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Moroccan advocacy groups criticize continued anti-LGBTQ crackdown

Consensual same-sex sexual relations remain criminalized in the country

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(Photo by Dagobert1620/Bigstock)

Moroccan advocacy groups have criticized continued attacks against the country’s LGBTQ community.

A minor on Nov. 15 was sentenced to six months in prison for being gay and fined close to $200.

According to TALAY’AN NGO, the young boy from Ouarzazate endured a traumatizing assault and rape for more than three years at the hands of a “muezzin,” an authority figure in a mosque. This “muezzin” was found guilty of indecent assault and rape of a minor and received an 8-year sentence. The court nevertheless sentenced the minor to prison time.

“While the ‘muezzin’ received an 8-year prison sentence for his actions spanning over three years, the minor’s sentence is both alarming and unacceptable,” said TALAY’AN NGO. “Already deeply traumatized by the violence he endured, he was sentenced to six months in prison and a fine of 20,000 dirhams (approximately $200) after being accused of being gay.”Ā 

TALAY’AN NGO also said the incident mirrors myriad challenges the country’s LGBTQ community is facing.

“This incident isn’t isolated, it mirrors the broader challenge of outdated laws in Morocco that criminalize the LGBT+ community,” said the group. “That’s why we strongly call for the immediate release of the minor survivor. It’s a travesty of justice that a child, already traumatized by assault, faces further harm due to outdated laws.” 

Due to the country’s deep cultural and religious beliefs, those who identify as LGBTQ or activists are often harassed and victimized.

Consensual same-sex sexual relations remain criminalized in Morocco. Those who are convicted of homosexuality face up to three years in prison and a fine. Activists also face stigma and repression, making it difficult for them to openly advocate on public platforms.

Lewd or unnatural acts with a person of the same sex is illegal under Article 489 of the Moroccan Penal Code. In addition, those who are in a same-sex relationship or are of sexual orientation that does not conform to the penal code can be punished from anything between six months to three years imprisonment and receive a fine ranging from $20-$200.

Nassawiyat, another Moroccan advocacy group, says, Article 489 should be repealed.

“The repeal of Article 489, which currently prevents the LGBTQ+ community from openly expressing their healthcare needs will foster an inclusive environment and allow the community full access to medical assistance,” said the group. “Furthermore, anti-discrimination laws should be implemented that put in place legal recourse which safeguard and protect the LGBTQ+ community from discriminatory practices in Morocco. This proactive measure will send a strong message, discrimination based on sexual orientation or gender identity is not tolerated and must have appropriate legal consequences.”

Nassawiyat also said comprehensive data collection initiatives should be implemented to better understand the conditions and challenges facing the LGBTQ community.

“By producing more detailed reports, policymakers and healthcare professionals can make informed decisions and formulate strategies that better meet the needs of the community,” said Nassawiyat.

Justice Minister Abdellatif Ouahbi in August said he had grave concerns over the growing influence of gay people on society, arguing serious consequences may arise as a result of the LGBTQ community’s continued presence. Ouahbi also argued those who identify as LGBTQ have more influence, which can even affect the economic well-being of the country.

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Kenya

Kenyan court awards two gay men $31K

Couple subjected to genital examination, given HIV tests after ā€˜unnatural sexā€™ arrest

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(Image by Bigstock)

A Kenyan court has awarded two gay men charged with ā€œunnatural sexā€ for engaging in consensual sexual relations a total of Sh4 million ($31,000) in compensation.

This is after the Magistrates Court in the coastal city of Mombasa ruled the authorities violated the menā€™s rights in obtaining evidence.

During the arrest, the two men were forcefully subjected to genital examination and HIV tests against their constitutional rights to privacy and the rights of an arrested person, including being allowed to speak with a lawyer.

Section 162 of Kenya’s penal code criminalizes consensual same-sex relations with a 14-year jail term. Prosecutors wanted the court to find the two gay men, who were arrested in 2021, guilty of the offense.

