IT was a not-so-sweet Valentine’s Day for Gareth Henry in 2007. A 200-strong mob in Kingston was chanting death calls and chasing down gay men. He was seriously injured. When he complained to the police, he was insulted, beaten and threatened.
Gareth fled to Canada, where he was granted first refugee status, then citizenship. Others were not so lucky. Back home, he had formed a netball team with a handful of gay friends. Five of them were killed in homophobic attacks.
Jamaica’s poisonous homophobia also strikes lesbians. Simone Edwards was shot up by gangsters in her home in 2008, along with her brother, who is gay. The gunmen called out “the lesbian must die”. She lost a kidney and part of her liver. She and her young daughter now have asylum in the Netherlands.
Two reports from the Inter-American Commission on Human Rights on the violation of the rights of gay people in Jamaica were released last month. They looked at Jamaica’s practices and legal framework, and case law from Chile, the UK, South Africa, the US, India, Belize, Barbados and T&T.
They concluded that Jamaica must repeal its 1864 colonial legislation imposing a ten-year prison sentence for “the abominable crime of buggery.”
The Jamaican government should also provide reparation for rights violations—including financial compensation. They should legislate to prevent discrimination and violence, and provide training for public officials, the judiciary and security services.
The Human Rights Commission is not a court. It has no teeth. Its report is “not binding on a sovereign state”, came the dismissive retort from Jamaica’s justice minister, Delroy Chuck.
In some countries, the Commission can refer cases to the Inter-American Court of Human Rights – but not in Jamaica, which like most Caricom countries does not accept the Court’s jurisdiction.
So, what route to reform?
Don’t look to Jamaica’s parliament. Elected representatives quail before Jamaica’s powerful evangelical pastors. An opinion poll in the Jamaica Observer last year reported 93 per cent support for repressive “buggery laws.” The prime minister, the governor-general, and almost one-eighth of the population are keen members of the fiercely condemnatory Seventh Day Adventist church.
It’s one issue where the pastors see eye-to-eye with Jamaica’s murderous criminal gangs.
In 2014, the devout pastors pulled out a hate-filled crowd of perhaps 25,000. “No to Homo agenda,” screamed a headline in the Jamaica Observer. “Shout out for clean, righteous living.”
Israel has an election in just over two weeks. Nobody expects the Israeli parliament to legislate for Palestinian rights. And nobody expects Jamaica’s parliament to protect its sexual minorities.
And the courts? Successive governments have planted obstacles on the judicial route to reform. The government argues that the “savings clause” protects colonial-era laws from challenge, even when they run foul of constitutionally enshrined fundamental rights.
A Charter of Fundamental Rights and Freedoms added on to the constitution in 2011 specifically excludes pre-existing sexual offences and abortion laws from challenge.
Maurice Tomlinson, a Jamaican former law lecturer who now lives in Canada, launched a challenge to Jamaica’s “buggery laws” in 2015. He has a strong case. It will be difficult for the government to argue that the “savings clause” applies, not least because the colonial legislation has been tinkered with by a Sexual Offences Act passed after the Charter of Rights and Freedoms. It now requires anyone who has been convicted to register as a sex offender, and carry a pass at all times or face a further two years in prison.
The courts have moved at a snail’s pace, but a hearing is fixed for next week Monday and Tuesday. Tomlinson will be fighting a David-and-Goliath battle. Ten well-funded church-based organisations have been allowed to join the case, each with their own legal team and the right to call witnesses; that sounds like a recipe for jamming up proceedings. Meanwhile, the Public Defender, Jamaica’s human rights ombudswoman, has been blocked from backing Tomlinson in court. Don’t hold your breath for a quick decision. And when there is a ruling, expect the losing side to go first to Jamaica’s appeal court, and then to the Privy Council.
Tomlinson will draw courage from Jason Jones’ successful challenge to T&T’s Sexual Offences Act. An appeal by the state against Justice Devindra Rampersad’s 2018 ruling is likely to be heard this year—and is quite likely to reach the Privy Council for a final decision before Jamaica’s high court gets itself ready to pronounce on the Tomlinson case.
Attitudes are different here.
Tomlinson will also draw courage from the CCJ’s ruling, also in 2018, which overturned a ban on cross dressing in Guyana’s 1894 Summary Jurisdiction Act, despite the “savings clause” in Guyana’s constitution.
If the Privy Council rules against Jamaica’s repressive legislation, that will be only half the battle. What would make life bearable for the next generation of Gareth Henrys and Simone Edwards would be an opening of Jamaican hearts and minds. Optimists perceive softening public attitudes. But if there is progress, it is painfully slow. That Valentine’s Day could be a fair way off.
• Mark Wilson is an international
journalist based in Port of Spain