LGBT rights in Senegal

LGBT rights in Senegal

Same-sex sexual activity legal? Illegal
Penalty:
 1 to 5 years imprisonment, fine. Maximum penalty applies if committed with a person under 21.
Gender identity/expression –

Lesbian, gay, bisexual, and transgender (LGBT) persons in Senegal face legal challenges not experienced by non-LGBT residents. Senegal specifically outlaws same-sex sexual acts and, in the past, has prosecuted men accused of homosexuality. LGBT persons face routine discrimination in society.

According to the 2013 Pew Global Attitudes Project, 97 percent[1] of Senegal residents believe that homosexuality is a way of life that society should not accept,[2] a figure unchanged from 2007.[3]

Laws regarding same-sex sexual activity

Same-sex sexual activity is illegal in Senegal. Article 319 in the Senegalese Penal Code states the following:

Sans préjudice des peines plus graves prévues par les alinéas qui précédent ou par les articles 320 et 321 du présent Code, sera puni d'un emprisonnement d'un à cinq ans et d'une amende de 100.000 à 1.500.000 francs, quiconque aura commis un acte impudique ou contre nature avec un individu de son sexe. Si l'acte a été commis avec un mineur de 21 ans, le maximum de la peine sera toujours prononcé.

Translated in English, Article 319 states the following:

Without prejudice to the more serious penalties provided for in the preceding paragraphs or by articles 320 and 321 of this Code, whoever will have committed an improper or unnatural act with a person of the same sex will be punished by imprisonment of between one and five years and by a fine of 100,000 to 1,500,000 francs. If the act was committed with a person below the age of 21, the maximum penalty will always be applied.[4][Note 1]

Adoption of children

According to information published in July 2011 by the United States Department of State, a couple married for a minimum of five years or an unmarried person who is at least 35 years of age is eligible to adopt a Senegalese child if there is at least 15 years between the age of the child and the age of the adopting parent. Senegalese law does not specifically make LGBT persons ineligible to adopt.[5]

Living conditions

2008

In 2008, Dakar's Icone magazine reported on and published photographs of an alleged gay marriage that had taken place in a private home in Senegal. The editor of the magazine, Mansour Dieng, claimed that he subsequently received death threats. Five men in the photographs were arrested but were later released without charge. It is not clear if the arrests stemmed from Senegal's anti-homosexuality laws or the death threats.[6]

2009

On 19 December 2008, nine men were arrested on charges of homosexuality in a private flat in Dakar, allegedly after police received an anonymous tip. One of the arrestees was Diadji Diouf, the owner of the flat and a well-known Senegalese activist who heads AIDES Senegal, which provides HIV / AIDS prevention and treatment services to men who have sex with men. The men were repeatedly tortured while in police custody, even after they confessed to being gay.[7]:pages: 19–20 On 6 January 2009, all these men were convicted of "indecent conduct and unnatural acts" (5 years' imprisonment) and for "being members of a criminal group" (3 years' imprisonment).[8][9][10] The judge said that AIDES Senegal was a "cover to recruit or organize meetings for homosexuals, under the pretext of providing HIV/AIDS prevention programmes".[7]:page: 20 The Court of Appeals overturned the convictions in April 2009 and ordered the immediate release of the men. While incarcerated, the nine were held in special quarters because of threats from other inmates.[11]

In January 2009, Cary Alan Johnson at the International Gay and Lesbian Human Rights Commission described "pretty consistent human rights violations ... in Senegal". But citing Dakar's recent hosting of a major conference on AIDS and sexually transmitted diseases, where "the needs of men who have sex with men were prominently featured", he said Senegal was schizophrenic in its attitudes. "There's both a movement towards progressive and inclusive culture but at the same time very, very strong movements towards oppression, specifically towards sexuality".[12]

Local and international press reported in May 2009 that the corpse of a man reputed to have been homosexual was twice disinterred from a Muslim cemetery in Thies. The first time, the body was left near the grave. After his family reburied him, the body was disinterred a second time and dumped outside his family's home.[13]

