Gambia

For a summary of Gambia’s review at the second cycle please click here.

7th UPR session
Date of review: Wednesday, 10 February, 2010
Date of report adoption: 11 June, 2010
Document number: A/HRC/14/6

Summary

Recommendations made:  to modify the current legislation to eliminate discrimination based on sexual orientation; to ensure non-discrimination in access to adequate housing, and prevent forced evictions, as well as the threat of forced evictions, on the basis of sexual orientation or gender identity; to ensure remedies for forced evictions on the basis of sexual orientation; to repeal all provisions criminalizing sexual activity between consenting adults; to take action to combat violence based on sexual orientation and gender identity, including prosecution of those responsible; to ensure that all LGBT persons fully and equally enjoy their human rights, in conformity with Gambia’s international obligations; with regard to the criminalisation of relations between adults of the same sex, to consider harmonising domestic standards with international ones so as to ensure the full exercise of all human rights.

Status of recommendations: rejected.

I. Key issues/recommendations identified by NGOs

  • Note that under the 1965 Criminal Code same-sex activity between consenting adults is punishable by up to 14 years’ imprisonment.
  • Note that arbitrary arrests have been reported pursuant to this provision, and stakeholders expressed concern at public statements by the Gambian President threatening homosexuals with expulsion from the country or beheading.
  • Recommend that Gambia bring its legislation into conformity with international human rights law by repealing provisions which criminalise sexual activity between consenting adults, and that no-one be arrested or detained pursuant to these provisions.
  • Recommend that violence directed against any person, including because of their sexual orientation or gender identity, be vigorously prosecuted, and that incitement to violence on these grounds be condemned.
  • Recommend that training be provided to police, judicial and other authorities to promote respect for all persons, including on the grounds of sexual orientation or gender identity.

II. Excerpts from input reports
Summary of stakeholder information

II. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND
B. Implementation of international human rights obligations

1. Equality and non-discrimination

8. The International Gay and Lesbian Human Rights Commission (IGLHRC) reported that, in the Gambia, homosexual conduct is criminalized in the 1965 Criminal Code and that those found guilty of such acts can be imprisoned for up to 14 years. IGLHRC also reported that, in 2008 and 2009, the President of the Gambia called for violence and discrimination and expulsion of “homosexuals?, and called for them to be expelled from their dwellings. The Trade Union Congress (TUC) was disturbed by homophobic comments by the Gambian Head of State and strongly condemned arbitrary arrests of citizens alleged to have engaged in homosexual practices. IGLHRC recommended that the Gambia bring its legislation into conformity with its international human rights obligations by repealing all provisions criminalizing sexual activity between consenting adults, and by ensuring non-discrimination by ensuring access to adequate housing and freedom from or remedies for forced evictions, or the threat of forced evictions on the basis of sexual orientation.

4. Right to privacy, marriage and family life

26. Fundación Mundial Déjame Vivir En Paz (FMDVEP) reported that homosexuality is criminalized in the Gambia and that its President stated that he intends to behead all homosexuals placed in detention. FMDVEP recommended that marriage of gay persons as well their right to adopt children be recognized and that all sentences against gay persons solely based on their sexual orientation be eliminated.

III. References to SOGI during the Working Group review
Interactive dialogue and responses by the State under review

Canada – Canada also recommends that the Gambia repeal all provisions criminalizing sexual activity between consenting adults. Canada recommends that the Gambia ensure that no forced evictions or restrictions on access to adequate housing are imposed on the basis of sexual orientation.

France – The situation of homosexuals, lesbians, bisexuals and transgender persons is a serious issue. In a speech in May of 2009, the President threatened to kill homosexuals and urged them to leave the country. The Criminal Code qualifies homosexuality as an unnatural crime and is punishable by 14 years in prison. We would like to know the intentions of the government with regard to a change in the criminal provisions, in order for Gambia to respect international obligations.

United Kingdom – We are also concerned about recent reports of comments from the government allegedly threatening to kill homosexuals. We have five recommendations: […] Fourth, that The Gambia takes action to combat violence based on sexual orientation and gender identity and that The Gambia repeals all provisions criminalizing sexual activity between consenting adults. Further we recommend that they ensure non-discrimination in access to adequate housing and remedies for forced evictions on the basis of sexual orientation.

Norway – We recommend decriminalizing homosexuality, and we recommend action to combat violence based on sexual orientation and gender identity.

United States – The United States recommends that the Gambia repeal all provisions of its law criminalizing sexual activity between consenting adults. The United States also recommends the Gambia ensure non-discrimination in access to adequate housing, and prevent forced evictions, as well as the threat of forced evictions, on the basis of sexual orientation or gender identity.

Response by the Gambia – On the issue of homosexuals and sexual orientation, we have indicated in our report here that in the Gambia, we have challenges in the implementation and protection of human rights, and we also have to recognize that value systems, practice, cultures are different. Therefore, within the Gambia, certain practices and certain cultures do not recognize sexual orientation as a universal human right. This is something that you cannot legislate, to impose or dictate what should happen, because the value systems are different and over time, the society strongly feels that sexual orientation is not a human right in the sense that it offends their value systems. It also offends some of their believes and because of that, the laws and the values that regulate society is informed by those considerations. So, the President in his statement as claimed did not state that homosexuals will be killed, because one thing is that, being a homosexual, you cannot even see on the face of the person that this person is a homosexual. What is an offence in Gambia is sexual intercourse which is by same-sex [sic] which is considered as an unnatural offence. So, the fact that you are a gay or a lesbian alone is not an offence. It is […] the sexual intercourse of two consenting… – two adults of the same sex that we have criminalized. So, unfortunately, this is something that perhaps some communities and societies may not reason with. But in our communities, and the part of the world where we come from, sexual orientation is still against the values and norms of those people. This is what I would want to state and we want member states to understand and respect some of these views that the communities that we represent have.

