Chad: Coming into force of the new penal code, particularly article 361 bis, including the process for enacting this code (September 2014-November 2014)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. New Draft Penal Code

Sources report that in September 2014, a new draft penal code was adopted by Chad's Council of Ministers (Conseil des ministres) (FIDH and LTDH 23 Sept. 2014; RFI 15 Sept. 2014; La Nouvelle Tribune 16 Sept. 2014). The same sources report that article 361 bis of this draft code penalizes homosexuality (ibid.; RFI 15 Sept. 2014; FIDH and LTDH 23 Sept. 2014). In a joint press release, the International Federation for Human Rights (Fédération internationale des ligues des droits de l'homme, FIDH) and the Chadian Human Rights League (Ligue tchadienne des droits de l'homme, LTDH) state that this article provides for sentences of 15 to 20 years in prison and fines ranging from 50,000 to 500,000 francs CFA [approximately US$108 to US$1,076] for people found guilty of [FIDH and LTDH English version] "homosexuality" (ibid.). According to Amnesty International (AI), these punishments target people found guilty of [AI English version] "same sex activity" or "same sex conduct" (AI 9 Oct. 2014). However, according to a November 2014 article published by the online version of The Advocate, a publication that focuses on the LGBT community (The Advocate n.d.), the new provisions of the penal code target "those perceived to be LGBT" (ibid. 17 Nov. 2014).

According to AI, the [AI English version] "vagueness" of the bill "is deeply worrying" because

[AI English version]

people could be investigated and prosecuted based on homosexuality, on a denunciation or rumour alone. People who are perceived to be gay or don't conform to traditional gender stereotypes will not be able to live their lives with equality and dignity. (AI 23 Sept. 2014)

The Government of Chad reportedly said that it introduced these measures [translation] "to protect the family and to comply with Chadian society" (RFI 15 Sept. 2014; La Nouvelle Tribune 16 Sept. 2014).

Sources report that a reform of the penal code had been under way for years (The Guardian 22 Sept. 2014; RFI 15 Sept. 2014), with the collaboration of human rights associations (ibid.). However, RFI states that according to the African director of FIDH, [translation] "the most recent draft [of the new code] was done in secret," and these associations "were not aware" of the provisions of article 361 bis (ibid.).

2. Enactment of the New Penal Code

According to a 22 September 2014 article by The Guardian , before coming into force, the new penal code still needed to be approved by members of Parliament and President Idriss Déby.

According to several sources, the provisions penalizing homosexuality in the new draft code have been criticized by human rights organizations, who want these measures changed before the new code is enacted (The Advocate 17 Nov. 2014; AI 9 Oct. 2014; FIDH 23 Sept. 2014).

An article published in November 2014 by The Advocate reports that the new draft code was still being reviewed by the National Assembly (The Advocate 17 Nov. 2014). An article posted on the website of the National Assembly of Chad states that a new legislative session opened on 6 October 2014 (Chad 10 Oct. 2014). On 10 October 2014, 20 bills were recorded for that session, in addition to the 14 draft bills that had been postponed at the time of the first parliamentary session in 2014 (ibid.). Information on whether the provisions of article 361 bis of will be reviewed during this session could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Adoption Process

According to a document on the legislative process in Chad prepared by the country's National Assembly for a collection prepared by the Parliamentary Assembly of La Francophonie (Assemblée parlementaire de la Francophonie, APF), which describes the [translation] "parliamentary practices and procedures in the Francophone community" (APF s.d.), after a bill or draft legislation has been debated and adopted by the National Assembly,

[translation]

the text is formatted by the servicing staff, submitted for the signatures of the president of the commission responsible, then the president of the National Assembly, and forwarded to the minister in charge of Parliamentary Relations (Relations avec le Parlement) for approval by the president of the Republic.

The president of the Republic has fifteen (15) days to enact the law. After that time, the law is considered to be in force (Chad 19 Nov. 2011, c. VI, sec. 7).

In a document on the legal system and legal research in Chad, an associate political affairs expert at the UN Office for West Africa, who was formerly a legal officer with the African Commission on Human and People's Rights, explains that during these 15 days, the president can send the bill back to the National Assembly for more deliberation (Ngarhodjim Jan. 2012). The author adds that the president can sign a bill into law within 8 days "in case of emergency" (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

The Advocate. 17 November 2014. Thom Senzee. "The State of LGBT Equality in Africa." [Accessed 28 Nov. 2014]

_____. N.d. "Op-ed Contribution Guidelines." [Accessed 4 Dec. 2014]

Amnesty International (AI). 9 October 2014. "Tchad : Le président doit abandonner un projet de loi homophobe." [Accessed 28 Nov. 2014]

_____. 23 September 2014. "Tchad. Un projet de loi qui encouragerait l'homophobie." [Accessed 28 Nov. 2014]

Assemblée parlementaire de la Francophonie (APF). N.d. "Recueil des procédures et des pratiques parlementaires." [Accessed 3 Dec. 2014]

Chad. 10 October 2014. Assemblée nationale du Tchad. "Ouverture de la deuxième session ordinaire 2014 au Palais de la Démocratie." [Accessed 28 Nov. 2014]

_____. 19 November 2011. Assemblée nationale du Tchad. La vie des assemblées dans l'espace francophone : recueil des procédures et des pratiques parlementaires. Contribution de l'Assemblée nationale du Tchad. [Accessed 28 Nov. 2014]

Fédération internationale des ligues des droits de l'homme (FIDH) and Ligue tchadienne des droits de l'homme (LTDH). 23 September 2014. "Tchad : Le projet de code pénal abolit la peine de mort mais condamne lourdement l'homosexualité." [Accessed 28 Nov. 2014]

The Guardian. 22 September 2014. David Smith. "Chad Becomes 37th African State to Seek Ban on Homosexuality." [Accessed 28 Nov. 2014]

Ngarhodjim, Nadjita F. January 2012. "Update: An Introduction to the Legal System and Legal Research in Chad." New York: Hauser Global Law School Program, NYU School of Law. [Accessed 2 Dec. 2014]

La Nouvelle Tribune. 16 September 2014. Olivier Ribouis. "Tchad : Les homosexuels dans la tourmente avec un nouveau code pénal." [Accessed 28 Nov. 2014]

Radio France internationale (RFI). 15 September 2014. "Tchad : Le nouveau code pénal pénalise fortement l'homosexualité." [Accessed 28 Nov. 2014]

Additional Sources Consulted

Internet sites, including: 7 sur 7; 76 Crimes en français; ADHEOS; Afrik.com; AllAfrica; ecoi.net; Factiva; Gay Star News; Human Rights Watch; International Gay & Lesbian Human Rights Commission; International Lesbian, Gay, Bisexual, Trans and Intersex Association; Journal du Tchad; LGBT Weekly; NATLEX; Le Nouvel Observateur; UN - Refworld.