LGBT rights in Tanzania (Lesbians, Gays, Bisexuals, and Transexuals)

LGBT rights in Tanzania (Lesbians, Gays, Bisexuals, and Transexuals)

LGBT rights in Tanzania is a complex subject as lesbians, gays, bisexuals, and transgender (LGBT) people confront legal obstacles that non-LGBT people do not. Homosexuality is a socially taboo issue in Tanzania, and same-sex sexual activities (even when private and consenting) are punished by life imprisonment. Heterosexuals who indulge in oral sex or anal intercourse are likewise subject to the law.

According to the 2007 Pew Global Attitudes Project, 95 percent[a] of Tanzanians feel homosexuality is a way of life that society should not tolerate, the sixth-highest proportion among the 45 nations polled.

Only 10% of Tanzanians would tolerate someone with a different sexual orientation, according to an Afrobarometer 2020 study, which is among the lowest in Africa but higher than a 2007 poll.

LGBT rights in Tanzania has been reduced to almost non-existent to LGBT persons in recent years. The country deported numerous HIV/AIDS organizations in October 2017 for “promoting homosexuality” (The country has a high HIV/AIDS rate, with an estimated one million persons affected).  The government has also become increasingly homophobic, considering homosexuality to be “un-African.” In Dar es Salaam, a so-called “witch hunt” against homosexual people was announced in 2018, with gay persons being forced to undergo anal exams and torture. Tanzania has a poor track record when it comes to human rights. The government’s support for freedom of expression and assembly is dwindling.

Despite this, several Tanzanian activists, human rights campaigners, lawyers, and feminists such as Maria Sarungi, Tundu Lissu, Fatma Karume, Khalifa Said, Zara Kay, Goodluck Haule, Kigogo2014, and others have supported LGBTI rights openly while openly criticizing state-approved homophobia and government officials who encourage more persecution of LGBTI people like Paul Makonda, the former president John Pombe Magufuli, Hamisi Kigwangalla, Ally Hapi.

Paul Makonda
Paul Makonda

History of LGBT Rights in Tanzania

Modern-day Tanzanian ethnicities accepted or were unconcerned with homosexuality before colonization.
The Swahili people have a long history of tolerance towards gays. Homosexuals are referred to as shoga (plural: mashoga), and they have traditionally played social duties such as drumming and providing music at festivals such as weddings. Women also used the term shoga to refer to “friends.” Shoga partnerships evolved into commercial connections over time, with young men getting paid for sexual intercourse by wealthy elder men (basha, plural: mabasha). Only the mashoga were considered “gay” in social terms; the mabasha, on the other hand, would generally have a wife.

Mashoga in Mombasa are passive homosexuals who sell their bodies for money. They promote themselves in colorful, tight male clothing in public areas, but may also wear women’s leso cloths, jasmine posies, and make-up while socializing with ladies at weddings. Mashoga have all of the rights and privileges of males, and they are accepted in many situations that would normally be reserved for women.

-Gill Shepherd

In the Swahili society, lesbian partnerships were also frequent. Lesbians (also known as msago or msagaji (plural: misago or wasagaji, meaning grinders) played a variety of roles in society, including doing chores traditionally performed by males. Msagaji connections, like shoga partnerships, were defined for economic reasons, but to a lesser extent. In most cases, the elder spouse (mama (plural: mwana)) was richer and from a higher social level. Women who refused to marry and instead pursued education and jobs were labeled wasagaji, irrespective of their sexual orientation. Homosexuals were collectively referred to as mke-si-mume (woman, not man).

Cross-dressing was common among the Maasai people, and it was usually done during rituals. Young males would frequently dress as women during initiation rites, wearing surutya (women’s earrings worn to signify that they are married) and other female clothing.

Lesbian marriages were frequent among the Kuria people, and they still are to some extent. These weddings are done for diplomatic and economic reasons, such as when a family has no son, despite the fact that they are no longer considered “gay.”

After the advent of the Europeans, societal tolerance and acceptance of homosexuality and gay partnerships vanished fast. Homophobia has become firmly entrenched in the community as a result of laws penalizing homosexuality. Adebisi Ademola Alimi, a Berlin Humboldt University lecturer, addressed the pervasive homophobia in 2015, not only rampant in Tanzania but throughout Africa.

