The Criminalization of Homosexuality in Cameroon Violates International Human Rights Laws

SEXUALITIES, 26 Mar 2012

Jean Atabong Fomeni – Kimpa Vita Press

The term ‘wrong’ is largely ambiguous, encompassing both civil and criminal wrongs. We talk of civil wrong where there is a tortuous liability; for example, the breach of contract. This paper, however, shall limit itself within the purview of criminal wrongs, the category of wrongs where homosexuality resides. A crime (criminal wrong) is an act that violates some spelt-down criminal rules. Law No. 65-LF-24 of 12th November 1965, introducing the Cameroon Penal Code (CPC) is silent as to the definition of a crime, but this has been cared for by the Black’s Law Dictionary (1910, 2nd Edition), where a crime is said to be: “an act committed or omitted, in violation of a public law, either forbidding or commanding it; a breach or violation of some public right or duty due to a whole community, considered as a community in its social aggregate capacity, as distinguished from a civil injury. Wilkins v. U.S.[1] The following acts amongst others fit in this definition of a crime: murder, rape, manslaughter, theft, embezzlement, homicide, treason, infanticide, abortion, misappropriation, defamation. Section 21(1) of the CPC classifies crimes into three categories, to wit: simple offences, misdemeanours and felonies. Thus, a simple offence is one punishable with imprisonment for up to ten days or with a fine of up to 25.000 Francs CFA; while misdemeanour is an offence punishable with loss of liberty or with fine where the loss of liberty may be for more than ten days but not for more than ten years and the fine, more than 25.000 Francs CFA; and, a felonious offence is one punishable with death or with loss of liberty for a maximum of more than ten years.[2] However, homosexuality as per Sections 21 and 347 of the CPC falls in the category of misdemeanour.

Criminalization is the process by which previously legal acts are transformed into crimes by legislation or judicial decision[3]. In a less overt way, criminalization connotes the process by which behaviours and individuals are transformed into crimes and criminals, respectively. These luminous definitions do not only answer the commonly asked question of, “does the law permits what it does not prohibit?”, but equally clarifies the meaning of the expression nullum crimen sine lege (no one is held criminally liable unless he has done an act which is expressly forbidden under the criminal law). The foregoing stand out to depict the different ways in which the issue of criminalisation is addressed. It should, however, stick to mind that the maxim is a catholic principle of criminal law, and has received blessings from Section 17 of the CPC, which provides that: “no penalty maybe imposed unless provided by law, and except in respect of an offence lawfully defined.”[4] It implies therefore that if an act has not been lawfully defined then it cannot be a crime–and as such, cannot be punished.

Section 347 of the CPC provides that: “Whoever has sexual relations with a person of the same-sex shall be punished with imprisonment for six months to five years and a fine of 20,000 to 200,000 Francs CFA.”[5] Another way, claimed to be civil, by which the state of Cameroon disallows homosexuality is found in Article 52(3) of Ordinance No. 81/2 of June 1981, organising the Civil Status Registration of Cameroon. The Ordinance provides that: “no marriage may be celebrated: if the spouses-to-be are of the same sex.”[6] Some law Courts in Yaoundé, Cameroon, have proven that Section 347 of the CPC is not at all intended to decorate the said CPC, but to actually inflict sanctions to convicts. In the EKOUNOU Court of First Instance, Yaoundé, for example, some three Cameroonian men (Jonas, 19, Franky, 20, and an un-named older man) were arrested in July 2011, tried and sentenced to five years imprisonment on grounds that they engaged in gay sex[7]. This is an offence which their lawyer, Alice NKOM, President of L’association pour la Defense des Droits des Homosexuel(le)s, was tempted to say, “it is not worthy of a country that speaks of human rights.”[8] Similarly, Jean-Claude Roger Mbede and other Cameroonians were arrested, tried and some of them sentenced in Yaoundé, for having engaged in gay sex.[9] This incident sparked flames as five international and Cameroonian human rights organizations including, Alternatives Cameroun, Amnesty International, L’association pour la Defense des Droits des Homosexuel(le)s, Human rights watch and international Gay and Lesbian Human Rights Commission, wrote an Open Letter ( Ref: TG AFR 17/2011.003) to Paul Biya, president of the Republic of Cameroon, requesting for their immediate release on grounds that the said discriminatory provision offends the fundamental human rights to privacy, equality and freedom of expression of all Cameroonians.[10]

