Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
  • Criminalises the gender identity/expression of trans people
Commonwealth member state
Criminal Code 1965, Section 144 Unnatural Offences

Section 144 criminalises carnal knowledge “against the order of nature” with a penalty of up to 14 years imprisonment. Sexual acts are criminalises both between men and between women under this provision.1

Criminal Code 1965, Section 144A Aggravated Homosexuality

Section 144A, introduced through the Criminal Code (Amendment) Act 2014, introduces a penalty of life imprisonment for “aggravated homosexuality” which includes a number of circumstances, including where the offender is a “serial offender”.2

Criminal Code 1965, Section 147(1) Indecent practices between males

Section 147(1) criminalises acts of “gross indecency” between males, defined as “any homosexual act”, or the procurement or attempted procurement thereof, with a penalty of five years imprisonment.

Criminal Code 1965, Section 167 Rogues and Vagabonds

Section 167, following amendment in 2013, criminalises any man who dresses in the fashion of a woman in a public place with a penalty of up to five years imprisonment and a possible fine.4

Criminal Code 1965, Section 147(2) Indecent practices between females

Section 147(2), introduced through the Criminal Code (Amendment) Act 2005, criminalises acts of “gross indecency” between females, defined as “any homosexual act”, or the procurement or attempted procurement thereof, with a penalty of five years imprisonment.3

Enforcement

2017

Reports indicate that state forces launched a crackdown on the LGBT community. Three women, four men and a 17-year-old boy were arrested in two incidents by the National Intelligence Agency and Presidential Guards in Banjul. They all were investigated for the crimes of homosexuality.

2013

The US Department of State Human Rights Report on The Gambia stated that the law has never been successfully prosecuted. With the inevitable enactment of further legal provisions relating to same-sex intimacy, it seems likely that the law is more likely to be invoked; as was witnessed in Uganda with the passing of the Anti-Homosexuality Act.

A report on The Gambia by Amnesty International indicated that a man and a woman who were presumed to be LGBT were arrested during a nightclub raid for attempts to commit “unnatural acts” and “conspiracy to commit a felony”. The report indicated that charges were dropped due to lack of evidence.

2012

Two lesbian women and a gay man were reportedly arrested and bailed for indecent practices.5

Statements by Public Figures

2018

In April, the Chairperson of the Coalition media team in the West Coast Region, Essa Dampha said that President Adama Barrow’s UK statement on LGBT was misunderstood. He said Barrow was just trying to say Gambia is not interested in issues of same-sex-marriage because LGBT is not a problem in the country as the West may think it is. He added “The reality is that this government will continue to guarantee the rights and freedom of every Gambian but when it comes to gay issues, I do not think any genuine Gambian will come out on the streets and start advocating for gay rights.”

When it comes to gay issues, I do not think any genuine Gambian will come out on the streets and start advocating for gay rights.

Essa Dampha, Chairperson of the Coalition media team in the West Coast

2017

President Barrow asserted that homosexuality is a non-issue for the country. He made this remark during his meeting with European Union delegates.

2014

In September, setting out the purpose of a new Bill to the Criminal Code and introduce the offence of “Aggravated Homosexuality”, the Gambian Justice Minister stated: “This is necessitated by the increasing trend of public officers absconding after they have been away on government sanctioned missions, as well as homosexual acts committed under aggravated circumstances”.

Secretary General and Head of Civil Servants and Minister for Presidential Affairs, Momodou Sabally, in June decried western culture and vowed to prevent the promotion of homosexuality: “With the ongoing onslaught of alien cultural values, supported and promoted by amoral global powers with the support of their media, we the God-worshipping people of this country need to reinforce and further strengthen our protective barriers around our sacred religious and cultural values. Our zero tolerance towards homosexuality, drug abuse and other crimes remains strong and will in fact be further strengthened… We will never allow the sanctity of this country and its people to be violated and corrupted. Those who want to be friends or partners of The Gambia must respect our traditional and cultural values and we as a dignified independent people shall never give in because of petty foreign aid or the threat of smear campaign. We must jealously guard and protect those tools and vehicles that have been used by our ancestors and protect our tradition. No matter what, we should cherish and preserve our circumcision rights, our marriages, our story-telling, our cultural shows, our traditional wrestling, our communal farming and other practices”.

In May, former President, Yahya Jammeh, allegedly threatened to kill gay asylum seekers who had left the country: “Some people go to the West and claim they are gays and that their lives are at risk in The Gambia, in order for them to be granted a stay in Europe. If I catch them I will kill them”.

If I catch them I will kill [gay asylum seekers].

