The Republic of Niger has criminalized same-sex relationships for the first time. Previously, Uganda and Burkina Faso enacted anti-LGBTQ laws with severe penalties for same-sex acts and related advocacy. Uganda's legislation includes life imprisonment and the death penalty, while Burkina Faso imposes up to five years' imprisonment. These measures have drawn widespread international condemnation and underscore growing legal discrimination against LGBTQ communities in Africa. Despite threats of sanctions from Western nations, these governments have maintained their positions.
What is the controversial law?
While fewer countries criminalize homosexuality than in previous decades, over 60 nations still enforce such laws. More than 30 African countries continue to criminalize same-sex relations. In February 2026, Niger's military junta enacted a Penal Code that criminalizes indecent, unnatural, and LGBTQIA+ acts, imposing five to ten years' imprisonment and fines (Article 390). The same penalties apply to individuals who “artificially change their sex at birth” (Article 390). The law also imposes criminal penalties on those who enter into same-sex marriages, as well as organizers, officiators, and witnesses, with imprisonment ranging from ten to twenty years (Article 391).
The Anti-Homosexuality Act (AHA), enacted by the Ugandan Parliament in 2023, established a severe precedent by introducing the death penalty for “aggravated homosexuality” (Section 3). It defines a “female person” as an individual born with “female sexual organs” and a “male person” as one born with “male sexual organs.” Legal sex is therefore determined solely by genitalia, with no recognition of gender identity, psychological sex, or related concepts.
While same-sex relationships were already illegal, the new Ugandan law introduces stricter penalties for engaging in same-sex relations and for “promoting” homosexuality, including up to 20 years' imprisonment (Section 11). It also prohibits same-sex marriage, punishable by up to 10 years in prison (Section 10).
Burkina Faso's military government has also criminalized homosexual conduct, using similar definitions. Under the guise of legal modernization, the government has reduced protections for LGBTQ communities and imposed penalties for “behaviour likely to promote homosexual practices and similar practices.”
According to The Erasing 76 Crimes news site, as of June 2026, 33 African countries have anti-LGBTQ legislation. Outside Africa, 22 countries in Asia, including those in the Middle East, continue to criminalise same-sex relations. In the Americas, Grenada, Guyana, Jamaica, St Vincent & the Grenadines, and Trinidad & Tobago maintain such laws, as do six countries in Oceania including Kiribati and Tuvalu.
Historically, Muslim courts in the Middle East considered sodomy a major sin but did not classify other homosexual acts, such as passionate kissing, fondling, or lesbian sex, in the same way. Today, the region's perspective has shifted significantly. For example, in 2001, the Egyptian Ministry of Culture burned 6,000 volumes of Abu Nuwas's poetry, known for explicit references to same-sex desire. Two main factors contributed to this change: the introduction of British penal codes criminalizing all homosexual behaviour in 1885, and the rise of Islamic fundamentalism in the 1980s, which coincided with the emergence of the gay-rights movement in America and Europe. As homosexuality became associated with the West, political leaders exploited anti-LGBT sentiment for political gain.
African Charter- a bird's eye view
Most African Union member states have signed or ratified the African Charter on Human and Peoples' Rights. Burkina Faso ratified the Charter in 1984, while Niger and Uganda ratified it in 1986. The Charter is an international treaty that protects fundamental human rights and freedoms across Africa (Preamble) and aims to improve the lives of Africans while respecting the United Nations Charter and the UDHR.
The African Charter affirms universal rights to support Africa's full liberation. It rejects all forms of discrimination, including those based on sex (Preamble), and guarantees rights and freedoms without discrimination, upholding equality (Articles 2 and 3). The Charter also recognizes the rights to life, personal integrity, dignity, liberty, and security (Articles 4, 5, and 6), prohibits discrimination against women and children, and upholds self-determination (Article 20). held in Zimbabwe Human Rights NGO Forum v. Zimbabwe (2006) AHRLR 128 (ACHPR) that non-discrimination must be interpreted inclusively to protect marginalized groups. Criminalizing consensual same-sex conduct therefore violates Article 2.
Do these Legislations Violate the Constitution?
