NGOs fight ‘sodomy laws

Kananelo Boloetse

A group of human rights defenders has called for the legalization of consensual same-sex sexual activity in the country.

In a joint submission to the United Nations (UN) Human Rights Committee on May 29 this year, the People’s Matrix (PM), Seinoli Legal Centre (SLC), Lesotho National Federation of the Organisations of the Disabled (LNFOD), and the International Commission of Jurists (ICJ) said Lesotho should repeal section Criminal Procedure and Evidence Act that criminalizes sodomy.

The four organisations said that the Sexual Offences Act 2003 neither makes consensual same-sex sexual activity a crime nor does it specifically repeal the common law offence of sodomy.

They explained that Schedule 1, Part II of the Criminal Procedure and Evidence Act 1981 lists sodomy as an offence under which an arrest may be made without a warrant.

They said in the context of prevailing social stigma and discrimination against LGBTQI+ persons, there remained a high risk of the discriminatory application and implementation of the common law proscription of sodomy with a disproportionate impact on LGBTQI+ persons and their human rights.

“It is therefore insufficient for the Sexual Offences Act to merely omit reference to sodomy since it continues to be a common law offence,” they said in their submission.

PM, SLC, LNFOD, and ICJ told the Human Rights Committee that criminalization of sexual practices between consenting adults of the same or opposite sex breached international human rights law and standards, including with respect to the rights to privacy and freedom from discrimination.

They said: “In light of the foregoing, the Human Rights Committee should recommend that the Government of Lesotho should harmonize the provisions of the law relating to consensual same-sex sexual activity by repealing the provision as contained in Schedule I, Part II of the Criminal Procedure and Evidence Act 1981 which makes sodomy an arrestable offence not requiring a warrant, to make it consistent with the Sexual Offences Act 2003, which does not criminalize consensual same-sex sexual activity.”

The quartet also wants the Human Rights Committee to recommend that Lesotho should amend section 37 of the Sexual Offences Act to include a provision which expressly repeals the common law offence of sodomy.

The joint submission was submitted on behalf of PM, SLC, and LNFOD by the ICJ ahead of the 138th Session of the UN Human Rights Committee that was held from Monday to Wednesday this week.

The four organisations said they made their submission in view of the committee’s examination of Lesotho’s second periodic report under Article 40 of the International Covenant on Civil and Political Rights.

64 countries have laws that criminalise homosexuality, and nearly half of these are in Africa, according to the IGLA Database – a website which gives updated information about laws that affect LGBTI people worldwide.

Some countries, including several in Africa, have recently moved to decriminalise same-sex unions and improve the rights of LGBTQ people.

In February 2021, Angola’s President Joao Lourenco signed into law a revised penal code to allow same-sex relationships and ban discrimination on the basis of sexual orientation.

In 2020, Gabon reversed a law that had criminalised homosexuality and made gay sex punishable with six months in prison and a large fine.

Botswana’s High Court also ruled in favour of decriminalising homosexuality in 2019. Mozambique and the Seychelles have also scrapped anti-homosexuality laws in recent years.

In their submission to the Human Rights Committee, PM, SLC, LNFOD, and IJC also said that Lesotho’s second periodic report submitted to the Committee made no mention of legal or policy developments in relation to the protection of the human rights of lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) persons.

They said: “This is regrettable since the Committee’s list of issues specifically requests Lesotho to broadly identify measures it has taken to combat discrimination, including discrimination based on ‘sexual orientation’ and ‘gender identity’, as well as requesting Lesotho to ‘provide clarification on the current legal status of sexual acts between consenting adults of the same sex.”

They said the latter request was a follow-up on a previous recommendation made by the Committee to Lesotho in its concluding observations issued in 1999.

They mentioned that Section 4 of the country’s constitution guarantees to “every person” “fundamental rights and freedoms”, including the rights to: “equality before the law and the equal protection of the law” and “freedom from discrimination”.

“Section 18 of Lesotho’s Constitution prohibits discrimination based on a range of grounds, which include ‘sex’ and ‘other status’,” they said.

They further said that cognizant of the need for a more inclusive society in Lesotho, the Chief Justice, Sakoane Sakoane, recently and publicly called for the “cultivation of an LGBTQI+ sensitive culture” in Lesotho.

They said noting that there is no local jurisprudence yet on what constitutional rights such as the right to respect for private and family life and freedom from discrimination mean for the LGBTQI+ community, Sakoane observed that in other countries, and according to international law, prohibitions based on sex and other status cover discrimination based on sexual orientation.

“Given the above, it is important, as a general matter, that the Lesotho government not only acknowledge and affirm the constitutional protections afforded to LGBTQI+ persons but also that it commits to a review of all relevant laws and policies in the country to clarify their nondiscriminatory content and application,” they said.

“This process should be undertaken in full consultation with civil society organizations and representatives of the LGBTQI+ community and informed by existing research of this nature,” they added.

June is widely marked as LGBT Pride Month and is dedicated to the celebration and commemoration of LGBTQI+ pride, rights, and culture.

Pride month reportedly began after the Stonewall riots United States of America (USA), a series of gay liberation protests in 1969, and has since spread outside of the United States.

The People’s Matrix Association is dedicated to advancing human rights in Lesotho, with a particular focus on sex, sexual orientation, gender identity and gender expression.

Its vision is to ensure that Lesotho is a country where there is justice and freedom for all regardless of sexual orientations, gender identities and gender expressions.

The Seinoli Legal Centre says it leverages the rule of law as a tool for protecting, restoring, and enhancing the sustainable livelihoods of local communities.

Its mission is to provide communities affected by large infrastructure development projects with sustained, comprehensive access to the law to safeguard social, economic and environmental rights through strategic litigation, advocacy and capacity strengthening.

LNFOD is an umbrella body of organisations dealing with disability in Lesotho. Its mission is to advocate for, promote, and defend the rights of people with disabilities and their families.

Established in 1952 and active on five continents, the International Commission of Jurists promotes and protects human rights through the rule of law, by using its unique legal expertise to develop and strengthen national and international justice systems.

It aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and social rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession.