Lives at stake: Religion, death penalty, and the rights of sexual and gender minorities in Africa

Author: Lakshita Kanhiya
Human Rights Advocate

The African continent presents a complex landscape for the protection of human rights, where various issues intersect, including capital punishment, sexual and gender minority rights, and the influence of religion. One of the most alarming and dire challenges in this regard is the imposition of the death penalty on sexual and gender minorities,[1] a practice that fundamentally contradicts human rights principles, including the right to life and the prohibition of torture or cruel, inhuman, or degrading treatment or punishment.[2]

Across the world, sexual and gender minorities continue to grapple with pervasive discrimination, violence, harassment, and societal stigma. [3] While significant progress has been made in many countries due to social movements promoting acceptance,[4]  there remain nations where sexual and gender minorities not only face marginalisation but also criminalisation, with some even subjected to the ultimate penalty – death. Among these countries, six actively enforce the death penalty for such acts, namely Iran, Northern Nigeria, Saudi Arabia, Somalia, and Yemen. Additionally, the death penalty remains a legally admissible option in Afghanistan, Brunei, Mauritania, Pakistan, Qatar, the United Arab Emirates, and Uganda.[5]

International human rights law unambiguously restricts the use of the death penalty.[6] Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR) dictates that states that have not abolished capital punishment should employ it only for the ‘most serious crimes’ and ‘in a non-arbitrary manner’. In 2017, the United Nations Human Rights Council (UNHRC) adopted a resolution condemning the use of the death penalty for same-sex consensual relations and called on member states to ensure that it is not administered ‘based on discriminatory laws or as a result of discriminatory or arbitrary application of the law’.[7] Various United Nations (UN) Treaty Bodies and Special Procedures have consistently cautioned against the criminalisation of same-sex conduct, highlighting the risks of increased discrimination and violence against sexual and gender minorities due to the use of the death penalty in various countries worldwide. In December 2020, the UN General Assembly called on states that still employ the death penalty to ensure it is not applied ‘on the basis of discriminatory laws or as a result of discriminatory or arbitrary application of the law’. This view was adopted by the UNHRC through a  resolution.[8]

At the regional level however, the African Commission on Human and Peoples’ Rights has not issued a formal verdict on the use of the death penalty for ‘aggravated homosexuality’ as outlined in the Uganda Anti-Homosexuality Act 2023.[9] Uganda has often been targeted by religious missionaries who sought to propagate their traditional family and moral values, often stoking hatred and violence against sexual and gender minorities.[10] As a result, the Uganda Anti-Homosexuality Act 2023 has been the latest oppressive laws against sexual and gender minorities, expanded the reach of the death penalty under section 3(1) for ‘serial offenders’, which had been condemned by the international community.[11] The death penalty has been considered in Ugandan legislation regarding same-sex relationships before, as evidenced by the earlier Anti-Homosexuality Act of 2014, which was invalidated on technical grounds.[12] However, with the passage of the Anti-Homosexuality Act 2023, two men in Uganda are currently facing charges of ‘aggravated homosexuality’, an offense punishable by death under the country’s new anti-rights laws.[13] It is important to highlight the substantial impact of United States conservative evangelicals in this lawfare.[14]

The imposition of death penalty in the remaining countries across the continent, namely Mauritania, Nigeria, and Somalia, are through Shari’a law, which is a comprehensive code regulating all aspects of Muslim life. Islam in Africa is practiced alongside colonial penal codes founded on largely Christian mores that were enacted to curb local sexual practices. It is noteworthy that the conflict between some interpretations of Shari’a law and human rights law with regard to the treatment of sexual and gender minorities primarily revolves around issues of discrimination, criminalisation, and harsh punishment, which are seen as violations of fundamental human rights principles.

In Mauritania, same-sex sexual relations are prohibited by Article 308 of the 1983 Penal Code, which labels such acts as ‘acts against nature’. [15] While this provision carries the severe punishment of death by stoning, Mauritania has effectively suspended its application. This law applies to both men and women and is rooted in Islamic legal principles, with the Constitution of Mauritania officially recognising Islam as the state’s religion and Shari’a as the primary source of legislation. Despite official claims of a de facto moratorium on the death penalty since 1987, sexual and gender minorities in the country continue to experience discrimination, incarceration, and harassment. [16]

In Nigeria, same-sex sexual activity is proscribed by both the Criminal Code Act and the Same Sex Marriage (Prohibition) Act of 2013 (SSMPA).[17] These laws criminalise acts such as ‘carnal knowledge against the order of nature’, ‘gross indecency’, same-sex unions, as well as advocacy for sexual and gender minorities. In northern states where Shari’a penal codes are in effect, sodomy and/or anal intercourse can result in severe penalties, including death by stoning or public flogging. Convictions are infrequent due to stringent evidentiary requirements. In 2014, a few cases adjudicated by a Shari’a court in Bauchi state led to public floggings of those found guilty.[18] More commonly, public officials employ the threat of harsh punishment or public humiliation to extort bribes from individuals accused of violating laws concerning sexual and gender minority activity.[19] Those facing accusations often endure arbitrary detention, unlawful property searches, and physical abuse, including beatings and torture at the hands of state security forces.[20] Additionally, individuals suspected of violating laws regarding same-sex relations are frequently subjected to mob justice, with human rights organisations accusing the government of complicity and deliberate impunity for the perpetrators.[21]

In Somalia, same-sex sexual relations is prohibited under the Penal Code of 1962, which criminalises acts of ‘carnal knowledge’ and ‘an act of lust’ with a person of the same-sex.[22] Additionally, Article 2 of the Provisional Constitution of Somalia designates Islam as the state religion and asserts that no law can be adopted that is not compliant with Shari’a law.[23] Therefore, same-sex relations may be subject to further penalties under Shari’a law, which carries a maximum penalty of death. While the maximum penalty for same-sex relations under the Penal Code is three years of imprisonment, there is evidence that militant groups operating in the country, including al-Shabaab, have imposed the death penalty for such acts under their strict interpretation of Shari’a law. [24]

Within the nations discussed in this article, penal codes stipulate the imposition of the death penalty based on religious interpretations, whether stemming from external influences of religious extremism, namely evangelicals or the application of Shari’a law. These laws, many of which criminalise same-sex relations, lead to a series of violations, including infringements on freedom of religion or belief (FoRB) and other fundamental human rights. Likewise, legislations that subject same-sex relations to the death penalty not only infringe upon the human dignity and rights of sexual and gender minorities but also embolden societal hostility, discrimination, and violence towards them.

Meanwhile,  international human rights law protects the rights of all persons including sexual and gender minorities.  Notably, articles 2 of the UDHR and the ICCPR underscore that every person is entitled to enjoy the full spectrum of rights and freedoms enshrined in these documents without any form of discrimination. Article 26 of the ICCPR further prohibits discrimination on various grounds, including religion, sex, and other status. The UN Human Rights Committee, tasked with interpreting ICCPR provisions and overseeing state parties’ adherence to the treaty, has clarified that the term ‘sex’ in Article 26 encompasses sexual orientation, as exemplified in the case of Toonen v. Australia.[25]

The application of death penalty for non-violent acts, such as consensual same-sex relations between private consenting adults, contravenes the principles of international human rights law,  and article 6 of the ICCPR in particular.[26] The UN Special Rapporteur on extrajudicial executions has explicitly deemed the application of the death penalty towards sexual and gender minorities as ‘unacceptable’.[27]

While the freedom of religion is protected under international human rights law, it cannot serve as a legitimate justification for the egregious violation of fundamental rights of individuals. As elucidated by the Human Rights Committee in General Comment 22, the presence of a state religion or a dominant religious tradition should not impair the rights of individuals under the ICCPR.[28] General Comment 22 further expounds that moral principles draw from a variety of social, philosophical, and religious traditions, and therefore, limitations aimed at protecting morals should be rooted in principles that transcend any single tradition.

The lethal discrimination experienced by sexual and gender minorities in Africa, in the name of religion, with some individuals being subjected to or facing the death penalty, necessitates immediate attention and collective action from international human rights organisations and regional entities alike. The existence of the death penalty, even if sparingly used, casts a chilling shadow over the lives of sexual and gender minorities, perpetuating systemic discrimination and bias. It is imperative that no individual faces the dire consequences of capital punishment simply because of their sexual orientation or gender identity. This lethal discrimination underscores the urgent need to reaffirm the principles of justice, equality, and human rights without exception. Governments must refrain from violating the fundamental human rights of sexual and gender minorities by imposing the death penalty based on interpretations of religious beliefs. Religious freedom encompasses the protection from state coercion to adhere to a particular religious interpretation. Both individuals and religious communities have the right to embrace diverse views on religious tenets, including those pertaining to sexuality, without encountering government interference or violence.

[1] The term ‘sexual and gender minority’ encompass individuals who identify as lesbian, gay, bisexual, transgender, queer, or intersex (LGBTQI+), among other gender diverse identities.

[2] ‘Death Penalty’ (United Nations) available at <https://www.ohchr.org/en/topic/death-penalty>.

[3] See for example ‘“THE LOVE THAT DARE NOT SPEAK ITS NAME’ < https://features.hrw.org/features/features/lgbt_laws/ > accessed 3 November 2023.

[4] G Reid ‘Progress and Setbacks on LGBT Rights in Africa — An Overview of the Last Year’ (Human Rights Watch, 22 June 2022) < https://www.hrw.org/news/2022/06/22/progress-and-setbacks-lgbt-rights-africa-overview-last-year > accessed 3 November 2023.

[5] ‘Map of Countries that Criminalise LGBT People’ (Human Dignity Trust) < https://www.humandignitytrust.org/lgbt-the-law/map-ofcriminalisation/?type_filter_submitted=&type_filter%5B%5D=death_pen_applies > accessed 2 November 2023.

[6] ‘Death penalty: The international framework’ (United Nations) available at <https://www.ohchr.org/en/topic/death-penalty/international-framework>.

[7] A/HRC/36/L.6 ‘The question of the death penalty’ Human Rights Council (2017).

[8] A/RES/75/183 ‘resolution on Moratorium on the Use of the Death Penalty’ (2020).

[9] The Anti-Homosexuality Act 2023, The Republic of Uganda.

[10] KJ Kaoma ‘The paradox and tension of moral claims: Evangelical Christianity, the politicization and globalization of sexual politics in sub-Saharan Africa’ (2014) 2(3) Critical Research on Religion 227-232.

[11] ‘Uganda: The enactment of “the Anti-Homosexuality Act, 2023” will foster further stigma, discrimination and violence against lesbian, gay, bisexual, transgender and intersex persons’ (International Commission of Jurist, 13 June 2023) < https://www.icj.org/uganda-the-enactment-of-the-anti-homosexuality-act-2023-will-foster-further-stigma-discrimination-and-violence-against-lesbian-gay-bisexual-transgender-and-intersex-persons/ > accessed 2 November 2023.

[12] See O Onyango & Ors v Attorney General (Constitutional Petition No 8 of 2014) Constitutional Court of Uganda.

[13] B Fekele, D McKenzie & N Princewill ‘Two Ugandan men may face death penalty after ‘aggravated homosexuality’ charge’ (CNN, 29 August 2023) <https://edition.cnn.com/2023/08/29/africa/ugandans-charged-aggravated-homosexuality-intl/index.html> accessed 3 November 2023.

[14] C Okereke ‘How U.S. Evangelicals Helped Homophobia Flourish in Africa’ (Foreign Policy, 19 March 2023)

< https://foreignpolicy.com/2023/03/19/africa-uganda-evangelicals-homophobia-antigay-bill/#cookie_message_anchor  >

Accessed 2 November 2023.

[15] ‘Journal Officiel de la République Islamique de Mauritanie’ < https://www.refworld.org/pdfid/491c1ffc2.pdf > accessed 3 November 2023.

[16] ‘Mauritania: Prison Terms for Men Celebrating Birthday’ (Human Rights Watch, 7 February 2020) < https://www.hrw.org/news/2020/02/07/mauritania-prison-terms-men-celebrating-birthday> accessed 3 November 2023.

[17] ‘Nigeria’ (Human Dignity Trust) available at <https://www.humandignitytrust.org/country-profile/nigeria/>.

[18] ‘Nigerian men whipped for gay sex’ (Aljazeera, 6 March 2014) < http://america.aljazeera.com/articles/2014/3/6/nigeria-court-ordersmenwhippedforgaysex.html > accessed 2 November 2023.

[19] M Faul ‘Why it’s a crime to be gay in Nigeria’ (USAToday, 14 January 2014) < https://www.usatoday.com/story/news/world/2014/01/14/dozens-arrested-for-being-gay-in-north-nigeria/4471391/ > accessed 2 November 2023.

[20] A Nossiter ‘Nigeria Tries to ‘Sanitize’ Itself of Gays’ (New York Times, 8 February 2014) <https://www.nytimes.com/2014/02/09/world/africa/nigeria-uses-law-and-whip-to-sanitize-gays.html accessed 2 November 2023.

[21] ‘Group condemns lynching of homosexuals in Imo’ (Premium, 15 January 2013) < https://www.premiumtimesng.com/news/115331-group-condemns-lynching-of-homosexuals-in-imo.html > accessed 2 November 2023.

[22] ‘Somalia’ (Human Dignity Trust) < https://www.humandignitytrust.org/country-profile/somalia/ > accessed 2 November 2023.

[23] (n20).

[24] https://freedomhouse.org/country/somalia/freedom-world/2021>.

[25] Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).

[26] A/HRC/19/41 ‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’ (2011).

[27] ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, E/CN.4/2001/9, January 11, 2001’ < https://www.icj.org/sogiunjurisprudence/report-of-the-special-rapporteur-on-extrajudicial-summary-or-arbitrary-executions-ecn-420019-january-11-2001/ > accessed 2 November 2023.

[28] ‘CCPR/C/21/Rev.1/Add.4 27 September 1993’ < https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.4&Lang=en >.

About the Author:

Lakshita Kanhiya is a dedicated, resilient and strategic human rights advocate. Her activism is grounded on a community-centred, critical-thought, human rights and social justice approach. Her academic background spans human rights law, political science, mass communication, journalism and international relations. Her professional experiences include engagement with civil society organisations, government institutions, and donor agencies. Her research interests include human rights and democratisation, digital surveillance, religion, decolonial theory and transformative constitutionalism with a focus on sexual and gender minority rights.