Irrespective of the above, there are a plethora of international, regional and national human rights instruments that safeguard the rights of homosexuals. These instruments include: the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights (UDHR), the African (Banjul) Charter on Human and Peoples’ Rights (ACHPR) and Law No. 96/06 of 18 January 1996, instituting the 1996 Constitution of the Republic of Cameroon. Article 2 (1) of the ICCPR provides as follows: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[11] This unequivocal provision of the law condemns any act that contravenes one’s liberty to race, colour, sex, language, religion, political or other opinions, etc. The said provision is an absolute recognition of the right of equality, the inalienable rights to sex and conscience. This is further supported by Article 26 of the same Convention, which says that: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[12] Common sense commands us to deduce from the above that the criminalisation of homosexuality by Section 347 of the CPC offends the above articles, and thus institutionalises discrimination against those who are, or who thought to be gay, lesbian, bisexual or transgender as the case maybe. On their part, Articles 17 and 12 of the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) respectively, protect the right to privacy: Article 17 of ICCPR provides that: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”[13] An ideal interpretation of Article 17 would oblige us to hold and believe that the home of an individual is inviolate, therefore a man’s homosexual behaviour, especially when committed in private, cannot be held to be an offence under Section 347 of the CPC—but a human rights violation against his privacy, against his person, and even against the quietude of his actions. The Universal Declaration of Human Rights (Art. 20), the African (Banjul) Charter on Human and Peoples’ Rights (Art. 10) and The International Covenant on Civil and Political Rights (Art. 21) guarantee the freedom of assembly and association. These articles fortify everyone with the liberty to associate with whosoever, irrespective of sex, colour, opinion, etc. It is important, therefore, to state here that there is no legal parameter as to the number of people that constitutes an association or assembly. The term association as used by the Covenant is not limited to corporate entities, it goes beyond that. Since the Covenant is silent as to the number of people that constitute an association, allusion be made to the “Arithmetical plural” of any number more than one–implying, therefore, that even two persons can make up an association. To warp the association of two consenting adults on grounds of homosexuality, for example, would, to the mind of any critical thinker, mean a breach of freedom of association. Let’s see what Article 21 of the International Covenant on Civil and Political Rights has to say: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”[14] Articles 2 and 3 of the African (Banjul) Charter on Human and Peoples’ Rights read together with Articles 8 and 18 of International Covenant on Civil and Political Rights guarantee the freedom of thoughts and conscience. Freedom of thoughts and conscience are rights due human beings, even homosexuals. Their sexual behaviours are triggered by their thoughts and conscience—which are all fundamental human rights. Jeering, taunting or prosecuting them will mean a breach of these fundamental human rights. Therefore, the criminalization of homosexuality as provided for by Section 347 of the Cameroon Penal Code does not only contradict international and regional human rights instruments, but also leads to further human rights violations, by inflicting sanctions on individuals based on a biased and contradictory law. One can vividly liken this to the story of King David in 2 Samuel, where David’s adultery leads to murder[15]—or 1 Samuel where Saul’s disobedience leads him down the road to the point where he consulted a witch.[16]

Meanwhile, as an effort to strongly advocate for the rights of homosexuals, gays, lesbians, bisexual and transgender as human rights, Barack Obama, president of the United States of America, in his speech (December 2011) titled, ” International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons, had this to say: ” The struggle to end discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons is a global challenge, and one that is central to the United States commitment to promoting human rights. I am deeply concerned by the violence and discrimination targeting LGBT persons around the world    whether it is passing laws that criminalize LGBT status, beating citizens simply for joining peaceful LGBT pride celebrations, or killing men, women, and children for their perceived sexual orientation.  That is why I declared before heads of state gathered at the United Nations, “no country should deny people their rights because of who they love, which is why we must stand up for the rights of gays and lesbians everywhere.”[17] It was based on this historic speech that the United States Secretary of States, Hillary Clinton, declared before an audience of diplomats in Geneva (2011), that: “gay rights are human rights.”[18] She added, that: ” it should never be a crime to be gay.”

The preamble of the 1996 Constitution of the Republic of Cameroon guarantees the right to privacy, freedom of discrimination, right to expression, rights to religion, thoughts and conscience; rights to liberty and security, etc. These are the same rights that both international and regional human rights instruments cited above seek to protect, reason why the preamble of the Cameroon Constitution declares as follows: “…affirm our attachment to the fundamental freedoms enshrined in the Universal Declaration of Human Rights, the Charter of the United Nations and the African Charter on Human and Peoples’ Rights and all duly ratified international conventions relating thereto…”[19] Article 65 of the said Constitution provides an impeccable support to the preamble by stating that the preamble is part and parcel of the Constitution. It means, therefore, that both preamble and Constitution have the same magnitude or equal weights.

