By: Cynthia Achieng

Impunity Watch News Staff Writer

GHANA – On February 27, 2024, the Parliament of Ghana passed legislation that severely restricts and penalizes the LGBTQ+ community. Ghana is the latest to impose hefty penalties against those who identify as LGBTQ, as part of a growing opposition to LGBTQ rights in conservative West Africa.

The bill seeks to punish those who engage in LGBTQ sexual acts as well as those who advocate for their rights with prison sentences ranging from six months to three years. It also imposes a three-to-five-year sentence for wilful promotion, sponsorship, or support of LGBTQ activities. This new legislation will take effect if signed into law by President Nana Akufo-Addo. 

Human rights activists across the world have expressed discontent, calling the bill a set-back for human rights while urging President Akufo-Addo to reject it. However, the bill has received backing from Muslim, Christian, and Ghanaian traditional leaders who form a large part of the Ghanaian Parliament.

In 2022, the African Commission on Human and People’s Rights (ACHPR), Africa’s human rights watchdog, rejected applications by three Human Rights Organizations (HROs) for Observer Status on the ground that “sexual orientation is not an expressly recognized right or freedom under the African Charter” and is ‘contrary to the virtues of African values.” The groups, two of which were founded in Africa were Alternative Côte d’Ivoire, Human Rights First Rwanda, andSynergia–Initiatives for Human Rights. In their statement, the organizations expressed their dismay over the decision of the African Commission which, they said, departs from measures to protect the LGBTQ people and violates the African Charter’s principles of non-discrimination and tolerance.

Article 2 of the African Charter on Human and People’s Rights provides that:

“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.”

The HROs argue that “other status,” as used in the Charter, is not limited to the grounds indicated in the Charter but extends to others, including sexual orientation.

According to Amnesty International, 31 African countries currently criminalize same-sex consensual sexual activities. As of March 4, the bill had not yet reached President Akufo-Addo.

For further information, please see:

Al-Jazeera – Ghana’s Parliament passes anti-LGBTQ Bill – 28 February 2024  

Amnesty International – Africa: Barrage of discriminatory laws stoking hate against LGBTI persons – January 9 2024

BBC – Ghana passes Bill making identifying as LGBTQ+ illegal – 28 February 2024

Joint Statement in Response to Decision of African Commission – N.D.

Reuters – Ghana parliament passes stringent anti-LGBTQ law – 28 February 2024

Reuters – Ghana’s president says anti-LGBTQ bill has not reached his desk – 5 March 2024

By: Rachel Wallisky

Impunity Watch News Staff Writer

DODOMA, Tanzania — Of the nine new judgments the African Court on Human and Peoples’ Rights (AfCHPR) issued during its opening ceremony on November 7, 2023, three are appeals of capital sentences imposed in the United Republic of Tanzania. Arguments for these cases were all heard by the AfCHPR during its September 2023 term.

Background

In Tanzania, a person convicted of murder or treason must be sentenced to death with few exceptions. While murder convictions are relatively rare, courts in Tanzania have interpreted the law to say that a capital sentence is mandatory for these cases. Tanzania has taken an abolitionist stance on the death penalty, having not carried out an execution since 1994. However, the law mandating capital punishment is still codified in statute and many are sentenced to death. Most murder sentences are commuted to life imprisonment. The AfCHPR has held in the past that mandatory death penalty statutes violates the right to life as guaranteed under Article 4 of the African Charter on Human and Peoples’ Rights (the Charter). Additionally, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) condemns mandatory capital punishment.

The Cases

The first case, John Lazaro v. United Republic of Tanzania, is an appeal from the murder conviction of Mr. Lazaro, a Tanzanian national. Mr. Lazaro argued that several of his rights were violated during his trial by the domestic courts, including his right to life under Article 4 and right to dignity under Article 5 of the Charter. The Court agreed that Mr. Lazaro’s right to life under Article 4 had been violated by the mandatory imposition of the death penalty, and his right to dignity under Article 5 had been violated due to the method of execution prescribed by the domestic courts, namely hanging.

The second case, Makungu Misalaba v. United Republic of Tanania, is an appeal from the murder conviction of Mr. Misalaba, a Tanzanian national. Mr. Misalaba was granted a presidential pardon, and his capital sentences was commuted to life imprisonment. Mr. Misalaba stated several of his rights were violated during his trial by the domestic courts, despite his pardon, including his right to life and right to dignity under Article 4 and Article 5 of the Charter, respectively. The Court agreed that Mr. Misalaba’s right to life was violated but disagreed that his Article 5 rights were violated, awarding him with TZS 500,000 in moral damages.

The third case, Chrizant John v. United Republic of Tanania, is an appeal from the murder conviction of Mr. John, a Tanzanian national. Mr. John also argued his Article 4 and 5 rRight to Life and Right to Dignity, among other rights, were violated during his trial by domestic courts. Uniquely, Mr. John called upon the Court to order Tanzania to remove the mandatory death sentence provision for the offense of murder. The Court agreed that Mr. John’s Article 4 and 5 rights were violated and ordered Tanzania to pay TZS 500,000 in moral damages.

The Dissenting Opinion

The dissenting opinion was written by Judge Blaise Tchikaya regarding all three cases. Judge Tchikaya criticizes the court for “retreat[ing]” from the AfCHPR’s power to interpret the law. He argues that the court should have taken the initiative to state that the death penalty is contrary to Articles 4 and 5 of the Charter and States should take measures to remove it from their national legislation.

Additionally, Judge Tchikaya argues these decisions are contradictory. In the Chrizant John judgment, Judge Tchikaya criticizes the Court for finding that Mr. John’s Article 7 right to be heard was not violated because the right requires the sentence imposed to be “legally unobjectionable.” Because the death penalty is not a “legally unobjectionable” sentence, Judge Tchikaya finds Mr. John’s Article 7 rights to have been violated. In the Makungu Misalaba judgment, Judge Tchikaya argues that the majority contradicted itself by finding that Mr. Misalaba’s Article 5 right to dignity was not violated while at the same time finding his Article 4 right to life was violated, because to sentence someone to death is to violate both Article 4 and Article 5 of the Charter. For similar reasons, Judge Tchikaya argues the John Lazaro judgment is subject to the same criticisms.

For further information, please see:

AfCHPR – Dissenting Opinion of Judge Blaise Tchikaya, John Lazaro v. United Republic of Tanzania, Makungu Misalaba v. United Republic of Tanzania, Chrizant John v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, Makungu Misalaba v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, Chrizant John v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, John Lazaro v. United Republic of Tanzania – 7 Nov. 2023

Amnesty International – Case on death-row detainees challenging mandatory death penalty – 25 June 2023

Parlementarians for Global Action – Tanzania and the Death Penalty