Since the 1980s, one reason has been the rise in popularity of basic Christianity, thanks to American televangelists. While Africans claim that homosexuality was introduced from the Western, they also argue from the standpoint of Western religion. When I’ve questioned anti-gay folks, they’ve often responded that it’s not our culture. When you go further, they claim that homosexuality is not mentioned in the Bible. However, the Bible does not represent our historical culture. This demonstrates that there is genuine ambiguity concerning Africa’s past.

— Adebisi Ademola Alimi

Legalities of Same-Sex Sexual Activity

Homosexuality is banned in Tanzania and carries a maximum penalty code of life imprisonment. In mainland Tanzania, lesbianism is not expressly specified. Same-sex sexual activities between women are illegal in Zanzibar’s semi-autonomous area, with a maximum punishment of a TSh 500,000 fine or five years in jail. Oral and anal intercourse between heterosexuals is likewise prohibited.

Mainland Tanzania

Tanzania’s Human Rights Penal Code of 1945 (as updated by the Sexual Offenses Special Provisions Act, 1998) states:

Acts of gross immorality amongst people- Section 138A.

  • Anyone who commits, or takes part in the commission of, or acquires or tries to acquire the commission of, any grossly indecent act with another fellow person, in private or public, is guilty of committing an offense and is liable on conviction to jail for at least a year and a maximum of five years, or to a fine of at least TSh 100,000 and a maximum of 300,000 Tanzanian Shillings. Except where the offender is aged 18 or more years in respect of anyone under the age of 18, a primary school pupil, or a secondary school student, the person committing the offense shall be legally responsible to imprisonment for a minimum of ten years, together with corporal punishment, in addition to being mandated to pay compensation in the amount decided by the judicial officer to the offended for any injuries sustained.

“Gross indecency” in Section 138A of the Sexual Offenses Special Provisions Act, 1998, refers to any sexual activities that exceed normal but falls shy of intercourse, and id inclusive of indecent behavior without or with physical contact and masturbation, as per Part I(3) of the Act.

  • Unnatural crimes are covered under section 154.
  1. Anyone who –
  2. has carnal acquaintance of another person against nature’s order; or…
  3. enables a male to have a carnal acquaintance of her or him against nature order, commits a crime, and is subject to life imprisonment and in any instance a term of at least 30 years.
  4. The perpetrator must be punished to life imprisonment if the offense under paragraph (1) of this section is done against a child aged below ten years.
  • Attempting to commit unnatural offenses (section 155).

Anyone who attempts to commit any of the crimes listed in section 154 commits a crime and faces a sentence of at least twenty years in prison if convicted.

  • Male indecent practices are included in Section 157.

Any male who, in private or public,

  1. performs any grossly indecent act with a fellow male,
  2. procures a fellow male to perform any grossly indecent act with him, or
  3. seeks to procure a fellow male to perform an act of indecency to him,

is guilty of a crime and faces a five-year jail term.

Zanzibar

The following are the provisions of the Zanzibar Penal Code of 1934, as modified in 2004:

  • Article 132.
  • Anyone who has a sexual relationship with a boy is guilty of a crime and faces a life sentence if convicted.
  • Anyone who tries to have a sexual relationship with a boy is guilty of an offense and faces a sentence of at least twenty-five years in prison if convicted.
  • Section 150.

Any person who:

  1. has sexual intercourse of any person against nature’s order; or…
  2. allows a male to have sexual intercourse with her or him against nature’s order is guilty of a crime and subject to a maximum of fourteen years in prison.
  • Section 151:

Anyone who tries to commit any of the crimes listed in section 150 is guilty of an offense and faces a maximum sentence of seven years in prison.

  • Section 152:

Any individual who indecently and unlawfully assaults a boy commits a crime and faces a sentence of at least twenty-five years in prison.

  • Section 153:

Any woman who engages in lesbianism with another woman, whether actively or passively, commits an offense and is punishable on conviction to a period of imprisonment of a maximum of five years or a maximum fine of 500,000 shillings.

