Civil Society Statement of Action on the Decriminalisation of Adult Same Sex Conduct in the Commonwealth

Out of the 54 states that make up the Commonwealth of Nations, 41 continue to criminalize consensual adult same-sex sexual activity. Laws that criminalise same-sex sexual conductdiscriminate against and oppress lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.The majority of the laws that criminalise same-sex sexual conduct originate in British Colonial lawscriminalising ‘sodomy’.On the 15th of August 2011 at a conference facilitated by the Commonwealth Human Rights InitiativeLondon, LGBTI Rights Activists working across the Commonwealth devised the following statementof action on the decriminalisation of same-sex sexual conduct across the Commonwealth. This is astatement of action that relates both to the Commonwealth Secretariat and to Commonwealthmember states.

1. The incompatibility of the criminalisation of same–sex sexual conduct with Commonwealth values

1.1 Treating individuals in a discriminatory manner as a result of their sexual orientation isincompatible with Commonwealth values. Equality and non-discrimination on any groundshas been repeatedly affirmed as a core Commonwealth value, most recently by theSecretary General in his speech to the 2011 Law Ministers Meeting. The 2009 Port of SpainAffirmation of Commonwealth Values and Principles states in section 5 that a coreCommonwealth value is the “promotion of civil, political, economic, social and cultural rightsfor all without discrimination on any grounds” and that “rights are universal...and cannot beimplemented selectively.” This reaffirms the commitments to formal equality, found in the1979 Lusaka Declaration, and equality before the law, in the 1991 Harare Declaration.

1.2 The universal equal application of human rights to all without discrimination on anygrounds is reinforced in the 2007 Yogyakarta Principles on the application of internationalhuman rights law in relation to sexual orientation and gender identity. In 2008 seventeenCommonwealth States signed up to the European Union backed Statement on HumanRights, Sexual Orientation and Gender Identity at the United Nations General Assembly which affirmed the ‘principle of non-discrimination which requires that human rights applyequally to every human being regardless of sexual orientation or gender identity’.

1.3 At the Port of Spain Commonwealth Heads of Government Meeting (CHOGM)reaffirmed the agreement that states had made at the 2007 Kampala CHOGM that allCommonwealth members should ratify core international human rights treaties, includingthe International Covenant on Civil and Political Rights (ICCPR). In Toonen v Australia (1994)CCPR/C/50/D/488/1992 the Human Rights Committee held that the criminalisation of same -sex sexual conduct was incompatible with the right to privacy and the right to equality before the law, as guaranteed under the ICCPR. The implementation and ratification of the ICCPR by the vast majority of Commonwealth Countries means that states should take stepsto ensure that laws criminalising same–sex sexual conduct are repealed and amended.Further states that have not yet signed up to international human rights agreements should be mindful of the commitments made at successive CHOGMs and implement international  human rights agreements so that all citizens of Commonwealth states enjoy human rights without discrimination on any grounds. The few states that have not yet ratified the ICCPR are reminded that it accords with the fundamental principles of the Commonwealth andthey are bound to bring their laws into line with these instruments.

1.4 Whilst it is acknowledged that the laws that criminalise same–sex sexual conductcurrently are part of a state’s domestic criminal law and individual sovereign states are generally granted a margin of appreciation in respect to their own domestic criminal jurisdiction, the laws that criminalise same-sex sexual conduct constitute a systemic andongoing human rights abuse and cannot in any meaningful sense be applicable within aframework of individual rights protection. The 1979 Lusaka Declaration commits the Commonwealth to the abolition of discriminatory laws and makes it a condition of membership that states should repeal discriminatory domestic laws. The laws thatcriminalise same-sex sexual conduct are akin to the laws used to segregate racial groups andexclude persons from the full benefit of citizenship in a manner that is directly analogous topractices that underpinned apartheid and white minority rule.1.5 The Commonwealth prides itself on being a values based organisation. These valueshave an enforcement mechanism within the 1995 Millbrook Action programme and there avariety of different enforcement measures available. The Commonwealth, in order toenforce and realise its values, has taken action in the past. This is an issue where theCommonwealth now needs to take a clear lead.

2.The responsibility of individual member states of the commonwealth

2.1 All states must decriminalise private, same-sex sexual activity between consenting adults. Decriminalisation means the removal of any criminal or civil penalties that may beimposed on an adult who engages in private same-sex sexual activity. There should be nolegal powers available to the authorities to arrest or investigate private, consensual same-sex sexual activity between adults. A commitment not to enforce laws that criminalise same-sex sexual conduct is too uncertain and still constitutes a human rights violation as the merefact of ‘black letter’ criminalisation means that LGBTI individuals are marginalised in society.Decriminalisation can be achieved progressively, via either a constitutional reform or testcases that allow the courts to ‘read down’ criminal laws in line with international anddomestic human rights provisions.

