II. Background

Cameroon’s anti-homosexuality law dates to 1972, when it was imposed by executive order by former President Ahmadou Ahidjo. Article 347 bis of the penal code, headed “Homosexuality,”  punishes “sexual relations with a person of the same sex” with a prison term of six months to five years and with a fine of 20,000 to 200,000 CFA francs (approximately US$40-$400).

In theory, the law only punishes homosexual conduct and not “homosexuality” per se (often understood as a homosexual identity). However, because the heading of the article uses the term “homosexuality,” and because this is the term commonly used by law enforcement officials and in legal records in Cameroon, we use this term throughout the report when discussing criminal charges against those accused of consensual same-sex conduct.

Prosecutions based on the law appear to have been almost non-existent before 2005, according to research by Alternatives-Cameroun, which examined prison files in Douala: the oldest case file found for homosexuality dated to 1997.[1]

It is not clear why a sudden wave of prosecutions began in 2005, but in May of that year, police arrested 32 people at a Yaoundé night club in the first of a series of high-profile arrests under this article. Eleven were prosecuted, and nine were convicted of homosexuality. The UN Working Group on Arbitrary Detention ruled in 2006 that “the existence of laws criminalizing homosexual behaviour between consenting adults in private and the application of criminal penalties against persons accused of such behaviour violate the rights to privacy and freedom from discrimination set forth in the International Covenant on Civil and Political Rights,” and that the arrests were therefore arbitrary.[2]

During Cameroon’s Universal Periodic Review (UPR) in December 2008, the UN Human Rights Council recommended that homosexual conduct be decriminalized. Cameroon did not accept this recommendation. In 2009, Alternatives-Cameroun petitioned the National Assembly to decriminalize homosexuality. The assembly did not respond to the petition.

Arrests appeared to continue at a steady pace between 2005 and 2010, but human rights organizations in Cameroon documented a surge in arrests in 2010 and 2011. Since January 2010, at least 28 persons have had homosexuality prosecutions initiated against them; at least eight have been convicted, although two were subsequently acquitted on appeal.

As of February 2013, at least three people were in prison awaiting trial on the same charges. At least nine others were free on bail but had ongoing cases against them. In all, ADEFHO has documented 51 arrests for homosexuality since 2005, though many cases likely go unreported.

Cameroonian lawyers have argued that because the law was imposed by the former president and was never approved by parliament, its application violates Cameroon’s 1996 constitution, which states that only parliament can legislate with regard to “the definition of felonies and misdemeanours and the institution of penalties of all kinds.”[3] However, courts have provided no response to motions that two lawyers filed in several of the recent homosexuality cases that challenge homosexuality prosecutions on the grounds that the law itself is unconstitutional.[4]

A Homophobic Environment

Law enforcement officials, prosecutors, and judges are undoubtedly influenced in their application of article 347 bis by the pervasive homophobic climate in Cameroon.

Newspapers regularly publish sensational stories about alleged homosexuals.[5] Prominent religious figures have also denounced homosexuality, with the archbishop of Yaoundé in December 2012 referring to same-sex marriage as a “crime against humanity.”[6] Ordinary citizens at times express virulent hatred toward lesbian, gay, bisexual, and transgender (LGBT) people, although other members of the community are more tolerant. When a vigilante mob violently attacked participants at a meeting on May 17, 2012, organized by three organizations providing services to LGBT people in Yaoundé, an activist from one of the organizations told CAMFAIDS and Human Rights Watch, “Women in the neighborhood came and tried to get the guys to stop beating people. The guys said, ‘They’re homosexual, we need to eliminate them.’”[7]

In this context, the individual biases of law enforcement officers may at times contribute to the arbitrary nature of arrests under article 347 bis. Alternatives-Cameroun has observed cases in which low-level police and gendarmes arrest people because of their own biases, without regard for the law. Even at the highest levels, officials indicate a lack of understanding of the law. The chief of the Cameroon police, for instance, told CAMFAIDS and Human Rights Watch, “Organizations here are promoting homosexuality.  They [gays] aren’t recognized; they don’t have the right to have meetings.”[8]

However, there is no law on the books prohibiting LGBT people from holding meetings. The police chief cited the Bible to justify the existing law against homosexuality, stating, “God said ‘Go forth and multiply.’ It’s not between two men or two women.”[9] Homophobic law enforcement and judicial officials are not held accountable when they abuse the law with impunity; none have been disciplined or prosecuted for abusing alleged LGBT people.

A Victimless “Crime”

“Homosexuality” is one of the few crimes in Cameroon’s penal code that, in most cases, has no victim.[10] Ironically, this means that suspects’ rights are even more circumscribed than in other criminal cases. This irony stems from Section 62 of the Criminal Procedure Code, which states that charges will be discontinued based on “the withdrawal of the complaint or the civil claim by the civil party who lodged the complaint in respect of a simple offence or a misdemeanor.”[11] Homosexuality is a misdemeanor, but persons suspected of homosexuality almost never benefit from the withdrawal of charges. In only two of the ten case studies documented below is there a “civil party” on the record; in other cases, prosecution was at the initiative of the state.