  • Section 154.

Any individual who commits, or is part of the commission of, or acquires or tries to acquire the commission by another person of, any grossly indecent act with another person, in private or public, is guilty of a felony and faces a maximum of five years imprisonment or a maximum fine of 200,000 shillings on conviction, Except where the offender is aged 18 years and above in respect of a person aged under eighteen years of age, the offender shall be subject on conviction to at least ten years in prison, with corporal punishment, in addition to paying compensation to the victim in an amount decided by the court for any psychological or physical damage done.

“Any sexual activity that falls shy of real intercourse and is inclusive of physical touch and masturbation or indecency without any physical touch,” as per Section 4.

  • Section 158.

Any person who:

  1. arranges or enters a union of a person of the same sex, whether or not it amounts to marriage;
  2. celebrates a union with any person of similar gender, whether or not it amounts to marriage; [or]
  3. lives as wife and husband [with] any person of the similar sex;

is guilty of an offense and subject on conviction to a maximum of one year.

Recognition of same-gender relations

The law does not recognize similar-gender couples.

Parenting and Adoption

A couple can only adopt a kid together if they are married. Only if “the court is convinced that there are extraordinary circumstances justifying the issuing of an adoption order as an exceptional remedy” can a man adopt a female kid as a lone applicant. As a lone applicant, a female can adopt a male kid with no particular limitations. Only Tanzanian residents above the age of 25 are eligible to adopt a child. Adoption is not expressly forbidden for LGBT people. A person under the age of 21 who has never been married is referred to as a “child.”

Discrimination Protections

Tanzania’s constitution and laws do not expressly ban discrimination based on gender identity or sexual orientation.

Living Conditions

Although there are certain venues where homosexual men congregate, there are no gay bars. Lesbians are not as conspicuous as homosexual males.

Over 300 Tanzanians opposed the entrance of a homosexual tour group in 2003.  In 2004, various Islamic groups in Zanzibar launched a campaign to rid the country of what they regarded to be immoral practices, such as homosexuality. The legislation in Zanzibar that illegalizes same-sex activities has been amended to have harsher punishments for those actions.

The government deported HIV/AIDS organizations in October 2017 for “promoting homosexuality.”

Dar es Salaam Regional Commissioner Paul Makonda stated in November 2018 that a special committee will be formed to detect and prosecute gays, prostitutes, and internet fraudsters. To detect homosexuals, a 17-member team comprised of cops, lawyers, and physicians was created. The committee would scan the internet for recordings of ostensibly LGBT individuals. The planned crackdown, according to the Foreign Ministry, does not have the approval of the government. Denmark, one of the countries major donors, withheld 65 million Danish kroner (7.5 million pounds; USD 9.8 million USD) over the program.

International Pressure Regarding LGBT Rights in Tanzania

Human Rights Report from the US Department of State

According to the United States Department of State’s 2013 Human Rights Report:

Human Rights Watch and the Wake-Up and Step Forward Coalition issued a report on June 19, 2013… [that] featured many specific claims of violations of LGBT rights in Tanzania which includes various persons being tortured and abused while in police custody. For example, a 19-year-old gay man detained after leaving a bar in Mbeya said that police sodomized and beat and him with canes, water pipes, and electric wires on the soles of his feet. … On both the mainland and Zanzibar, consensual same-gender sexual activity is prohibited. Grossly indecent acts between people of similar gender are punished by up to five years in jail on the mainland. Same-gender sexual behavior is considered an “unnatural offense” by the law, which carries a jail penalty of 30 years to life. Men who engage in same-gender sexual behavior on Zanzibar face a maximum sentence of 14 years in jail, while women face a maximum sentence of five years. In such instances, the burden of proof is high. According to a recent Human Rights Watch study, LGBT people who were detained were rarely prosecuted. Arrests were frequently used as a front for police to amass bribes or compel sex from those who were weak. Despite this, the [Tanzanian Commission for Human Rights and Good Government’s] 2011 jail visits indicated that “unnatural offenses” were among the most prevalent reasons why minors were detained pretrial… people suspected of similar gender sexual behavior were previously prosecuted with prostitution or loitering. LGBT people were subjected to social prejudice, which limited their access to housing, health care, and work opportunities. This population was also denied access to health treatment, including HIV information. There were no documented measures by the government to address such prejudice.

