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| In the Tanzanian parliament on 20 June 2012, Membe responded to a question from a parliament member, ], about the position of the government on the pressure by western countries demanding abolition of anti-gay laws. Membe said, "We are ready to lose aid and support from friendly countries that are now pushing for repeal of anti-gay laws in African nations" and that Tanzania was ready to go it alone rather than being subjected to humiliation and dehumanization.<ref></ref> | In the Tanzanian parliament on 20 June 2012, Membe responded to a question from a parliament member, ], about the position of the government on the pressure by western countries demanding abolition of anti-gay laws. Membe said, "We are ready to lose aid and support from friendly countries that are now pushing for repeal of anti-gay laws in African nations" and that Tanzania was ready to go it alone rather than being subjected to humiliation and dehumanization.<ref></ref> | ||
| ==Tanzania's obligations under international law and treaties== | |||
| In 1994, the ] (UNHRC) confirmed in '']''<ref></ref> that laws criminalizing consensual same-sex activity violate both the right to privacy and the right to equality before the law without any discrimination, contrary to Article 17 of the ]<ref></ref> (the "Covenant"). Those laws interfere with privacy rights, regardless of whether they are actively enforced, and "run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention" by driving marginalised communities underground. The UNHRC has subsequently affirmed this position on many occasions by urging countries to repeal laws that criminalize consensual same-sex activity and thereby bring their legislation into conformity with the Covenant.<ref></ref>{{rp|page: 6 ¶ 27}}<ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref> Tanzania has ratified the Covenant. | |||
| The ] in June 2002 found that arrests for being homosexual or for engaging in consensual homosexual conduct are, by definition, human rights violations.<ref></ref> The arrests constitute an arbitrary deprivation of liberty in contravention of Article 2, Paragraph 1 of the ] and of Article 2, Paragraph 1<ref></ref> and Article 26<ref></ref> of the Covenant. The Declaration is part of international law and is, therefore, binding on Tanzania. | |||
| This position is consistent with other regional and national jurisprudence, including the decisions of the: | |||
| * ] ('']'', 1981;<ref></ref> '']'', 1991;<ref></ref> '']'', 1993<ref></ref>) | |||
| * ] ('']'', 1998<ref name="South Africa"></ref>) | |||
| * ] ('']'', 2003<ref></ref>) | |||
| * ] ('']'', 2005<ref></ref>). | |||
| The South African court said, | |||
| <blockquote><p align=justify>Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.<ref name="South Africa"/>{{rp|page: 33 ¶ 32}} ... The criminalisation of sodomy in private between consenting males is a severe limitation of a gay man's right to equality in relation to sexual orientation.... It is at the same time a severe limitation of the gay man's rights to privacy, dignity and freedom. The harm caused by the provision can, and often does, affect his ability to achieve self-identification and self-fulfilment. The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays.<ref name="South Africa"/>{{rp|page: 37 ¶ 36}}</p></blockquote> | |||
| ], the ] on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, reported in April 2010 that laws criminalising sexual conduct between consenting adults impede HIV education and prevention efforts and are incompatible with the right to health.<ref></ref> The ] (commonly known as UNAIDS) has a similar view.<ref></ref> | |||
| The international obligations of countries to respect the human rights of all persons, irrespective of sexual orientation and gender identity, were articulated in 2006 in the ].<ref></ref><ref></ref><ref></ref> The Principles were developed and adopted unanimously by a group of human rights experts.<ref></ref> Principle 2 ("Rights to Equality and Non-Discrimination") affirms that everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity, and specifically obligates countries to, | |||
| <blockquote><p align=justify>repeal criminal and other legal provisions that prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity.</p></blockquote> | |||
| Principle 6 (the "Right to Privacy") affirms the right of everyone, regardless of sexual orientation or gender identity, to the enjoyment of privacy without arbitrary or unlawful interference, and confirms the obligation of countries to, | |||
| <blockquote><p align=justify>b) Repeal all laws that criminalise consensual sexual activity among persons of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity.</p></blockquote> | |||
| <blockquote><p align=justify>c) Ensure that criminal and other legal provisions of general application are not applied to de facto criminalise consensual sexual activity among persons of the same sex who are over the age of consent.</p></blockquote> | |||
| The ], ], in a statement to a High-Level Meeting on Human Rights, Sexual Orientation and Gender Identity at the United Nations on 18 December 2008 affirmed. | |||
