| For a summary of Senegal’s review at the first UPR cycle please click here. |
17th UPR session
Date of review: 21 October 2013
Date of report adoption: 19 March 2014
Working Group report: A/HRC/25/4
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SUMMARY SOGIESC issues during Senegal’s 2nd UPR review |
I. Key issues/recommendations identified by NGOs
- Initiate the process of reform of all laws, policies and directives that discriminate against and stigmatise persons on the basis of sexual orientation or gender identity;
- Release individuals incarcerated because of their sexual orientation or gender identity;
- Introduce legislation criminalising hate speech and crimes against LGBT persons;
- Implement training and awareness-raising programmes for various stakeholders on human rights and their universality, including their application to sexual and gender minorities.
II. Excerpts from input reports
National report
IV. Follow-up to the recommendations made during the first review cycle
13. Continuing commendable activities to combat HIV/AIDS and sharing experiences
64. The National Strategic Plan to Combat AIDS (2007–2011) had set itself the objective of treating 11,000 persons living with AIDS with antiretrovirals in 2010. The results of the review of the National Multisectoral Programme to Combat AIDS for the period 2007–2010 showed that it had been possible to build on gains made in the prevention of new infections.
65. The new Multisectoral Programme (2011–2015) is aimed at reducing the incidence of new infections and of AIDS by achieving the targets of zero new infections, zero HIV- related deaths and zero stigmatization.
66. The priorities of the new Strategic Plan are focused, in particular, on consolidating gains made in prevention and stepping up interventions among high-risk vulnerable groups. This Plan targets sex workers, men having sex with men and injection drug users.
Pursuing policies for HIV-positive persons
67. Senegal adopted Act No. 2010-03 of 9 April 2010 on AIDS with a view to addressing the threat posed by the pandemic to the economic and social development of the country. Accordingly, a national policy has been developed for the prevention, assistance, protection and promotion of the rights of infected and affected persons and of groups identified as vulnerable.
V. Further clarification of the replies already provided in June 2009 (A/HRC/11/24/Add.1) regarding certain recommendations
6. Amending the Criminal Code to decriminalize homosexual practices
116. There is no law in Senegal criminalizing homosexuality. However, article 319 of the Criminal Code punishes unnatural acts committed in public. No one is in prison in Senegal for homosexuality. The Senegalese people have been called upon to express their views on the issue on several occasions.
Compilation of UN information
III. Implementation of international human rights obligations
B. Right to life, liberty and security of the person
27. In 2010, the Working Group on Arbitrary Detention recommended that the Government pay serious attention to the problem of the imprisonment of women accused of infanticide who terminated their pregnancy in order to avoid social censure. These women found themselves rejected not only by members of their family and social circle but also by their fellow detainees. The Working Group also stressed that the Government pay particular attention to detentions on the grounds of offending decency or public morality, with a view to avoiding any possible discrimination against persons of a different sexual orientation.
28. CERD welcomed the results of various measures to eradicate female genital mutilation (FGM). Nevertheless, CAT remained concerned about the persistence of domestic violence, FGM, sexual abuse, rape and forced marriages. It urged Senegal to publicize Act No. 99-05 on the penalization of the crimes of rape, excision, assault and battery, and incest.
29. CAT took note of the second national action plan to hasten the end of the practice of excision (2010–2015). CAT urged Senegal to ensure that the programme on gender violence and human rights and the related national action plan include access to shelter, medical and psychological assistance, and reintegration programmes.
Summary of stakeholder information
C. Implementation of international human rights obligations
1. Equality and non-discrimination
12. Joint Submission No. 1 (JS1) points out that none of the recommendations on the human rights of sexual minorities made during the previous review have been implemented by the State. The homophobic environment tolerated by the Senegalese authorities and exacerbated by some Islamist groups and the media has led to a climate of fear and insecurity among homosexuals.
13. JS1 adds that criminal law still penalizes homosexuality. Article 319.3 of the Penal Code serves as the basis for arbitrary arrests by the police. A simple complaint or rumours about homosexuality are enough for the individual concerned to be arrested. Moreover, the lack of independence of the judiciary and the strong pressure of public opinion based on moral and religious considerations make this institution ineffective for the protection of sexual minorities.
