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Supreme Court of Belize Invalidates Section of the Belize Criminal Code

Supreme Court of Belize Invalidates Section of the Belize Criminal Code Prohibiting Private Anal Sex Between Consenting Adults.

Caleb Orozco v The Attorney General of Belize & 7 Others

Supreme Court of Belize

Claim no. 668 of 2010

K. Benjamin CJ

August 10, 2016

Reported by Linda Awuor & Faith Wanjiku

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Constitutional Law - Fundamental Rights and Freedoms- recognition of human dignity, protection for personal privacy and protection of the privacy of the home-whether the words “with any person or” in section 53 of the Belize Criminal Code on unnatural crime could be interpreted to have violated the rights to the recognition of human dignity, protection for personal privacy and protection of the privacy of the home-Constitution of Belize, Chapter 4 of the Laws of Belize, section 3 (c)

Constitutional Law - Protection of Law- right to equal protection of the law of all persons-whether the words “with any person or” in section 53 of the Belize Criminal Code on unnatural crime could be interpreted to have violated the right to equal protection of the law of all persons- Constitution of Belize, Chapter 4 of the Laws of Belize, section 6 (1)

Constitutional Law - Protection of Right to Privacy- right to unlawful interference with privacy and respect for private life- whether the words “with any person or” in section 53 of the Belize Criminal Code on unnatural crime could be interpreted to have violated the right to unlawful interference with privacy and respect for private life- Constitution of Belize, Chapter 4 of the Laws of Belize, section 14 (1)

Statutes - Interpretationof Statutes –unnatural crime-whether the words “with any person or” in section 53 of the Belize Criminal Code on unnatural crime could be struck out-Belize Criminal Code, Chapter 101, section 53

Brief Facts

The Claimant brought a claim challenging the constitutional validity of section 53 of the Belize Criminal Code, Chapter 101 to the extent that it operated to criminalize anal sex between two consenting male adults in private. The grounds of the claim were that the accepted statutory interpretation of carnal intercourse against the order of nature was that section 53 of the Criminal Code criminalised anal sex between two consenting male adults in private. He alleged that section 53 violated the following rights under sections 3, 6 and 14 (1) of the Constitution:

a)    right to the recognition of human dignity guaranteed by section 3(c) of the Belize Constitution;

b)    right to the protection for personal privacy guaranteed by section 3(c);

c)    right to the protection of the privacy of the home guaranteed by section 3(c);

d)    right not to be subjected to arbitrary or unlawful interference with privacy or unlawful interference with privacy guaranteed by section 14(1);

e)    right to respect for private life guaranteed by section 14(1); and

f)       right to the equal protection of the law without discrimination guaranteed by section 6(1).

The Claimant submitted that section 53 of the Criminal Code was in breach of his fundamental right to recognition of his human dignity by:

(i) stigmatising him as being a criminal by virtue of being a homosexual

(ii) categorising consensual male homosexual acts in private with forced intercourse, sex with minors and sex with animals.

The Claimant prayed for a declaration that section 53 of the Belize Criminal Code contravened the constitutional rights of the Applicant enshrined in sections 3, 6 and 14 of the Belize Constitution and affirmed in its Preamble and was accordingly, null and void and of no effect to the extent that it applied to carnal intercourse between persons. He also prayed for an order striking out the words “with any person or” appearing in the said section 53.

Issues

i.Whether section 53 of the Belize Criminal Code, Chapter 101 on unnatural crime violated the Applicant’s constitutional rights under sections 3, 6 and 14 (1) of the Constitution of Belize on fundamental rights and freedoms, protection of law and right to privacy.

ii.Whether the words “with any person or” in section 53 of the Belize Criminal Code on unnatural crime could be struck out on the basis of criminalizing anal sex between two consenting male adults in private.

Relevant Provisions of the Law

The Constitution of Belize, Chapter 4 of the Laws of Belize, as in force on March 1, 2012

Section 3 (c)-Fundamental Rights and Freedoms

Whereas every person in Belize is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-

c. protection for his family life, his personal privacy, the privacy of his home and other property and recognition of his human dignity.

