Gov’t will not ‘actively’ implement LGBT-focused legislation

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Andrew O’Kola was a member of the legal team that represented the claimants
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By Kadeem Joseph

[email protected]

With debate continuing on a recent ruling by the courts that deemed Antigua and Barbuda’s decades-old anti-buggery laws unconstitutional, the government said the country will not be “actively” reshaping legislation that may affect its LGBT community.

Minister of Information and Cabinet spokesman Melford Nicholas said individuals have the right to challenge any of the country’s laws through the courts as was the case in this instance.

“For those persons who have an interest, if a person feels that they’re being discriminated against by any of the acts that are in place, as had been adumbrated by the Prime Minister, if they make a determination to challenge it in the court, the court is the perfect place for that determination,” he said.

“But there is not going to be any active reframing of the legislative framework at this stage. What individuals may do is challenge and allow the court to make those determinations which have been successfully done in this instance with the buggery laws.”

On Tuesday, the Eastern Caribbean Supreme Court ruled that sections 15 and 19 of the Sexual Offences Act 1995, which speak to the act of buggery, contravene sections 3, 12, and 17 of the constitution of Antigua and Barbuda.

Those sections enshrine a person’s right to liberty, protection of law, freedom of expression and protection from discrimination on the basis of sex.

Nicholas said even without further action by the legislative arm of government, the court’s ruling means that “that portion of the law could never be enforced going forward”.

The legislation, as it stood, could allow for law enforcement to prosecute an individual for buggery but the fact that the court has made the determination that it is unconstitutional now means it could never be enforced going forward.

The court ruling has sparked debate across the country and throughout the region about the rights of people who identify as lesbian, gay, bisexual, transgender (LGBT) and others who do not identify as heterosexual.

Meanwhile, Andrew O’Kola, a member of the legal team that represented the claimants in the case, declared it a win for everyone, and not just the LGBT community.

“We are talking about legislation on the books that criminalise an activity that heterosexual, consenting adults 16 years and over, in the privacy of their own comfort, could also be dragged before the court for action for this kind of sexual activity,” he explained.

“We are talking about a law that has its genesis going as far back as 1533; we are talking about to the reign of King Henry VIII,” he said.

The attorney added that the court had determined that interpretation and understanding of the law has developed over time.

Nevertheless, Dr David Dorsett, who represented the Attorney General in the matter, told Observer yesterday that based on the laws of Antigua and Barbuda, sodomy or buggery involving a person under the age of 16, remains a criminal act.

He also cautioned that while society may deem an act to be wrong, it does not mean that it ought to be criminalised. 

The case has drawn regional attention with a rights group in St Vincent and the Grenadines welcoming the court’s decision.

Equal Rights, Access and Opportunities SVG Inc said it was pleased with the court’s decision and sees it as a progressive legal development.

The group is of the firm view that the case may have a domino effect on similar legal challenges of this nature in other English-speaking Caribbean countries where anti-gay laws still exist.

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