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LGBTQ rights in Madagascar

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LGBTQ rights in Madagascar Madagascar
Madagascar
StatusLegal among persons at least 21 years old
Gender identityNo
MilitaryUnknown
Discrimination protectionsNone
Family rights
Recognition of relationshipsNo
AdoptionNo

Lesbian, gay, bisexual, and transgender (LGBT) persons in Madagascar face legal challenges not experienced by non-LGBT residents.

Law regarding same-sex sexual activity

Same-sex sexual activity among persons at least 21 years of age is legal in Madagascar. The Penal Code provides for a prison sentence of two to five years and a fine of 2 to 10 million ariary (US$900 to US$4,500) for acts that are "indecent or against nature with an individual of the same sex under the age of 21".

Discrimination protections

The law in Madagascar does not outlaw discrimination with regard to sexual orientation or gender identity.

Adoption of children

Only married, heterosexual couples may adopt children in Madagascar.

Living conditions

The U.S. Department of State's 2011 Human Rights Report found that "here was general societal discrimination against the LGBT community" and that "exual orientation and gender identity were not widely discussed in the country, with public attitudes ranging from tacit acceptance to violent rejection, particularly of transgender sex workers". The report also found that, "LGBT sex workers were frequently targets of aggression, including verbal abuse, stone throwing, and even murder. In recent years, awareness of 'gay pride' increased through positive media exposure, but general attitudes have not changed."

Madagascar's obligations under international law and treaties

In 1994, the United Nations Human Rights Council (UNHRC) confirmed in Toonen v. Australia that laws criminalizing consensual same-sex activity violate both the right to privacy and the right to equality before the law without any discrimination, contrary to Article 17 of the International Covenant on Civil and Political Rights (the "Covenant"). Those laws interfere with privacy rights, regardless of whether they are actively enforced, and "run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention" by driving marginalised communities underground. The UNHRC has subsequently affirmed this position on many occasions by urging countries to repeal laws that criminalize consensual same-sex activity and thereby bring their legislation into conformity with the Covenant. Madagascar ratified the Covenant on 21 June 1971.

The United Nations Working Group on Arbitrary Detention in June 2002 found that arrests for being homosexual or for engaging in consensual homosexual conduct are, by definition, human rights violations. The arrests constitute an arbitrary deprivation of liberty in contravention of Article 2, Paragraph 1 of the Universal Declaration of Human Rights and of Article 2, Paragraph 1 and Article 26 of the Covenant. The Declaration is part of international law and is, therefore, binding on Madagascar.

This position is consistent with other regional and national jurisprudence, including the decisions of the:

The South African court said,

Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy. ... The criminalisation of sodomy in private between consenting males is a severe limitation of a gay man's right to equality in relation to sexual orientation.... It is at the same time a severe limitation of the gay man's rights to privacy, dignity and freedom. The harm caused by the provision can, and often does, affect his ability to achieve self-identification and self-fulfilment. The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays.

Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires each state party to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction". Article 1.1 defines "torture" to be,

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The Committee Against Torture, which officially monitors the implementation of the convention by state parties to the convention, has said that the protection of minority or marginalized individuals or populations especially at risk of torture is a part of the obligation to prevent torture or ill-treatment. Their laws against torture must cover all persons, regardless of "gender, sexual orientation, transgender identity". Madagascar ratified the convention on 13 December 2005.

Anand Grover, the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, reported in April 2010 that laws criminalising sexual conduct between consenting adults impede HIV education and prevention efforts and are incompatible with the right to health. The Joint United Nations Programme on HIV and AIDS (commonly known as UNAIDS) has a similar view.

The international obligations of countries to respect the human rights of all persons, irrespective of sexual orientation and gender identity, were articulated in 2006 in the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. The Principles were developed and adopted unanimously by a group of human rights experts. Principle 2 ("Rights to Equality and Non-Discrimination") affirms that everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity, and specifically obligates countries to,

repeal criminal and other legal provisions that prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity.

Principle 6 (the "Right to Privacy") affirms the right of everyone, regardless of sexual orientation or gender identity, to the enjoyment of privacy without arbitrary or unlawful interference, and confirms the obligation of countries to,

b) Repeal all laws that criminalise consensual sexual activity among persons of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity.

c) Ensure that criminal and other legal provisions of general application are not applied to de facto criminalise consensual sexual activity among persons of the same sex who are over the age of consent.

The United Nations High Commissioner for Human Rights, Navanethem Pillay, in a statement to a High-Level Meeting on Human Rights, Sexual Orientation and Gender Identity at the United Nations on 18 December 2008 affirmed.

