Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
Commonwealth member state
Penal Code 1945, Section 138A Acts of Gross Indecency Between Persons

Section 138A, introduced through Section 12 of the Sexual Offences Special Provisions Act 1998, criminalises acts of “gross indecency” between both men and women with a penalty of up to five years imprisonment or a fine of up to 300,000 shillings.1

Penal Code 1945, Section 154 Unnatural Offences

Section 154 criminalises “carnal knowledge… against the order of nature”, punishable with a maximum penalty of life imprisonment.2

Penal Code 1945, Section 155 Attempt to Commit Unnatural Offences

Section 155 criminalises attempts to commit the offences prohibited under Section 154 with a penalty of no less than twenty years imprisonment.3

Penal Code 1945, Section 157 Indecent Practices Between Males

Section 157 prohibits acts of “gross indecency” between males, as well as the procurement of or attempts to procure such acts with a penalty of five years imprisonment.4

Zanzibar Penal Code 1934

The Penal Code of the semi-autonomous region of Zanzibar also criminalises “unnatural offences” (Section 150) with uptimes 14 years imprisonment; “gross indecency” (Section 154) with a penalty of up to five years imprisonment or a fine of up to 500,000 shillings; and, “acts of lesbianism” (Section 153) with up to five years imprisonment or a fine not up to 500,000 shillings.5

Enforcement

2020

A Human Rights Watch report published in February, entitled ‘”If We Don’t Get Services, We Will Die”: Tanzania’s Anti-LGBT Crackdown and the Right to Health’, indicated that since 2016 the Tanzanian government has embarked on a concerted anti-LGBT crackdown.

In January, the US State Department announced that Paul Makonda (Regional Commission for Dar es Salaam) was banned from entering the US “due to his involvement in gross violations of human rights, which include the flagrant denial of the right to life, liberty, or the security of persons.” Such violations relate to his creation of an anti-LGBT task force in 2018, the US State Department indicating that Paul Makonda was “implicated in oppression of the political opposition, crackdowns on freedom of expression and association, and the targeting of marginalized individuals.”

2018

In recent years, state authorities have increased targeted members of LGBT community. While arrests rarely lead to prosecution, police have reportedly used them as a pretext to collect bribes or coerce sex from individuals. Reports suggest that forced anal examinations, widely recognised as a form of torture, are routinely used to ‘prove’ homosexual conduct or to extort those arrested.

In November ten men were arrested for allegedly conducting a same-sex marriage ceremony on the island of Zanzibar.

2017

In September, 12 women and eight men were arrested on Tanzania’s semi-autonomous archipelago of Zanzibar for alleged homosexuality. They were picked up in a hotel where they were receiving training about HIV/Aids education programmes.

2015

In January, police in Tanzania arrested a trans man and his female partner on suspicion of violating the Tanzanian law against same-sex intimacy.

2014

The US Department of State Human Rights Report noted that in the past courts charged individuals suspected of same-sex sexual conduct with loitering or prostitution.

2011

Prison visits by the Commission for Human Rights and Good Governance (Tanzania) from 2011 revealed that “unnatural offenses” were among the most common reasons for pretrial detention of minors.

Statements by Public Figures

2018

In November, Paul Makonda, the administrative head of Dar es Salaam, announced that he had put together a team of officials and police that would target gay people, who could face lengthy prison sentences. Makonda called for the public to report LGBT people and told a news conference he had already received more than 5,700 messages from the public, including more than 100 names.The move prompted international condemnation with Michelle Bachelet, the UN high commissioner for human rights, saying she feared “a witch-hunt [which] could be interpreted as a licence to carry out violence, intimidation, bullying, harassment and discrimination against those perceived to be LGBT.”

“I call on the Government and all the people of Tanzania to stand up for the human rights of everyone in the country, regardless of who they are or whom they love,” she said. “Political, religious and other leaders should work to combat prejudice based on sexual orientation and gender identity.”

2017

In June, in criticising Tanzanian LGBT activists and foreign NGOs that campaign for gay rights, John Magufuli, Tanzania’s president, said: “Those who teach such things do not like us, brothers. They brought us drugs and homosexual practices that even cows disapprove of.”

They brought us drugs and homosexual practices that even cows disapprove of.

John Magufuli, President of Tanzania

In the same month, Tanzania’s Home Affairs Minister, Mwigulu Nchemba, said in a rally in the capital Dodoma: “Those who want to campaign for gay rights should find another country that allows those things. If we establish that any organisation registered in our country is campaigning for gay rights … I will deregister that organisation. If a Tanzanian national is doing that campaign, we will arrest him and take him to court … and if it is a foreigner, we will immediately order him to leave the country.”

2015

In April, LGBT Voice urged the Tanzanian Government to withdraw the proposed anti-LGBT bill (the Bill to Prohibit and Control any form of Sexual Relations between Persons of the Same Sex, 2014) from the parliament immediately.

2014

In March, Bernard Mbembe, Foreign Minister for Tanzania, spoke to the Commonwealth about gay rights in Africa. He was quoted as saying: “I think the Commonwealth will be hearing me say that any imposed Western cultural norm on the African continent or elsewhere is more likely to lack legitimacy and acceptance. Unless this matter is taken carefully and people become so sensitive when imposing such cultural differences and norms, we may not end up well in the continent when it comes to the debate on LGBTI.”