2011

The U.S. Department of State's 2011 Human Rights Report found that,

In the recent past[,] gays, lesbians, bisexual, and transgender (LGBT) persons often faced criminal prosecution and widespread discrimination, social intolerance, and acts of violence. The media failed to report acts of hatred or violence against LGBT persons. In November 2010[,] Human Rights Watch released a report entitled "Fear of Life: Violence against Gay Men and Men Perceived as Gay in Senegal". The report discussed cases of violence against gay men and the legal and cultural milieu that fostered such violence. While the cases cited in the report were from 2009 and earlier, non-governmental organization observers speculated that the drop in cases reported during the year was due to several factors. First, violence against gay men and lesbians might have caused many LGBT persons in the country to go underground. Second, increased international attention might have caused the government to curtail prosecutions and other official discrimination. A report by the Panos Institute West Africa released on July 20 found that local media contributed to negative societal attitudes toward LGBT persons. Finally, successful legal challenges to the law used to prosecute gays and lesbians for consensual sexual activity may have helped curtail its use by prosecutors.[14]

2012

The U.S. Department of State's 2012 Human Rights Report found that,

LGBT persons often faced arrest, widespread discrimination, social intolerance, and acts of violence [in 2012]. Senegalese ... [non-governmental organizations] worked actively on LGBT rights issues, but because of laws against homosexuality and social stigma, they maintained an exceedingly low profile. The media rarely reported acts of hatred or violence against LGBT persons. ... [L]ocal human rights groups reported that LGBT persons still faced frequent harassment by police, including arrest based only on second-hand reports and poor treatment in detention due to their sexual orientation. In January two women were arrested following the circulation of a cell phone video that showed them kissing. The incident was widely covered in local print and online media. The women were held in detention and released on bail several days later but were never formally charged with a crime. In October a court in Dakar sentenced Tasmir Jupiter Ndiaye to four years in prison and fined him 200,000 CFA francs ($400) for violating laws prohibiting "acts against nature" in addition to charges of illegal possession of arms and battery, after he purportedly refused to pay another man, Matar Diop, for sexual services. Diop was sentenced to three years in prison.[15]

In December 2012, a gay male couple was viciously beaten near Dakar by one of the men's parents after the couple was caught having sex.[16]

2013

While visiting Senegal in June, United States President Barack Obama called for African countries to give gays equal rights under the law. Senegal President Macky Sall responded by saying that "We are still not ready to decriminalize homosexuality." He also insisted that the country is "very tolerant" and that, "This does not mean we are homophobic."[17] He said that countries make decisions on complex issues in their own time, noting that Senegal has outlawed capital punishment while other countries have not.[18] He also said that, "Gays are not persecuted, but for now they must accept the choices of other Senegalese."[19] Obama had previously been urged by the human rights group Amnesty International to use his trip around Africa to speak out against threats to gays and lesbians, which it claimed had reached dangerous levels in Africa.[19] Before this trip, the Obama administration had been characterized as taking a "cautious" approach to the promotion of gay rights in Africa, to avoid "igniting a backlash that could endanger local activists."[20]

Universal Periodic Reviews by the United Nations Human Rights Committee

2009

The United Nations Human Rights Committee (UNHRC) in October 2009 completed a Universal Periodic Review (UPR) of the human rights situation in Senegal. The following recommendations were made to Senegal (the country that initiated the recommendation is listed in parentheses):[21]:page: 20 ¶ 6

Amend the Penal Code to decriminalizing [sic] homosexual activity (United Kingdom,[21]:pages: 7–8 ¶ 35 Belgium,[21]:page: 8 ¶ 37 Canada[21]:page: 11 ¶ 63) between consenting adults (United Kingdom[21]:pages: 7–8 ¶ 35) in line with the provisions of ICCPR, particularly articles 2 and 26 (Canada[21]:page: 11 ¶ 63); remove the article of the Penal Code criminalizing sexual conduct, which is not in compliance with the Universal Declaration of Human Rights (the Netherlands[21]:page: 6 ¶ 28); review national legislation which results in the discrimination, prosecution and punishment of people solely for their sexual orientation or gender identity (Slovenia[21]:pages: 8–9 ¶ 40); put an end to the legal prohibition of same-sex sexual acts or practices between consenting adults, release individuals arrested on the basis of this provision (Czech Republic[21]:page: 14 ¶ 83); free all persons imprisoned on the grounds of their sexual orientation (Belgium[21]:page: 8 ¶ 37); launch a national debate which may lead to the decriminalization of homosexuality (Ireland[21]:page: 14 ¶ 79)); adopt measures to promote tolerance towards homosexuality, which would also facilitate more effective educational programmes for HIV/AIDS prevention (Czech Republic[21]:page: 14 ¶ 83)

The UNHRC summarized Senegal's responses as follows:

In response to the statements relating to prosecutions of persons because of their sexual orientation, the head of the delegation said that homosexuality is a purely private matter, with a long history in Senegal, and is not in itself a cause for prosecution. The prosecutions referred to occurred only when the homosexual relations took place in public and were of an obtrusive nature, therefore placing them in conflict with morality and religion. Concerning decriminalization, it is necessary to take account of the culture, and avoid exacerbating the rejection of homosexuals and endangering their lives.[21]:page: 10 ¶ 53

With regard to homosexuality, the delegation recalled that it had already given the necessary details and stated that decriminalizing homosexuality in Senegal was a complex issue that would require time and careful consideration because of the specific social factors involved.[21]:pages: 15–16 ¶ 93

Madické Niang, the foreign minister of Senegal, said on behalf of the Senegalese delegation on 6 February 2009:

Senegal people are not prosecuted for their sexual orientation. Sexual orientation in Senegal is a purely private matter. It is a private matter, nothing more. For many years now, we have seen homosexuality in our country and that has never lead to situations where homosexuals are harassed, persecuted, or prosecuted. What has happened is that there have been sutiations where shocking behavior which ran counter to our religious beliefs and morality which [unintelligible] punishes unnatural sexual relations. I would ask you to understand the social realities of our country. This is an issue which is very complex. It is a very complicated issue in Senegal. Let me say once again in Senegal homosexuals lead freely ... we even had a federal republic to authorize a homosexual to have their name changed to a woman's name in order to emphasize their feminine side. No one was shocked when the president authorized the man to adopt the woman's name. But when homosexuality becomes blatantly public, it leads to embarrassing situations. You have to understand that we are a country with a particularly tolerant form of Islam. And that is why we must avoid, we must avoid the development of fundamentalism. We must ensure social cohesion. We must also take measures to protect the lives of homosexuals. That is why I ask you to bear in mind our society, our sociological realities. This is a perfectly complicated issue for us where there are some problems but we are aware of them. ... I would like to go back to a very important issue. We are all struggling for the independence of our judges, for the independence of our justice system. If the courts hand down a decision, you cannot say the government is responsible for that court decision. The ... independent justice system which hands down a decision. And that is what the courts did in the case of the trials of these homosexuals. And I must say ... for 25 years I was a lawyer at the bar. I know the Senegalese justice system from the inside. ... Over those years there have been three cases where homosexuals were brought before the courts. The first case was an organized homosexual marriage with a lot of fuss, a lot of publicity. The police arrested them and the court case led to an acquittal. The second case of homosexuals related to a foreign national who was already rather elderly who married a young Senegalese boy. And I would like to warn you ... that if an elderly man marries a young boy, the young boy does it so that he can emigrate and go in live in France or some other country abroad, that is the interest of the young person in getting married. This led to a conviction and an appeal was made against the conviction and ... the foreigner was able to leave the country after they were acquitted on appeal. And the third case ... is the case of homosexuals who joined together again with a great deal of fuss, carried out activities which led to disturbances in the neighborhood. The neighbors complained and the police acted. This has already been tried in the first instance, and an appeal has been made against that judgment, and the justice system is now dealing with this case independently on appeal.[22]

2013

The United Nations Human Rights Committee in October 2013 completed a Universal Periodic Review of the human rights situation in Senegal. The following recommendations were made to Senegal (the country that initiated the recommendation is listed in parentheses):[23]:page: 20 ¶ 6

Senegal refused to accept these recommendations,[23]:page: 23 ¶ 125 explaining that merely being homosexual is not a crime even though same sex sexual acts are.[23]:page: 8 ¶ 60

Sidiki Kaba, the minister of justice of Senegal, said on behalf of the Senegalese delegation on 21 October 2013:

There is no criminalization of homosexuality in Senegal. Article 319 talks about acts contrary to nature. The fact of being homosexual in Senegal is not a crime, and there has been no prosecution or trial of persons who are homosexual under the Criminal Code.[24]

Senegal's obligations under international law and treaties

In March 2010, the United Nations Working Group on Arbitrary Detention found that Senegal's National Police had detained persons who were alleged to have committed "unnatural sexual acts". The group recommended that Senegal, "Pay particular attention to detentions on the grounds of offending decency or public morality, with a view to avoiding any possible discrimination against persons of a different sexual orientation".[25]:page: 14 ¶ 72, page 16 ¶ 82(g)

Summary table

Same-sex sexual activity legal (Penalty: Up to 5 years imprisonment)
Equal age of consent
Anti-discrimination laws in hate speech and violence
Anti-discrimination laws in employment
Anti-discrimination laws in the provision of goods and services
Same-sex marriage
Recognition of same-sex couples
Step-child adoption by same-sex couples
Joint adoption by same-sex couples
Gays and lesbians allowed to serve openly in the military
Right to change legal gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