The Constitution of Niger 2010 (rev. 2017), for instance, resolved to build a State of Law guaranteeing “exercise of collective and individual rights, freedom, justice, dignity, equality, safety, and well-being”. The Constitution punishes what they call 'regionalism', 'ethnocentrism', 'discrimination' as well as 'favouritism' (Article 4). Article 8 ensures, “assures to all equality before the law without distinction of sex…”.
The Preamble of the Ugandan Constitution affirms unity, peace, equality, freedom, social justice, and progress. The National Objectives and Directive Principles emphasize unity, peace, and stability. Article 20 of the 1995 Constitution requires all government agencies and individuals to respect, uphold, and promote the rights in this chapter, ensuring their protection and recognition. However, these constitutional values conflict with recent laws.
The Constitution of Burkina Faso prioritizes individual rights. Its Preamble recognizes gender equality as essential for equal treatment under the law. Article 1 states that “all Burkinabè are born free and equal,” guaranteeing equal rights and prohibiting discrimination. Jamaica's Constitution, in Chapter III, the Chapter of Fundamental Rights and Freedoms, states “an obligation to promote universal respect for, and observance of, human rights and freedoms.” The 1979 Constitution of Kiribati establishes the fundamental right to personal liberty (Article 5) and explicitly protects privacy and life. The Constitution of Tuvalu, under the Constitution of Tuvalu Act 2023, includes a Bill of Rights in Part II with 35 Articles. Citizenship is addressed separately in Part III, which is a distinctive feature.
Violation Of International Human Rights
“LGBTQ” refers to lesbian, gay, bisexual, transgender, and intersex individuals, and acknowledges diverse sexual orientations and gender identities. International human rights law affirms universal rights, dignity, equality, non-discrimination, privacy, autonomy, and the rule of law.
The UDHR (1948) affirms that all individuals are born free and equal in dignity and rights. Articles 1, 2, and 7 guarantee legal equality. Articles 5 and 22 prohibit torture, degrading treatment, and address social security. Article 16 protects the right to marry and form a family. Article 2(1) of the ICCPR requires respect for rights without discrimination, and Article 26 guarantees equal protection. The Yogyakarta Principles (2006) reaffirm LGBTQ human rights.
Article 2 of the African Charter ensures that rights are enjoyed “without distinction of any kind,” including “other status,” which the African Commission interprets to encompass vulnerable groups. Laws such as Uganda's AHA 2023 and Burkina Faso's criminal statutes violate Article 2 and the legal equality guaranteed by Article 3.
Debunking The Justification
President Yoweri Museveni of Uganda exercised his constitutional authority under Article 91 to assent to the AHA 2023. A similar law enacted in 2013 was annulled on technical grounds. In Hon. Fox Oywelowo Odoi, Prof. Sylvia Tamale, and others v. Attorney General, the Court partially upheld the AHA 2023, maintaining most provisions, including the death penalty for “aggravated homosexuality” and life imprisonment for consensual same-sex relations, while striking down Sections 3(2)(c), 9, 11(2)(d), and 14.
The Ugandan Court found the definitions of “encourage,” “promote,” and “overt act” sufficiently clear. It prioritised Uganda's cultural dignity and social interests over certain challenged rights, concluding that the Constitution's framers did not intend social orientation as a basis for discrimination. The Court held that the AHA does not permit unlawful entry or interference with private life, but struck down reporting clauses that could deter access to healthcare. It upheld restrictions on expression, thought, and association as proportionate, and found no violation of academic freedom. Constraints on profession and business were justified, and NGOs serving LGBTIQ+ persons were deemed illegal.
The Court partially ruled in favour of the Petitioners by removing certain reporting and HIV transmission requirements, but otherwise found no violation of the right to health. However, it incorrectly relied on Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022), which concerns abortion, while overlooking more relevant U.S. LGBTQ+ rights cases such as Lawrence v. Texas 539 U.S. 558 (2003), United States v. Windsor 570 U.S. 744 (2013), and Obergefell v. Godges 576 U.S. 644 (2015). The Court also misapplied Navtej Singh Johar and Ors. vs Union of India (UOI) and Ors., failing to address its focus on dignity and privacy.
