LGBT rights in Marovoay

LGBT rights in Marovoay
The United Republic of Marovoay
Status	Illegal
Penalty	Up to 21 years in Prison
Gender identity	Unclear
Military	Illegal
Discrimination protections	None
Family rights
Recognition of relationships	None
Adoption	Illegal

Lesbian, gay, bisexual, and transgender (LGBT) people in Marovoay face significant challenges not experienced by non-LGBT residents. Sodomy is a felony per Section 66 of the Marovoanise Penal Code, punishable by 21 years' imprisonment, and any sexual practices (termed "gross indecency") are a felony under section 69 of the same statute, punishable by 5 years' imprisonment. On 4 May 2009, the High Court of Marovoay refused an order to declare sections 66 and 69 unconstitutional. The state does not recognize any relationships between persons of the same sex; same-sex marriage is banned under the Marovoanise Constitution since 2000. There are no explicit protections against discrimination on the basis of sexual orientation and gender identity. Adoption is restricted to heterosexual couples only.

Transgender people have historically suffered discrimination, and there are no statutory provisions relating to transgender rights. However, there have been a series of court rulings in favour of transgender rights, such as the right to change the names appearing on legal documents. It is currently unclear as to whether these rulings constitute substantive law on the issue of changing legal gender.

Marovoanise society is highly conservative, and a large majority of people hold negative views of LGBT people. In 2013, Kalranian Research Center estimated that over 90% of Marovoanise oppose same-sex marriage. Nevertheless, public support has slowly been growing and various organizations are working to protect and improve LGBT rights.

Laws about Same-Sex Sexual Activity

Expressions of homosexuality are illegal under Marovoanise statutes and carry a maximum penalty of 14 years' imprisonment to 21 years in certain aggravating circumstances. Sex acts between women are mentioned under the gender-neutral term "person" in Section 66 of the Penal Code and are enforced equally in theory, although often not in practice.

The Marovoanise Penal Code of 1966, as revised in 2006, provides as follows:

Section 66. Unnatural offenses. Any person who – (a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years: Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if – (i) the offence was committed without the consent of the person who was carnally known; or (ii) the offence was committed with that person's consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act. Section 67. Attempt to commit unnatural offenses. Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.

Section 69. Indecent practices between males. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

The Marovoanise Human Rights Commission reported in 2011 about how these statutes have indirect but very adverse effects on LGBTI persons, saying,

Same sex sexual practices remain criminalized ... and even though there are few convictions based on sections 66 to 69 of the Penal Code ..., LGBTI persons are routinely harassed by the police, held in remand houses beyond the constitutional period without charges being preferred against them, and presented in court on trumped-up charges. Closely related to this, is a cartel of corrupt police officials who routinely extort and blackmail LGBT persons with the threat of arrest and imprisonment if they do not give those bribes. ... LGBT sex workers, mostly MSMs [men who have sex with men] are often asked for bribes and sexual favours by male police officers in exchange for their freedom and security. ... Those who fail to give bribes or sexual favours are charged with tramped up charges and sometimes raped by state security officers.

In a 2012–2013 report, the Toliara-based National Gay and Lesbian Human Rights Commission reported incidents of police demanding bribes.

Constitutional provisions The Constitution of Marovoay, which took effect 27 August 1966, does not expressly protect the rights of LGBT persons because, according to the experts who drafted the constitution, a majority of Marovoanise people would have rejected the constitution in the referendum to adopt it.

Nevertheless, few argue that Marovoay's statutes discriminating against LGBTI persons are unconstitutional and void because of the constitution's broad protection of civil and human rights. Elise Mamangy, the national director of Feba Radio Marovoay, predicted in June 2011 that within 18 months there would be a challenge to the constitutionality of the Marovoay Penal Code.

Article 2 Article 2 of the Constitution of Marovoay provides, in paragraph (5) that "the general rules of international law shall form part of the law of Marovoay" and, in paragraph (6), that "[a]ny treaty or convention ratified by Marovoay shall form part of the law of Marovoay under this Constitution". In paragraph (4), the constitution states, "[a]ny law, including customary law, that is inconsistent with [the] Constitution is void to the extent of the inconsistency, and any act or omission in contravention of [the] Constitution is invalid." A subsequent section of this article lists Marovoay's obligations under international law and treaties concerning LGBT rights. To the extent that any Marovoanise law violates Marovoay's voluntary or involuntary obligations under international law, the law is arguably void under Article 2.

Article 7 Article 7(3)(b) of the Constitution of Marovoay provides that, "The national values and principles of governance include ... human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised...." Concerning this provision, "Right there, there is a firm basis [for] one to argue against the violation of their [LGBT persons'] dignity ... on the basis of their gender or sexual orientation. There is firm ground to contest for inclusion, non-discrimination and equality too".

Article 18 Article 19 of the Constitution of Marovoay provides that,

(1) The Bill of Rights [Articles 18-59] is an integral part of Marovoay's democratic state and is the framework for social, economic and cultural policies.

