The Gambia’s recent enactment of an amendment to Article 144 of the Criminal Code puts the already persecuted lesbian, gay, bisexual, trans and intersex (LGBTI) community at an even greater risk of criminalisation, discrimination, stigmatisation and abuse. The amendment introduces a new crime: ‘aggravated homosexuality’, an almost verbatim reproduction of the section on ‘aggravated homosexuality’ first found in the infamous Anti-Homosexuality Act of Uganda.
Amongst those who could be charged with the ‘offence of aggravated homosexuality’ are people ‘living with HIV Aids’ and people engaging in homosexual acts with a person ‘below the age of eighteen years’ or ‘with disability’. Rhetorically this is alarming, because it appears that this provision then charges people with disabilities, living with HIV/ AIDS and minors engaging in same-sex sexual relations more severely than people without, which is unconstitutional according to Articles 17 (Fundamental Rights and Freedoms), 31 (Rights of the Disabled)and 33 (Protection from Discrimination) of the Constitution of the Republic of the Gambia, 1997. The former are liable to punishments of life imprisonment, while the latter are liable to imprisonment of 14 years.
Male/ male homosexuality: illegal
Female/ female homosexuality: illegal
Punishment for homosexuality (male/ male; female/ female): 14 years’ imprisonment
Punishment for aggravated homosexuality: life imprisonment
Able to serve in armed forces: no
Marriage/ substitute for marriage: no
3. Specific articles:
Article 144: Unnatural offences
(1) Any person who—
- has carnal knowledge of any person against the order of nature; or
- has carnal knowledge of an animal; or
- permits any person to have carnal knowledge of him or her against the order of nature; is guilty of a felony, and is liable to imprisonment for a term of 14 years.
(2) In this section, ‘carnal knowledge of any person against the order of nature’ includes –
- carnal knowledge of the person through the anus or mouth of the person;
- inserting any object or thing into the vulva or anus of the person for the purpose of simulating sex, and
- committing any other homosexual act with the person.
Article 144A: Aggravated homosexuality
(1) A person commits the offence of aggravated homosexuality where the –
a. person against whom the offence is committed is below the age of eighteen;
b. offender is a person living with HIV Aids;
c. offender is a parent or guardian of the person against whom the offence is committed;
d. offender is a person in authority over the person against whom the offence is committed;
e. victim of the offence is a person with disability;
f. offender is a serial offender; or
g. offender applies, administers or causes to be administered by any man or woman, any drug, matter or substance with intent to stupefy or overpower him or her, so as to enable any person to have un-lawful carnal connection with any person of the same sex.
(2) A person who commits the offence of aggravated homosexuality is liable on conviction to imprisonment for life.
Article 147: Indecent practices between males
- Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
- Any female person who, whether in public or private, commits any act of gross indecency with another female person, or procures another female person to commit any act of gross indecency with her, or attempts to procure the commission of any such act by any female person with herself or with another female person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
- In this section, ‘act of gross indecency’ includes any homosexual act.
4. State-sponsored homophobia and social climate:
The Gambian President Yahya Jammeh has repeatedly iterated homophobic statements. In 2008, he vowed to introduce laws ‘stricter than those in Iran’ to address ‘the vice’ of homosexuality. He further declared he would ‘cut off the head’ of any homosexual caught in the country and thus urged them to leave the country (http://thepoint.gm/africa/gambia/article/2008/5/19/president-jammeh-gives-ultimatum-for-homosexuals-to-leave; http://www.statehouse.gm/images/dialogue-tour_2008/day11_150508/index.htm; http://observer.gm/africa/gambia/article/2008/5/19/no-room-for-gays-in-gambia; http://www.afrik-news.com/article13630.html). Following these statements, several people perceived to be homosexual, have been arrested, including European citizens (http://www.afrik-news.com/article13736.html; http://www.pinknews.co.uk/2009/01/06/dutchman-fined-for-gay-indecency-in-gambia/).
In 2009, President Jammeh said that the Gambia will ‘not encourage lesbianism and homosexuality in the military. It is a taboo in our armed forces’ and advised the army chiefs to monitor and deal with the behaviour of the soldiers (http://www.freedomnewspaper.com/Homepage/tabid/36/mid/367/newsid367/4714/Breaking-News-Gambia-Jammeh-Threatens-To-Sack-Gay-And-Lesbian-Soldiers-In-Gambia/Default.aspx).
In 2011, the U.S. Department of State published a Human Rights Report on the Gambia and found that while there was strong societal discrimination against LGBT individuals, there were no reported incidents of physical violence against LGBT individuals during the year. (http://www.state.gov/documents/organization/186411.pdf) In 2012, 18 men were arrested for wearing women's clothes, carrying handbags, and ‘walking like ladies’ (http://www.gaystarnews.com/article/police-testify-against-gay-men-arrested-gambia190712).
