The Legal Dilemma of the LGBTQ+ Person’s Rights in Tanzania
Publisher: In-Sight Publishing
Publisher Founding: September 1, 2014
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Journal: African Freethinker
Journal Founding: November 1, 2018
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Issue Numbering: 1
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Individual Publication Date: June 22, 2024
Issue Publication Date: TBD
Author(s): Isakwisa Amanyisye Lucas Mwakalonge
Author(s) Bio: Lucas is Assistant Editor, African Freethinker/in-sightpublishing.com (Tanzania), a Lawyer, an Advocate of the High Court of Tanzania, a Notary Public Officer and Commissioner for Oaths. Researcher in Constitutional Law, and Human Rights Law. Also, a Humanist-Freethinker Activist in Tanzania. (Email: isamwaka01@gmail.com or mwakalonge.mwakyusa@gmail.com)
Word Count: 5,028
Image Credit: Isakwisa Amanyisye Lucas Mwakalonge.
Keywords: LGBTQ+ rights in Tanzania, discrimination in Tanzania, LGBTQ+ human rights, Tanzania LGBTQ+ issues, LGBTQ+ harassment Tanzania, same-sex relationships Tanzania, Tanzanian Penal Code, constitutional rights Tanzania, LGBTQ+ legal challenges, human rights violations Tanzania, LGBTQ+ protection Tanzania, LGBTQ+ associations Tanzania.
*Please see the footnotes and bibliography after the article.*
The Legal Dilemma of the LGBTQ+ Person’s Rights in Tanzania
Dar es Salaam, Tanzania — East Africa.
(WhatsApp +255 766 151395/E-mail: isamwaka01@gmail.com.)
Abstract
The LGBTQ+Persons have been under great attack, abuse, harassments, and living in fear in Tanzania. Their human rights are neglected, and violated several times especially by some religious fanatics from Islam, Christianity, and sometimes by some government officials. Hence, life becomes very insecure to them. They cannot enjoy freely the rights of freedom of expression, right to life, right to privacy. So, this paper intends to make a critical assessment of their Constitutional and Human rights, then recommend some procedures to be followed by them so as to fight for their rights which will later assure them a total dignity, respect, legal recognition and acquisition of their rights of either form or join associations which will stand for their rights national wide.
Introduction
LGBTQ+ is an acronym which stands for “lesbian, gay, bisexual, transgender and queer or questioning.” In this essay words like homosexuals, sexual minorities, same sex relationship, and LGBTQ+persons have been used interchangeable though the meaning remain to be the same, or perhaps with a slight difference. While the purpose is just an attempt to explain the legal challenges facing the LGBTQ+persons or sexual minorities in Tanzania.While Pre-Colonial African Societies refers to African societies before the Colonization, this is Africa up to 1884, or African societies before the Berlin Conference of 1884 to 1885.
Generally, the LGBTQ+people in Tanzania are facing a wide spread of discrimination which is manifested in many forms such as physical abuse, expulsion from school, verbal abuse, psychological abuse, sexual abuse and intimidation. They are discriminated in working places, sometimes they are rejected and isolated from the communities, families, and friends.Furthermore the state does not recognize the rights of Intersex or transgender persons regarding transformation of legal gender or access to gender backup treatments.
The Tanzania’s position concerning the rights of the LGBTQ+persons and homosexuals can be comprehended from the minister of home affairs words when speaking to the press in Dar es salaam in 2018,among other things to paraphrase the minister insisted that Tanzania does not discriminate people on the basis of sexual orientation or homosexuality practices because, the government believes on equality of human beings, the LGBTQ+persons or Sexual Minorities are human beings thus, they are protected by the Constitution of the United Republic of Tanzania,1977 similar statements were issued by the ministry of foreign affairs spokesperson. This happened in order to show the government stand on the state of homosexual’s affairs in the nation, following the brutal and inhuman campaign of witch-hunting homosexuals in Dar es salaam city launched in 2018 by the then Dar es salaam Regional Commissioner. The campaign was conducted with full of harassments, and intimidations. It is Obviously by the statement from the minister of home affairs it seems as if the situation is at easy for homosexuals on the ground, but the reality is vice versa there is too much pressure from various groups pressurizing the government to harass, discriminate, despise, ridicule, persecute, imprison, and hate the same-sex relationship persons and the source of hatred and discrimination against this group is from various backgrounds. For instances some says this habit of homosexuality or LGBTQ+ recognition is against their religious beliefs especially Christians and Islams, therefore tolerance to homosexuals and the LGBTQ+ person’s activities will result into curse from their god. While the other group is identifying itself as pro-African culture, these are cultural fundamentalists claiming to protect African culture, they argue that homosexuality issue is a western nations values trying to be imposed to Africa, it is Un-African. So, as Africans, they are not ready to accept it.