The availability of homosexuality under Section 347 of the CPC might have been influenced by the teachings of Holy Writs, reason why the Constitution of the Republic of Cameroon ordains the right to religion as a fundamental human right. Article 1 (2) of the Constitution corroborates this view by stating that the Republic of Cameroon shall be a circular state.[20] Some Scriptures, of-course, rival with homosexuality. It is believed that homosexuality is abominable, immoral and sacrilegious. Amongst others, Leviticus 20:13 reads as follows: “If a man sleeps with a man as with a woman, they have both committed an abomination …”[21]

Notwithstanding the above, It should be borne in mind that even if the state of Cameroon is influenced by the teachings of Holy Writs, the use of criminal law to inflict sanctions against sexual activity between consenting adults does not only run contrary to its Constitution, but also offends both international and regional human rights instruments that the country is signatory to. Cameroon had the liberty under international law and Article 44 of the 1996 Constitution to reserve or amend some of its laws that are in conflict with international law, it should be understood here that this liberty was never utilised, or perhaps, they escaped the vigilance of Cameroon’s representative at the time of signatory of the treaties or conventions. Article 44 of the 1996 Constitution of Cameroon says that: “where the Constitutional Council finds a provision of a treaty or of an international agreement unconstitutional, authorization to ratify and the ratification of the said treaty or agreement shall be deferred until the Constitution is amended”.[22] Since the said instruments cited above have already been signed and ratified, without reservation or amendment as contemplated by Article 44 above, recourse be made to Article 45 of the Constitution, which is to the effect that: “duly approved or ratified treaties and international agreements shall, following their publications, override national laws…”[23]

Recommendations

1. That Section 347 of the Cameroon Penal Code together with other legislations that contravene Article 45 of the Cameroon’s Constitution be REPEALED.

2. That if this is done, the issue of Cameroonian youths who fly abroad, then seek asylum on grounds of homosexuality will drastically reduce.

3. That the Republic of Cameroon would be looked upon as a democratic country, where human rights are respected.

List of sources:

African (Banjul) Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986

Barack Obama. International initiative to advance the human rights of lesbian, gay, bisexual and transgender persons. The white house. 06 December 2011. http://www.whitehouse.gov/the-press office/2011/12/06/presidential-memorandum-international-initiatives-advance-human-rights-l. Accessed on 17 March 2012

Black, Henry Campbell. Black’s Law Dictionary., 2nd Ed. West Publishing Company, 1910

Cameroon Penal Code (Law No. 65-LF-24 of 12th November 1965)

Cameroon: ‘Sodomy’ law violates basic rights. Human rights watch. 17 May, 2011. http://www.hrw.org/news/2011/05/17/cameroon-sodomy-law-violates-basic-rights. Accessed on 17 March 2012

Christopher Brocklebank. Amnesty fight for Cameroonian man jailed for three years on charges of being gay. Pink News. 7 June 2011. http://www.pinknews.co.uk/2011/06/07/amnesty-fights-for-cameroonian-man-jailed-for-three-years-on-charges-of-being-gay/. Accessed on 17 March 2012

Civil Status Registration of the Republic of Cameroon (Ordinance No. 81/2 of June 1981)

Hillary Clinton. Clinton’s Geneva accord: “gays rights are human rights”. The Washington Post. 12 July 2011. http://www.washingtonpost.com/blogs/post-partisan/post/clintons-geneva-

Holman Christian Standard Bible, Red Letter Edition, Dictionary Concordance Study Helps published by Holman Bible Publishers, 2003

Staff Writer. 3 Jailed for Homosexuality in Cameroon. Mamba: Mambaonline.com. Wednesday, 23 November 2011. http://www.mambaonline.com/article.asp?artid=6393. Accessed on 17 March 2012

United Nations Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49

Universal Declaration of Human Rights (UDHR), adopted on 10 December 1948 at Palais de Chaillot, Paris)

NOTES:

[1] Henry Campbell Black. Black’s Law Dictionary., 2nd Ed. West Publishing Company, 1910

[2] Section 21 of the Cameroon Penal Code states that: 1) “Offences shall be classified as felonies, misdemeanours and simple offences according to the principal penalties provided for as follows:

a)A felony shall mean an offence punishable with death or with loss of liberty for a maximum of more then 10 years;

b)A misdemeanour shall mean an offence punishable with loss of liberty or with fine, where the loss of liberty may be for more the ten days but not for more then ten years, and the fine more than twenty five thousand francs;

c) A simple offence shall mean an offence punishable with imprisonment for up to ten days or with a fine of up to twenty five thousand francs

[3] Henry Campbell Black. Black’s Law Dictionary., 2nd Ed. West Publishing Company, 1910

[4] Section 17 of the Cameroon Penal Code states that no penalty may be imposed unless provided by law, and except in respect of an offence lawfully defined

[5] Section 347 of the Cameroon Penal Code states that whoever has sexual relations with a person of the same-sex shall be punished with imprisonment for six months to five years and a fine of 20.000 to 200.000 Francs.

