HOCA RWANDA: Situation Update- The Treatment of LGBT Individuals in Rwandan Law and Society
Overview of the Situation
Homosexuality is not a new phenomenon in Rwanda. Though many traditionalists claim that homosexuality is a "new" practice that has resulted from modernization and the import of western cultural ideas into the country, many people of older generations admit that the practice has existed since they can remember. What has changed, however, is the ability of sexual minority groups to come together, to form alliances for solidarity, and to begin to advocate for their rights. Moreover, the open expression of homosexuality, though still restricted in many ways, has been a very recent event in Rwanda and across the African continent.
Despite the emergence of a small, though largely underground, movement to begin advocating the rights of sexual minority groups, many in Rwanda continue to deny the existence of homosexuality in the country, or restrict its reach to limited segments of the population. According to Edwin Musoni of the New Times newspaper, "Presently, there are fewer cases of homosexuality in Rwanda compared to other neighbouring countries. The few cases of the vice in Rwanda have been reported in prisons, Nyamirambo Sector, Biryogo Cell and they especially involve youths." Moreover, many claim that the emergence of homosexuality in Rwanda is a recent development, which they claim is contrary to Rwandese culture.
As these debates begin to enter the public domain, it is important to understand the current situation faced by gays and lesbians in the country from a rights-based perspective and to understand what exactly the law says about homosexuality, discrimination and individual rights in the context of sexual orientation.
Overview of Relevant Laws
Rwanda’s law is currently silent on the issue of homosexuality: neither the 2003 Constitution nor the 1977 Penal Code make mention of any crime related to homosexuality. Sexual offenses are outlined in the 1977 Penal Code, and include rape, rape of children, sexual torture, adultery, prostitution, and exhibitionism. While homosexual acts involving either sex are punishable if one participant is under the age of 18 and the other is older, as provided in section 362 of the Penal Code, no provision exists for the criminalization of sexual acts between consenting adults. Article 26 of the 2003 Constitution does limit the right to marriage to heterosexual couples, stating that, "Only civil monogamous marriage between a man and a woman is recognized." Yet this restriction on marriage in no way implies a limitation on sexual behavior between consenting same-sex partners.
Not only does the law fail to specifically prohibit homosexual acts, but the Constitution also contains a number of articles which guarantee the right to privacy, opinion and belief, which supports the right to freedom and privacy with regards to an individual’s personal life and sexual practices. Article 22 of the 2003 Constitution states that: "The private life, family, home or correspondence of a person shall not be subjected to arbitrary interference; his or her honour and good reputation shall be respected." Moreover, Article 33 guarantees that, "Freedom of thought, opinion, conscience, religion, worship and the public manifestation thereof is guaranteed by the State in accordance with conditions determined by law."
These fundamental rights and freedoms are guaranteed by the Constitution, so long as these rights do not violate other laws or the freedoms of others, as stipulated in the Constitution, Penal Code and Organic Laws of the country. Article 43 states that, "In the exercise of rights and enjoyment of freedoms, every person shall only be subjected to the limitations set by the law in order to ensure the recognition and respect of others’ rights and freedoms, good morals, public order and social welfare which characterize a democratic society." Some lawmakers have interpreted Article 43 to suggest that it is within their power to restrict or criminalize homosexuality under their Constitutional power to uphold the "good morals" of society. However, a strong argument can be made against such a broad interpretation of the law, which would give sweeping powers to law-enforcement and judicial authorities to determine what is deemed ‘moral’ within the society. Such powers would normally be reserved for lawmakers, and should be explicitly legislated within the country’s laws. An overly-broad interpretation of this article could lead to a wide-spread denial of rights if misused.