In a ruling issued on Oct. 24, the court, while awarding each of the men Sh2 million ($15,600) in compensation, faulted prosecutorsā€™ unlawful extraction of evidence.

The Center for Minority Rights and Strategic Litigation, a local LGBTQ rights organization, last year petitioned the court not to admit the evidence for having been obtained unlawfully, to stop the hearing, and for the accused to be compensated.   

In the petition, CMRSL cited infringement on the gay menā€™s right to human dignity: A ban on cruel, inhuman, or degrading treatment, the rights to privacy and a fair trial, rights of an arrested person, and violation of their freedom and security as the constitution and international law mandates.

ā€œThis provision (Section 162 of the penal code) has historically been used by the State to target and harass LGBTQ+ persons based on their gender identity and sexual orientation,ā€ CMRSL Legal Manager Michael Kioko told the Washington Blade.

The High Court in 2019 declined to decriminalize sections of the penal code that ban homosexuality in response to queer rights organizationsā€™ petition that argued the State cannot criminalize consensual same-sex sexual relations between adults. The constitutionality of laws that criminalize homosexuality is still contested in the appeals court, based on the argument they infringe on the rights to privacy and human dignity.

CMRSL termed the latest ruling ā€œa crucial step toward dignity and human rights for allā€ while noting that the case was critical in its legal representation efforts to protect the fundamental rights of queer people in Kenya. 

The Oct. 24 decision affirms the Mombasa appeals court’s 2018 ruling that struck down the use of forced anal testing in homosexuality cases by terming it as unlawful. Kenyaā€™s National Gay and Lesbian Human Rights Commission brought the case.

The appeals court verdict stemmed from a 2015 case where police in Mombasa obtained a court order to force two gay men to undergo anal examinations and HIV testing at a local clinic after authorities arrested them and charged them with unnatural sex.

NGLHRC, in challenging the court order, argued forced anal examinations are cruel, inhuman, degrading, and breached local and international medical ethics and human rights. 

The latest ruling exonerating the two gay men from prosecution is among numerous cases in which CMRSL has represented queer people in court to defend and protect LGBTQ rights in the country.

The case against a gay man in Mombasa charged with an unnatural act (a same-sex affair) and represented by CMRSL in court saw the matter dropped last September. The court last June acquitted transgender women in Lamu charged with committing gross indecent acts between males against provisions of the penal code.

CMRSL represented the trans women.

The group has deployed community paralegals and field monitors to monitor, document, and report queer rights violations. 

ā€œThey (field monitors) work closely with LGBTQ+ community paralegals to link survivors to justice by providing legal support and connecting those to pro bono lawyers and legal aid services,ā€ Kioko said. ā€œOn average, our monitors handle around 10 cases each month, ensuring that violations are addressed and survivors receive the necessary legal pathways to seek justice.ā€  

CMRSL in partnership with several queer lobby groups, is also challenging the Kenya Films Classification Board in court for banning a movie titled ā€œI Am Samuelā€ on the pretext it contained gay scenes that violate Kenyan law.

The Kenya Films Classification Board in 2018 also banned the ā€œRafikiā€ because it contains lesbian-specific content. Petitioners who challenged the ban in court argue the decision violates freedom of expression and other constitutional provisions.

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Ghana

Ghanaian cardinal reiterates support of LGBTQ people

Country’s Supreme Court considering challenge of anti-LGBTQ law

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Cardinal Peter Turkson (Screen capture via OxfordUnion/YouTube)

A Catholic cardinal in Ghana has reiterated his support for LGBTQ people.

Peter Turkson has been vocal against the criminalization of LGBTQ people, advocates, and organizations. He is also among the few African cardinals who have supported the Fiducia Supplicans (Supplicating Trust) document that Pope Francis released last year.

The document offers a narrow set of conditions under which a priest or deacon can offer a blessing to a same-sex couple or unmarried heterosexual couples.

In an interview with TV3 News, a Ghanaian television station, Turkson expressed his grave concerns over the Human Sexual Rights and Family Values Bill currently before the Supreme Court.