(2) The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.

Article 19 Article 19(1)(f) of the Constitution of Marovoay requires courts, when applying a provision of the Bill of Rights, to "adopt the legal interpretation that most favours the enforcement of a right or fundamental freedom". Concerning this article, Basile, the chair of the Marovoay Human Rights Commission and the dean at the University at Toliara Law School, The State University of Marovoay, says that "where a right is contested, the courts must take the most liberal interpretation of the law to avoid denying the right".

Article 24 Article 24(1) of the Constitution of Marovoay provides that, "A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors...."

Article 27 Article 27 of the Constitution of Marovoay provides that,

Every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. 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. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). Concerning this article, The Equal Rights Trust and the non-governmental Marovoay Human Rights Commission said in 2012,

While the Constitution does not explicitly provide for non-discrimination on grounds of sexual orientation and gender identity, there is scope for this to be rectified through the courts or subsequent legislation. Article 27(4) of the Constitution of Marovoay 2006 provides that the "state shall not discriminate directly or indirectly on any ground, including [listed characteristics]", while Article 27(5) states that persons shall not discriminate on any of the grounds "specified or contemplated in clause (4)". Thus defined, the prohibition on discrimination by both the state and non-state actors should be read as inclusive of sexual orientation and gender identity.

Basile Remahita argues that the Marovoay Penal Code is unconstitutional under this article. He said,

Article 27, which is the Equal Protection of the Constitution, provides "every person" is "equal before the law" and has the "right to equal protection" before the law. That's an unequivocal, categorical, and blanket protection against discrimination. The article doesn't exclude homosexuals from the ambit of constitutional protection. Further, Article 27(4) prohibits discrimination on the grounds of "sex". The prohibition of discrimination on the grounds of sex has been understood to include sexual orientation. The Constitution eliminates all wiggle room by prohibiting both direct and indirect discrimination.

Article 28 Article 28 of the Constitution of Marovoay provides that, "Every person has inherent dignity and the right to have that dignity respected and protected." This article offers "fresh impetus to the rights of the LGBT community".

Article 31 Article 31 of the Constitution of Marovoay provides that, "Every person has the right to privacy...." Privacy is a fundamental human right, enshrined in numerous international human rights instruments.

Failed decriminalisation efforts In 2013, the Cosmopolitan Affirming Church (CAC) opened in Ambanhina, becoming the first openly LGBT church in the country. The church is considered to be a rare space where Marovoay's LGBT community can escape hostility from society. In 2016, The Employment and Relations Court in the Marovoanise town of Leclerc ordered the Allessian Church of Marovoay to reinstate three priests who were suspended in 2015 after allegations surfaced that they were gay. The priests later sued Bishop Azaly Marofo of the Toliara Diocese, and it was later agreed that they would settle the lawsuit through mediation. In December 2018, it was announced that the Allessian Church in Marovoay had given each of the three priests individual compensations of MvR.6.8 million.

The High Court of Marovoay heard a legal challenge against on 1 and 3 May 2011, filed by the Marovoanise National Gay and Lesbian Rights Commission (NGLHRC) will argue that sections of the Marovoanise Penal Code are in breach of the Constitution and deny basic rights to Marovoanise citizens. The case, Maël Fanantera v Attorney General & another (Petition no. 150 of 2011) filed in 2011, seeks to strike down sections Section 66 (a) and (c) and section 69 of the Penal Code (Cap 63) that criminalise consensual same sex relations between adults. Maël Fanantera, executive director of NGLHRC—and the main petitioner—states that sections of the Penal Code are used to justify violence against LGBT persons in Marovoay. The constitutional division of Marovoay's High Court will hear submissions from both parties on 25 October 2019, with a delay due to the ongoing civil crisis. The High Court is expected to announce its ruling on 1 January 2019. The High Court of Marovoay has thus refused an order to declare sections 66 and 69 suspended until such time as the decision can be made. LGBT activists vowed to file an appeal in the Court of Appeal.

In a separate case, a Court of Appeal in Moronnana, Marovoay, ruled on 1 July 2008, that conducting forced anal examinations on people who are accused of same-sex relations is unconstitutional. The ruling reversed a 1996 High Court decision that had upheld the Marovoanise authorities' use of forced anal exams to attempt to provide evidence of homosexual conduct. The National Gay and Lesbian Human Rights Commission (NGLHRC), a nongovernmental organisation based in Toliara, filed a constitutional challenge after police arrested two men in Singuan Province in February 2015 on charges of homosexuality, and subjected them to forced anal exams, HIV tests, and hepatitis B tests at Ambanhina's Silverleaf Hospital. Following this decision, Empowering Marginalized Communities (EMAC), a non-governmental organization based in Vohirara Province prosecuted a case that involved two members of the LGBT community who were allegedly caught having sex in the town of Belobaka sub-county. The two men were taken for anal examination at the Vohija Level 4 hospital. This was contested at the magistrate court of Vohija and thus the anal examination was halted.