14. According to JS1, the pattern of systematic violations of the human rights of sexual minorities in Senegal is due to the inaction of various actors. The criminalization of homosexuality and the persistent climate of fear of persecution not only violate the rights of sexual minorities, but also undermine the efforts of the Senegalese Government in the fight against AIDS, by forcing homosexuals and peer educators involved in combating HIV to hide their activities.
15. JS1 recommends that the Government implement the recommendations made during the 2009 universal periodic review; initiate the process of reform of all laws, policies and directives that discriminate against and stigmatize homosexuals, including the Penal Code and the law on HIV; release individuals prosecuted or convicted because of their homosexuality; launch a national dialogue to promote acceptance of homosexuality and end the homophobic environment; introduce legislation criminalizing hate speech and crimes aimed at homosexuals; and implement training and awareness-raising programmes for the various stakeholders on human rights and their universality, including their application to sexual and gender minorities.
5. Freedom of religion or belief, association and peaceful assembly, and right to participate in public and political life
37. JS1 reports that the practice of religion by homosexuals in Senegal is characterized by persecution and exclusion by religious communities.
6. Right to health
51. Human Rights Watch (HRW) notes that the health authorities have undertaken noteworthy efforts to ensure that prevention and treatment efforts reach men who have sex with men (MSM), including through the passage of the 2010 HIV/AIDS law, which made specific reference to MSM as a vulnerable group. However, fear of arrest and prosecution have prevented gay men from accessing essential services, including HIV/AIDS prevention and treatment.
52. JS1 reports that Act No. 2010-03 of 9 April 2010 on HIV was a step forward in preventing, addressing and eliminating all forms of stigmatization and discrimination against persons infected with or affected by HIV/AIDS, including sexual minorities. Article 36 of the Act is problematic, however, since it provides for a prison sentence of 5 to 10 years and a fine of approximately €3,500 to €8,000 for anyone who deliberately transmits HIV. The implementation of the Act is undermined by a homophobic environment fostered by powerful religious groups and tolerated by the authorities.
III. References to SOGI during the Working Group review
20. The United Kingdom of Great Britain and Northern Ireland commended the establishment of the Extraordinary African Chambers and encouraged accelerated implementation of the Social Policy Orientation Act. It expressed deep concern about child trafficking, exploitation, abuse and health. It requested information on decriminalizing homosexuality. It made recommendations.
31. Austria raised concerns about street children, the poor implementation of legislation in that area and the criminalization of same-sex sexual acts. It highlighted the need to improve detention conditions. It made recommendations.
37. Brazil noted measures to combat HIV/AIDS and violence against women. It expressed concern regarding human rights defenders and journalists, who had been victims of attacks and detentions. Criminalization of homosexuality led to discrimination. Brazil made recommendations.
60. La délégation a expliqué qu’il n’y a pas au Sénégal d’incrimination de l’homosexualité en tant que telle et que l’article 319 du Code Pénal se réfère à des actes contre nature. Le fait d’être homosexuel n’est pas un délit au Sénégal et aucune poursuite judiciaire n’est menée à l’encontre des personnes du seul fait de leur homosexualité.
66. Greece noted continued restrictions in freedom of expression and was concerned about the situation involving children’s rights. It also noted that Senegal continued to discriminate against sexual orientation. It made recommendations.
70. Ireland welcomed Senegal’s efforts to bring Mr Hissène Habré to justice and urged it to ensure his fair and expeditious trial. It was concerned by shortcomings in the treatment of LGBT persons and by reports of torture referenced by the CAT. It made recommendations.
84. The Netherlands congratulated Senegal on its efforts to reduce FGM, but noted that abuse against women and girls often remained unpunished. It noted programmes implemented to raise HIV awareness and to combat AIDS, but underlined that criminalisation of homosexuality makes LGBT’s reluctant to participate in these programmes. It made recommendations.
114. Switzerland commended Senegal on its commitment against impunity regarding the trial of Hissène Habré. Switzerland was concerned about discrimination against the LGBT community in Senegal but noted with satisfaction the abolition of the death penalty in its national legislation. Switzerland made recommendations.