The bill, among other things, would further criminalize LGBTQ people and make advocacy on their behalf illegal. 

Lawmakers in February approved the measure. President Nana Akufo-Addo has said he will not sign it until the Supreme Court issues its ruling.

Turkson said homosexuality is not new to Ghanaian culture and those who identify as LGBTQ should be treated like any other person.

“Who controls how one is born? And if one is born this way, how does it in itself constitute a crime? You criminalize them for what,” he asked.

Turkson also said there should be respect for diverse views, urging against the criminalization of identity.

Father Peter Knox from the Jesuit Institute in South Africa said there is an almost what he described as a neurotic denial of the fact there are African people who are attracted to people of the same sex.

ā€œThe fact that people of the same sex enter into a permanent, loving, supportive, stable, fruitful relationships is beyond the imagination of many Africans. The very notion runs contrary to what many theologians and pastors claim is African culture,ā€ said Knox.

Knox also questioned why homosexuality is regarded as a Western concept, noting South Africa offers asylum to many LGBTQ Africans who are fleeing persecution from their countries of origin.

ā€œFor decades South Africa has recognized the refugee status of people who are persecuted or whose lives are endangered because of their sexual orientation,” he noted. “For those who do not try to make it to Europe, South Africa is often a second-best destination.” 

Knox noted one South African parish has a support group for LGBTQ parishioners.

“It is noteworthy that none of the members of the group are so-called Europeans. They all come from African countries,” he said. “One also hopes for more prophetic protection of a severely marginalized group on this continent.” 

Cardinal Maurice Piat of Mauritius, along withĀ Turkson, is the only other of the continent’s 22 Catholic cardinals who hasĀ spoken publicly in support of LGBTQ people. Non-Catholic officials in Africa have largely dismissed Francis’s document.

Cardinal Stephen Ameyu, archbishop of Juba in South Sudan, has said the church’s role is to respond to sinners with mercy. He questioned the blessings of same-sex marriages last December during a press conference at a Christmas event.

“The church takes mercy first. Thatā€™s why sometimes we are concerned about people who are criminals, people who have killed people. We turn to them in mercy,” said Ameyu. “So, the state of life that somebody lives does not exclude one from the concern of the church. Be merciful to others provide services to others who need the services, and the church can do a lot in order to convince people in their state of sins to come back to the church and be converted.”

Francis in 2023 visited South Sudan and the Democratic Republic of Congo.

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Kenya

Petition demands Kenyan government stop discriminating against queer asylum seekers

Refugee Affairs Commissioner John Buruguā€™s recent comments criticized

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Kenyan flag (Photo by rarrarorro/Bigstock)

The queer community in Kenya has condemned the governmentā€™s policy of discriminating against LGBTQ asylum seekers, and has launched a petition that challenges it.

The community, through an All Out petition driveaccuses Kenyaā€™s Department of Refugee Services of putting queer asylum seekers at more risk of ā€œpersecution, violence, and exploitationā€ by not recognizing them as afflicted refugees.

The action is in response to Refugee Affairs Commissioner John Buruguā€™s comments in an interview last month where he said Kenya would not consider persecution based on sexual orientation or gender identity as a direct pass to asylum.

Burugu during a telephone interview said ā€œwe are not interested in anyoneā€™s sexual identity,ā€ and his department will not be convinced that persecution based on sexual orientation or gender identity is sufficient grounds for admission as an asylum seeker or refugee.

The Kenya 2021 Refugees Act, which governs Buruguā€™s department in the admission of refugees and asylum seekers in the country, does not explicitly recognize queer people among vulnerable individuals fleeing persecution. The law only recognizes refugees or asylum seekers as people who are persecuted based on race, religion, nationality, political opinion, or membership of a social group. 

Opposition MP George Kalumaā€™s proposed anti-homosexuality law also seeks the expulsion of LGBTQ refugees and asylum seekers from Kenya.   

ā€œDecision-makers like the Department of Refugee Services and UNHCR Kenya are failing to uphold international human rights standards while the media and major NGOs remain silent,ā€ reads the petition.