Section 6(1)-Protection of Law

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

Section 14 (1) -Protection of Right to Privacy

A person shall not be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The private and family life, the home and the personal correspondence of every person shall be respected.

Belize Criminal Code Chapter 101

Section 53-Unnatural Crime

Every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years.

Held:

  1. Section 20 of the Belize Constitution on enforcement of protective provisions, unlike other earlier Constitutions in the Commonwealth Caribbean, included section 3 as being a provision that was enforceable by seeking redress in the Supreme Court.
  2. In as much as section 53 embraced acts involving both males and females, the impact on the dignity of a homosexual man was disproportionate given the deep stigmatization that was caused by them being the primary targets.The Constitution of South Africa provided at section 10 that everyone had inherent dignity and the right to have their dignity respected and protected.
  3. In National Coalition for Gay and Lesbian Equality v Minister of Justice, theConstitutional Court of South Africa held the common law offence of sodomy to beunconstitutional. In so doing, the right to human dignity was upheld. Ackermann, J held that the common law prohibition on sodomy criminalised all sexual intercourse per anum between men: regardless of the relationship of the couple who engaged therein, of the age of such couple, of the place where it occurred, or indeed any other circumstances whatsoever. He went on to state thatthere could be no doubt that the existence of a law which punished a form of sexual expression for gay men degraded and devalued gay men in the broader society. As such it was a palpable invasion of their dignity and a breach of section 10 of the Constitution.
  4. The foregoing dictum on human dignity was in all respects applicable to the plight of the Claimant based on the averments in his 1st affidavit. He was entitled to pray in his aid, section 3(c) of the Constitution and assert a violation of his right to human dignity as a person. Section 53 was in breach of the dignity of the Claimant and in violation of section 3(c). Further, such breach operated to inform the other rights from which the concept of human dignity emanated.
  5. In Dudgeon v UK, the European Court of Human Rights upheld a breach of the right to privacy (article 8) of the European Convention in relation to legislation in Northern Ireland that criminalized certain homosexual acts between consenting males.
  6. InState of Makwanyana, it was held that the very reason for establishing the Constitution, and for vesting the power of judicata review of all legislation in the Courts, was to protect the rights of minorities and others who could not protect their rights adequately through the democratic process. Those who were entitled to claim the protection included the social outcasts and marginalised people of the society. In Nadan & McCoskar v The State, Winter J referred to a strong lobby from responsible members of the community who held the view that decriminalization of homosexual conduct would be damaging to the society. His Lordship emphasized that Constitutional invalidity held sway over popular opinion.
  7. The Claimant submitted that paragraph (a) of the Preamble to the Constitution with the reference to the supremacy of God did not import any specific religious perspective, but rather, it acknowledged the historical origins of the fundamental rights in natural law and those rights were derived from sources beyond the state and its laws. The interpretation promoted the very diversity that existed in the society and was reflected in the Constitution. For the reasons espoused, section 53 violated the fundamental right of the Claimant to privacy.
  8. Section 3 guaranteed certain rights as set out in paragraphs (a), (b), (c) and (d) to the individual without discrimination regardless of his race, place of origin, political opinions, colour, creed or sex. The reference to non-discrimination did not confer any rights. Section 3 did not create an autonomous right to non-discrimination. As Lord Hoffman put it in Matadeen v Pointu discrimination as to a matter that fell within the ambit of one of the specified rights and freedoms would violate section 3, even though the substantive right had not itself been infringed.
  9. Section 16 of the Constitution conferred protection against discriminatory laws (subsection (1)) and discriminatory treatment by a person or authority (subsection (2)). As previously iterated, in as much as section 53 was framed in gender neutral language, the evidence demonstrated that it was discriminatory in its effect. The Claimant had shown that he had been rendered a criminal by virtue of his homosexuality.
  10. In Toonen v Australia Communication the UN Human Rights Committee (UNHRC) ruled that various forms of sexual conduct including consensual sexual acts between men in private under Tasmanian law were incompatible with the International Covenant on Civil and Political Rights (ICCPR). The UNHRC held that the word sex in articles 2 and 26 of the ICCPR was to be interpreted as including sexual orientation. That interpretation had been adopted by other UN Agencies and bodies. Belize had acceded to the ICCPR in 1996, two years subsequent to Toonen. As such, it could be argued that in doing so, it tacitly embraced the interpretation rendered by the UNHRC. It had been further urged by the 1st, 2nd and 3rd Interested Parties that by virtue of section 65 of the Interpretation Act, Chapter 1, given that more than one interpretation was reasonably possible, a construction which was consistent with the international obligations of the Government of Belize was to be preferred to one which was not. Those contentions were accepted to the effect that the word sex in section 16(3) of the Constitution was to be interpreted to extend to sexual orientation.
  11. Section 6(1) of the Constitution dealt with equal protection of all persons under the law. The remaining subsections dealt with procedural fairness. The Claimant had invited the Court to not restrict section 6(1) to procedural matters. The onus was therefore on the Claimant to show that he had been discriminated against. On the evidence he had demonstrated that he had been discriminated against on the basis of his sexual orientation. No evidence had been led to show that such discrimination was justifiable. The same position applied in relation to section 16(1) and (3) applying the interpretation of sex to embrace sexual orientation as enunciated by the UNHRC in Toonen. The Claimant had been discriminated against on the basis of his sexual orientation by virtue of section 16(1) and (3) and there was an ongoing violation of his right under section 6(1) to equality before the law and the equal protection of the law without discrimination.
  12. Section 53 of the Belize Criminal Code, Chapter 101 was declared to have contravened sections 3, 6, 12 and 16 of the Belize Constitution to the extent that it applied to carnal intercourse against the order of nature between persons.
  13. The Supreme Court was empowered to revise the language of an existing law to bring it into conformity with the Constitution. Such power extended to the revision of the language of the existing law to bring it into conformity with the Constitution. Such revision could address matters of substance. In the present case, the challenge was restricted to consensual sexual acts between adults in private and did not extend to non-consensual sexual acts, sexual acts with children and sexual acts with animals. The Court was prepared to adopt the solution suggested in the written submission of the Claimant to read down section 53 to exclude consensual private sexual acts between adults. Therefore, the following sentence could be added to section 53 of the Criminal Code, Chapter 101: “This section shall not apply to consensual sexual acts between adults in private.”

 

Claim upheld, Defendant to bear costs.

Relevance to the Kenyan Situation

Homosexuality in Kenya is a criminal offence, more so under the Penal code of Kenya Chapter 61, Laws of Kenya. Section 162 provides that any person who has carnal knowledge of any person against the order of nature or permits a male person to have carnal knowledge of him or her against the order of nature is liable to imprisonment for fourteen years. Section 163 provides for a penalty of seven years imprisonment for anyone who attempts to commit the offence under section 162. The Penal Code does not narrow down the offence as punishable only if it’s committed in public but is general, whether committed in private or public.

The Constitution of Kenya, 2010, under the Bill of Rights goes ahead to state in article 27 (4) that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 33 goes ahead to provide that every person has the right to freedom of expression.

Homosexuality is illegal in Kenya and the following cases go ahead to demonstrate the same.

In Julius Waweru Pleuster v Republic [2009], the Court of Appeal found the Appellant guilty of having carnal knowledge of DM, against the order of nature contrary to section 162 of the Penal Code, as the evidence against him was overwhelming. He committed the act without the consent of the victim.

In Elly Otieno Omondi v State [2016], the Appellant was found guilty of having carnal knowledge against the order of nature contrary to Section 162(a) of the Penal Code by the Trial Court. He then sought to appeal to the High Court where it was found that it was the appellant who had carnal knowledge of the complainant and being persons of the same gender that act was against the order of nature.

In Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others [2015], the Petitioner sought to register a non-governmental organization (NGO)with the 1st respondent. The core objective of the proposed organizations, according to the petitioner, was the advancement of human rights. Specifically, the proposed NGO would seek to address the violence and human rights abuses suffered by gay and lesbian people. The 1st Respondent however rejected his application for registration on the basis that the people whose rights the proposed NGO would seek to protect were gay and lesbian persons. The court however held that his rights to freedom of association and equality and freedom from discrimination had been infringed and the NGO Board ought to consider his application for registration as the right to freedom of association covered everyone living in Kenya despite their sexual orientation.

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