The growing decriminalisation of same-sex relations contributes to a significant development in jurisprudence. Increasingly, courts faced with decriminalisation issues are referring to other cases in the Global South, thus building the foundations of global consensus on rights based on sexual orientation and gender identity.
This year marks 25 years since South Africa decriminalised consensual same-sex relations through its Constitutional Court. It was the second Global South country to do so, a year after Ecuador. Since then, 38 countries have lifted prohibitions on gay sex, including 10 in Africa.
The 1998 judgment of the Constitutional Court has resonated across the globe. It has been quoted in decriminalisation cases as close to home as Botswana (2021) and as far afield as Fiji (2005) and the Eastern Caribbean (2022), as well as in a landmark case in India (2018) and most recently in Mauritius (2023).
The most common route to decriminalisation has been penal code reform. But in the past quarter of a century, 12 cases have been decided through the courts, contributing to a growing body of jurisprudence that references other cases in the Global South. This has boosted the legal case for decriminalisation in other, similarly located jurisdictions.
In 1998, the Constitutional Court observed that there was “a definite trend towards decriminalisation” and that nothing “in the jurisprudence of other open and democratic societies based on human dignity, equality and freedom” pointed in a different direction.
Penal code reform
African states that have decriminalised since then are Cape Verde (2004), Lesotho (2012), São Tomé and Príncipe (2012), Mozambique (2015), Seychelles (2016), Gabon (2020), Angola (2021), Botswana (2021) and Mauritius (2023). Of these 10, three (South Africa, Botswana and Mauritius) decriminalised through the courts, with the rest doing so through penal code reform.
Gabon briefly criminalised in 2019 and then reversed the decision the following year. Rwanda rejected an effort to criminalise same-sex conduct in 2009.
On the other hand, two countries bucked the trend towards decriminalisation. In 2009 Burundi, a former French colony without a sodomy law, criminalised same-sex conduct for the first time. Chad, in reviewing its penal code, also criminalised same-sex conduct for the first time in 2017. Of the 66 countries that outlaw same-sex activity, at least 41 countries explicitly outlaw sex between women. Punishment for same-sex activity varies from fines to the death penalty in at least seven countries.
Sodomy laws are often not enforced and lie dormant on the statute books. But research consistently shows that these laws, even when unenforced, contribute to a climate in which discrimination and violence occurs. They send a tacit message that individuals who act on their same-sex attraction are potential criminals or “unapprehended felons” inviting social opprobrium. There is little hope of social progress in countries where the state is sending a tacit message that discrimination is acceptable.
Not ‘against the order of nature’
In some settings the laws have been effectively rendered unenforceable, although they remain on the books. Mozambique decriminalised in 2015, when it revised its penal code. Before that, the justice minister said the law (a Portuguese variation of “against the order of nature”) applied to unnatural sexual relations and ― given that homosexuality could not be considered “unnatural” ― the law did not apply to same-sex conduct.
In Lebanon, the “against nature” provisions in its laws have also been interpreted by the courts to not apply to consenting same-sex activity taking place in private – again on the grounds that homosexuality cannot be considered unnatural.
Before the parliament decriminalised same-sex conduct in Singapore, a 2022 judgment by the court of appeal upheld the constitutionality of its sodomy law but imposed a legally binding moratorium on arrests. Malawi, too, issued a moratorium on arrests in 2012, although its legal status was never clear. In Toonen v Australia, the landmark case against Tasmania’s sodomy law, the human rights committee found in 1994 that the law constituted arbitrary interference in the complainant’s privacy, contrary to the International Covenant on Civil and Political Rights, “even if these provisions have not been enforced for a decade”.
One particularly egregious practice that arises out of the difficulty in gathering evidence and securing a conviction for sexual acts conducted in private is forced anal testing, whereby police and medical professionals cooperate to conduct pseudo-scientific tests, with no evidentiary value. This practice, documented in at least nine countries, constitutes cruel, inhumane and degrading treatment that can rise to the level of torture.
Fraught terrain
Sodomy laws are colonial relics. Yet many post-colonial states hold up sodomy laws as markers of national sovereignty and claim the laws are a bulwark against encroaching Western values. When the laws were initially imposed, they were symptomatic of dual anxieties about sexual perversions in the metropole and unbridled sexual passions in the colonies.
Fast-track to today and some of the very same states that imposed the laws in the first place are now leading the calls for repeal. This makes the politics around decriminalisation fraught terrain.
The Indian Penal Code was the template for similar laws in much of the British Empire. Thus the 2018 repeal of section 377 of India’s penal code, which punished “carnal intercourse against the order of nature” with 10 years to life in prison, had strong symbolic resonance in countries that still retained colonial-era prohibitions on same-sex intimacy.
The court referred extensively to the South African Constitutional Court case in relation to privacy, dignity, equality and non-discrimination, quoting: “There can be no doubt that the existence of a law which punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society.”
Colonial yoke
Invoking the “sodomy” laws as a residual “yoke” of British rule, the court declared that “history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”.
This positive judgment in India has been cited in several subsequent legal challenges to sodomy laws in other countries, including Singapore, Botswana, St Kitts and Nevis, Barbados and Mauritius.
In addition to South Africa, the Indian judgment references a broad sweep of comparative laws from around the world, including Belize, Colombia, Ecuador, Fiji, Hong Kong, Nepal, and Trinidad and Tobago. Similarly, the supreme court of Belize (2016), and the high courts of Trinidad and Tobago (2018), Botswana (2019), Antigua and Barbuda (2022), St Kitts and Nevis (2022) and Barbados (2022), cross-referenced other cases in the Global South in rejecting discriminatory provisions in their colonial-era penal codes.
Growing global consensus on rights
These judgments contribute to a significant development – increasingly, when decriminalisation takes place through legal challenges, courts are referring to other cases in the Global South, thus building the foundations of a more global consensus on rights based on sexual orientation and gender identity.
Globally, there is a clear trend towards decriminalisation of same-sex conduct. Sodomy laws are colonial in origin, but that does not explain why they persist in the post-colonial period or why they have been retained and, in some instances, strengthened and justified in the name of national sovereignty.
It is encouraging that courts in the Global South now have a rich body of jurisprudence to draw on from other courts similarly. These developments augur well for the ongoing trajectory towards decriminalisation of consensual same-sex conduct. DM/MC
Graeme Reid is the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. This op-ed is adapted from a keynote address delivered at a conference hosted by the Centre for Human Rights, University of Pretoria on 23 November 2023.