Rwanda’s Constitution also contains strong provisions to protect individuals and groups from discrimination. Article 11 of the Constitution states that, "All Rwandans are born and remain free and equal in rights and duties. Discrimination of whatever kind based on, inter alia, ethnic origin, tribe, clan, colour, sex, region, social origin, religion or faith, opinion, economic status, culture, language, social status, physical or mental disability or any other form of discrimination is prohibited and punishable by law." Moreover, Article 46 states that, "Every citizen has the duty to relate to other persons without discrimination and to maintain relations conducive to safeguarding, promoting and reinforcing mutual respect, solidarity and tolerance." Together, these articles uphold the right of every citizen to be free from discrimination, and vest every citizen with the duty to refrain from discriminating against others. Though sexual orientation is not specifically included in the list of characteristics for which discrimination is illegal and prohibited, the law is written to be inclusive of all forms of discrimination related to an individual’s identity, which should be interpreted to include one’s sexual orientation.
Inciting or promoting discrimination against others is also prohibited under the Constitution. Article 33 states that, "Propagation of ethnic, regional, racial or discrimination or any other form of division is punishable by law." Moreover, specific duties are assigned to the institution of the press under Article 34, which states that, "Freedom of the press and freedom of information are recognized and guaranteed by the State. Freedom of speech and freedom of information shall not prejudice public order and good morals, the right of every citizen to honour, good reputation and the privacy of personal and family life. It is also guaranteed so long as it does not prejudice the protection of the youth and minors." The Constitution vests oversight responsibility with the High Council of the Press to monitor the media’s compliance with these limitations on press freedom. Thus, any effort to promote or incite discrimination or hatred against individuals on the basis of their sexual orientation violates the state’s guarantee of non-discrimination, particularly when such discriminatory or inflammatory statements are propagated by members of the press using media outlets.
Finally, some advocates of laws to criminalize homosexuality argue that the state should prohibit the practice as part of the state’s obligation to protect the values and cultural traditions of the country. Proponents of this limitation argue that homosexuality is not a part of Rwanda’s cultural heritage, and as a result, it should not be accepted. This argument, apart from erroneously claiming that homosexuality has not always existed within the culture, also overlooks the state’s obligation to ensure that the traditions it promotes adhere to the human rights principles and fundamental freedoms guaranteed within the Constitution. Article 51 states that, "The State has the duty to safeguard and to promote positive values based on cultural traditions and practices so long as they do not conflict with human rights, public order and good morals. The State equally has the duty to preserve the national cultural heritage as well as genocide memorials and sites." Thus, the cultural values protected by the State must not conflict with human rights protections guaranteed elsewhere in the Constitution, invalidating the claim that homosexuality should be criminalized on the basis that it is contrary to the culture and traditional values of the country.
Overview of the Current Situation
Keeping in mind the above discussion of the fundamental rights and freedoms guaranteed to individuals, the increasing level of harassment and intimidation in the country around the issue of homosexuality, and recent incidents in which the rights of individuals were violated because of their sexual orientation, are clearly in violation of the rights and freedoms guaranteed to individuals by the constitution.
Threats of Legal Changes
In recent months, there has been an increase in rhetoric within the press on the subject of criminalizing homosexuality in the country. Rwanda’s Government is in the process of revising the country’s penal code, which dates from 1977, for the primary purpose of abolishing the death penalty. In the process, it plans to revise many other outdated provisions of the penal code. Several members of Parliament and other individuals have expressed the intention to introduce a law to criminalize homosexuality, though it is unclear whether such reforms have a high level of support from other lawmakers or from the public.
For example, Deputy Francis Kaboneka is quoted as saying, "We don't have a specific law on homosexuality, but we have a family law which states that a person only gets married to another person of the opposite sex." Though he thought that there were not yet many cases of homosexuality in the country, he added: "We need to have a law against this vice."
Similarly, according to the New Times newspaper, Deputy Henriette Sebera argued, "that MPs should table a motion on it and come up with a law against the practice of homosexuality in Rwanda." She said, "Homosexuality is automatically illegal in our country; our culture only allows a man to have a relationship with a woman, and that is why anybody caught in that act should be punished."
Finally, Deputy Ezekias Rwabuhihi is quoted as saying that, "As society changes then the laws should always be changing, too. The constitution states it clearly that a man gets married to one woman nothing more than that; whoever comes up with something different should considered a criminal."
