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Gambia: Law Enacted Making Aggravated Homosexuality a Crime

(Nov. 26, 2014) On October 9, 2014, The Gambia’s President, Yahya Jammeh, signed into law the Criminal Code (Amendment) Act, 2014, which includes a provision that prescribes a harsh penalty for certain homosexual acts already criminalized under the country’s Criminal Code. (Gambian Leader Approves Anti-Gay Law, GUARDIAN (Nov. 21, 2014).) The Act was adopted by the country’s 53-member unicameral National Assembly last August. (Hanibal Goitom, Parliament Adopts Stringent Anti-Homosexuality Law, GLOBAL LEGAL MONITOR (Sept. 16, 2014).)

The legislation introduces a new offense involving homosexuality known as “aggravated homosexuality,” which is punishable on conviction by life in prison. (Id.) A person commits this offense if he or she engages in a homosexual act and 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. (Criminal Code (Amendment) Act No. 11 of 2014, § 4, SUPPLEMENT C TO THE GAMBIA GAZETTE No. 15 (Oct. 16, 2014), HUMAN RIGHTS WATCH.)

Existing Law

The country’s Criminal Code has long outlawed a lesser form of this crime, called an “unnatural offence.” The Code provides that a “person who has carnal knowledge of any person against the order of nature … or permits any person to have carnal knowledge of him or her against the order of nature” commits a felony known as an unnatural offense and, on conviction, is punishable by a 14-year prison term. (Criminal Code of 1934, § 144, 3 LAWS OF GAMBIA, Cap. 8:01 (rev. ed. 2009).) Acts that constitute “carnal knowledge against the order of nature” include:

(a) carnal knowledge of the person through the anus or the mouth of the person;
(b) inserting any object or thing into the vulva or anus of the person for the purpose of simulating sex; and
(c) committing any other homosexual act with the person. (Id. § 144.)

Attempt to commit an unnatural offense, which is also a felony, is subject to a seven-year prison term. (Id. § 145.)

Acts known as “indecent practices” are also already criminalized. These include the commission of “gross indecency with another” in public or private, by procuring or attempting to procure another person with whom to commit the act, a felony punishable on conviction by five years in prison. (Id. § 147.) Although the Criminal Code provides that an act of gross indecency includes any homosexual act, it does not define the term “homosexual act.” (Id.)

While the application of these offenses was initially restricted only to men, it was expanded to include women through a 2005 amendment to the Criminal Code. (Criminal Code (Amendment) Act, 2005, §§ 4 & 5 (July 21, 2005), Supplement C, THE GAMBIA GAZETTE, No. 13 (Aug. 2, 2005), International Labour Organization NATLEX online legal database.)

Offense Unique in Africa

The enactment of the legislation sets The Gambia apart from other African countries in that it is the only jurisdiction whose criminal laws include the offense of “aggravated homosexuality.” While many other African jurisdictions outlaw homosexuality in one form or another, none of their laws include “aggravated homosexuality.” (Criminal Laws on Homosexuality in African Nations, LAW LIBRARY OF CONGRESS (Feb. 2014).) A recent attempt to create this offense in Uganda failed when the country’s Constitutional Court invalidated the law after its passage, citing procedural irregularities in the law’s adoption process. (Andrew Harding, Uganda Court Annuls Anti-Homosexuality Law, BBC NEWS (Aug. 1, 2014).)

Reactions to the Act

Since its adoption by the Gambian National Assembly in August, various organizations have condemned the Act and urged President Jammeh not to sign it. For instance, on September 10, 2014, Human Rights Watch, noting that the legislation violates international human rights law and that it would “further add to the climate of fear” for the members of the LGBTI community in the country, called on Jammeh to “reject [the] homophobic law.” (Gambia: President Should Reject Homophobic Law, HUMAN RIGHTS WATCH (Sept. 10, 2014).)

Amnesty International UK, which organized over 30,000 of its supporters to participate in a campaign against the legislation leading up its enactment, stated that it violated The Gambia’s Constitution and international law and further institutionalized discrimination against a minority group. (Gambia’s Latest Anti-Gay Bill, AMNESTY INTERNATIONAL UK (Nov. 18, 2014).)

The United Nation’s High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, echoed these sentiments, stating “[t]his law violates fundamental human rights – among them the right to privacy, to freedom from discrimination and freedom from arbitrary arrest and detention. It adds to the stigma and abuses that lesbian, gay, bisexual and transgender (LGBT) people already face in The Gambia.” (The Gambia: Zeid Criticizes Harsh Legal Amendment, Violence and Arrests Targeting Gay Men and Lesbians, Office of the High Commissioner for Human Rights website (Nov. 20, 2014).)

In addition, on November 24, 2014, the United States Department of State issued a statement condemning the enactment of the legislation and the reported arrests and detention of suspected LGBT persons that ensued. (Press Release, U.S. Department of State, U.S. Concerned by Passage of Discriminatory Law, Arrests of LGBT Individuals (Nov. 24, 2014).)