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Politicians branded ‘cowards’ in buggery law backlash

Pressure builds in Jamaica as Barbados court strikes down legislation

Published:Wednesday | December 14, 2022 | 1:53 AMSashana Small/Staff Reporter
Glenroy Murray
Glenroy Murray
Maurice Tomlinson
Maurice Tomlinson

LGBTQ advocates in Jamaica have urged the island’s lawmakers to note the wind of change blowing across the Caribbean and repeal the country’s colonial-era buggery laws that effectively criminalise same-sex relations.

Local politicians have been criticised as “cowards” for not standing up against this form of discrimination. The call comes in the wake of the Barbados High Court striking down the law that could lead to life imprisonment for gay men.

This follows similar action taken by the Antigua and Barbuda High Court in July and the Eastern Caribbean Supreme Court that repealed buggery law in St Kitts-Nevis in August.

“I am hoping that we recognise the world that we are in right now and that as a region, we no longer have the comfort of believing that in the Caribbean, this is a law that we hold on to,” Glenroy Murray, executive director of Equality for All Foundation Jamaica, a gay-rights lobby, said.

Three provisions under Jamaica’s 1864 Offences Against the Person Act (OAPA) – sections 76, 77, and 79 – explicitly make buggery illegal.

Murray said that the recent developments are a “positive signal” for the LGBTQ community in the region but expressed frustration with Jamaican legislators for failing to act.

“One wonders what our politicians, what our Parliament is waiting for. We’ve been having this conversation since 2017- 2018 when the Offences Against the Persons Act was being reviewed alongside the Sexual Offences Act,” he said in a Gleaner interview on Tuesday.

“There is, in my mind, more than the impetus for the Government to make the progressive step to ensure that Jamaica is a more inclusive society and to send a signal to the rest of the population that LGBTQ people deserve to be here like everyone else.”

In 2014, then Opposition Leader Andrew Holness challenged then Prime Minister Portia Simpson Miller to revoke the anti-buggery through a referendum. However, since forming the Government in 2016, Holness has not moved for a referendum on the matter.

Homosexuality is traditionally frowned on in Jamaican society, influenced by hardline religious and cultural values.

A recent RJRGLEANER-commissioned poll revealed that only 12 per cent of Jamaicans believe that anal sex should be decriminalised.

Gay-rights activist Maurice Tomlinson has been fighting Jamaica’s anti-sodomy laws in the Constitutional Court since 2015. He told The Gleaner that the substantive case is yet to be tried because of what he describes as an orchestrated ploy to delay it.

Tomlinson, an attorney-at-law, shared that nine churches have joined with the attorney general as defendants in his case. And initially, he said the attorney general wanted to split his case into two and have separate trials on the savings law clause, and another on whether the law violates his right to privacy.

The savings law clause refers to laws which existed before the Constitution that are still being enforced.

The attorney general argued that the buggery law was saved from judicial review by Section 13 of the new Charter of Fundamental Rights and Freedoms unless the statute was changed subsequent to the charter coming into force.

However, the Supreme Court ruled in Tomlinson’s favour and determined that both issues of law and fact are “inextricably connected” and that a separate trial would require additional resources and possibly create more delays with no guarantee that the applicant would succeed.

The attorney general has filed for the matter to be taken to the Court of Appeal for March next year.

Tomlinson believes this is a tactic to impede the case.

“The people who are all involved in this case, they’re all working to prevent this case from going forward cause it’s like they’re trying to delay the inevitable. As if by some miracle, they think equality will not come to Jamaica if they just fight hard enough and put up enough roadblocks,” he said.

Labelling the approach as an “embarrassment”, Tomlinson argues that the court’s decision is an indication of its keenness to “get this over and done with”.

He maintains that the judicial process will ultimately decide in favour of the LGBTQ community.

“The only way to get rid of the law in Jamaica, it appears right now, is through the courts, because the politicians are cowards. They are afraid of the churches,” he said. “Our courts will eventually get rid of these laws which essentially invade people’s privacy.”