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RIGHTS: “Sodomy Laws” Rooted in British Colonialism

Nergui Manalsuren

UNITED NATIONS, Dec 22 2008 (IPS) - Although 66 countries signed a statement at the United Nations on Dec. 19 affirming that human rights protections extend to sexual orientation and gender identity, activists note that dozens of nations still criminalise homosexuality and seven impose the death penalty.

The New York-based Human Rights Watch says that the oppressive legacy of British colonialism is at the heart of many of these laws that penalise consensual sexual activity among adults of the same sex.

According to a report titled “This Alien Legacy”, launched last week, more than half of the world’s remaining “sodomy laws” derive from a single law on homosexual conduct that British colonial rulers imposed on India in 1860.

The law, known as Section 377 under the Indian penal code, was designed to set standards of behaviour, both to “reform” the colonised and to protect the colonisers against “moral lapses”.

It was the first colonial “sodomy law” integrated into a penal code, and it became a model for countries across Asia, the Pacific Islands and Africa – almost everywhere the British imperial flag flew.

HRW notes that in recent years, judges, public figures and political leaders have defended those laws as citadels of nationhood and cultural authenticity, claming that homosexuality came from the colonising West, when in fact the opposite is true.

It cited Zimbabwe’s Robert Mugabe who infamously said in the early 1990s that gays and lesbians are “un-African” and that they are “worse than dogs and pigs”. Similar remarks have been made by officials in a number of African countries, including Nigeria, where homosexuality is punished by death.

Others that impose the death penalty for homosexual activity are Saudi Arabia, the United Arab Emirates, Mauritania, Sudan, Yemen and Iran, whose president, Mahmoud Ahmadinejad, has claimed that homosexuality is a phenomenon that does not exist in his country.

“Unfortunately, in countries where homosexuality is criminalised (77 plus seven with the death penalty) it is impossible to obtain realistic data,” said Boris O. Dittrich, advocacy director of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Programme at Human Rights Watch.

He noted that many homosexual men, lesbian women or transgender persons are afraid to go to the police for help if they are harassed or attacked. “There is severe underreporting,” he told IPS.

“In Senegal, there was a case against a man called Pape. He was arrested in February 2008 and charged with organising a gay wedding – which was not true,” Dittrich said.

“A few days after his arrest he was released from detention, but [local] people wanted to kill him for being a homosexual. He was chased and stabbed with a knife. Human Rights Watch helped him and he was recognised as a refugee in the U.S. He now lives in New York,” Dittrich told IPS.

Asked what these countries have in common, he said that the majority of the people find homosexual conduct “deviant” and therefore they penalise it, thinking that it will disappear. This is a false notion, because it is part of human nature, he noted.

Dipika Nath, a researcher with the LGBT programme at HRW, told IPS that there is good news in some countries. The High Court in New Delhi, for example, recently ended hearings in a years-long case seeking to decriminalise homosexual conduct in India, and a ruling in the landmark case is expected soon.

“There are several activists and human rights lawyers who are asking for this law to be read down to exclude consensual and adult sexual conduct, because basically the law simply says whoever voluntarily has carnal intercourse against the order of nature with man or animal will be punished, without making distinctions on anything like how old you are, for example,” she told IPS.

Last week, a statement signed by 66 countries in the U.N. General Assembly, led by France, affirmed that human rights protections include sexual orientation and gender identity.

Many news media agencies covered the event as the adoption of a declaration on gay rights. However, Nath says that the word “declaration” was inaccurate. “It wasn’t a declaration,” she explained, “it was basically a statement that was read out at the U.N., endorsed by 66 countries. It doesn’t have any sort of binding power.”

She expressed huge disappointment with the U.S. decision not to sign the statement, pointing out that it is a country that has global influence, and should set an example in the recognition of human rights. China, Russia, the Vatican and Islamic countries also refused to sign the statement.

Asked about a Syria-led statement signed by 44 countries, which called upon member states to continue to devote special attention and resources to protect the traditional family as “the natural and fundamental unit of society”, Nath pointed out that women are also fighting for their equal rights all over the world.

“I think we need to redefine the idea of family in the General Assembly, expand it,” she said.

Both Nath and Dittrich hope that the new U.S. administration in January will have a different approach.

“I am confident that an Obama administration would have signed on [to the French-led statement],” said Dittrich.

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