Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Congo LGBTI Resources

(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)

 

International law

The Republic of the Congo has signed and ratified the 1945 United Nations Charter. It   prohibits discrimination on the basis of sex, birth or ‘other status’, but there is no express mention of sexual orientation or gender identity.

The Congo has also ratified the International Covenant on Civil and Political Rights and the International Covenant on Economical Social and Cultural Rights. Based upon the rights and freedoms enumerated in the 1948 Universal Declaration of Human Rights, they promote respect for and observance of human rights and freedoms. The Congo is obliged to exercise the rights contained in the covenants without discrimination.

There is no explicit mention of sexuality or gender identity in any of these legal instruments, but they do refer to 'or other status'. In Toonen v Australia the UN Human Rights Committee decided that 'or other status' includes sexual orientation. There was no mention of gender identity, which leaves open the position of transgender and intersex persons under the covenants.  

Regional Law

The Republic of the Congo has ratified the 1981 African Charter on Human and Peoples’ Rights. The charter prohibits discrimination, but there is no explicit reference to sexual orientation or gender identity.

National Law

Congolese national law does not prohibit discrimination based on sexual orientation or gender identity.

The 2002 Constitution of the Republic of the Congo does not explicitly discriminate against LGBTI persons. However, Article 300 of the constitution prohibits ‘public outrage against decency’ punishable by imprisonment of up to two years. Article 331 states that anyone who ‘commits a shameless act or an act against nature with an individual of the same sex under the age of 21’ may be imprisoned from 6 months up to 3 years, and may receive a fine.

The NGO Association de Soutien aux Groupes Vulnerables (ASGV) claims these laws are not used by the authorities to arrest or prosecute LGBTI. The last reported arrest was in 1996, when several individuals were arrested and briefly detained for homosexuality.

Congo’s national courts lack independence and are frequently criticised for corruption. Due to the lack of separation of powers, judicial decisions are often influenced by political interests. The resulting judicial bias reflecting the government’s negative attitude to LGBTI persons is likely to significantly affect the fairness of trials and hearings. For example, the majority of members of the Congolese Human Rights Commission are presidential appointees.

 

CASE LAW        

Refugee Review Tribunal Australia, 15 July 2008

This is an application for the review of a decision to refuse a Congolese male a Protection Visa. The application was refused on the basis that the applicant does not fall within the scope of the Refugees Convention. The applicant feared persecution based on his sexual orientation if returned to The Congo. The tribunal affirmed the decision not to grant the protection visa, finding that the applicant’s evidence for his homosexuality was not credible.

 

PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT

State and Political Attitudes

The republic of the Congo has a secular government; however it has been reported that religious activists are strongly influencing political attitudes. 80% of the Congolese population now adhere to the Christian faith. Traditional indigenous religions were overtaken by Christianity in the twentieth century as a result of Christian missionaries, and the biblical influence has a negative effect on LGBTI rights as it condemns homosexuality. It is reported that prior to colonial westernisation there were no African laws discriminating against homosexuality. When questioned on the topic of South Africa’s decision to legislate same sex marriage in 2006, the Congolese government responded by saying 'homosexuality does not exist in Congo' , which suggests a denial and rejection of homosexuality.

Societal Attitudes

Same sex relationships are socially stigmatised, and consequently there is no public LGBTI community. Whilst there are many LGBTI individuals living in The Congo, it remains a taboo.

LGBTI individuals that do not conceal their sexual orientation and gender identity are treated as second-class citizens. A lesbian woman from The Congo reported on the strict exclusion faced by non-conforming individuals. She states that even where there is support for your status, such as a lesbian in a feminist organisation, there is still prejudice against lesbians from heterosexual members of the organisation.  

A human rights report by the U.S Department of State in 2013 claims that there were no known incidents of violence towards LGBTI individuals in that year, and that free speech is not limited for the LGBTI community. However, a gay activist from The Congo reported of his mother trying to ‘inject him with a syringe full of gasoline when she discovered that he was gay’. After this failed, his family told the community about his sexual orientation, which led to him being beaten by local men.   

 

NON-GOVERNMENTAL ORGANISATIONS  (NGOs)   

We do not currently list any LGBTI NGOs in Congo-Brazzaville, but we welcome suggestions.

 

COUNTRY OF ORIGIN SPECIALISTS

We do not currently list a specialist in LGBTI issues in Congo-Brazzaville, but we welcome suggestions.

 

Researched by: Cameron O'Donnell

Email: camodonnellathotmail [dot] co [dot] uk

 

 

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