Chapter 1: Introduction

1.1 Background and justification of the study

Cameroon is situated in the Central African sub-region. The Constitution of 1996 embodies the country‟s multiparty character, dominated by the ruling party, CPDM (Cameroon People‟s Democratic Movement) and more than 200 other political parties. The Constitution resulted from the revision of the 1972 Constitution and makes Cameroon a State with executive, legislative and judiciary powers clearly defined and separated. In its preamble, the Constitution of Cameroon, while guaranteeing to each individual inalienable and sacred rights ensuring protection of minorities, pledges its commitment to the fundamental freedoms enshrined in the Universal Declaration of Human Rights (UDHR) and all related international conventions duly ratified by Cameroon.

Many African leaders, such as Presidents Daniel arap Moi (the previous President of Kenya) and Robert Mugabe (Zimbabwe), continue to condemn same-sex acts by providing the punishment of homosexuality in their legislations including Cameroon. Former President Moi said that samesex practices are “un-African and against both the Bible and the Koran.”1 The Minister of Justice in Cameroon joined these leaders when he cited Article 29(7) of the African Charter on Human and Peoples‟ Rights by claiming that, “by virtue of African culture, homosexuality is not a value accepted in the Cameroonian society.”2 For many in the Cameroonian society, sexual acts between same-sex partners are a perversion and a practice against African culture, social ethics and norms. They also perceive homosexuality as a “means of social and economic ascension; a form of sorcery, witchcraft, and demoniac activity; a form of corruption; and distinctly not a part of African culture.”3

“Freedom and security of each individual and the protection of minorities”4 are some of the fundamental rights embodied in the Constitution promulgated in Cameroon (18 January 1996). Although enshrined by the supreme law of the country, protection of minorities is the main discrepancy highlighted between the Constitution and the Penal Code. Article 347bis of this Code states as follows: “Whoever has sexual relations with a person of the same sex shall be punished with imprisonment for from six months to five years and fine from 20 000 to 200 000 francs”5

African societies in general, and the Cameroonian society in particular have always had a fairly settled view on sexuality as practiced by sexual minorities, clearly indicating that such practices are “against nature” and violate the values through which sexuality in the way of African is defined in view of procreation. Even the African Charter on Human and Peoples‟ Rights “does not make any reference to gays, lesbians, or the issue of sexual orientation”.6 The Cameroonian society does not accept homosexuality and prejudice against sexual minorities is deeply entrenched, especially within government circles. Thus, any practice that comes within this framework falls into a “deviance, perversion or ritual practices of esoteric circles believed to come from the West.”7 The values upheld by the traditional African society supported and promoted by religious circles, hold that sexual practices by individuals of the same sex are a desecration of natural laws as handed down by God. Religious leaders criticize homosexuality and conceive it as a sin against God, nature and African values as well. On 25 December 2005, in his homily, Archbishop Tonye Bakot for example, denounced homosexuality by saying:

I must say that homosexuality is a conspiracy against the family and marriage. Do not accept it from us. We expose our youth to the grave moral perversion because of the power of money, for a job, entrance in to high school. We force our youth to homosexuality that we want to legalize. Homosexuality is a perversion against nature that we must all fight.8

Therefore, the realities of modern Cameroonian society, at least in some proportion and by keeping any measure otherwise tend to show a sharp break between the „African‟ sexuality that respects the natural laws, in terms of procreation as the founding principle, and sexuality for pleasure. Thus, affirming and practicing one‟s sexual orientation in Cameroon is against the law. Even worse, the law by condemning the practice of homosexual acts intrudes into people’s lives and makes public the acts belonging to the private sphere. When it comes to sexual orientation in Cameroon, where same-sex acts are punishable by five years‟ imprisonment, it is safest to live in hiding especially since the “Top 50 list” of homosexuals was published in many newspapers denouncing homosexuality, thus leading to the further persecution of perceived homosexuals. From the publication of the said list in 2006, the debate on homosexuality was raised and discussed throughout the country like, never before. The President of the Republic, Paul Biya, said the following in an interview about the newspaper publications of the list of presumed homosexuals:

It is not acceptable that based on uncontrolled rumour, we allow, as was recently the case, speculation on the virtues and vices of others. This breaches their rights to privacy and their reputation.9

The issue of homosexuality has goaded hatred and discrimination against gays and lesbians on the African continent including Cameroon. Thus, for African nations, decriminalising same-sex conducts would be contrary to African ethics. According to the recent incident on the question of homosexuality in Cameroon, this study seeks to examine the abuses and discrimination against same-sex relationships generated from homophobic attacks and the protection of lesbian, gay, bisexual and transgender (LGBT) persons by international human rights laws.

1.2 Problem statement

Sexual minorities in Africa remain a notion very hard to understand and to bear in peoples‟ minds. In Cameroon, the society treats LGBT persons with contempt; their rights are violated and they are unlawfully arrested. “When a man wears earrings, someone says that he is a homosexual and he is arrested. I do not agree with it.”10 The police arrest lesbians and gays on their presumed identity or only on the report of a friend or family member. People presumed to be homosexuals are arbitrarily arrested under Article 347bis of Penal Code, without any explanation or warrant. Once in prison, they are insulted, ill-treated, threatened and beaten up. Thus, being homosexual in Cameroon implies that one can be severely punished, and even ostracised from society. However, in accordance to the constitutional texts which, guarantee individuals‟ rights and liberties, Article 347bis of the Penal Code contravene the Constitution. The Constitution is the supreme law and all the other laws must comply with it. How therefore, does the Cameroonian government deal with the unconstitutionality of this article of the Penal Code which violates sexual minorities‟ rights what is the Cameroonian government doing in order to eradicate this unconstitutionality and conform to international human rights as well?
1.3 Research questions

The main research question is: whether Article 347bis of the Cameroonian Penal Code needs to be repealed? This question leads to the following sub questions:

1) What is the current situation on criminalising same-sex practice in Cameroon?

2) What are the legal and non-legal arguments for the decriminalisation of same-sex conduct in Cameroon? 3) What is the contribution of other disciplines to the process of decriminalisation of samesex practices?