Yahya Jammeh, Former President

In February, Jammeh called gay people “vermin” and stated that they would be fought in the same way as the country fights malaria caused by mosquitoes.

2013

Whilst at a 2013 UN General Assembly meeting in New York, Jammeh allegedly told leaders: “Homosexuality in all its forms and manifestations… though very evil, anti-human as well as anti-Allah, is being promoted as a human right by some powers”.

2012

In 2012 Jammeh rejected foreign aid from the UK and USA if it came with attachments regarding homosexuality: “If you are to give us aid for men and men or for women and women to marry, leave it; we don’t need your aid because, as long as I am the President of The Gambia, you will never see that happen in this country”. He was quoted as saying: “If we Africans are to build our societies based on outside dictates and structure our cultures based on alien cultures, we will be the losers. But if they (the West) think they can sit there and dictate to us how we should live, The Gambia will be an exception because we will not compromise our cultural and spiritual values”.

Persecution and Discrimination

2017

The US Department of State Human Rights Report on Gambia stated that there was strong societal discrimination against LGBT individuals and no LGBT organisations in the country.

2013

The 2013 UK Country of Origin Report on Gambia references an article written about people put on trial for homosexuality which collapsed due to lack of evidence: “the defendants still have the stigma of being ‘outed’ as homosexual, having had their photographs published along with their names. This has led to retribution from the general public and also from some of the defendant’s family who feel that they have dishonoured them. In addition, as homosexuality is not tolerated in Gambia.” One man identified in the article discussed his parents’ attempts to force him into an arranged marriage.

Legislative News

2014

During its second UPR cycle, Gambia rejected recommendations to decriminalise homosexuality and respond in due course.

President Jammeh signed into law an amendment to the Criminal Code. Under Section 144(A) of the amended Act, any person who commits the offence of “aggravated homosexuality” is “liable on conviction to imprisonment for life”. The Act also introduces a potential five year prison sentence for “Absconding State Officials”, which criminalises those individuals “who leave The Gambia under a government-sponsored programme or on a mission as a representative of The Gambia and refuse to return home”, potentially endangering individuals seeking asylum in foreign countries.

2013

In 2013 an amendment to the Criminal Code was passed under which gender expression can be penalised by up to five years imprisonment.

2010

During it first UPR cycle, Gambia rejected numerous recommendations to decriminalise consensual same-sex sexual activity and to prevent violence committed against LGBT individuals: “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”.

Footnotes
1. Criminal Code 1965, Section 144 Unnatural Offences

“(1) Any person who—

(a) has carnal knowledge of any person against the order of nature; or

(c) permits any person to have carnal knowledge of him or her against the order of nature;

is guilty of a felony, and is liable to imprisonment for a term of 14 years.

(2) In this section- “carnal knowledge of any person against the order of nature” includes-

(a) carnal knowledge of the person through the anus or the mouth of the person;

(b) inserting any object or thing into the vulva or the anus of the person for the purpose of simulating sex; and

(c) committing any other homosexual act with the person.” Full text (amended).

2. Criminal Code 1965, Section 144A Aggravated Homosexuality

“(1) A person commits the offence of aggravated homosexuality where the –

(b) offender is a person living with HIV;

(d) offender is a person in authority over the person against whom the offence is committed;

(e) victim of the offence is a person with disability;

(f) offender is a serial offender; or

(2) A person who commits the offence of aggravated homosexuality is liable on conviction to imprisonment for life.” Full text.

3. Criminal Code 1965, Section 147(2) Indecent practices between females

“Any female person who, whether in public or private, commits any act of gross indecency with another female person, or procures another female person to commit any act of gross indecency with her, or attempts to procure the commission of any such act by any female person with herself or with another female person, whether in public or private, is guilty of a felony and liable to imprisonment for a term of five years.”

Section 147(3) further provides that “act of gross indecency” includes any homosexual act. Full text.

4. Criminal Code 1965, Section 167 Rogues and Vagabonds

“Any male person who dresses or is attired in the fashion of a woman in a public place shall be punished with imprisonment for a term which may extend to five years or with a fine of D20,000 or with both.” Full text.

5. Daily Observer Gambia

Daily Observer Gambia, “2 ‘Lesbians, homosexual’ charged, arraigned”, Daily Observer Gambia, 12 April 2012, accessed 8 October 2014.

6. Criminal Code 1965, Section 147(1) Indecent practices between females

“Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and liable to imprisonment for a term of five years.” Full text.

Section 147(3) further provides that “act of gross indecency” includes any homosexual act. Full text.

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