IV. Conclusions and/or recommendations
125. Senegal considers that the recommendations below cannot be accepted:
125.1 Amend national legislation that entails discriminatory practices, prosecution and punishment of persons for their sexual orientation or gender identity, and adopt measures to promote tolerance in the society through education and awareness campaigns (Uruguay);
125.2 Consider adopting all necessary measures to achieve the non-discrimination, protection and integration of the LGBT population (Argentina);
125.3 Enact laws criminalising acts of discrimination against minorities such as hate speech (Australia);
125.4 Effectively implement the principle of non-discrimination, including on grounds of sexual orientation (Austria);
125.5 Amend its Penal Code to decriminalise sexual relations between persons of the same sex (Belgium);
125.6 Take all the necessary measures to guarantee that LGBT individuals do not face persecution of any kind (Brazil);
125.7 Repeal all laws criminalizing sexual orientation and gender identity and take concrete measures for the protection of sexual minorities (Greece);
125.8 Promote respect for human rights of all discriminated groups on grounds of gender, sexual orientation, disability or ethnicity (Paraguay);
125.9 Ensure equal treatment and non-discrimination against lesbian, gay, bisexual and transgender persons, and other vulnerable groups (Thailand);
125.10 De-criminalize homosexuality, establish a de-facto moratorium on Article 319 of the Penal Code, and ensure that the Code is not used as basis for arbitrary arrests by the police (Germany);
125.11 Take steps to combat the persecution of persons on the basis of their sexual orientation or gender identity, in particular by removing Article 319.3 from the Penal Code so as to decriminalise consensual sexual conduct between persons of the same sex (Ireland);
125.12 Change Article 319 of the Penal Code and start a national dialogue on the acceptance of homosexuality (Netherlands);
125.13 Amend the Criminal Code to respect, protect and enforce the right to non-discrimination for all citizens regardless of their sexual orientation (Switzerland);
125.14 Decriminalize consensual sexual acts between adults of the same sex and criminalize violence committed against individuals based on their sexual orientation (Mexico).
V. Adoption of the Report
The report of the working group was adopted at the 25th regular session of the Human Rights Council in March 2014.
STATEMENTS
Action Canada for Population and Development & Sexual Rights Initiative
Our organisations remain equally concerned with Senegal’s complete refusal to respect, protect and fulfil the rights of individuals with diverse sexual orientations, gender identities and expressions. We therefore urge the government to revisit recommendations #126.1 – 126.14. Specifically, we are greatly disturbed by the rejected of recommendation #126.11 to take steps to combat the persecution of persons on the basis of their sexual orientation or gender identity, in particular by removing Article 319.3 from the Penal Code so as to decriminalise consensual sexual conduct between persons of the same sax.
As our organisations have previously recommended, the government must:
– Address the unmet need for family planning by providing all individuals with access to a range of affordable modern methods of contraception.
– Decriminalise consensual sexual relations between persons of the same sex.
– Address the sexual and reproductive health needs of young people and adolescents by, in part, increasing the budget for the Ministry of Health to provide young people and adolescents with access to the services and information they are entitled to, and providing them with access to youth-friendly health information and services.
Amnesty International
Amnesty International is disappointed by Senegal’s outright rejection of all recommendations to amend national legislation which currently permits discrimination against minorities, and to ensure the respect for the human rights of LGBTI persons. Amnesty International calls on Senegal to ensure the universality of human rights of all individuals, irrespective of gender, sexual orientation or gender identity, and to release all persons imprisoned or detained on the grounds of their sexual orientation or gender identity.
Response of the delegation of Senegal
There were other issues that were brought to our attention, for instance, the issue of equality for all Senegalese. We are taking all possible steps in this area of course, but I think it is also important to bear in mind that Senegal is aware of what needs to be done. We are not trying to sweep anything under the carpet. We know that there are certain demands and we will listen to them to deliver the rights of all people of Senegal… I think its also important perhaps to respond to the LGBT issue. We’ve responded to this issue in the past during our last passage through the UPR process. We made it clear that the right to life of all citizens are respected but what we call “acts against nature” are acts that are carried out publicly in the street. That is what is punished. But people who carry out such acts in private homes are not punished and are not prosecuted. So that needs to be clearly understood as well.
VI. Further information
UPR Documentation