[6] Article 52(3) of the Civil Status Registration Ordinance of Cameroon provides that no marriage maybe celebrated if the spouses-to-be are of the same-sex.

[7] Staff Writer. 3 Jailed for Homosexuality in Cameroon. Mamba: Mambaonline.com. Wednesday, 23 November 2011. http://www.mambaonline.com/article.asp?artid=6393. Accessed on 17 March 2012

[8]

[9] Christopher Brocklebank. Amnesty fight for Cameroonian man jailed for three years on charges of being gay. Pink News. 7 June 2011. http://www.pinknews.co.uk/2011/06/07/amnesty-fights-for-cameroonian-man-jailed-for-three-years-on-charges-of-being-gay/. Accessed on 17 March 2012

[10] Cameroon: ‘Sodomy’ law violates basic rights. Human rights watch. 17 May, 2011. http://www.hrw.org/news/2011/05/17/cameroon-sodomy-law-violates-basic-rights. Accessed on 17 March 2012

[11] Article 2 (1) of the International Covenant on Civil and Political Rights provides as follows: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

[12] Article 26 of the International Covenant on Civil and Political Rights says that: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

[13] Article 17 of the International Covenant on Civil and Political Rights is to the effect that: ““No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

[14] Article 21 of the International Covenant on Civil and Political Rights reads as follows: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”

[15] 2 Samuel, Chapter 11 and 12, Holman Christian Standard Bible. red letter Ed. Dictionary concordance study helps. Holman Bible Publisher. 2003: where King David’s adultery leads to murder

[16] 1 Samuel, Chapters 15 and 28, Holman Christian Standard Bible. red letter Ed. Dictionary concordance study helps. Holman Bible Publisher. 2003: where Saul’s disobedience leads him down the road to the point where he consults a witch

[17] Barack Obama. International initiative to advance the human rights of lesbian, gay, bisexual and transgender persons. The white house. 06 December 2011. http://www.whitehouse.gov/the-press-office/2011/12/06/presidential-memorandum-international-initiatives-advance-human-rights-l. Accessed on 17 March 2012

[18] Hillary Clinton. Clinton‘s Geneva accord: “gays rights are human rights”. The Washington Post. 12 July 2011. http://www.washingtonpost.com/blogs/post-partisan/post/clintons-geneva-accord-gay-rights-are-human-rights/2011/03/04/gIQAPUipcO_blog.html. Accessed on 17 March 2012

[19] The preamble of the 1996 Constitution of the Republic of Cameroon (Law No. 96/06 of 18 January 1996) states that: “…affirm our attachment to the fundamental freedoms enshrined in the Universal Declaration of Human Rights, the Charter of the United Nations and the African Charter on Human and Peoples’ Rights and all duly ratified international conventions relating thereto…”

[20] Article 1 (2) of the 1996 Constitution of the Republic of Cameroon (Law No. 96/06 of 18 January 1996) provides that the Republic of Cameroon shall be a circular state.

[21] Leviticus, Chapter 20: 13, Holman Christian Standard Bible. red letter Ed. Dictionary concordance study helps. Holman Bible Publisher. 2003: where it reads as follows: “if a man sleeps with a man is with a woman, they have both committed abomination

[22] Article 44 of the 1996 Constitution of the Republic of Cameroon (Law No. 96/06 of 18 January 1996) says that the where the Constitutional Council finds a provision of the or of an international agreement unconstitutional, authorization to ratify and the ratification of the said treaty or agreement shall be deferred until the Constitution is amended

[23] Article 44 of the 1996 Constitution of the Republic of Cameroon (Law No. 96/06 of 18 January 1996) says that duly approved or ratified treaties and international agreements shall, following their publication, override national laws.

_____________________

Jean Atabong Fomeni is a Barrister of the Supreme Court of Cameroon. He holds LL.B. from the University of Dschang, CAPA (B.L.) Cameroon, Online Certificate in Conflict Analysis from the United States Institute of Peace. Presently, he is a Master’s student in Peace and Conflict Studies at the European Peace University, Austria. He is equally Secretary General and Legal Adviser of Flashlight Organisation for the Rights of Vulnerable Groups (FLORIVULG).

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One Response to “The Criminalization of Homosexuality in Cameroon Violates International Human Rights Laws”

  1. Anumbondem says:

    A careful treatment of a complex and deeply emotional subject. Barrister Jean Atabong Fomeni stays faithful to the thesis and builds a strong case that could form the basis of an actual litigation against the Cameroon judiciary. As a Christian, I must add that it remains unwise and destructive for humankind to so egregiously thwart divine standards as revealed in the Scriptures. May God help us.