when more than
Application no. 7525/76 (1981)
remains both significantly implicated in
two persons take part or are present".
9 Norris v Ireland, Application no.
the persecution they face and key to its
2 The others being mainly societies
10581/83 (1988).
eventual eradication.
influenced by the Sharia law of Islam.
10 Modinos v Cyprus, Application no.
3 The Hon. Michael Kirby, The Sodomy
15070/89 (1993)
Litigation is a blunt instrument and
Offence:
cannot guarantee to change attitudes,
Criminal Law Export? 22 Journal of
England’s
Least
Dudgeon
v
United
Lovely
Members of Chambers
Senior Clerk:
Kingdom,