| <blockquote><p align=justify>The principle of universality admits no exception. Human rights truly are the birthright of all human beings. Sadly ... there remain too many countries which continue to criminalize sexual relations between consenting adults of the same sex in defiance of established human rights law. Ironically many of these laws, like Apartheid laws that criminalized sexual relations between consenting adults of different races, are relics of the colonial era and are increasingly becoming recognized as anachronistic and as inconsistent both with international law and with traditional values of dignity, inclusion and respect for all.... It is our task and our challenge to move beyond a debate on whether all human beings have rights – for such questions were long ago laid to rest by the Universal Declaration – and instead to secure the climate for implementation.... Those who are lesbian, gay or bisexual, those who are transgender, transsexual or intersex, are full and equal members of the human family, and are entitled to be treated as such.<ref></ref></p></blockquote> | |||
| ==See also== | ==See also== | ||
Revision as of 17:07, 24 October 2012
| LGBTQ rights in Tanzania | |
|---|---|
 Tanzania | |
| Status | Male illegal nationwide, female illegal only in Zanzibar |
| Penalty | Male: 30 years to life imprisonment, Zanzibar only: Male: 25 years imprisonment, Female: 5 years imprisonment or 500,000 shilling fine |
| Gender identity | – |
Homosexuality in Tanzania is a socially taboo topic, and same-sex sexual acts are crimes punishable by the state.
According to the 2007 Pew Global Attitudes Project, 95 percent of Tanzanian residents believe that homosexuality is a way of life that society should not accept, which was the seventh-highest rate of non-acceptance in the 45 countries surveyed.
Laws regarding same-sex sexual activity and relationships
In Tanzania, sex acts between men are illegal and carry a maximum penalty of life imprisonment. Sex acts between women are not mentioned specifically in Tanzanian law, though the autonomous region of Zanzibar outlaws same-sex sexual acts for both men and women.
Mainland Tanzania
The Tanzania Penal Code of 1945 (as revised by the Sexual Offences Special Provisions Act, 1998) provides as follows:
- Section 138A. Acts of gross indecency between persons.
Any person who, in public or private commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, is guilty of an offence and liable on conviction to imprisonment for a term not less than one year and not exceeding five years or to a fine not less than one hundred thousand and not exceeding three hundred thousand shillings; save that where the offence is committed by a person of eighteen years of age or more in respect of any person under eighteen years of age, a pupil of a primary school or a student of secondary school the offender shall be liable on conviction to imprisonment for a term not less than ten years, with corporal punishment, and shall also be ordered to pay compensation of all amount determined by the court to the person in respect of whom the offence was committed for any injuries caused to that person.
According to Part I(3) of the Sexual Offences Special Provisions Act, 1998: "gross indecency" in Section 138A "means any sexual act that is more than ordinary but falls short of actual intercourse and may include masturbation and indecent physical contact or indecent behaviour without any physical contact".
- Section 154. Unnatural offences.
(1) Any person who-
(a) has carnal knowledge of any person against the order of nature; or
* * *
(c) permits a male person to have carnal knowledge of him or her against the order of nature,
commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years.
(2) Where the offence under subsection (1) of this section is committed to a child under the age of ten years the offender shall be sentenced to life imprisonment.
- Section 155. Attempt to commit unnatural offences.
Any person who attempts to commit any of the offences specified under section 154 commits an offence and shall on conviction be sentenced to imprisonment for a term not less than twenty years.
- Section 157. Indecent practices between males.
Any male person who, in public or private-
(a) commits any act of gross indecency with another male, or
(b) procures another male person to commit any act of gross indecency with him, or
(c) attempts to procure a male to commit an indecent act to him,
is guilty of an offence and may be sentenced to five years of imprisonment.
Zanzibar
The Zanzibar Penal Code of 1934, as amended in 2004, provides as follows:
- Section 132.
(1) Any person who carnally knows any boy is guilty of an offence and shall on conviction be liable to imprisonment for life.
(2) Any person who attempts to have carnal knowledge of any boy is guilty of an offence and shall on conviction be liable to imprisonment for a term not less than twenty-five years.
- Section 150.
Any person who:
(a) has carnal knowledge of any person against the order of nature; or
* * *
(c) permits a male 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 not exceeding fourteen years.