Chile – We also propose changing legislation to eliminate discrimination on sexual orientation.

Italy – Offensive discriminatory comments of Gambian Authorities on homosexuals, identified as criminals, and threats to expel them from the Country are extremely worrying. Italy recommends to withdraw legislation that criminalize homosexuality between consenting adults and to prosecute violence directed against persons because of their sexual orientation.

Sweden – Consensual sexual activity among persons of the same sex is forbidden by law in the Gambia and punishable by 14 years imprisonment. Government representatives have publicly called for violence and discrimination against homosexuals. Sweden recommends the government of Gambia to ensure that all LGBT persons fully and equally enjoy their human rights, in conformity with Gambia’s international obligations, and as an immediate step, to repeal the provisions in the Criminal Code that criminalize sexual activity among persons of the same sex.

Netherlands – Same-sex activity is criminalized in Gambia. We acknowledge the remarks made this morning and appreciate your frankness and engagement on this issue. We would like to refer to the Human Rights Committee, which has confirmed that criminalization of consensual same-sex conduct violates the right to privacy and non-discrimination. The Universal Declaration of Human Rights protects the rights of all human beings. This also includes the rights to privacy. We recommend that Gambia decriminalizes same-sex activities in accordance with international human rights standards.

Argentina – Concerning the criminalisation of relations between adults of the same sex, we would like to recommend that the authorities of the Gambia try to harmonising their internal standards with international ones so as to ensure the full exercise of all human rights.

IV. Conclusions and/or recommendations
The Gambia rejected the following recommendations:

  • 100. 4. Modify the current legislation to eliminate discrimination based on sexual orientation. (Chile)
  • 100. 5. Ensure that no forced evictions or restrictions on access to adequate housing are imposed on the basis of sexual orientation. (Canada)
  • 100. 6. Ensure non-discrimination in access to adequate housing, and prevent forced evictions, as well as the threat of forced evictions, on the basis of sexual orientation or gender identity. (United States)
  • 100. 7. Take action to combat violence based on sexual orientation and gender identity and repeal all provisions criminalizing sexual activity between consenting adults; ensure non-discrimination in access to adequate housing and remedies for forced evictions on the basis of sexual orientation. (United Kingdom)
  • 100. 8. Repeal all provisions criminalizing sexual activity between consenting adults. (Canada)
  • 100. 9. Decriminalize homosexuality, and take action to combat violence based on sexual orientation and gender identity. (Norway)
  • 100. 10. Repeal all provisions of law criminalising sexual activity between consenting adults. (United States)
  • 100. 11. Withdraw legislation that criminalizes homosexuality between consenting adults and to prosecute violence directed against persons because of their sexual orientation. (Italy)
  • 100. 12. Ensure that all LGBT persons fully and equally enjoy their human rights, in conformity with Gambia’s international obligations, and as an immediate step, to repeal the provisions in the Criminal Code that criminalize sexual activity among persons of the same sex. (Sweden)
  • 100. 13. Decriminalise same-sex activities in accordance with international human rights standards. (Netherlands)
  • 100. 14. With regard to the criminalisation of relations between adults of the same sex, consider harmonising domestic standards with international ones so as to ensure the full exercise of all human rights. (Argentina)

V. Adoption of the Report
Comments by States

United States – The United States strongly urges the government to reconsider its decision to not support other joint recommendations, particularly the recommendation that it take action to combat violence based on sexual orientation and gender identity and repeal all provisions criminalizing sexual activity between consenting adults.

Comments by stakeholders

Canadian HIV/AIDS Legal Network

An issue of serious concern raised during the UPR of Gambia relates to the criminalization of consensual same-sex conduct under article 144 of the 1965 Criminal Code, punishable by up to 14 years’ imprisonment.

We are deeply concerned that Gambia did not accept the recommendations of Chile, the United States, the UK, Argentina and others to repeal these provisions, which are a violation of established international human rights law and a major threat to public health.

Arbitrary arrests have been reported pursuant to this provision, and stakeholders expressed concern at public statements by the Gambian President threatening homosexuals with expulsion from the country or beheading.

The UN Human Rights Committee has confirmed that criminalization of consensual same-sex conduct violates the rights to privacy and non-discrimination, contrary to articles 17(1) and 26 of the International Covenant on Civil and Political Rights, and runs counter to the implementation of effective education programmes in respect of HIV/AIDS prevention by driving marginalised communities underground, a position also supported by UNAIDS.

We urge the Government of Gambia to reconsider and accept the recommendations to repeal provisions which criminalise sexual activity between consenting adults, and ensure that no-one is arrested or detained pursuant to these provisions.

We further recommend that violence directed against any person, including because of their sexual orientation or gender identity, be vigorously prosecuted, and that incitement to violence on these grounds be condemned.

Finally, we recommend that training be provided to police, judicial and other authorities to promote respect for all persons, including on the grounds of sexual orientation or gender identity.

VI. Further information
UPR Documentation

National report 1AC | E | FR | S
Compilation of UN information 2A | C | EFR | S
Summary of stakeholders’ information 3A | C | E | F | R | S
Questions submitted in advance: E only
Addendum 1:  E only
Questions submitted in advance – Addendum 2: E only

Outcome of the review
Report of the Working group: ACEFR | S
Decision of the outcome: A | C | E | F | R | S
Report of the 14th session of the Human Rights Council: E
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