In Countering Big Lies and Deceit That Homosexuality Is Un-African.
The truth is this, homosexuality has been practiced in Africa long even before European colonialism in this continent or before the arrival of the Arab slave dealers in Africa. There are sufficient evidences which illustrates that Pre-colonial African societies did not kill, hate, harass, imprison or discriminate homosexuals, but to the contrary there are concrete evidences indicating that in most of the time they either reconcile or tolerate them. Pre-colonial Africans stayed with homosexuals in harmony, and it has been difficult to gather evidence of proving that the pre-colonial Africa societies did penal condemnation, or violence to homosexuals.
In Pre-Colonial Africa issues of sexual orientation, either Homosexual or Heterosexual was just a personal choice. For example, homosexuality was allowed due to some reasons for instance in situations where a person need either maintaining his or her political power, or magical power or where a person want to get more rich and wealthier then, homosexuality practice was allowed as a ritual requirement. While if a person desired to have children and a permanent family of a wife and children then was allowed to go to heterosexual relations for such purpose of getting married and bearing children.For instance homosexuality was a common practice in many places in pre-colonial Africa such as in Iteso,Bahima,Langi,in some parts of East African Coast, Baganda, Banyoro, Zulu, Azande, Venda, Phalaborwa, Basotho, Pangwe, Lovendi, Elgarah, Meru, Siwah, Kwayoma, Teso, and in some other parts of southern, west and central Africa. Pre-colonial Africa did not criminalize homosexuality, but European colonialists are the ones introduced the criminalization of homosexuality in Africa. A good example is the way British did introduce the criminalization of homosexuality in her colonies like Nigeria, Zimbabwe, Kenya, Uganda, Tanganyika (Tanzania)Ghana, and the entire Anglo-phone Africa through, a legislation named Penal Code. Whereas the Post-Colonial Anglo-phone Africa did inherit, maintain and continue to use the colonial imposed laws, though they went a step ahead of modifying those inherited colonial laws so that they become more tyrannical than they used to be during colonial era including the laws which criminalized homosexuals like the Penal Code. As it is in Kenya, Uganda, Nigeria and Tanzania.
The Contemporary Africa and Second Wave of Criminalization of Homosexuals
After achieving political independence, many African states including former British colonies preserved and used the colonial forced laws, including the draconian laws which criminalize homosexuals, and the LGBTQ+persons. But what is witnessed recently in some African states especially in former British colonies like Uganda, Nigeria, Ghana, with these new Anti-Homosexuality Laws is just an intensification of the scope of Anti-Homosexuality Campaign, this can be called as a second wave of a continuation of tyranny and discrimination of Africans by African governments. The planners of this second wave of Anti-Homosexuality Laws come out with arguments, that permitting homosexuality may lead to an increase of rape offences, defilement cases, and an increase of spread of HIV and other sexually transmitted diseases. Yet some people still argue that homosexuality is Un-African, the argument which is already proven to be totally wrong and untrue. However, the major reason is just a discrimination grounding on sexual orientation which has a religious background of either Christianity or Islam. Nonetheless these childish reasons that homosexuality is Un-African, or may spread defilement, rape and venereal diseases are only a hiding umbrella. Actually, a habit of homophobia, biphobia, transphobia, criminalization and all types of discrimination of the LGBTQ+ persons or homosexuals is the one which is Un-African, because such practice has been imposed by the colonial masters in Africa through their newly introduced laws such as Penal Code which was brought by the British imperialists in Africa, while harmony and tolerance to homosexuals is the real African culture. This is the truth which seems to be like a paradox to many Africans.
