Author: Daniel Marari
LLM, International Human Rights Law, Lund University, Sweden
Although the Tanzanian Constitution (1977) guarantees the right to equality and prohibits discrimination based on gender and sex, lesbian, gay, bisexual and transgender (LGBT) people still face deeply rooted hostility, prejudice and widespread discrimination in the Tanzanian society. Threats of criminal penalty, social exclusion, harassment and violence make it particularly unsafe for one to come out as an LGBT person.
At present, certain homosexual acts between consenting adult males are criminalized under the Penal Code (Chapter 16 of the laws). Under section 154 of the Penal Code, committing or attempting to commit “unnatural offences” are crimes punishable with a maximum sentence of life imprisonment and twenty years’ imprisonment, respectively. “Unnatural offence” is defined as (1) sexual intercourse with any person “against the order of nature” as well as (2) consensual sexual intercourse between a man and man or woman “against the order of nature”. The words “against the order of nature” are not statutorily defined. Also, under section 157 of the Penal Code, it is an offence punishable with a maximum of five years imprisonment for any male person, whether in public or private, to commit an act of gross indecency with another male person. By section 3 of the Sexual Offences Special Provisions Act, “gross indecency” is defined as “any sexual act that is more than ordinary but falls short of actual intercourse and may include masturbation and indecent physical contact or indecent behavior without any physical contact”. Consent is no defense to any of these offences and no distinction regarding age is made in the text of the law. As the consequence of the existence of these laws criminalizing private consensual homosexual acts, LGBT people in Tanzania live in psychological stress and unceasing fear of prosecution and imprisonment.
While laws prohibiting same-sex relations have been in the law books since colonial times, there has not been any an actual prosecution or clampdown against LGBT minorities. Recently, however, the government has stepped up the hunt and prosecution of LGBT minorities and particularly gays, a move which has only served to reinforce more fear, prejudice and marginalization. The latest threats come from the government’s decision to crackdown, prosecute and publish the names of LGBT people. Embracing popular traditional and cultural norms that are usually invoked to justify LGBT hate and discrimination, the Deputy Minister for Health wrote on Twitter that homosexuality is unscientific and is against Tanzania law and morality. In one of the tweets he wrote, “Have you ever seen a gay goat or bird? Homosexuality is not biological. It is unnatural, “homosexuality is not a human right” vowing also to search for and prosecute gays and those who advocate for LGBT issues. A press conference to announce the names of suspected LGBT people was scheduled for February 27th but was later cancelled “for technical reasons”. In September 2016, the government threatened to ban non-government organizations (NGOs) supporting LGBT programs and in fact deregistered one NGO for carrying out HIV/AIDS outreach programs for gay and bisexual men.
Most Tanzanians strongly oppose the notion of LGBT rights on the assumption that non-traditional sexual orientation/gender identity is ungodly and immoral. LGBT rights supporters are quickly met with loathing and criticism. Such widespread negativity has hindered the possibility of any meaningful public debate and sharing of knowledge on human rights of LGBT people. With a lot of people still in the dark, it has been increasingly challenging to promote LGBT rights and stop discriminatory practices. While acknowledging the presence of LGBT people in the Tanzanian society, many anti-LGBT actors find it easy to demonize the issue as un-African, and a western invention as there is no such thing as ‘right’ to homosexuality. Those who are quick to condemn homosexuality or transgenders hardly bother to reflect on the scientific aspects of sexual orientation and/or gender identity.
LGBT people are not asking for any special rights. What they are demanding are human rights already provided by the Tanzanian Constitution. They are asking for protection from discrimination based on their actual or perceived sexual orientation and/or gender identity. They are asking for equal access to employment, healthcare, education, housing and other services. In fact, what LGBT people are asking for is the fulfillment of the constitutional promise of equality and there is nothing specifically western about that. Tanzania has ratified international and regional treaties guaranteeing basic rights including right of minorities and vulnerable groups and it is time it lives up to its promises. There is no doubt that criminalization of private consensual homosexual acts between adults affect the private lives of LGBT people as they cannot express their sexual and/or gender identity without being liable to prosecution. Even where there is justification to restrict homosexual relationships so as to protect special groups like children or other vulnerable persons from sexual abuse, just as heterosexual relationships can be restricted on the same grounds, that argument would not justify all-inclusive criminal sanctions where persons involved are consenting adults.
Given the opposition from top levels of government, the international community and national stakeholders should engage in advocacy with the Tanzanian government about the rights of LGBT minorities under international human rights law and demand for the decriminalization of LGBT relationships. The international community should also organize discussions with government officials on recent literature including United Nations-backed research demonstrating that criminalization of same-sex conduct imposes obstacles to HIV prevention and treatment. An open public conversation and promotion of human rights education would also help to raise public awareness as well as expose and challenge attitudes regarding LGBT identities and rights. Locally, politicians should refrain from making homophobic and transphobic statements as such statements run the risk of inciting further discrimination and hate crimes against LGBT persons. The government should instead investigate acts of violence and discrimination against LGBT people and hold offenders accountable. Lastly, the constitutional prohibition of discrimination applies to discrimination based on sexual orientation and gender identity which fundamentally means the government must ensure that people are treated equally whatever their sexual orientation or gender identity. Activists should use this legal possibility to petition courts of law to protect LGBT people from discrimination.
About the Author
Daniel Marari is a human rights lawyer and researcher, and a 2014 graduate of international human rights law from Lund University.
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