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

8th UPR session
Date of review: Wednesday, 5 May 2010
Date of report adoption: 21 September 2010
Document number: A/HRC/15/7


Recommendations made: repeal legislation criminalizing male homosexuality, and introduce policies aimed at ending discrimination against homosexuals.

Status of recommendations: rejected.

I. Key issues/recommendations identified by NGOs

  • Decriminalize sexual activity between consenting adults.

II. Excerpts from input reports
Compilation of UN information

B. Implementation of international human rights obligations
1. Equality and non-discrimination

19. In 1999, the HR Committee noted with concern that a sexual relationship between consenting adult partners of the same sex was punishable under law and recommended that Lesotho amend the law in this respect.

Summary of stakeholder information

B. Implementation of international human rights obligations
1. Equality and non-discrimination

13. Matrix Support Group (MSG) reported that the legal system has made massive efforts to eradicate instances of discrimination and unequal treatment in almost all areas except in issues of homosexuality. Although no provision in the Constitution explicitly provides for or prohibits homosexuality, MSG noted that male homosexuality is illegal in Lesotho by virtue of the sodomy law, while the law is totally silent on female homosexuality. MSG added that lesbians are also subjected to the patterns of discrimination suffered by gay men.

14. MSG indicated that the sodomy law does not seem to have ever been enforced at any time in Lesotho save where it was not consensual, and that the Sexual Offences Act made the sodomy law useless.

15. MSG reported that marriage is governed by customary law and common law (through the Marriage Act), both of them excluding same-sex marriage. MSG reported that, although no mention of homosexuals is made anywhere in the Adoption Proclamation, homosexuals may not adopt as a couple because they are not allowed to enter into the institution of marriage, and because of the criminalisation of male homosexuality.

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

58. Australia looked forward to the establishment of the Human Rights Commission. It remained troubled by on-going discrimination against homosexuals and the criminalization of male homosexuality.

IV. Conclusions and/or recommendations
The following recommendations did not enjoy the support of Lesotho:

98.2. Repeal legislation criminalizing male homosexuality, and introduce policies aimed at ending discrimination against homosexuals (Australia);

98.4. Decriminalize homosexuality and abrogate the law which prohibits sexual relations between people of the same sex (France);

98.5. Amend the Sodomy Law so that a sexual relationship between two consenting adults of the same sex is no longer punishable (Netherlands).

V. Adoption of the Report
Comments by stakeholders

Jide Macaulay on behalf of the Canadian HIV/AIDS Legal Network

-Mr. President, distinguished members of the delegation,

I am pleased to make this statement on behalf of the Canadian HIV/AIDS Legal Network and Pan-Africa ILGA.

We wish to address recommendations 98, paragraphs 2, 4 and 5, issues of serious concern raised in the Working Group report on Lesotho. These recommendations call for the amendment of the penal code provisions which criminalize consensual sexual activity between persons of the same sex, to ensure that no one is punished under these laws.

Criminalization of consensual same sex activity constitutes a violation of established international human rights law and undermines public health initiatives.

Just last Friday, in a high-level panel held in conjunction with the current session of the Human Rights Council, Nobel Peace Prize Winner Archbishop Desmond Tutu called for an end to criminal laws against homosexuality.  He noted that South Africa included sexual orientation in its new post-apartheid Constitution, stating that “we knew, from our bitter experience that an injury to one is an injury to all.”

These calls were echoed last week by the UN High Commissioner for Human Rights, and the UN Secretary General Ban Ki-moon, who underlined:

“Laws criminalizing people on grounds of sexual orientation and gender identity violate the principle of non-discrimination. They also fuel violence, help to legitimize homophobia and contribute to a climate of hate. No doubt deeply rooted cultural sensitivities can be aroused when we talk about sexual orientation. Social attitudes run deep and take time to change. But cultural considerations should not stand in the way of basic human rights.”

We were therefore disappointed that Lesotho did not accept these recommendations. The UN Human Rights Committee has noted that laws criminalizing homosexuality “run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention” by driving marginalized communities underground, a finding supported by UNAIDS and other key actors in the fight against the HIV/AIDS pandemic.

We therefore urge the government of Lesotho to reconsider Recommendations 98.2, 4 and 5, and take action to bring its legislation into conformity with international standards, by repealing legislation which criminalizes same sex conduct between consenting adults.

Thank you Mr. President.

VI. Further information
UPR Documentation

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

Outcome of the review
Report of the Working group: A | CE | F | R | S
Addendum: A | CE | F | R | S
Related webcast archives