Notes

  1. ↑ The official text of the third paragraph of Article 319 in French (Code Penal Sénégal, page 52):

References

  1. ↑ The number of adults (all were at least 18 years of age) surveyed in Senegal was 800, yielding a margin of error of 4.1 percent with a 95 percent confidence level.
  2. ↑ Pew Research Global Attitudes Project (4 June 2013). "The global divide on homosexuality: greater acceptance in more secular and affluent countries". Pew Research. Retrieved July 1, 2013.
  3. ↑ "47-Nation Pew Global Attitudes Survey", The Pew Global Attitudes Project, Pew Research Center, pages 35, 83, and 117)
  4. ↑ Submission in the UPR review of: Senegal, jointly submitted by the International Lesbian and Gay Association, the International Lesbian and Gay Association - Europe, the Pan African International Lesbian and Gay Association, the International Gay and Lesbian Human Rights Commission, and ARC International, 2009
  5. ↑ Intercountry Adoption: Senegal, Bureau of Consular Affairs, U.S. Department of State, July 2011
  6. ↑ Senegal 'gay wedding' men freed, BBC News - Africa, 7 February 2008
  7. 1 2 Senegal: Land of Impunity, Amnesty International, 2010
  8. ↑ "Senegal's judicial doublespeak and homosexuality: Prison terms issued against nine suspects defy law albeit minister's promises", Afrik-News, reported by Habibou Bangré, 9 January 2009
  9. ↑ "Nine Men Convicted of Homosexual Acts in Senegal", The Advocate, 10 January 2009
  10. ↑ "Senegal: 9 Men Jailed For Homosexual Acts", Huffington Post, reported by Sadibou Marone, 8 January 2009
  11. ↑ "Senegal gay convictions quashed", BBC News - Africa, 20 April 2009
  12. ↑ "Shock at Senegal gay jail terms", BBC News - Africa, 8 January 2009
  13. ↑ "'Gay man' disinterred in Senegal", BBC News - Africa, 4 May 2009
  14. ↑ 2011 Country Reports on Human Rights Practices: Senegal, Bureau of Democracy, Human Rights and Labor, U.S. Department of State
  15. ↑ 2012 Country Reports on Human Rights Practices: Senegal, Bureau of Democracy, Human Rights and Labor, U.S. Department of State
  16. ↑ "Senegal: Gay Couple Brutally Assaulted by Parents", 2 January 2013
  17. ↑ Note, Ryot (27 June 2013). "Obama clashes with Senegalese president who says criminalizing homosexuality doesn't make the country homophobic". ryot.org. Retrieved 28 June 2013.
  18. ↑ Pace, Julie (27 June 2013). "Obama Pushes African Leaders On Gay Rights, Rebuked By Senegalese President Macky Sall". The Huffington Post. Retrieved 1 July 2013.
  19. 1 2 Mason, Jeff; Jeff Mason; Daniel Flynn (27 June 2013). "In Africa, Obama lauds democracy but urges progress on gay rights". Reuters. Retrieved 28 June 2013.
  20. ↑ Corey-Boulet, Robbie (24 June 2013). "Obama walks tightrope on gay rights in Africa". The Associated Press. Retrieved 1 July 2013.
  21. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Report of the Working Group on the Universal Periodic Review: Senegal, U.N. Human Rights Council, Fourth Universal Periodic Review, A/HRC/11/24, 5 October 2009
  22. ↑ [rtsp://webcast.un.org/ondemand/conferences/unhrc/upr/4th/hrc090206pm1-eng.rm?start=01:20:40&end=01:54:24 Comments and Answers by Senegal, U.N. Human Rights Council, Fourth Universal Periodic Review, 9th Plenary Meeting, 6 February 2009, time stamp 7:23-12:04]
  23. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Draft Report of the Working Group on the Universal Periodic Review: Senegal, U.N. Human Rights Council, A/HRC/WG.6/17/L.2, 23 October 2013
  24. ↑ [rtsp:webtv.un.org/search/senegal-review-17th-session-of-universal-periodic-review/2759975599001?term=senegal&sort=date&page=2 Comments and Answers by Senegal, U.N. Human Rights Council, 17th Session of Universal Periodic Review, 21 October 2013, time stamp 1:31:36-1:31:55]
  25. ↑ Report of the Working Group on Arbitrary Detention, Mission to Senegal, U. N. Human Rights Council, Thirteenth Session, A/HRC/13/30/Add.3, 23 March 2010
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