(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Same-sex sexual acts have been illegalised in the Gambia since 1888, based on laws introduced during the colonial era.
The Criminal Code (Amendment) Act 2005 (Amendment of section 144 and 147) modified the law to apply not just to male same-sex relationships, but to explicitly criminalise female same-sex relationships as well.
The 2014 Amendment of the Criminal Code of the Gambia introduced the punishment of so-called 'Aggravated Homosexuality' with up to life imprisonment. The amendment inserts Section 3 of Uganda's Anti-Homosexuality Act (meanwhile overturned by Uganda's Constitional Court on procedural grounds) into Section 144A of the Gambian Criminal Code. The law was approved by legislators in the Gambia in August and signed into law by President Yahya Jammeh in October 2014 (the Guardian, Nov 2014).
The Criminal Code of The Gambia (Amendment) 2014 states:
Article 144: Unnatural offences
(1) Any person who—
a) has carnal knowledge of any person against the order of nature; or
b) has carnal knowledge of an animal; or
c) permits any person to have carnal knowledge of him or her against the order of nature;
is guilty of a felony, and is liable to imprisonment for a term of 14 years.
(2) In this section, ‘carnal knowledge of any person against the order of nature’ includes –
a) carnal knowledge of the person through the anus or mouth of the person;
b) inserting any object or thing into the vulva or anus of the person for the purpose of simulating sex, and
c) committing any other homosexual act with the person.
Article 144A: Aggravated homosexuality
(1) A person commits the offence of aggravated homosexuality where the –
a) person against whom the offence is committed is below the age of eighteen;
b) offender is a person living with HIV Aids;
c) offender is a parent or guardian of the person against whom the offence is committed;
d) offender is a person in authority over the person against whom the offence is committed;
e) victim of the offence is a person with disability;
f) offender is a serial offender; or
g) offender applies, administers or causes to be administered by any man or woman, any drug, matter or substance with intent to stupefy or overpower him or her, so as to enable any person to have un-lawful carnal connection with any person of the same sex.
(2) A person who commits the offence of aggravated homosexuality is liable on conviction to imprisonment for life.
Article 147: Indecent practices between males
(1) Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
(2) Any female person who, whether in public or private, commits any act of gross indecency with another female person, or procures another female person to commit any act of gross indecency with her, or attempts to procure the commission of any such act by any female person with herself or with another female person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
(3) In this section, ‘act of gross indecency’ includes any homosexual act.
The Gambia is a signatory to a number of International Conventions: The International Covenant on Economic, Social and Cultural Rights (ratified 29 December 1978), the International Covenant on Civil and Political Rights (ratified 22 March 1979), the Optional Protocol to the International Covenant on Civil and Political Rights (ratified 9 June 1988), the Convention on the Elimination of All Forms of Discrimination against Women (signed 29 July 1980; ratified 16 April 1993), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (signed 23 October 1985; ratified April 2006), as well as the African Charter On Human And Peoples' Rights (ratified 8 June 1983), as listed by LGBTnet.
The Gambian Criminal Code in its current form violates international human rights law as well as the Gambian Constitution.
Moreover, as emphasised by Human Rights Watch, 'homosexuality' and 'homosexual acts' are not clearly defined in the law, making arbitrary and broad abuse of the law for the intimidation and arrest of persons perceived to be LGBTI more likely.
According to LGBTnet, LGBT persons are unable to legally adopt children. LGBT persons are also excluded from service in the armed forces.
There are no anti-discrimination laws protecting the LGBTI community from harassment and unequal treatment. The existing anti-discrimination provisions do not apply to LGBTI persons (UK Foreign and Commonwealth Office).
Although the Gambian constitution provides for freedom of expression and association, and although there is no law explicitly preventing advocacy in the area of LGBTI rights, LGBTI advocates do not promote LGBTI rights due to fear of serious repercussions, including arrest.
In April 2012, prosecutors increased the charges against 20 people against whom there were allegations of cross-dressing during an ‘indecent’ dance ceremony for tourists. They are being charged with the felony offense of ‘unnatural offenses.’ Previously the charges had been simply ‘indecent practices’ and the bail had been set for around $3,500 each (News24). In December 2014, the first three men were charged under the new Criminal Law for violating the 'aggravated homosexuality' provision (UK Foreign and Commonwealth Office).
No case law is currently listed here, but we welcome suggestions.
PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT
In May 2008, President Yahya Jammeh gave a speech during his ‘Dialogue with the People’ tour, in which he publicly denounced homosexuality and vowed to “cut off the head” of any homosexual in his country. He announced an ultimatum of 24 hours for LGBTI persons to flee the country before he would start seeking them out. He even ordered hotel owners to refuse to rent out rooms in which same-sex couples could commit 'unnatural acts'. Although the President later retracted his comment about cutting off the heads of LGBTI persons, he stood by his other homophobic threats. He asserts that homosexuality is ‘strange behavior that even God will not tolerate’ (BBC News).