Other government officials have been quoted making statements that would imply that they view homosexuality as a right that is not guaranteed by the Constitution, suggesting their support for such attempts at criminalization. When asked whether the prisons in Rwanda should distribute condoms in order to address the problem of HIV transmission inside prison walls, Balinda Steven, the Director of Prisons in Rwanda, said, "I think that distribution of condoms to prisoners would be disastrous gesture. We would be giving them the right to homosexuality. I have had discussions with a few prison directors and we agreed to maintain our control systems." In addition to being contrary to Rwandan law, which does not forbid homosexuality, such policy decisions violate other fundamental rights guaranteed in the Constitution, including the right to health and ultimately, the right to life.
As the issues of homosexuality and gay rights gain prominence within the media, there is legitimate concern that calls to criminalize homosexuality will gain momentum and support. This is a crucial time for targeted advocacy with lawmakers who support upholding the right to sexual privacy and freedom, in order to prevent discriminatory or regressive laws from being passed.
Increasing Discussion of Homosexuality in the Media
A number of articles have recently appeared in newspapers around the country, highlighting voices from various sides of the debate on homosexuality and homosexual rights. This increased attention to the issue of homosexuality in Rwanda is most likely the result of the situation of homosexuals in Uganda, where the government and courts have denied appeals of homosexuals and advocacy groups for recognition and protection of their basic rights. This ongoing situation has been extensively covered and debated in the Rwandan press though, encouragingly, opinions on both sides of this debate have been published.
In addition to lawmakers who have begun to speak of their support for criminalization, other prominent figures have made public statements condemning homosexuality and homosexual rights. Archbishop Emmanuel Kolini, the head of Rwanda's Anglican Church and an influential figure in Rwanda’s social and political spheres, said: "Even when the government decides to legalise homosexuality our church will not accept it its totally illegal and un-Godly." He went on to say that homosexuality is against Rwandan culture and the government should not adopt it. "Man was meant to reproduce and something contrary to that is destruction," Kolini said. By using such strong language as "destruction" Kolini sets a dangerous tone for the discussion of homosexuality in the country.
The use of such inflammatory language and arguments are evident in some of the more disturbing articles that have appeared in the press over the last several months. In an article entitled "Can Rwanda Tolerate Homosexuality," the author, Gasheegu Muramila compares homosexuality to "moral genocide," and accuses those who practice homosexuality of harboring "genocidal ideology." The author’s argument is that homosexuality is against the natural order, as humans were intended to reproduce; he equates homosexuality with genocide by claiming that homosexuals are opposed to continuation of the species. By using such a sensitive and politically inflammatory term to describe homosexuals is dangerous in an environment as fragile and sensitive as post-genocide Rwanda. Other articles, meant to breed hatred and contempt for homosexuals, have compared homosexuals to rapists, child molesters, or other sorts of sexual predators, claiming they target vulnerable individuals and are a threat to the safety of society. These extremist opinions have the effect of reinforcing biased and discriminatory attitudes within the minds of the public.
Incitement to Violence
Even more dangerously, journalists have been using the media to incite violence and discrimination against homosexuals. In a recent incident, a radio broadcaster named Kenny from the radio station Flash FM aired messages over a one-week period in which he discussed the fact that homosexual activists had attended a conference in Nairobi to network with other LGBT groups and were organizing themselves to begin advocating for their rights. He warned about the danger that these individuals posed within the society, and called upon the public to hunt down homosexuals within their communities, and to find the people who are helping homosexuals to advocate for the vice, especially their leaders and partners. When someone called into the program and asked what to do when they found one of the activists, the announcer told the man to "burn them." Furthermore, the broadcaster announced the names, places of work and residence, and physical descriptions of 3 of the activists: Bebe working at a salon in Nyamirambo, Bebos working at a motor garage as a mechanic and Shema. Bebos' workplace was searched and her residence as well.
As a result of this threat, 2 of the members whose names had been broadcast were flown out of the country to Uganda with the assistance of IGLHRC and SMUG. 10 other members fled to Uganda over the next few weeks, and are still living there.