The principle of universality admits no exception. Human rights truly are the birthright of all human beings. Sadly ... there remain too many countries which continue to criminalize sexual relations between consenting adults of the same sex in defiance of established human rights law. Ironically many of these laws, like Apartheid laws that criminalized sexual relations between consenting adults of different races, are relics of the colonial era and are increasingly becoming recognized as anachronistic and as inconsistent both with international law and with traditional values of dignity, inclusion and respect for all.... It is our task and our challenge to move beyond a debate on whether all human beings have rights – for such questions were long ago laid to rest by the Universal Declaration – and instead to secure the climate for implementation.... Those who are lesbian, gay or bisexual, those who are transgender, transsexual or intersex, are full and equal members of the human family, and are entitled to be treated as such.

See also

References

  1. ^ 2011 Country Reports on Human Rights Practices: Madagascar, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, page 26
  2. Intercountry Adoption: Madagascar, Bureau of Consular Affairs, U.S. Department of State, January 2011
  3. Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, Fiftieth session, CCPR/C/50/D/488/1992, 4 April 1994
  4. International Covenant on Civil and Political Rights, Article 17
  5. Concluding Observations of the Human Rights Committee - Kenya, United Nations Human Rights Committee, 83rd Session, CCPR/CO/83/KEN, 29 April 2005
  6. Human Rights Committee Concluding Observations: United States of America, A/50/40, paragraph 287, 3 October 1995
  7. Concluding Observations of the Human Rights Committee: Cyprus, CCPR/C/79/Add.88, paragraph 11, 6 August 1998
  8. Concluding Observations of the Human Rights Committee: Chile, CCPR/C/79/Add.104, paragraph 20, 30 March 1999
  9. Concluding Observations of the Human Rights Committee: Lesotho, CCPR/C/79/Add.106, paragraph 13, 8 April 1999
  10. Concluding Observations of the Human Rights Committee: Romania, CCPR/C/79/Add.111, paragraph 16, 28 July 1999
  11. Concluding Observations of the Human Rights Committee: Egypt, CCPR/CO/76/EGY, paragraph 19, 28 November 2002
  12. Concluding Observations of the Human Rights Committee: United States of America, CCPR/C/USA/CO/3, paragraph 25 on page 8, 15 September 2006
  13. Concluding Observations of the Human Rights Committee: Barbados, CCPR/C/BRB/CO/3, paragraph 13 on page 5, 11 May 2007
  14. Concluding Observations of the Human Rights Committee: Chile, CCPR/C/CHL/CO/5, paragraph 16 on page 5, 18 May 2007
  15. Status of the International Covenant on Civil and Political Rights, United Nations Treaty Collection, 7 August 2012
  16. Communication addressed to the Government on 3 September 2001, United Nations Working Group on Arbitrary Detention, Opinion No. 7/2002 (Egypt), adopted 21 June 2002
  17. International Covenant on Civil and Political Rights, Article 2, Paragraph 1
  18. International Covenant on Civil and Political Rights, Article 26
  19. Dudgeon v. United Kingdom, European Court of Human Rights, , Series A, No. 45, 23 September 1981
  20. Norris v. Ireland, European Court of Human Rights, Application No. 10581/83, 26 October 1988
  21. Modinos v. Cyprus, European Court of Human Rights, No. 7/1992/352/426, 25 March 1993
  22. ^ National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, Case CCT 11/98, 9 October 1988
  23. Lawrence v. Texas, United States Supreme Court, 539 U.S. 558 (2003), 26 June 2003
  24. Thomas McCosker v. The State, High Court of Fiji, Criminal Appeal Case Nos. HAA0085 & 86 OF 2005, 26 August 2005
  25. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  26. "General Comment No. 2 - Implementation of Article 2 by States Parties", Committee Against Torture, CAT/C/GC/2, 24 January 2008, page 6, paragraph 21
  27. Status of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Treaty Collection
  28. "Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health", submitted to the United Nations Human Rights Council by Anand Grover, 27 April 2010, A/HRC/14/20, paragraphs 13 and 68, pages 7 and 20
  29. "Guidance for Applicants to the Global fund to Fight AIDS, TB and Malaria Round 8 Call for proposals", Joint United Nations Programme on HIV and AIDS, 28 February 2008
  30. "The Yogyakarta Principles"
  31. Refer also to "Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles", authored by Michael O'Flaherty & John Fisher, Human Rights Law Review, 8:2, 2008, pages 207-248
  32. Refer also to "Jurisprudential Annotations to the Yogyakarta Principles", University of Nottingham Human Rights Law Centre, under the direction of Professor Michael O'Flaherty with the principal researcher being Gwyneth Williams
  33. "Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity", Report of the United Nations High Commissioner for Human Rights, Submitted to the United Nations Human Rights Council, A/HRC/19/41, 17 November 2011, page 5, footnote 7
  34. "Addressing Human Rights Violations Based on Sexual Orientation & Gender Identity at the 10th Session of the Human Rights Council", ARC International, March 2009, page 2

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