Just a year later in May 2009 President Jammeh urged members of the Alliance for Patriotic Reorientation and Construction (APRC) to not allow same-sex couples to stay in their compounds. This is in violation of the Gambian Constitution that states that everyone is entitled to equal access to adequate housing (Gambia: Action Alert). In June 2009, two Spanish men were arrested for allegedly making homosexual proposals to a taxi driver.
The statements and threatened actions of the President have found support in the community. Alhaji Banding Drammeh, President of the Islamic Council of Gambia stated: ‘We thank President Jammeh for leading the battle against homosexuality in Africa. Our culture and religion are totally incompatible with this phenomenon’ (Human Rights Watch).
The U.S. Department of State’s 2010 Human Rights Report documents that there is societal discrimination against LGBT. However, there are no laws that specifically deny citizenship, employment, housing, education, or healthcare to LGBTI identified individuals (US Department of State).
During a rally in November 2011, President Jammeh threatened same-sex couples, declaring that 'if you do it I will slit your throat'. In a statement in 2013, he added that 'Homosexuals are not welcome in the Gambia. If we catch you, you will regret why you are born' (Washington Post).
In February 2014, President Jammeh reportedly asserted that 'LGBT actually stands for "leprosy, gonorrhoea, bacteria and tuberculosis" … We will fight these vermins called homosexuals or gays the same way we are fighting malaria-causing mosquitoes, if not more aggressively' (Human Rights Watch).
In May 2014, President Jammeh threatened to kill Gambians who seek asylum in Western countries citing persecution based on sexual orientation (Independent, Huffington Post).
Several organisations reported an increase in arrests and violence against LGBTI persons following the aggravated criminalisation of same-sex relationships through the 2014 Amendment to the Gambian Criminal Code. The subsequent homophobic arrests and torture of LGBTI persons in the Gambia are a manifestation of state-sponsored homophobia and transphobia. After the anti-LGBT legislation was passed, Human Rights Watch documented at least 14 arrests of LGBTI people in the Gambia, including torture of those detained (Human Rights Watch 2014, Human Rights Watch 2015). Amnesty International reported that at least 8 men and women were arrested and detained at the National Intelligence Agency headquarters in Banjul between 7 and 13 November 2014, and subjected to torture and ill-treatment including 'beatings, sensory deprivation and the threat of rape', intended to force them to confess same-sex acts (Amnesty International, see also The Guardian). On 18 and 19 November, 6 more women were arrested based on their presumed sexual orientation (Amnesty International).
The African Commission for Human and Peoples' Rights, based in Gambia's capital Banjul, passed a resolution condemning violence against LGBT persons in at its 55th session from April to May 2014. The Universal Periodic Review 2014 expressed repeated concerns about discrimination of LGBTI persons in the Gambia.
Note on obtaining country of origin information from the Gambia
Due to the tense socio-political climate around non-conforming sexual orientations and gender identities in the Gambia, obtaining corroborating information from the Gambia on the case of LGBTI asylum-seekers is a highly sensitive topic and likely to be very difficult. Friends or family members may not wish to be contacted by anyone hoping to assist an LGBTI asylum seeker. As reported by an expert in the Gambia in late 2015, they may hold negative attitudes towards LGBTI persons and feel let down by the person for bringing disgrace on the family. Moreover, even persons willing to help may fear to speak with representatives for fear of consequent repercussions from authorities. The increasing criminalisation of non-conforming sexual orientations and gender identities results in the fear that only discussing the subject is punishable or may lead to arrest by association.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
There are no NGOs actively and openly supporting LGBTI individuals in the Gambia.
COUNTRY OF ORIGIN SPECIALISTS
Dr Gail Hopkins
Email: ghopknsgmail [dot] com
Dr Gail Hopkins is an expert on migration and refugees. Her research focuses on integration and on social and community cohesion and analyses the impact of displacement on refugee livelihoods, education and life potential. Her focus also includes impact on receiving communities, building resilient communities and policies, and the effectiveness of humanitarian and development programmes. Since 2009, she has been working with Casamance refugees in Gambia displaced due to the ongoing conflict in the Casamance region of Southern Senegal. Dr Hopkins has conducted research on Liberian refugees in Gambia, Somali women settling in London and Toronto, and has been currently conducting research on Syrian refugees in Lebanon. She has extensively published on Casamance refugees in Gambia, has also taught at the University of Gambia and worked as consultant for the UNHCR and for the Commonwealth Secretariat.
Researched by: Rhiannon Archer
Updated by: Vera Wriedt
Last update: 08.01.2016