- Section 151.
Any person who attempts to commit any of the offences specified in section 150 is guilty of a felony, and is liable to imprisonment for a term not exceeding seven years.
- Section 152.
Any person who unlawfully and indecently assaults a boy is guilty of a felony, and is liable to imprisonment for a term not less than twenty-five years.
- Section 153.
Any woman who commits an act of lesbianism with another woman whether taking an active or passive role shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding five hundred thousand shillings.
- Section 154.
Any person who, in public or private commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, is guilty of an offence and liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding two hundred thousand shillings; save that where the offence is committed by a person of eighteen years of age or more in respect of any person under eighteen years of age, the offender shall be liable on conviction to imprisonment for a term not less than ten years, with corporal punishment, and shall also be ordered to pay compensation of an amount determined by the court to the person in respect of whom the offence was committed for any injuries physical or psychological caused to that person.
According to Section 4, "gross indecency" means "any sexual act that falls short of actual intercourse and may include masturbation and physical contact or indecent behaviour without any physical contact."
- Section 158.
Any person who:
(a) enter or arrange a union whether amounting to marriage or not of the person of the same sex;
(b) celebrate a union with another person of the same sex whether amounting to marriage or not;
(c) lives as husband and wife another person of the same sex;
shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding seven years.
Recognition of same-sex relationships
Same-sex couples have no legal recognition.
Discrimination protections
There is no protection in Tanzanian constitutional or statutory law specifically against discrimination based on sexual orientation or gender identity. Three broadly worded articles of the Tanzanian constitution, however, arguably outlaw that discrimination.
- Article 12 states:
(1) All human beings are born free, and are all equal.
(2) Every person is entitled to recognition and respect for his dignity.
- Article 13 states:
(1) All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law.
(2) No law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect.
(3) The civic rights, duties and interests of every person and community shall be protected and determined by the courts of law or other state agencies established by or under the law.
(4) No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office.
(5) For the purposes of this Article the expression "discriminate" means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, colour, religion or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications.
- Article 16(1) states:
Every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect and protection of his residence and private communications.
Adoption
A couple is eligible to adopt a child jointly only if the couple is married. A male may adopt a female child as a sole applicant only if "the court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order". There are no special restrictions on a female adopting a male child as a sole applicant. Only a Tanzanian resident who is at least 25 years of age may adopt a child. An LGBTI person is not specifically prohibited from adopting. "Child" means a person under 21 years of age who has never been married.
Living conditions
There are no gay bars, although there are places where gay men meet. Lesbians are less visible than gay men.
The WEZESHA organization is directed by James Wandera Ouma. Its mission is to promote, support, defend, and protect the interests and the general well-being of LGBT people in Tanzania. On 16 December 2011, Ouma reported that he had been detained by the police and was released several hours later on condition that he stop his activism.
The traditional view of homosexuality assumes one man, the msenge, will play the role of a female (for money or because he is impotent, not because he wants to), while the basha, the dominant partner, is assumed to have relations with women as well as men. The msenge is more heavily stigmatized than the basha by Tanzanian tradition.
Homophobia is very high. There are no hospitals where LGBT people can access treatment. The government has no programs to prevent HIV infection among the LGBT community.
In 2003, over 300 Tanzanians protested against the arrival of a gay tour group.
In 2004, several Islamic groups in Zanzibar began an effort to cleanse the nation of activities it considered sinful, including homosexuality, which resulted in changes in the law which imposed harsher penalties for homosexual sex acts.
International pressure on Tanzania to legalize same-sex sexual activities
The U.S. Department of State's 2011 Human Rights Report found that "Lesbian, gay, bisexual, and transgender (LGBT) persons faced societal discrimination that restricted their access to health care, housing, and employment".
The United Nations Human Rights Council in October 2011 at its meeting in Geneva completed a Universal Periodic Review (UPR) of the human rights situation in Tanzania. At this UPR, Slovenia, Sweden, and the United Nations Country Team (UNCT) publicly urged Tanzania to repeal its statutes that criminalize same-sex sexual activities. The UNCT said in paragraph 27 of its report,
Homosexuality is considered contrary to cultural norms; same sex sexual relations are criminalized. Group arrests in connection with peaceful assemblies, non-attendance to HIV patients, as well as forcible evictions of persons due to their sexual orientation by local and religious communities have been reported. Moreover, representatives of the groups and other human rights defenders may not be willing to make public statements in favor of tolerance and decriminalization for fear of reprisals.