Universal Periodic Reviews by the United Nations Human Rights Council

The United Nations Human Rights Council concluded a Universal Periodic Review (UPR) of Tanzania’s human rights status in October 2011 at its meeting in Geneva. Sweden, Slovenia, and the UN Country Team (UNCT) openly pushed Tanzania to abolish its laws criminalizing same-sex sexual acts during this UPR. In paragraph 27 of its report, the UNCT stated:

  • Homosexuality is seen as a violation of cultural standards, and same-gender sexual interactions are illegal. There have been reports of mass arrests in conjunction with nonviolent demonstrations, non-attendance at HIV clinics, and forceful evictions of people based on their sexual orientation by religious and local communities. Furthermore, for fear of retaliation, representatives of the organizations and other human rights advocates may be unwilling to make public remarks in support of tolerance and decriminalization.

Tanzania declined. Tanzania’s Minister of State and Good Governance, Mathias Meinrad Chikawe, said in Geneva,

There was a discussion on same-gender weddings and other topics. True, we do not have legislation in our nation permitting same-sex weddings, and this, I repeat, is due to our traditions and deeply held cultural views. Although acts involving similar sex do occur, they occur under the radar, so to speak, and as I stated when giving our report on the ICCPR, exhibiting such conduct in public may result in one being stoned by the people. It’s a cultural issue. So, it’s just that perhaps the time hasn’t come for us to consider such freedoms in our country; so, it’s just that the government… it’d be very strange for the government to propose a law to allow that; so, it’s just that perhaps the time has not yet come for Tanzania to consider such freedoms in our country.

UK’s Threat to Withhold Aid Because of Lack of LGBT Rights in Tanzania

The Prime Minister of the United Kingdom, David Cameron, warned in October 2011 during the Commonwealth Heads of Government conference in Perth, Australia, that the UK may withhold or cut funding to states that do not change laws illegalizing homosexuality.  Tanzania’s Minister of Foreign Affairs and International Cooperation, Bernard Membe, responded by saying,

Tanzania won’t accept Cameron’s plan as we have our moral standards. Tanzania will never legalize homosexuality because it is not part of our culture… We will not take help from any wealthy country on the basis of unacceptably terms merely because we are poor. If one country refuses to help us, it will have little impact on our economic situation, and we will be able to survive without UK assistance.

On November 11, 2011, Tanzanian Prime Minister Mizengo Pinda reacted to a query from a member of Parliament in the Tanzanian Parliament regarding whether the government was prepared to lose UK aid. He stated:

You are being unfair to me because the government has already stated its position on the subject… But, since you’re interested in hearing my thoughts, I’d like to state that homosexuality is unacceptable in our culture. We must examine these problems seriously. This is unacceptable to me. Even animals are incapable of such feats.

His claim is false and wrong on biological and scientific grounds, as homosexuality has been found in thousands of animal species, including Tanzania’s national animal, the giraffe. According to reports, 94 percent of giraffes engage in similar-gender sexual activities.

On June 20, 2012, Membe responded to a question from MP Khatib Said Haji in the Tanzanian Parliament regarding the government’s position on the pressure from Western nations seeking the repeal of anti-gay laws. “We are prepared to lose support and funding from friendly nations that are now pressing for the repeal of anti-gay legislation in African countries,” Membe said, adding that Tanzania was willing to go alone rather than be humiliated and dehumanized.

Summary Table

Similar-gender sexual activity legal  (Penalty: Up to life imprisonment)
Anti-discrimination laws in employment only x
Equal age of consent

x

Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)

x

Anti-discrimination laws in the provision of goods and services

x

same-sex couples recognition

x

Same-sex marriages

x

Recognition of same-sex couples

x

Stepchild adoption by same-sex couples

x

Right to change legal gender

x

LGBT people allowed to serve openly in the military

x

Commercial surrogacy for gay male couples

x

Access to IVF for lesbians

x

MSMs allowed to donate blood

x

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