It notes the exclusion of LGBTQ refugees has left the majority of them vulnerable to more trauma and isolation.

They can wait up to a decade for the department to issue a decision on their asylum applications. It typically takes 12 months to process asylum applications in Kenya.

The petitioners note this delay has also increased violence, discrimination, and persecution of queer asylum seekers by the public and government authorities without any legal protection.   

ā€œHistorically, Kenya provided refuge for LGBTQ+ people fleeing danger, but the situation has worsened dramatically since 2017,ā€ reads the petition. ā€œFrom 2017, the government refused to process LGBTQ+ asylum claims, forcing over 400 people to flee to South Sudan in search of safety.ā€

This change is due to the U.N. Refugee Agencyā€™s handing over the processing of asylum applications in Kenya to the government under the Department of Refugee Services in 2016. 

UNHCR has admitted to slowing the processing of queer asylum seekersā€™ applications since surrendering the duty to the Kenyan government. It has asked the Department of Refugee Services to resolve the problem.

More than 200 people have signed the petition, which organizers hope to present to Kenyan and international human rights bodies that include UNHCR Kenya, the Department of Refugee Service, the Kenya Human Rights Commission, the National Gay and Lesbian Human Rights Commission, and the Refugee Consortium of Kenya. Other groups include the UNHCR High Commissioner in Geneva, U.N. Secretary-General AntĆ³nio Guterres, Amnesty International, the International Organization for Migration, and the Church World Service.     

The petitioners want the bodies to ā€œtake immediate actionā€ to protect LGBTQ asylum seekers in Kenya against discrimination and exclusion, noting it not only violates queer peoplesā€™ basic human rights, but disregards Nairobiā€™s obligations under international law, including the 1951 Refugee Convention.  

ā€œAs key decision-makers, you have the power to reverse this exclusion and ensure that the LGBTQ+ asylum seekers are protected from harm and granted the rights they are due,ā€ reads the petition.

There are more than an estimated 1,000 LGBTQ refugees in Kenya. Many queer people ā€” especially from Uganda ā€” continue to flee to Kenya in the wake of the enactment of the countryā€™s Anti-Homosexuality Act in 2023.

The petitioners want queer asylum seekers recognized for admission and their applications expedited like other refugees and their concerns over discrimination and violence addressed.

ā€œThe Department of Refugee Services should officially retract the discriminatory statement made by the DRS commissioner, which excluded LGBTQ+ individuals from protection under the refugee mandate,ā€ reads the petition.

The petitioners also want queer people represented in the Global Refugee Forum and the Refugee Working Groups to have their voices heard and needs addressed in global decision-making processes.

The Center for Minority Rights and Strategic Litigation, a Kenyan LGBTQ rights group, described Buruguā€™s sentiments as ā€œdeeply concerning, regrettable, and against the law.ā€   

CMRSL Legal Manager Michael Kioko told the Washington Blade the organization has received many complaints from queer refugees and asylum seekers about homophobic discrimination and other violations in the country. The Department of Refugee Services and UNHCR Kenya, he said, took no action to address them.

ā€œThe DRS commissioner is obligated under Section 21 of the Refugees Act to ensure measures are taken to protect asylum seekers who have been traumatized or require special protection. This includes LGBTIQ+ refugees in Kenya,ā€ Kioko said.

He noted this directive is also in line with the 1951 Geneva Convention on the Status of Refugees to which Kenya is a signatory, and applicable under Article 2(6) of the constitution.

ā€œIt is imperative that the Department of Refugee Services adheres to its obligations under the Refugees Act and the Constitution to protect LGBTIQ+ refugees,ā€ Kioko said. ā€œTheir safety must be prioritized, especially in light of the increasing violence and discrimination that LGBTIQ+ persons in Kenya are facing.ā€

Kioko added Kenyan courts have ruled queer people are members of a social group the Refugees Act recognizes for admission as refugees in cases of persecution, and LGBTQ asylum seekers cannot be excluded.

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