Prosecution Based Solely on Bias, Not Evidence
May 17, 2013
When the prosecution can’t even be bothered to present eyewitnesses, it’s clear that the case is lacking in substance.
Neela Ghoshal, LGBT rights researcher

(Yaoundé) – The Cameroonian authorities should drop the charges against two transgender youth rather than appealing their case to the Supreme Court, five human rights organizations said today. Jonas K. and Franky D. are being prosecuted on what the appeals court has already ruled were trumped-up charges of homosexual conduct, the groups said in a letter to the Yaoundé prosecutor today.

The five organizations – Alternatives-Cameroun, Association for the Defense of Homosexuals (ADEFHO), Cameroonian Foundation for AIDS (CAMFAIDS), Human Rights Watch, and the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) –  asked the prosecutor  to withdraw a motion challenging an Appeals Court decision that overruled Jonas’s and Franky’s conviction.

“An appeals court has already determined there is no evidence against Jonas and Franky,” said Stéphane Koche, vice president at ADEFHO. “Why is the Cameroonian government wasting its time persecuting two innocent young people?”

The organizations sent their letter on the occasion of the International Day against Homophobia and Transphobia (IDAHoT),  celebrated around the world by human rights activists calling for an end to discrimination, hatred, and violence against lesbian, gay, bisexual, transgender, and intersex (LGBTI) people.

The two transgender youth, who identify as women, were arrested in July 2011 by police who stopped their vehicle and saw that they were dressed in women’s clothing. Police claimed that Jonas, Franky, and a third person were “groping each other’s genitals” in the car, which the accused denied. The prosecutor did not present any eyewitnesses and relied on confessions that Jonas and Franky made in police custody and later said were coerced.

 A trial court convicted them of homosexual conduct in November 2011 in what defense lawyers described as a legal charade. The judge suggested that because they testified that they were drinking Bailey’s liqueur the night of the arrest – which the judge considered a “women’s drink” – they must be homosexual.

On January 7 the Central Region Appeals Court, acknowledging the lack of evidence, overturned the conviction. The appeals court reasoned that the lower court had improperly relied upon confessions that Jonas and Franky made under duress in police custody and that the prosecution failed to present any witnesses who had actually seen the alleged offense take place. It also found that even if there were truth to the police report that the vehicle’s occupants were “groping” one another, this might legally be regarded as “attempted homosexuality,” but not “homosexuality,” which is understood by Cameroonian law as requiring penetration.

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Background
 

Jonas K. and Franky D. were arrested on July 26, 2011, along with a male acquaintance, Hilaire N., when police stopped their car and requested their identification cards. Neither Jonas nor Franky had an identity document. The police noticed that they appeared to be biologically male, but wore women’s clothing. Police arrested them on this basis. A police report following the arrest claims that the three individuals were “groping each other” in the vehicle, and a further report submitted to the court by a police inspector claims that the driver was seen reaching into Jonas’s underpants.

No eyewitnesses were produced in court. Instead, another police officer testified about the contents of his colleague’s report. Jonas K. and Franky D. both deny that any “groping” was taking place in the vehicle. Their lawyer argued in court that given that the driver saw a police checkpoint and brought the vehicle to a complete stop there, it would be astonishing if sexual activity were going on in the car at the time it stopped.

Jonas and Franky told their lawyers, CAMFAIDS, and Human Rights Watch that they were beaten in police custody and forced to sign confessions, which they later withdrew. On November 22, 2011, they were tried, and convicted on the same day. They were sentenced to five years in prison, Cameroon’s maximum sentence for homosexual conduct, before being released in January 2013 following their successful appeal.

Cameroon initiated prosecutions against at least 28 people for homosexual conduct between 2010 and 2012, and at least 12 were convicted. At least seven people are in pre-trial detention on charges of homosexuality, while at least one, a lesbian, has been convicted and is serving out a five-year prison term. At least eight others have been released on bail but still have charges pending against them. As far as Human Rights Watch has been able to determine, Cameroon has prosecuted more people for consensual same-sex conduct in the last three years than any other country in the world.

Cameroon’s law criminalizing same-sex conduct violates its international commitments, as well as its own constitution. Cameroon is party to the International Covenant on Civil and Political Rights (ICCPR), which provides for equal protection, non-discrimination, and the right to privacy. On this basis, the UN Human Rights Committee has ruled that criminalization of consensual same-sex conduct between adults violates the ICCPR.

Cameroon’s constitution integrates this covenant and other treaties that Cameroon has ratified into national law. According to article 45 of the constitution, in case of conflicts, international treaties that Cameroon has ratified override national law. The constitution further ensures that “All human beings are born equal.” It guarantees equal rights to all, as well as “the protection of minorities.”

The International Day against Homophobia and Transphobia was created in 2004 to
draw the attention of policymakers, opinion leaders, social movements, public opinion, and the
media to the effects of homophobia and transphobia on people’s human rights, and to promote of tolerance, respect, and freedom, regardless of people’s sexual orientation or gender identity. It is celebrated in at least 100 countries around the world.

“When the prosecution can’t even be bothered to present eyewitnesses, it’s clear that the case is lacking in substance,” said Neela Ghoshal, LGBT rights researcher at Human Rights Watch.

“This case looks like an ideologically motivated attack on sexual and gender minorities, based on a discriminatory law, and should never have been in the courts to begin with.”

Following the appeals court decision, Jonas and Franky were released in January from Yaoundé’s Kondengui prison, where they had been imprisoned for a year and a half. On January 30, President Paul Biya, at a news conference in Paris, referred to their release as evidence of “progress.” Biya told journalists, “We have recently learned that people convicted of homosexuality have been released, so there is a change of mind, do not despair.”  

However, the public prosecutor’s office had already filed a motion, on January 10, to challenge the Appeals Court’s decision at the Supreme Court. The transgender women’s defense lawyers only learned of the challenge in March.

“Biya is trying to convince the international community that things are improving for LGBTI people in Cameroon, while at the same time, the state is aggressively attacking LGBTI rights,” said Dominique Menoga, founder at the Cameroonian Foundation for AIDS (CAMFAIDS), an advocacy organization that seeks to promote LGBTI rights. “This is hypocrisy at the highest levels.”

At the May 2013 Universal Periodic Review (UPR) of Cameroon at the United Nations Human Rights Council, 15 UN member states made recommendations to Cameroon related to its obligations to uphold basic human rights for LGBTI people. States recommended that Cameroon decriminalize same-sex conduct, protect LGBTI people from violence, and adopt measures to eliminate social prejudices and stigmatization on the basis of sexual orientation and gender identity.

“The numerousrecommendations made to Cameroon regarding its obligation to protect the rights of LGBTI people shows the extent to which Cameroon is perceived as an extremely repressive country in terms of gender identity and sexual orientation,” said Patricia Curzi , Liaison Officer at the UN International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).

The Minister of Foreign Affairs of Cameroon told states parties to the UN Human Rights Council that Cameroon needs “more time” to make progress on LGBTI rights – a response that offers little comfort to Jonas and Franky as well as other Cameroonians who are currently in prison because of their perceived sexual orientation or gender identity.

“As transgender people, Jonas and Franky are guilty of nothing more than having a gender identity that most Cameroonians don’t understand,” said Yves Yomb, executive director at Alternatives-Cameroun. “On the occasion of the International Day against Homophobia and Transphobia, we call on our government to accept UPR recommendations to end homophobic and transphobic discrimination, and simply to let people like Jonas and Franky live their lives in peace.”

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