An official review of Ivory Coast’s Penal Code has been under way for a little more than two years.
The latest proposed changes would offer some additional protection for gays, lesbians and bisexuals, but pose new risks for trans people and perhaps other non-conformists.
The proposed new Penal Code would not change Ivory Coast’s status as one of the 21 African nations that do not consider same-sex intimacy to be a crime. Two sections of the proposal are of particular interest to LGBT people and allies:
Under Section 360 of the current law, public indecency is punishable by three months to two years in prison and a fine of 50,000 to 500,000 West African CFA francs (about US $85 to $850). That section states that, if the public indecency consists of “an act that is indecent or contrary to nature with an individual of the same sex,” the sentence can be slightly longer — from six months to two years in prison. The penalties may be doubled if the crime is committed against a minor or in the presence of a minor of 18 years of age.
In a draft of a revised new Penal Code, proposed by experts at the Ministry of Justice, the provision for harsher punishment for same-sex indecency was deleted from Section 360, retaining only the reference to a “sexual act.”
As part of the process of reviewing the proposed new Penal Code, a group of judges, academics and representatives of civil society organizations met in a workshop from July 27 to 29 in the seaside town of Grand-Bassam to help analyze the ministry’s proposal.
Unfortunately, participants at the workshop concluded that a definition of indecent exposure should not be limited to a “sexual act.” Instead, they proposed that Section 360 should define public indecency as including “any act committed in a public place or open to the public …, offending morals and likely to disturb public order.”
The workshop discussion seemed to be unaffected by homophobia. In fact, lesbians, gays and bisexuals might rejoice that the current Penal Code’s reference to same-sex activity has been removed.
But the proposed new wording of Section 360 might open the door to all sorts of abuse against trans and queer people. who might be perceived by security forces as “offending morals.” That’s especially so because the concept of good morals is not defined anywhere in the Penal Code.
Lengthy work on the Penal Code revision lies ahead. After the workshop, experts from the Ministry of Justice will incorporate its comments into a revised draft, which will need to be approved by the Minister of Justice. The text will then be submitted to the cabinet before going to parliament.
A new Section 199 was troubling for attentive observers who are concerned about the treatment of LGBT people in Ivory Coast.
This section relates to discrimination. The proposed new Section 199 would prohibit five forms of discrimination: racism, xenophobia, tribalism, racial discrimination and religious discrimination.
It would not forbid discrimination based on gender, sex, disability, social status, political opinion, disease, etc., let alone sexual orientation and gender identity. However, separate from the Penal Code, other laws prohibit almost all forms of discrimination in Ivory Coast, including discrimination against women and disabled people. Only LGBT people are left out.
During the workshop, the Ivorian League of Human Rights (LIDHO) proposed changing Section 199 to include a broader definition that would cover all types of discrimination. The goal was to allow LGBT people to use Section 199 as protection against discrimination.
The LIDHO proposal did not specifically mention discrimination on the basis of sexual orientation or gender identity in order to avoid the risk of focusing the attention of homophobic participants back on Section 360. Doing so might have jeopardized the minor improvement contained in that part of the draft Penal Code.
Unfortunately, other members of the workshop found that LIDHO’s proposed definition was too broad to be included in the Penal Code.
Jean Marc Yao, Ph.D., is a human rights activist in Abidjan, Ivory Coast, with a strong interest in LGBTI rights issues. He works with the Ivorian League for Human Rights (LIDHO), Alternative Côte d’Ivoire and the Lesbian Life Association Ivory Coast. Contact him by e-mail via 76crimes (at) gmail.com.
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