Relevance In The Indian Context
Anti-LGBTQ+ measures in Africa highlight the fragility of LGBT rights, shaped by colonial history, moral debate, and politics. Lawmakers use rhetoric similar to India, where LGBT+ identities are considered as Western imports. Both India and Uganda inherited Section 377, a colonial-era sodomy law. The Indian Supreme Court's Navtej Johar ruling partially decriminalized it, affirming constitutional morality over prejudice.
However, developments in Africa show that judicial progress requires ongoing social and legal vigilance. The Indian Supreme Court's decision in Supriyo v. Union of India, which declined to recognize same-sex marriage, demonstrates how constitutional advances can be limited by legislative inaction, societal norms, and political influences. Laws targeting individuals based on sexual orientation create a separate class of citizens. It is essential to uphold both the letter and spirit of human rights documents and to protect the fundamental rights guaranteed by national constitutions for all individuals.
References:
- Niger's New Anti-LGBTQIA+ Law Violates the Human Rights of Intersex Persons, available at: https://ohrh.law.ox.ac.uk/nigers-new-anti-lgbtqia-law-violates-the-human-rights-of-intersex-persons/
- Anti- LGBTQ Law of Uganda, available at: https://www.parliament.go.ug/sites/default/files/The Anti-Homosexuality Act, 2023.pdf
- Burkina Faso's First Conviction Under New Anti-LGBTQ+ Legislation Marks A Sharp Turn Toward Conservatism, available at: https://www.humanrightsresearch.org/post/burkina-faso-s-first-conviction-under-new-anti-lgbtq-legislation-marks-a-sharp-turn-toward-conserva
- List of 66 countries where homosexuality is illegal, available at: https://76crimes.com/76-countries-where-homosexuality-is-illegal/?gad_source=1&gad_campaignid=17805238942&gbraid=0AAAAAobr9iqYD74wVhqJf3gOVTQCvdOAD&gclid=CjwKCAjwvsvTBhBaEiwAmf-3ngDkUNtn1NC2DggOiyPwlkAGAR4EmqSNt8hNMVSYjQQn9xpPNO0cZhoC_QMQAvD_BwE
- How homosexuality became a crime in the Middle East, available at: https://www.economist.com/open-future/2018/06/06/how-homosexuality-became-a-crime-in-the-middle-east
- Khaled El-Rouayheb, “Before Homosexuality in the Arabic-Islamic World, 1500-1800”, https://www.journals.uchicago.edu/doi/pdf/10.1086/513241?download=true
- African Charter on Human and Peoples' Rights (Banjul Charter), available at: https://www.oas.org/en/sla/dil/docs/African_Charter_Human_Peoples_Rights.pdf
- Constitution of Niger 2010 (rev. 2017), available at: https://www.constituteproject.org/constitution/Niger_2017
- Constitution of Uganda available at:
- https://www.ngobureau.go.ug/sites/default/files/laws_regulations/2020/12/Uganda Constitution 1995.pdf.
- Constitution of Burkina Fasi, available at: https://faolex.fao.org/docs/pdf/bkf128139E.pdf
- Constitution of Jamaica, 1962 (rev. 2015), available at: https://www.constituteproject.org/constitution/Jamaica_2015
- Constitution of Kiribati 1979 (rev. 2013, available at: https://www.constituteproject.org/constitution/Kiribati_2013
- Constitution of Tuvalu, available at: https://tuvalu-legislation.tv/cms/images/LEGISLATION/PRINCIPAL/1986/1986-0001/1986-0001_2.pdf
- Universal Declaration of Human Rights, available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights
- UN Charter, available at: https://www.un.org/en/about-us/un-charter/full-text
- ICCPR 1966, available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
- Yogyakarta Principles, available at: https://data.unaids.org/pub/manual/2007/070517_yogyakarta_principles_en.pdf
- African Charter on Human and Peoples' Rights (Banjul Charter) , available at: https://www.oas.org/en/sla/dil/docs/African_Charter_Human_Peoples_Rights.pdf
- Uganda court annuls anti-homosexuality law (2013 Act) https://www.bbc.com/news/world-africa-28605400
Author is a Ph.D. Scholar at School of Legal Studies, Babasaheb Bhimrao Ambedkar (Central) University, Lucknow. Views are personal.