Police Chief Martin Mbarga Nguélé told CAMFAIDS and Human Rights Watch that the victim in homosexuality cases is “society.” He did not explain in what way society suffered as a result of private, consensual same-sex conduct.

Inadequate Legal Framework for Handling Rape, Sexual Assault, and Offenses against Minors

In a few cases, “homosexuality” charges are applied in cases of rape or sexual assault between persons of the same sex, including sex with minors below the age of consent. Rape and sexual assault are serious crimes and should be prosecuted. However, gender-neutral laws, which do not differentiate between perpetrators who are of the same sex or opposite sex of their victims, are the most appropriate way to deal with such crimes.

One serious gap in Cameroonian law is that article 296 of the penal code, which criminalizes rape, only applies to female victims.[12] The limited definition of rape may lead some law enforcement officials to believe that the best way to address rape between persons of the same sex is to charge the perpetrator with “homosexuality” under article 347 bis. This legal lacuna has the unfortunate result that consensual and non-consensual homosexual acts become conflated in the eyes of law enforcement officials, the judiciary, and, by extension, the broader public.

Not only does this result in persons being prosecuted for consensual conduct, it also means that where there is rape, perpetrators are given differential treatment depending on whether their victim is male or female. For those who rape female victims, under the “rape” law, the penalty is five to ten years. But for those who rape men, if they are prosecuted under the “homosexuality” law, the penalty is lighter: six months to five years.

Some sexual assault cases that do not amount to rape are prosecuted under article 295 of the penal code, which criminalizes “private indecency” and is gender-neutral.[13] It provides for up to four years’ imprisonment.

Laws on offenses against children are also constructed in a gender-neutral manner. In Cameroon, the legal age of majority is 21 years. Cameroonian criminal law, in defining offenses against children, uses three gradients: several different laws address crimes against children under 16 years, children under 18 years, and children under 21 years.

Article 346 criminalizes “indecent offense against a minor of less than 16 years.”[14] Sexual relations with a person under 16 years are punishable by 10 to 15 years in prison. In other words, children under 16, of either sex, are considered unable to consent.[15] The article is gender-neutral, as is appropriate from the standpoint of international law: it would punish perpetrators of the same sex of the victim and the opposite sex of the victim equally.

Article 346 further sets forth that rape of a minor under 16 years is punishable by 15 to 25 years in prison. It is unclear whether “rape” in this context, following the logic of article 296, only applies to female victims, or whether it is intended to be gender-neutral.

Article 347 punishes “[I]ndecent offense against a minor of 16 to 21 years.” It states that if the offenses detailed in articles 295, 296, or 347 bis – sexual assault (“private indecency”), rape, or homosexuality – are committed against a minor of 16 to 21 years, the penalties provided for under the given articles are doubled. Thus, consensual sexual intercourse between an adult and a person of the opposite sex between 16 and 21 years is permissible under the law; but consensual sexual intercourse between an adult and a person of the same sex between 16 and 21 years is criminalized on two levels.

None of the cases described in this report involve sexual conduct between adults and minors of under 16 years. However, several cases involve consensual same-sex conduct between adults and minors between adults and minors between 16 and 21 years. International law provides no strict guidance on the age of legal majority for sexual consent; however, what is clear is that provisions on sexual crimes should not afford differential treatment on the basis of whether or not the perpetrator and the victim are the same gender.

To resolve these inconsistencies, Cameroon should amend its rape law to apply equally to men and women, and ensure that legislation on rape or sexual assault of children applies equally to boys and girls. Article 347 provides reasonable protections against rape and sexual assault for children between 16 and 21 years, but it should not be used to reinforce punishments for consensual same-sex conduct.

Anti-Homosexuality Laws and International Law

This report focuses largely on due process violations and other human rights violations committed in Cameroon in the process of arresting and prosecuting people for consensual same-sex conduct. The magnitude of the abuses makes urgent the call for an end to arrests under article 347 bis.

However, even if Cameroon’s own criminal laws and procedure were respected fully in the enforcement of article 347 bis, the article itself would still contravene international human rights law.

The African Charter on Human and People’s Rights guarantees every individual the right to equal protection before the law and non-discrimination. The African Commission on Human and Peoples’ Rights, the body charged with monitoring states parties’ compliance with the African Charter, has said that equal protection extends to sexual orientation. It has also stated that the principle of non-discrimination, including on the ground of sexual orientation, is the foundation for the enjoyment of all human rights:

Together with equality before the law and equal protection of the law, the principle of non-discrimination provided under Article 2 of the Charter provides the foundation for the enjoyment of all human rights.… The aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation.[20]

The International Covenant on Civil and Political Rights (ICCPR), to which Cameroon is a state party, provides for equal protection, non-discrimination, and the right to privacy.[21] On this basis, the UN Human Rights Committee has ruled that criminalization of consensual same-sex conduct between adults violates the ICCPR.[22]