Tanzania refused. Mathias Meinrad Chikawe, the Tanzanian Minister of State and Good Governance, said in Geneva,
There was an issue raised on same-sex marriages, etc. It is true we do not have a law allowing same-sex marriages in our country, and that I say again, due to our own traditions and very cultural strong beliefs. Although activities involving same-sex do take place, but they do take place under cover, so to say, and like I said when I was presenting our report on the ICCPR , that if one were to exhibit such a behavior in public, one could be, actually be stoned by the public itself. It is a cultural thing. It's not yet acceptable. So the government ... it would be very strange for the government to propose a law towards allowing that; so, it's just that maybe time has not come for us to consider such freedoms in our country.
Since the UPR concluded, Tanzania has not softened its policies or rhetoric. In October 2011 at the Commonwealth Head of Government's meeting in Perth, Australia, the prime minister of the United Kingdom (UK), David Cameron, said that the UK may withhold or reduce aid to governments that do not reform statutes criminalizing homosexuality. In response, Tanzania's minister for foreign affairs and international cooperation, Bernard Membe, said,
Tanzania will never accept Cameron's proposal because we have our own moral values. Homosexuality is not part of our culture and we will never legalise it.... We are not ready to allow any rich nation to give us aid based on unacceptable conditions simply because we are poor. If we are denied aid by one country, it will not affect the economic status of this nation and we can do without UK aid.
In the Tanzanian parliament on 11 November 2011, the Tanzanian prime minister, Mizengo Pinda, responded to a question from a parliament member about whether the government was prepared to lose aid from the UK. He said,
You are not being fair to me as the government has already made its stand clear on the matter … but since you want to get my opinion, I would like to say that homosexuality is unacceptable to our society. We need to look critically on these issues. To me this is unacceptable. Even animals can’t do such a thing.
In the Tanzanian parliament on 20 June 2012, Membe responded to a question from a parliament member, Khatib Said Haji, about the position of the government on the pressure by western countries demanding abolition of anti-gay laws. Membe said, "We are ready to lose aid and support from friendly countries that are now pushing for repeal of anti-gay laws in African nations" and that Tanzania was ready to go it alone rather than being subjected to humiliation and dehumanization.
See also
Footnotes
- The number of adults surveyed in Tanzania was 704, yielding a margin of error of 4 percent with a 95 percent confidence level.
- "Pew Global Attitudes Project", pages 35, 84, and 117
- "Penal Decree Act No. 6 of 2004", PDF by George Kazi, 2004
- The Adoption of Children Act, Sections 2-4
- ^ "Lesbian and Gay Tanzania". gaytimes. Retrieved 12 February 2007.
- "About WEZESHA", WEZESHA, accessed 28 May 2012
- "The Story of James Ouma", The Global Alliance for LGBT Education, 16 December 2011
- Nyambura, Helen (8 November 2004). "Secrecy, Stones and Insults: The Gay Life on Zanzibar". Reuters. Retrieved 11 February 2007.
- 2011 Country Reports on Human Rights Practices: Tanzania, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, page 40
- "Submission from the United Nations Country Team", 12th Universal Periodoc Review Session, The United Republic of Tanzania, paragraph 27 on page 7
- "Report of the Working Group on the Universal Periodic Review: The United Republic of Tanzania", United Nations Human Rights Council, A/HRC/19/4, 8 December 2011, paragraph 87 on page 22
- United Nations Webcast, UPR Report of Tanzania, 12th Universal Periodic Review, 3 October 2011, beginning at 2:42 time stamp
- "Cameron threat to dock some UK aid to anti-gay nations", BBC News UK, 30 October 2011
- "Tanzania: Africa, Want Aid? Recognise Gay Rights!", Tanzania Daily News, Dar es Salaam, reprinted allAfrica.com, 26 December 2011
- "Pinda says homosexuality not human", ippmedia.com, 11 November 2011
- "Tanzania: 'No' to Same Sex Marriages - Govt", Tanzania Daily News, reprinted in allafrica.com, 21 June 2012
External links
| LGBT rights in Africa | |
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| Sovereign states |
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| States with limited recognition | |
| Dependencies and other territories |
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