Tanzania rejects United Nations' call to repeal statutes that criminalize same-sex sexual activities, in violation of international human rights law

Overview; Universal Periodic Review of the Human Rights Situation in Tanzania

Laws that criminalize sexual activity between consenting adults, including same-sex partners, have long been found to constitute a clear violation of international human rights law.

The United Nations Human Rights Council (UNHRC) in October 2011 at its meeting in Geneva completed a Universal Periodic Review (UPR) of the human rights situation in Tanzania (for information about the UPR process, refer to this). 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 flatly refused (paragraph 87 on page 23). Mathias Meinrad Chikawe, the Tanzanian Minister of State and Good Governance, said in Geneva (beginning at 2:42 time stamp),

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 [International Covenant on Civil and Political Rights], 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.

The Tanzanian Penal Code has three sections regarding same-sex sexual activities.

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.

Section 155: Attempt to commit unnatural offences.

Any person who attempts to commit any 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 138A: Gross indecency.

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....

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, 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.

International Law

In 1994, the UNHRC confirmed in Toonen v. Australia 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 International Covenant on Civil and Political Rights (hereafter "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.  Tanzania has ratified the Covenant.

The UNHRC subsequently affirmed this position on many occasions, either urging countries to repeal laws that criminalize consensual same-sex activity or commending them for bringing their legislation into conformity with the Covenant by repealing such provisions. (See, e.g., Human Rights Committee Concluding Observations: United States of America, A/50/40, 3 October 1995; Cyprus, CCPR/C/79/Add.88, 6 April 1998; Ecuador, CCPR/C/79/Add.92, 18 August 1998; Chile, CCPR/C/79/Add.104, 30 March 1999; Lesotho, CCPR/C/79/Add.106, 8 April 1999; Romania CCPR/C/79/Add.111, 28 July 1999; Australia, A/55/40, 24 July 2000; Egypt, CCPR/CO/76/EGY, 28 November 2002; Kenya, CCPR/CO/83/KEN, 28 March 2005; United States of America, CCPR/C/USA/CO/3, 15 September 2006; BArabdos, CCPR/C/BRB/CO/3, 11 May 2007; Chile, CCPR/C/CHL/CO/5, 18 May 2007.)

The United Nations Working Group on Arbitrary Detention in April 2004 found that arrests for being homosexual or for engaging in consensual homosexual conduct are, by definition, human rights violations. The arrests constitute an arbitrary deprivation of liberty in contravention of Article 2, Paragraph 1 of the Universal Declaration of Human Rights and of Article 2, Paragraph 1 and Article 26 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 European Court of Human Rights (Dudgeon v. United Kingdom, 1981; Norris v. Ireland, 1991; Modinos v. Cyprus, 1993), the Constitutional Court of South Africa (National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1998), the United States Supreme Court (Lawrence v. Texas, 2003), and the High Court of Fiji (McCoskar v. The State, 2005). The South African court said,

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.

Anand Grover, the United Nations Special Rapporteur 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. The Joint United Nations Programme on HIV and AIDS (commonly known as UNAIDS) has a similar view.

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 "Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity." The Principles were developed and unanimously adopted by a distinguished group of human rights experts, from diverse regions and backgrounds. 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,

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.

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:

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.

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.

The United Nations High Commissioner for Human Rights, Navanethem Pillay, 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:

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.

Source: Based in part on Submission for the Universal Periodic Review of the United Republic of Tanzania, which was submitted by ARC International, the International Lesbian, Gay, Bisexual, Trans and Intersex Association, and ILGA-Europe.