2.2 Legislation must be implemented to protect LGBTI individuals from directdiscrimination and discriminatory practices. Decriminalization does not in and of itself prevent private parties acting in a discriminatory manner towards LGBTI individuals andtreating them in a discriminatory manner when it comes to matters of employment,inheritance of property and access to health care. This does not mean giving LGBTI individuals a special status but rather involves the creation of legal mechanisms that can give redress to LGBTI individuals who are the victim of discriminatory treatment of the sort that would be not be afforded to an individual who was not lesbian, gay, bisexual, transgender or intersex.

2.3 States must enforce existing laws to protect LGBTI individuals against threats,harassment and violence. Laws that criminalize assault and harassment apply to all citizensbut frequently they are not adequately enforced in the case of hate crimes against LGBTI individuals. Moreover, LGBTI individuals often feel unable to come forward and report these crimes, and often an enforcement gap emerges between hate crimes directed against LGBTI individuals and groups, and hate crimes that are directed at other individuals or groups.Again this does not mean giving LGBTI individuals and groups a special status but ratherinvolves enforcing existing laws.

2.4

Consultation and dialogue must be arranged with local LGBTI groups and humanrights organisations on the implementation of all of the above steps. Other groups includingCivil Society Organisations and Non Governmental Organisations should also be consultedand the process should be as wide ranging as possible.

3.Steps the Secretariat and the Secretary General should take to facilitate decriminalisation

3.1 The Secretary General should follow up on his remarks to the 2011 Law Ministersmeeting and issue a formal statement on the incompatibility of the criminalisation of same-sex sexual conduct with Commonwealth values. It should be noted that the criminalisationof same–sex sexual conduct is incompatible not only with the provisions of equality underthe 2009 Port of Spain Declaration but also is incompatible with the respect for humanrights, as guaranteed under the 1991 Harare Declaration, and the principle of equality before the law as protected under the 1979 Lusaka declaration.

3.2 The Secretariat should facilitate the creation of an official independent workinggroup tasked with making official biennial reports into the status of decriminalisation in theCommonwealth. This working group should be formulated in a manner similar to that of election observation groups. The group should be comprised of representatives of NGOs,CSOs and other experts, and have a broad remit to investigate the progress towardsdecriminalisation in Commonwealth countries. The group should be completely independentof the Secretariat and National Governments and should publish a report every two years inline with the CHOGM cycle.3.3

Resources should be made available to the Human Rights Unit (HRU) at theSecretariat to engage in promotional and monitoring activities in this area. Research shouldalso be carried out by the HRU in this area in conjunction with the ongoing projects of CSOsand NGOs. The Secretariat should also make resources available for the promotion of thesocial, political and economic benefits of decriminalisation from the thirteen Commonwealthstates that have decriminalised same-sex sexual conduct.

4.Steps states that have decriminalised same-sex sexual conduct should take to facilitate decriminalisation

4.1 States that have decriminalised same-sex sexual conduct should provide effectiveinternational protection for LGBTI refugees from countries that criminalise same-sex sexualconduct. States that are signatories to the 1951 Refugee Convention have a duty to providerefuge to individuals that have a well-founded fear of persecution. States should ensure thattheir law enforcement and border agencies are equipped to handle asylum claims made byLGBTI individuals.

4.2 States that have decriminalised same–sex sexual conduct should be vocal inadvocating for decriminalisation in Commonwealth and other international forums andshould spearhead initiatives aimed at forging inter-state consensus on decriminalization.

4.3 This also requires states to be active in monitoring the recommendations of international and regional organisations and being willing to scrutinise the human rightsperformance of other Commonwealth states both in Commonwealth forums and at otherinternational forums, such as the UN Human Rights Council. States should also make aneffort to showcase the economic, social and health benefits of decriminalisation from theirown jurisdictions in international forums and this should form part of the case in favour of decriminalisation.The Commonwealth’s future as a values based organisation is dependent upon action on this issueand the different actors mentioned in this statement need, as a matter of urgency to implementthese reforms. Since the declaration of the Commonwealth Principles adopted by Heads of Government in 1971, the organisation has defined itself by its values. The continued criminalisationof a minority for no other reason than their immutable characteristics is a form of discrimination andpersecution that cannot continue amongst a community of nations that has committed itself toprotecting human rights and equality before the law.

Civil Society Statement of Action on the Decriminalisation of Adult Same Sex Conduct in the Commonwealth