Early 2014, President Jammeh referred to homosexuals as ‘vermin’ and vowed that his government will fight them the same way they are fighting malaria-causing mosquitoes. He further stated that the Gambia can ‘never accept any ungodly, satanic and anti-human behaviour as a way of life or a human right’ and will therefore ‘not accept any friendship, aid or any other gesture that is conditional on accepting homosexuals or L.G.B.T.as they are now baptised by the powers that promote them. As far as I am concerned, L.G.B.T can only stand for Leprosy, Gonorrhoea, Bacteria and Tuberculosis; all of which are detrimental to human existence’. He underlined that homosexuality will attract the ultimate penalty. (http://allafrica.com/stories/201402191598.html)
Following the passing of the Criminal Code (Amendment) Act, 2014, several people perceived to be LGBTI have been arrested and threatened with torture and ill-treatment. According to Human Rights Watch (HRW) and Amnesty International, detainees were told that if they did not confess their ‘crimes’ and revealed information about other people perceived to be LGBTI, a device would be forced into their anus or vagina to ‘test’ their sexual orientation. Several people are currently fleeing to Senegal to avoid persecution (http://www.hrw.org/news/2014/11/21/gambia-life-sentence-aggravated-homosexuality; http://www.amnesty.org/en/for-media/press-releases/gambia-must-stop-wave-homophobic-arrests-and-torture-2014-11-18). Rather ironically, such treatment would not only violate international law prohibiting torture and ill-treatment, but would also fall under section (2)(b) of Article 144 and would thus be punishable with 14 years’ imprisonment.
5. Universal Periodic Review 2010 and 2014 (ongoing):
During the process of the Universal Periodic Review in 2010, Civil Society expressed concern in regards to the general human rights situation of LGBTI people in the Gambia. For instance, the Trade Union Congress (TUC) was disturbed by homophobic comments by the Gambian Head of State and strongly condemned arbitrary arrests of citizens alleged to have engaged in homosexual practices. The International Gay and Lesbian Human Rights Commission (IGLHRC) recommended that the Gambia bring its legislation into conformity with its international human rights obligations by repealing all provisions criminalizing sexual activity between consenting adults, and by ensuring non-discrimination by ensuring access to adequate housing and freedom from or remedies for forced evictions, or the threat of forced evictions on the basis of sexual orientation. Furthermore, Fundación Mundial Déjame Vivir En Paz (FMDVEP) recommended that marriage of gay persons as well their right to adopt children be recognized and that all sentences against gay persons solely based on their sexual orientation be eliminated. Similarly, several countries, including Canada, France, UK, Norway, USA, Chile, Italy, Sweden, Netherlands and Argentina, recommended the Gambia to repeal their provisions criminalising same-sex sexual activity between consenting adults, prevent forced evictions on the basis of sexual orientation and gender identity and ensure non-discrimination in access to adequate housing, combat violence based on sexual orientation and gender identity, as well as ensure that all LGBT persons fully and equally enjoy their human rights, in conformity with Gambia’s international obligations. In response, the Gambia stated that within the Gambia, certain practices and certain cultures do not recognize sexual orientation as a universal human right and it should therefore not be imposed by law. Furthermore, the Gambia stressed that being homosexual alone is not an offence, while only sexual intercourse between two consenting adults has been criminalised.
(Link to UPR of the Gambia from 2010: http://www.ohchr.org/EN/HRBodies/UPR/Pages/GMSession7.aspx; see also http://arc-international.net/global-advocacy/universal-periodic-review/g/gambia)
Currently (November 2014), the Gambia is again under review. Many of the concerns and recommendations gathered from Civil Society so far, reiterate those from 2010. For instance, the Commonwealth Human Rights Initiative (CHRI) and Amnesty International recommend that the Gambia ensure that all LGBT persons fully and equally enjoy their human rights issue a moratorium on all prosecutions for reason of sexual orientation or gender identity and repeal all provisions in the Criminal Code that criminalise and stigmatise people on the grounds of sexual orientation or gender identity. Similarly, the Gambian Civil Society Coalition on Women's Rights and the Gambian Civil Society Coalition on Civil and Political Rights, in collaboration with Amnesty International, stated that hate speech, unlawful arrests and unconstitutional detentions of, amongst others, homosexual people have increased since 2010. They recommended that the Gambia promote human rights for all, regardless of their sexual orientation and refrain from making threatening, intimidating, or discriminatory remarks against LGBTI rights.
(Link to UPR of the Gambia from 2014 (ongoing):
6. LGBTI organisations:
None identified (November 2014).
- International Covenant on Economic, Social and Cultural Rights (ratified 29 December 1978)
- International Covenant on Civil and Political Rights (ratified 22 March 1979)
- Optional Protocol to the International Covenant on Civil and Political Rights (ratified 9 June 1988)
- Convention on the Elimination of All Forms of Discrimination against Women (signed 29 July 1980; ratified 16 April 1993)
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (signed 23 October 1985; ratified April 2006)
- African Charter On Human And Peoples' Rights (ratified 8 June 1983)
The Gambia is yet to sign or ratify the following treaties
- Second Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty
- Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
- Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women
- Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment