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Gambia: Parliament Adopts Stringent Anti-Homosexuality Law

(Sept. 16, 2014) On August 25, 2014, The Gambia’s 53-member unicameral National Assembly adopted the Criminal Code (Amendment) Act, 2014, aimed at including a new crime of “aggravated homosexuality” in the country’s Criminal Code. (Gambia Passes Bill to Introduce Crime of “Aggravated Homosexuality,” REUTERS (Sept. 9, 2014).) The legislation must be signed by the President or passed again by the National Assembly with the support of at least two-thirds of all the members before it can become law. (Constitution of the Republic of the Gambia 1997, §§ 7 & 100(3)-(4), ACCESS GAMBIA.)

If the legislation becomes law, a person would be charged with the offense of aggravated homosexuality if he or she commits an act of homosexuality, which is a crime under the current Criminal Code, under the following circumstances:

• the victim is under the age of 18;
• the offender is HIV positive;
• the offender is the victim’s parent/guardian;
• the offender exercises authority over the person with whom the act was committed;
• the other party is a disabled person;
• the offender is a recidivist; or
• the offender drugs the victim with the intent to diminish his/her capacity before committing the act. (MPs Approve Life Sentence for “Aggravated Homosexuality,” THE POINT (Sept. 10, 2014).)

A person who commits the crime of “aggravated homosexuality” would be punishable by life in prison upon conviction. (Id.)

Homosexuality Under the Current Criminal Code

Homosexual acts are an offense under The Gambia’s current Criminal Code. The Code states 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).) An attempt to commit an unnatural offense, also a felony, is punishable by seven years of imprisonment. (Id. § 145.) The act of “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. (Id. § 144; see also Criminal Code (Amendment) Act, 2005 (July 21, 2005), Supplement C, THE GAMBIA GAZETTE, No. 13 (Aug. 2, 2005), NATLEX.)

The Gambia’s current law also criminalizes what it calls “indecent practices.” Anyone who “commits an act of gross indecency with another” in public or in private or “procures” or “attempts to procure” another to commit such an act with him/herself or with another person commits a felony and, on conviction, is punishable by a five-year prison term. (Criminal Code of 1934 § 147; see also Criminal Code (Amendment) Act, 2005, supra.) An act of gross indecency includes any homosexual act. (Criminal Code of 1934, § 147.) However, the term “homosexual act” is not defined.

Impact of the New Legislation

If the Amendment Act is approved in its current form, it will make The Gambia the only jurisdiction in Africa whose laws include the offense of “aggravated homosexuality.” Although earlier this year Uganda adopted an anti-homosexuality law that included a similar provision, the law was recently invalidated by the country’s Constitutional Court on a technicality. (Andrew Harding, Uganda Court Annuls Anti-Homosexuality Law, BBC NEWS (Aug. 1, 2014).) According to a recent Law Library of Congress survey, many African countries criminalize homosexuality in one form or another. (Criminal Laws on Homosexuality in African Nations, LAW LIBRARY OF CONGRESS (Feb. 2014).)