The Status of the LGBTQ+ Persons or Homosexuals in Tanzania
In Tanzania any involvement of homosexuality practice or same sex relationship is an offence. Yet, there is a legal dilemma in dealing with this problem. The legal ambiguities are manifested from the legislation which criminalize the same sex relationship in one side, and the Constitution together with International Human Rights Instruments on the other side. It is ambiguous because the Constitution provides an enjoyment of human rights, while on the other side the draconian colonial inherited legislation takes away the Constitution given rights, despite the fact that in Tanzania there is Constitutional Supremacy where by all legislations are supposed to abide to it. An example of a draconian law which takes away some Constitutional given rights is the Penal Code Cap.16 Revised Edition of 2022, this is a legislation which establishes a Code of Criminal law in Tanzania. In this legislation all issues of the same sex relationship between consenting adult partners have been criminalized, where by the offenses established are called Offences Against Morality, they are also known as “Unnatural Offences” and the specific sections are section 154(1) and section 155 of this law, the section states this;
“Any person who
(a)has carnal knowledge of any person against the order of nature;
© 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.’’
and section 155 provides this;
“Any person who attempts to commit any of the offence specified under section 154 commits an offence and shall, on conviction be sentenced to imprisonment for a term not less than twenty years’’
Thus, through these sections of Cap 16 quoted in here, indicates that the same sex relationship is illegal, and if anybody found guilty before courts of law can be imprisoned for either thirty years or to life imprisonment. Despite the fact that the Constitution emphasizes on equality of human beings. And all human beings are considered to be free, equal and each deserve to be treated with honor and recognition while respecting their dignity. This is stated in article 12(1) and (2), as it is quoted below herein: the article is stating this.
(1) ‘’All human beings are born free, and are all equal.”
(2) ‘’Every person is entitled to recognition and respect for his dignity”
Whereas article 13(1), (4) and (5) reads;
(1) ‘’All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law”
(4) “No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any office.”
(5) “For the purpose of this Article the expression “discriminate” means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, color, religion, sex, or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or condition whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications except that the word “discrimination” shall not be construed in a manner that will prohibit the Government from taking purposeful steps aimed at rectifying disabilities in the society”
Subsequently the consenting adult partners of the same sex relationship should not be discriminated only due to sexual orientation, it is against this article of the Constitution. People of the same sex relationship deserves to be respected, and have the right to enjoy privacy of their matrimonial life, their families and respect, protection of their residences and in their private communications, as it is provided by the Constitution under article 16(1), the article reads as follows:
(1)” Every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect and protection of his residence and private communication.”
The same-sex relationship persons are permitted either form or join associations, for example the associations can be in form of Non-Governmental Organizations which will protect their interests, or used as their forum for the development of their affairs. This right is provided by the Constitution under article 20(1), and the article states this;
(1). “Every person has a freedom, to freely and peaceably assemble, associate and cooperate with other persons, and for that purpose, express views publicly and to form and join with associations or organizations formed for purpose of preserving or furthering his beliefs or interests or any other interests.”
People of the same sex relationship have the right to enjoy fundamental human rights like any other person in Tanzania. This is emphasized under Article 29(1) of the Constitution, and the article provides this:
(1)” Every person in the United Republic of Tanzania has the right to enjoy fundamental human rights and to enjoy the benefits accruing from the fulfilment by every person of this duty to society, as stipulated under Article 12 to 28 of this Part of this Chapter of the Constitution.
The LGBTQ+persons including Homosexuals are also human beings, hence deserves to enjoy fundamental human rights like any other person without discrimination. All of these quotations from various articles of the Constitution of Tanzania, it is an attempt to show clearly that all people in Tanzania are entitled to enjoy these Constitutional and Human rights, enshrined in the Constitution without any discrimination, and sexual minorities persons are inclusive.
Just an advice to a secular state of Tanzania that, by permitting these sections 154(1) and 155 of the Penal Code to continue to operate in the nation’s legal system, this is a violation of human rights committed by the state since homosexuals will no longer be free persons, no dignity and respect to them, they are discriminated under sexual orientations basis, their rights of privacy especially in protection and enjoyment of their matrimonial rights is violated. These discriminative sections in Cap 16 are also contrary to the International Human Rights Law as it is demonstrated in the International Human Rights Instruments which Tanzania has ratified them. To mention a few of them are:
The African (Banjul) Charter on Human and Peoples’ Rights
This is a regional human rights instrument intended to reflect the traditions, history, values and growth of Africa. Adopted by member states on 17 June 1981 and entered into force on 21 October 1986. Article 2 of this Charter is against discrimination of any kind in Africa. For instance, to quote the article reads as follows:
“Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.”
Article 3(1) says;
1.” Every individual shall be equal before the law.”
Article 4
“Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of his right.”
Article 19
“All peoples shall be equal: they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.”
And article 28 states that “Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance”
Therefore, LGBTQ+persons in Tanzania deserves to enjoy these rights, because they are also human beings.
In 2014 the African Commission on Human and People’s Rights did adopt a resolution for condemning violence which basis on gender and sexual orientation identity. Whereby all state parties were required to make sure that human rights defenders are permitted to work in free environments. Also, proper procedures, and impartiality are followed when dealing with cases of violence and abuses done against sexual minorities people.
The International Covenant on Civil and Political Rights
This covenant comprises legal obligations which are to be assumed and implemented by states. For instance, such obligations are stated right from article 2 Part II of this covenant where by states are obliged to respect and make sure that each individual in their respective countries is given or enjoy the rights recognized by this covenant without any discrimination and where necessary legislative measures should be adopted for giving effects to those rights in the respective countries or states. For instance right to enjoy privacy as a human right is provided under Article 17(1),and the article says the following;
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence nor to unlawful attacks on his honor and reputation.”
While the right of equality before the law is found in Article 26. The article articulates this;
“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, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Whereas Freedom of either join or form any association is granted under Article 22(1). Thus, the LGBTQ+ persons deserves to enjoy these rights similar to other citizens.
The Universal Declaration of Human Rights 1948
Adopted by resolution 217(111) of the UN General Assembly on 10 December 1948.The UDHR is not aiming to impose legal responsibilities on states but relatively to establish objectives and goals to work towards. For example, right from Article 1 the declaration insists on freedom and dignity of a human being, the article recites this;
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
While discrimination of whatever type is discouraged in Article 2. And the article enunciates as follows;
“Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, color, sex, language, religion, political, or other opinion, national or social origin, property, births or other status.”
Right to privacy is given in Article 12, whereas the article requires this;
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attack.”
And freedom of association and assembly is provided in article 20(1) where the article reads as follows;
1.” Everyone has the right to freedom of peaceful assembly and association”
Even the LGBTQ+ are inclusive in enjoying these rights because they are human beings.
Way Forward for the LGBTQ+ Persons
Since the fate of the LGBTQ+ persons and homosexual’s rights and life are in total darkness of danger then, they have to fight for their rights. Perhaps choosing a legal avenue through knocking to the Courts of law corridors to challenge the unconstitutionality of some Penal Code sections especially those spotted to be discriminatory in order to change the status quo is the best option otherwise, their fate will continue to remain in risk, as Mwesiumo J. (as he then was), once did when he said:
“This is a temple of justice and nobody should fear to enter it to battle his legal redress as provided by the law of the land”
Mwesiumo J. referred Courts of law as temples of justice, and law of the land to the Constitution of Tanzania. Whereas the locus stands to the LGBTQ+ is under Article 30(3) of the Constitution which provides this;
“Any person claiming that any provision in this part of this Chapter or in any law concerning his right or duty owed to him has been, is being or is likely to be violated by any person anywhere in the United Republic, may institute proceedings for redress in the High Court”
Considering that in Tanzania Courts of law are regarded as “Temples of Justice” therefore, it is hopeful that going to court may help to remove this legal dilemma and legal ambiguities which is a deadlock for same-sex relationship persons to enjoy Constitutional and Human rights enshrined in both the Constitution and in International Human Rights Instruments in which Tanzania has already ratified them. The path of using Courts of Law avenues to seek annulment of some unconstitutional legislations or opposing some oppressive sections of certain legislation, is not a new phenomenon in Tanzania, it has been happening in several occasions, because it is a Constitution opportunity given to citizens to challenge bad laws in the nation, this opportunity is in article 13(2) of the Constitution, which states this:
(2)” No law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect”
Consequently sections 154(2) and 155 of Penal Code which criminalizes Same-Sex mode of relationship in Tanzania are discriminative one and the sections are unconstitutional. So, article 13(2) of the Constitution permits the LGBTQ+ persons to proceed to Courts of Law to challenge those draconian Penal Code sections which violates their human rights. These draconian sections 154(2) and 155 of the Tanzanian Penal Code, are similar to Sections 162,163, and section 165 of the Kenyan Penal Code, yet Kenyans have succeeded to knock on the doors of Courts of law to oppose these unreasonable sections, driving their locus stand from section 27(4) of the Constitution of Kenyan,2010. In Erick Gitary v. Attorney General, and Another (Petition №150 of 2016). In this case a petitioner-Eric Gitary, from and representing the Kenyan National Gay and Lesbian Rights Commission (NGLHRC) argues that sections 162 (a) and © and sections 165 of the Penal Code (Cap 63) of (Kenyan Laws denies some basic rights to some Kenyans and therefore those sections are in breach of the Constitution petitioner’s rights. Since 2016 Erick Gitary the petitioner was asking the Court to strike down sections 162(a) and © and section 165 of the Penal Code (Cap 63) which Criminalize Consensual Same -Sex Relations between adults. On 21st February 2023 the Supreme Court in Kenya dismissed an appeal which was presented by the government of Kenya to stop the registration applications of the LGBTQ+persons in Kenya seeking for their organization be officially registered so that they can perform their activities in a formal way. In March 2024 the Supreme Court of Kenya issued a judgement which contained the following views:
(a)The action of authorities concerned with Non-Governmental Organizations registration in Kenya refusing to register the LGBTQ+request as an official Non-Governmental Organization, it is a violation of human rights which bases on sexual orientation.
(b)It was discriminatory because it is against section 27(4) of the Constitution of Kenya. Section 27(4) of Kenya Constitution provides this;
“state shall not discriminate direct or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.”
The Supreme Court judges further added that limiting the right of association to the LGBTQ+ persons in Kenya by refusing to register their association such act is unconstitutional because it is a discrimination which root in sexual orientation. ©The judges held that the decision of the board to deny registration of LGBTQ+ persons organization was both unjustifiable and unreasonable. Yet on the other side the registration authority grounds of refusal to register an LGBTQ+ organization came from sections 162,163, and 165 of the Penal Code. On this, the Supreme Court further commented that, a denial of registration of the society which would give a right of association to the LGBTQ+ persons, it is a Conviction before breaking the law. Therefore, the action of refusing to register it is a violation of appellants rights of enjoying Constitutional rights of freedom of association which is provided under article 36 of the Kenyan Constitution. However, the court made it clear that those who will be caught practicing same sex relationship will face the Penal code punishment because it is contrary to these illegal sections 162,163, and 165 of the said legislation.
Judgement of the Supreme Court of Kenya has come in favor of the LGBTQ+persons because it has allowed them to either form or join associations the opportunity which was previously denied, although the Penal Code sections 162,163 and 165 were not quashed but still the decision is a big victory to the improvement, development and recognition of the LGBTQ+ Community in Kenya, Perhaps the battle for inhuman Penal Code sections 162,163, and 165 is to continue.
The same can be done to the Tanzanian LGBTQ+ Community, they can go to Courts of Law using article 13(1)(2) (4) and (5) of the Constitution which pronounces this;
(1) ‘’All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law”
(2) “No law enacted by any authority in the United republic shall make any provision that is discriminatory either of itself or in its effect”
(4) “No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any office.”
(5) “For the purpose of this Article the expression “discriminate” means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality,tribe,place of origin, political opinion,color,religion,sex,or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or condition whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications except that the word “discrimination” shall not be construed in a manner that will prohibit the Government from taking purposeful steps aimed at rectifying disabilities in the society”
as a supportive article, which is similar to Section 27(4) of Kenya Constitution as it was used by the Supreme Court of Kenya to allow registration of LGBTQ+ persons association together with International Human Rights Instruments which have been mentioned in this paper to ask Courts of law to strike out sections 154(2) and 155 of the Tanzanian Penal Code, and to ask Courts to declare that any application for registration of LGBTQ+ group as a Non-Governmental Organization or association should be allowed because it is part of enjoyment of both Constitution and Human rights as it is guaranteed in International Human Rights Law, and in the Constitution, this is according to article 20(1),the article articulates this;
(1). “Every person has a freedom, to freely and peaceably assemble, associate and cooperate with other persons, and for that purpose, express views publicly and to form and join with associations or organizations formed for purpose of preserving or furthering his beliefs or interests or any other interests.”
Thus, the LGBTQ+persons in Tanzania have the right to either form or join organizations for promoting their interests. In south Africa the LGBTQ+persons passed through the same struggle which later on it resulted to an official recognition of the LGBTQ+ from a judicial battle in Minister of Home Affairs and Another v. Fourie and Others; Lesbian and Gay Equality Project 2006(1) SA524(CC) where Court;
“Declared that same sex couples should enjoy the benefit of marriage, the executive and the parliament in South Africa accepted and implemented these decisions within the spirit of doctrine of separation of powers and checks and balances.”
Bearing in mind that “the South African Constitution has been hailed as one of the best constitutions in the world and being an African country”.
