Text updated 17 July 2017
Links updated 17 July 2017
What this is about
Britain is a leading member of The Commonwealth. The majority of countries in the Commonwealth continue to apply colonial era laws which persecute the gay community. This is in defiance of the Commonwealth’s own Charter and legal commitments to uphold the UN Declaration of Human Rights.
In recent years gay groups around the world and the British Government have become increasingly concerned at the worsening situation of gay men and lesbians in many Commonwealth countries, especially following the murders of gay activists Brian Williamson on 9 June 2004 and David Kato on January 26, 2011.
The Commonwealth charter does not specifically enshrine protection of people based on their sexual orientation, but does include us. “We are implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds,” it reads. It also enforces a commitment to the UN declaration of human rights.
Since first publishing this article on Gay Activist, a total of one Commonwealth country has legalised gay relationships, while another one country has decided not to enforce the law.
Cambodia’s PM Hun Sen, left, with ASEAN Secretary-General Surin Pitsuwan after the ceremony for the adoption of the ASEAN Human Rights Declaration, during the ASEAN Summit in Phnom Penh, November 18, 2012. | Associated Press | 14113
Some Commonwealth Countries are also members of the Association of Southeast Asian Nations (ASEAN) – they are: Brunei, Malaysia, Singapore and Burma (Myanmar). A new ASEAN Human Rights Declaration was adopted on November 18, 2012 but sexual orientation and gender identity are not yet covered. ASEAN Secretary-General Surin Pitsuwan had only praise for the accord when speaking with reporters afterwards. “I think that is a major, major development… the leaders have just signed that into a declaration committing themselves, every government, every country, to the highest standards, existing and available. And this certainly can be used to monitor the practice, the protection, the promotion of human rights here in the ASEAN countries.”
Of particular concern, critics say, are sections that suggest rights will be considered in light of “regional and national contexts.” “You cannot have a national or regional exception,” said Phil Robertson, who is with New York-based Human Rights Watch. “You cannot set out a wide range of instances, like public morality, when all these rights would not apply. All they have done is they have put the loopholes up front and then they have tried to decorate around them.”
Archbishop Desmond Tutu | Graeme Robertson | 14114
Archbishop Desmond Tutu argues that decriminalisation will result in a better understanding of the spread of HIV among homosexual men. “In the future, the laws that criminalise so many forms of human love and commitment will look the way apartheid laws do to us now – so obviously wrong. Never let anyone make you feel inferior for being who you are. When you live the life you were meant to live, in freedom and dignity.”
The Colonial Legacy
The majority of the countries in the Commonwealth of Nations still criminalize sexual acts between consenting adults of the same sex and other forms of sexual orientation, gender identity and expression – the legacy of the British Empire. Usually, former colonial administrators established anti-gay laws during the 19th century. The majority of countries then retained these laws following independence from the UK.
The LGBTI community face systematic persecution in many Commonwealth states and are often subject to arbitrary arrest, harassment and discrimination. There are formal and informal systems of discrimination.
The criminalisation of gay and lesbian people impacts the wider societies in those countries, as democratic governance and sustainable development cannot take place where groups of people are excluded from enjoying their civil liberties.
Gay and lesbian people in Commonwealth Countries where homosexuality is illegal face: physical and verbal violence, undue restrictions on freedom of expression, freedom of assembly and association; violations of the right to enjoy respect for one’s private and family life, rights to education, work and health, and social and financial exclusion and stigmatisation.
The UK has threatened to cut or re-target aid to countries which continue to persecute the gay community and do not legalise same sex relationships. Meanwhile the Commonwealth Countries which still persecute the gay community are opposed to any change on religious and nationalist grounds. The chasm between the two political and social cultures on either side of the debate is currently producing a deadlock.
The Foreign Office have produced a toolkit for agencies and persons working in countries where homosexuality is illegal, to aid their own efforts to change the situation for the gay and lesbian community in the Commonwealth (other resources, below).
In July 2012 the first ever international conference on LGBTI Rights in the Commonwealth was held. Delegates were provided with the facts surrounding the laws that criminalise homosexuality and explored how recent successes in countries such as India had been achieved.
On 11 March 2013 HM The Queen, head of the Commonwealth, signed a new declaration of rights for all people in the Commonwealth, which does not specifically mention but includes gay rights.
On 5 July 2013, “Human Rights, Sexual Orientation and Gender Identity in the Commonwealth: Struggles for Decriminalisation and Change”, the first book on lesbian, gay, bisexual and transgender issues in the Commonwealth, was published in London and Toronto. The book examines the relationship of past decriminalization processes to current struggles, for activists, researchers and decision‐makers.
Recognition of LGBTI community
In June 2017 the Commonwealth approved the accreditation of the Commonwealth Equality Network, the first LGBTI-focused organisation to be officially accredited by the Commonwealth. The network was established in 2013. Equality Network members will benefit from increased access to, participation in and information about Commonwealth matters.
Paul Dillane of the Kaleidoscope Trust, said: “Let us be clear about the scale of the challenge: 36 countries in the Commonwealth continue to criminalise consensual same-sex acts and in many others LGBTI people experience discrimination and violence.
“TCEN provides an important platform for activists around the world to organise and collaborate in the struggle for equality and freedom. This decision provides TCEN with a vital opportunity to put the human rights of LGBTI people on the agenda.”
The application for accreditation had been supported by Canada.
What is the legal status for gays in each Commonwealth Country?
These are the commonwealth countries where homosexuality is legal:
Australia; Bahamas; Canada; Cyprus; Lesotho; Malta; Mozambique; New Zealand; Rwanda; South Africa; Tuvalu; United Kingdom, and Vanuatu.
These are the commonwealth countries where homosexuality is illegal:
Antigua and Barbuda; Bangladesh; Barbados; Belize; Botswana; Brunei; Cameroon; Dominica; Ghana; Grenada; Guyana; India; Jamaica; Kenya; Kiribati; Malawi; Maldives; Malaysia; Mauritius; Namibia; Nauru; Nigeria; Pakistan; Papua New Guinea; Saint Kitts and Nevis; Saint Lucia; Saint Vincent and the Grenadines; Samoa; Seychelles; Sierra Leone; Singapore; Solomon Islands; Sri Lanka; Swaziland; Tanzania; Tonga; Trinidad and Tobago; Uganda; Zambia.
Gambia was also a member of the Commonwealth where homosexuality was illegal, but announced in October 2013 it had terminated its membership.
How much aid does the UK give to countries where homosexuality is illegal?
Lots. In 2013 the BBC reported that Pakistan received £338m and Bangladesh £272m of aid from the UK. These were two of the biggest Commonwealth recipients of direct aid from the UK Government.
Acts of Parliament
Human Rights Initiative, Undated: Report on the impact of laws criminalising same sex sexual conduct in the Commonwealth [pdf]
Christian Today India, 25 July 2012: Tutu supports decriminalisation of homosexuality worldwide
Voice of America, 18 Nov 2012: ASEAN Approves Controversial Human Rights Declaration
Daily Telegraph, 9 March 2013: Queen to sign new charter backing gay rights
Foreign Office, 30 July 2010: An FCO programme for promoting the human rights of LGBT people
Foreign Office, 30 July 2010: LGBT Rights Toolkit [pdf]
Institute of Commonwealth Studies, 5 June 2013: New Human Rights Consortium (HRC) and ICWS joint publication on LGBT rights in the Commonwealth to be launched in Toronto and London
Guardian, 10 Nov 2013: Homosexuality illegal in 41 out of 53 Commonwealth countries – report
Independent, 22 November 2015: HIV Crisis worsened by anti gay laws in Commonwealth Countries
BBC: Where does the UK’s Aid go?
Pink News, 20 June 2017: Commonwealth grants recognition to LGBTI equality network