LGBT Rights in Tanzania - Tanzania's Obligations Under International Law and Treaties

Tanzania's Obligations Under International Law and Treaties

In 1994, the United Nations Human Rights Council (UNHRC) confirmed in Toonen v. Australia that laws criminalizing consensual same-sex activity violate both the right to privacy and the right to equality before the law without any discrimination, contrary to Article 17 of the International Covenant on Civil and Political Rights (the "Covenant"). Those laws interfere with privacy rights, regardless of whether they are actively enforced, and "run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention" by driving marginalised communities underground. The UNHRC has subsequently affirmed this position on many occasions by urging countries to repeal laws that criminalize consensual same-sex activity and thereby bring their legislation into conformity with the Covenant. Tanzania has ratified the Covenant.

The United Nations Working Group on Arbitrary Detention in June 2002 found that arrests for being homosexual or for engaging in consensual homosexual conduct are, by definition, human rights violations. The arrests constitute an arbitrary deprivation of liberty in contravention of Article 2, Paragraph 1 of the Universal Declaration of Human Rights and of Article 2, Paragraph 1 and Article 26 of the Covenant. The Declaration is part of international law and is, therefore, binding on Tanzania.

This position is consistent with other regional and national jurisprudence, including the decisions of the:

• European Court of Human Rights (Dudgeon v. United Kingdom, 1981; Norris v. Ireland, 1991; Modinos v. Cyprus, 1993)
• Constitutional Court of South Africa (National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1998)
• United States Supreme Court (Lawrence v. Texas, 2003)
• High Court of Fiji (Thomas McCosker v. The State, 2005).

The South African court said,

Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy. ... The criminalisation of sodomy in private between consenting males is a severe limitation of a gay man's right to equality in relation to sexual orientation.... It is at the same time a severe limitation of the gay man's rights to privacy, dignity and freedom. The harm caused by the provision can, and often does, affect his ability to achieve self-identification and self-fulfilment. The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays.

Anand Grover, the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, reported in April 2010 that laws criminalising sexual conduct between consenting adults impede HIV education and prevention efforts and are incompatible with the right to health. The Joint United Nations Programme on HIV and AIDS (commonly known as UNAIDS) has a similar view.

The international obligations of countries to respect the human rights of all persons, irrespective of sexual orientation and gender identity, were articulated in 2006 in the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. The Principles were developed and adopted unanimously by a group of human rights experts. Principle 2 ("Rights to Equality and Non-Discrimination") affirms that everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity, and specifically obligates countries to,

repeal criminal and other legal provisions that prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity.

Principle 6 (the "Right to Privacy") affirms the right of everyone, regardless of sexual orientation or gender identity, to the enjoyment of privacy without arbitrary or unlawful interference, and confirms the obligation of countries to,

b) Repeal all laws that criminalise consensual sexual activity among persons of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity.

c) Ensure that criminal and other legal provisions of general application are not applied to de facto criminalise consensual sexual activity among persons of the same sex who are over the age of consent.

The United Nations High Commissioner for Human Rights, Navanethem Pillay, in a statement to a High-Level Meeting on Human Rights, Sexual Orientation and Gender Identity at the United Nations on 18 December 2008 affirmed.

The principle of universality admits no exception. Human rights truly are the birthright of all human beings. Sadly ... there remain too many countries which continue to criminalize sexual relations between consenting adults of the same sex in defiance of established human rights law. Ironically many of these laws, like Apartheid laws that criminalized sexual relations between consenting adults of different races, are relics of the colonial era and are increasingly becoming recognized as anachronistic and as inconsistent both with international law and with traditional values of dignity, inclusion and respect for all.... It is our task and our challenge to move beyond a debate on whether all human beings have rights – for such questions were long ago laid to rest by the Universal Declaration – and instead to secure the climate for implementation.... Those who are lesbian, gay or bisexual, those who are transgender, transsexual or intersex, are full and equal members of the human family, and are entitled to be treated as such.