In Young v. Australia, Communication 941/2000, UNH COMMITTEE (12 August 2003) UN DOC CCPR/C78/D/941/2000(2003). It was stated that same sex partners have got the right to get benefits from the government similar to heterosexual domestic partners.
The Paradigm Shift
It is right time now for the Tanzanian society, government and Africa in general to realize that there is a paradigm shift, where people are well-informed, since this is an information age where people are very knowledgeable, up-to-date, so enlightened, and educated about the world due to globalization with the help of New Media and Internet hence people are much aware about human rights. This is an age where a thirst for freedom of expression is high that is why even the minority groups like people of the same sex relationship are coming out fearlessly so as to demand for their denied rights. This is unstoppable wind of change which is blowing across the globe.And Africa is not an exceptional, it is an irresistible wind until rights of sexual minorities becomes recognized. This is why in some enlightened countries which cares much about human rights like the Netherlands, South Africa, and some other nations or states in Europe and North America, have already recognized rights of the LGBTQ+persons, even the Vatican under Pope Francis (Jorge Mario Bergoglio the 266th Pope) is beginning to soften its stand by permitting blessings to people of the same sex relationship, while there are live evidences of presence of homosexual bishops in the Anglican church. It is undeniably this is a paradigm shift, therefore, it is hoped that this is a particular time for Africa and Africans to accept changes, because African societies are not static or unchanged, they are dynamic.
Conclusion
Laws which criminalize same-sex relationship and the LGBTQ+persons in overall should be reviewed or annulled because they are unjustifiable, unreasonable, unconstitutional, vague, Un-African and they are against human rights. It is shame that at this contemporary world, still there are some secular nations like Tanzania choose to allow discriminatory laws to operate within its Judicial System. “No enough is enough” these unconstitutional laws containing some ambiguous sections must be abandoned immediately because they are out-of-date. In this regard it is expected that all inequitable legislations are going to be declared null and void, while Courts of law are supposed to be in front line in defending and protecting human rights in the Tanzania.
BIBLIOGRAPHY:
Book
Makungu J.Holle. Checks and Balances Under the Tanzanian Constitution, Mwanza: Inland Press,2012.
Mwaluka Wiililie, etal. Police Source Book on Human Rights, Malawi Police Service and Malawi Human Rights Resource Center MHRRC.
Mwase Sylvie and Jjuuko Adrian. Protecting the Human Rights of Sexual Minorities in Contemporary Africa, Pretoria: Pretoria University Law Press,2017
Reports
Sida,”The Rights of The LGBTI People in Tanzania” December 2014.http://www.sida.se(accessed June 10.2024)
Theses
Lindro Malin Och Lundgren Elin. “Gay Rights of Importance in Kenya. A Frame Analysis on the Kenyan Debate of Homosexuality” Bachelor’s Thesis, Uppsala-Universitet,15hp, Spring, Uppsala University,2021.
Articles:
Maina P. Chris. “Five Years of Bill of Rights in Tanzania: Drawing A Balance Sheet” Eastern Africa Law ReviewVolume.18 No 2(1991):147–167
Mwakalonge A.L. Isakwisa “On the Ongoing Campaign Witch-Hunt Against Homosexuals in Tanzania”In-Sight Publishing(2018).http://www.in-sightjournal.com.(accessed April 25,2024)
Obidima Emmanuel and Obidima Angelina.”The Travails of Same Sex Marriage Relations Under Nigerian Law”Journal of Law,Policy and Globalisation.ISSN 2224–3240(PAPER)ISSN222–4
3259(Online)Volume.17(2013)http://www.iiste.org(accessed May 10,2024)
List of Legislations
National Laws
The Constitution of Kenya,2010.
The Constitution of the United Republic of Tanzania,1977.
The Penal Code (Cap 63) (Kenyan Laws.
The Penal Code Cap.16 Revised Edition in 2022 (Tanzanian Laws)
List of International and Regional Legal Instruments
The African Charter on Human and Peoples’ Rights.
The International Covenant on Civil and Political Rights.
The Universal Declaration of Human Rights 1948.
Websites
www.ntvkenya.co.ke.accessed May 17,2024.
https://www.cnn.com.accessed May 19 2024.
Table of Cases
Erick Gitary v. Attorney General, and Another (Petition №150 of 2016)
Minister of Home Affairs and Another v. Fourie and Others; Lesbian and Gay Equality Project 2006(1) SA524(CC)
Young v. Australia. Communication 941/2000, UNH COMMITTEE (12 August 2003) UN DOC CCPR/C78/D/941/2000(2003)
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