When asked in February whether it’s time to stop criminalising people who are in consensual relationships, then President Kikwete told Christine Amanpour from CNN it will “take time for our people to accept the norms that the west is accepting.” And when pressed on whether he wants to see that happen, he told Amanpour “I cannot say that now.”

2011

In November, when pressed on the issue of gay rights, then Tanzanian Prime Minister Mizengo Pinda, said: “You are not being fair to me as the government has already made its stand clear on the matter… but since you want to get my opinion, I would like to say that homosexuality is unacceptable to our society.”

I would like to say that homosexuality is unacceptable to our society.

Mizengo Pinda, Former Prime Minister of Tanzania

Persecution and Discrimination

2018

Increasingly hostile government rhetoric against LGBT people has led to a climate of fear amongst LGBT people, with widespread violence and persecution by both state and non-state actors. Speaking to the Guardian, Erin Kilbride, of the human rights group Front Line Defenders, said violence by police is common. Of 80 LGBT people and sex workers Kilbride interviewed over the summer, all but two said they had been sexually assaulted or raped by police in custody. One female sex worker told Front Line Defenders she had been forced by police to crawl through sewage in Mwanza.

They are raiding houses. . . They are targeting activists . . . We have to hide.

Anonymous LGBT activist

In response to the announced crackdown in Dar es Salaam in November, hundreds were reportedly leaving the city or living in hiding. One anonymous activist speaking to the Guardian said,”They are raiding houses. It is a horrible thing. It is just going to get worse. So many people are leaving the city, running away. They are targeting the activists, saying we are promoting homosexuality. We have to hide.”

2017

A group of human rights lawyers and activists who were researching a case against the Tanzanian government were illegally detained in October after police accused them of “promoting homosexuality”.

In June, Tanzania threatened to arrest and expel LGBT activists and deregister Non-Government Organisations working with the community.

2014

A report released by LGBT Voice in October, a Tanzanian LGBT advocacy organisation established in 2009, found that “LGBT persons in Tanzania continually face stigma and discrimination, harassment and arbitrary arrests, alienation from family and faith, lack of access to social services including health, justice, housing, education and dignified livelihoods.”

2013

Reports of persecution and discrimination are widespread in Tanzania. A 2013 Human Rights Watch report noted a number of instances of persecution in a number of different areas: “arrests, violence, and harassment of LGBTI people are common, particularly for MSM. Examples of discrimination in housing, education and employment have been reported and affect lesbians and bisexual women as well as gay and bisexual men.” Access to medical aid also proved a problem. The report details the case of one man in 2012 who was refused medical treatment from a doctor in Zanzibar on the basis of his sexuality.

2010

One man reported being raped by police. The gay man, who occasionally was forced to work as a sex worker, was looking for clients on the street when he was arrested by a police officer. He was forced at gunpoint to ring and invite five of his gay friends to join him and upon arriving they were also arrested. The man’s mother paid his bail by taking out money from a money-lender. Speaking on the incident, the man recalled: “When I remember that situation, I want to cry.”

Legislative News

2016

In its second UPR cycle, Tanzania noted the recommendations it received concerning the protection of LGBT persons and the decriminalisation of consensual same-sex relations between adults.

2015

In April, Tanzania postponed a referendum on the new constitution after delays in registering voters. Tanzania embarked on a constitutional review process in 2011. The Constitutional Review Act of 2011 was enacted to provide a regulatory framework for the process. As part of that process, a referendum was due to be held in April 2015 to approve the new Constitution. There had been much tension surrounding the new constitution, with the main opposition parties rejecting it. The new draft Constitution improves the coverage of human rights but makes no specific reference to sexual orientation as prohibited ground of discrimination.

2014

In March, Tanzanian MP Exekiel Wenje gave notice to Parliament of his intention to draft a Bill similar to those enacted in Nigeria and Uganda to criminalise further consensual same-sex sexual conduct. In an interview with The East African, Wenje said: “we should not care about aid, we should care about our values and the future of the country.”

In March, Tanzania voted in favour of a failed Russian draft decision at the UN General Assembly’s Fifth Committee (Administrative and Budgetary) that would have had the Secretary-General withdraw his bulletin providing UN staff benefits for married same-sex couples.

2011

In its first UPR cycle, Tanzania rejected recommendations to remove penal provisions which criminalise consensual same-sex sexual conduct. Similarly the country rejected recommendations to take active measures to protect LGBT people from discrimination. The Tanzanian delegation noted that the practice of homosexuality went against the country’s traditional, cultural and religious rights.

Footnotes
1. Penal Code 1945, Section 138A Acts of Gross Indecency Between Persons

“Any person who, in public or private commits, or is party to the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, commits an offence and is liable on conviction to imprisonment for a term of not less than one year and not exceeding five years or to a fine not less than one hundred thousand shillings and not exceeding three hundred thousand shillings.” Full text.

2. Penal Code 1945, Section 154 Unnatural Offences

“(1) Any person who–

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

…

(c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years.” Full text.

3. Penal Code 1945, Section 155 Attempt to Commit Unnatural Offences

“Any person who attempts to commit any of the offences specified under section 154 commits an offence and shall on conviction be sentenced to imprisonment for a term of not less than twenty years.” Full text.

4. Penal Code 1945, Section 157 Indecent Practices Between Males

“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, commits an offence and is liable to imprisonment for five years.” Full text.

5. Zanzibar Penal Code 1934

Full text.

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