Arbitrary Detentions and Abuse of Justice institutions
Over recent months, many homosexuals in the country have been arbitrarily detained by the police or have been denied their rights by the authorities because of their sexual orientation.
Recently, Patrick Ngoga, a HOCA member, was arbitrarily arrested by the police in the area of Gikondo, in Kabuga cell. He was picked up by two men wearing civilian clothes and carrying police badges, and the first thing that these men did was to break his SIM card so he couldn’t get in touch with anyone. The men arrested Patrick and accused him of being a homosexual, and of attending conferences outside of the country to get information and spread stories about Rwanda. He was held in prison for several days and denied access to a lawyer, but was never formally charged. He was released after another member who knew where Patrick was being held approached the police authorities along with two other activists, and negotiated his release in exchange for a payment. When Patrick was released from prison, he had been severely beaten and was traumatized, and left for Uganda shortly thereafter.
Another such episode of arbitrary and illegal detention was reported by a young Congolese man living in Kigali. One night, when he was leaving a Kigali nightclub, he was jumped in the parking lot by three men. They forced him into the back of a car and gang raped him. A few days later, he went to the police to report the crime, and instead of investigating his case, the police arrested the man for being homosexual and put him in prison. He was released one week later, but the rape was never reported or investigated.
Another member of HOCA was detained by the police in Gikondo area of Kigali and held in prison for three months. He was accused of homosexuality, though never formally charged or given access to a lawyer. During this time, his name, address and picture were broadcast on TV, in newspapers and on the radio. As a result, he continues to face harassment and threats from individuals within his community.
Another member had his identity card confiscated by the local police, and it was ripped into pieces. When he went to the office of the local authorities to request to have a new card issued, the local authorities came up with a number of bureaucratic hurdles that have prevented him from getting a new identity card.
One woman living in the Nyamirambo area of Kigali was chased out of her house by the landlord and the local authorities when rumors were spread about her sexual orientation. As a result, she had difficulty finding accommodation and has been harassed by neighbors and others within the community.
These examples illustrate the level of discrimination and ongoing rights violations that LGBT individuals within Rwanda face. Though there is no law criminalizing homosexuality, and Rwanda has clear procedural guarantees in place to govern practices for the detention, arrest, trial and sentencing of individuals accused of crimes, violation of these procedures seems to be commonplace for homosexuals. As a result, gays and lesbians live in legitimate fear of harassment and illegal rights violations by the police, government authorities, and individuals in their communities.
The worsening situation of gays and lesbians in Rwanda poses a serious threat to the security and freedom of individuals in the country, and warrants immediate attention. Particularly alarming has been the recent use of the media to advocate violence against individuals because of their sexual orientation, and a seeming increase in arbitrary detention of individuals on the same basis. Rather than protecting the rights of gays and lesbians in the country, certain authorities have chosen to abuse their power in violation of the rights of these individuals.
Police officers and other officials must investigate and immediately put an end to illegal detentions of homosexuals, and must ensure that their safety and rights are being protected in their communities. The constitution clearly protects the privacy of individuals and in no way suggests that homosexuality be considered a criminal offense. Moreover, there are strong protections in place against discrimination and abuse of individual or group rights, which must be respected. There is also an urgent need for activism to encourage the government to immediately stop and punish any individuals who abuse the press as a tool to incite violence or discrimination against individuals, particularly given the painful past of Rwanda, when the radio was used to incite the population to commit genocide.
Finally, there is an urgent need for well-planned and targeted advocacy to oppose an amendment to the penal code to criminalize homosexuality. Institutionalizing discrimination against individuals on the basis of their sexual orientation not only violates the fundamental principles and freedoms outlined in the constitution of the country, but also sets a dangerous precedent for discrimination and division in a country that has battled these issues for many decades.
This is a call to action for human rights defenders, both inside and outside of the country, to stand up for individuals whose rights are being abused on the basis of their sexual orientation, and for the government to take action to ensure that these individual’s rights are protected.
Published on November 20, 2007 | OutRight Action International an LGBT human rights organization