

Author: Selamawit Tsegaye Lulseged
African Union Human Rights Observers Mission in Burundi (formerly)


In 2008 a number of ‘homosexuals’ signed a petition to appeal to the Prime Minister, at the time, for equal rights.  This, however, informed the public the wide existence of individuals who identified themselves as gay, lesbian and bisexual, leading to the strong resistance of religious leaders demanding for a constitutional ban of the act.

The issue of sexual minority rights, within the discourse of human rights, is perhaps one of the major topics the international community has failed to come into a consensus on. Among the reasons for the resistance is the argument that the International Bill of Rights, that are considered to be the footprint of human rights principles do not mention sexual orientation as one of the grounds for non-discrimination, which leaves the door open for States to address the issue based on the particularities of cultural norms of the society.

In contrast to this view, United Nations consensus documents have outlined explicitly that both national, regional, cultural and religious values should not be invoked in a dismissal of fundamental human rights principles.  Thus, the discriminatory laws against sexually marginalised people contradict international human rights instruments.

The 1995 Federal Democratic and Republic of Ethiopia (FDRE) Constitution does not make any reference to homosexuality. However, the 2005 revised Criminal Code, which followed the 1957 Penal Code, punishes same-sex sexual acts. The 1957 Penal Code, under article 600 prohibited same-sex sexual practices on the ground of public morality. Following this, the 2005 Criminal Code of Ethiopia under title IV covering crimes against morals and family, and in particular article 629 punishes  ‘homosexual act or any other indecent activity’ with a term of imprisonment of not less than one year.  As per article 630, the sentence may be increased to ten years when the person is making a profession out of such activity or exploits a dependency or relationship in order to exercise influence over the other person to submit to the act. Under the Criminal Code, the criminalisation is over the homosexual act, which is religiously referred to as ‘sodomy’, but not specifically the status of being identified as one. Here, it is clear that the provisions are inspired by religious dogmas that are integrated into the social norms, however, it fosters a subtle but profound query on how the claimed offense is proved in a court of law.

The FDRE Constitution under articles 10 (1) and 25 articulates that human rights are ‘natural, inviolable and inalienable rights’ and are equally guaranteed to all people irrespective of race, nation, nationality or any other status. However, it could be argued that the rights that are guaranteed under chapter three of the FDRE Constitution are subject to limitation and in case of same-sex sexuality, this limitation is articulated through the criminalisation of same-sex conduct under the Criminal Code of Ethiopia. The argument also extends that this is a legitimate legal provision aimed at the protection of the public peace, morals, and national security. Hence, it is argued that the limitation of the rights in the case of supposed ‘deviant’ sexual orientation of an individual does not contradict the Constitution’s aim of providing protection for everyone.

The law is evidently inspired by the conviction of the society intended at preserving the hetero-normative traditional values of family, which is presumed to be between a man and a woman. However, it is an undeniable fact that the outlawing of what is considered to be an innate proclivity to human identity, such as sexual desire between consenting adults patently contradicts the notion of human rights, which we all possess by virtue of being human beings. Criminalisation of same-sex intimacy plays a huge role in the subjugation of LGB individuals in the country.

Most of the informants in the study conducted on the life and experience of LGB Ethiopians living in Addis Ababa, in 2014 using a qualitative approach by utilising key informant interviews and focus group discussions, emphasised that the criminalisation of the act is a driving force for violence, intolerance, and stigma in schools, prisons, and workplaces. The study aimed at exploring the living situation of those who identify themselves as gay, lesbian and bisexual in Addis Ababa, the multifaceted challenges these communities face and its human rights implication.

The study further illustrates that the dire situation in the country, which reinforced by the criminalisation of the act, subsequently leads individuals who identify themselves as gay, lesbian and bisexual to live in fear, shame, and isolation with no protection of the law. Additionally, the state censorship and negation of the community’s existence exposes LGB individuals to a number of social problems, endemic sexually transmitted diseases being the major one.

The International Covenant on Civil and Political Rights (ICCPR) under article 2 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) under article 2 stresses the importance of equality and non-discrimination on any ground.  Furthermore, article 26 of the ICCPR reinforces article 2 by setting out the principle of equality, namely that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”

Similarly, article 2 and 3 (1) & (2) of the African Charter on Human and Peoples Rights highlight that individuals are entitled to the rights and freedoms ensured in the Charter without distinction of any kind.  Article 25 of the FDRE Constitution guarantees the right to equality and non-discrimination as well. Non-discrimination and equal protection are tools to protect individuals from a direct or indirect abuse and life-threatening situations. However, the criminalisation of same-sex sexual act is directly discriminatory in itself as LGB individuals in Addis Ababa live under constant intimidation of being exposed and prosecuted. And the key question here is whether human rights treaties Ethiopia is a signatory to can be invoked to challenge the law that criminalises individuals on the ground of their sexual identity.

About the Author:
Selamawit Tsegaye Lulseged holds LLB and Master’s in Human Rights from Addis Ababa University. She recently worked with African Union Human Rights Observers Mission in Burundi. Her research interest areas include interdisciplinary perspectives of human rights, sexual and reproductive rights, gender and sexuality and human rights in Africa.

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