Interview: Alice Nkom and Jonathan Cooper on the future of criminalisation

Illustrated rainbow pride flag on a white background.

As I sit down with Alice Nkom, founder of Cameroon’s Association for the Defence of Homosexuals, and Jonathan Cooper OBE, Chief Executive of the newly-launched Human Dignity Trust, Nkom apologises for her English.

Only occasionally will we struggle to translate from her native French, but it is important for Nkom that everything is understood: “My heart has so many things to say”.

Nkom is in London attending the launch of the Human Dignity Trust, a UK-based organisation which will equip lawyers globally trying to strike down criminalisation laws that are incompatible with human rights treaties and their domestic constitutions.

Nkom herself is a compelling example of the realities of criminalisation in one of these countries, and deals with its consequences “on a daily basis”.

A lawyer for 42 years in Cameroon, she started ADEFHO in 2003 after warning a Cameroonian gay couple who had been living in France to hide their sexuality when they came home.

“I felt very guilty. I said, ‘OK, maybe it’s good for you to tell them that they should be careful’, but that doesn’t mean anything, they must live as they are.”

Cameroon is one of the 83 jurisdictions globally which criminalise homosexual acts.

Nkom’s mission has seen her be threatened with arrest for receiving an EU grant, detained without charge by police while visiting clients, and recommended for dismissal by the Minister of Justice.

Problems for ADEFHO have always been present, and began with its name.

She tried to register with the necessary official, le préfet. “He called me and said ‘This is impossible, I cannot register an NGO with this name. You know this is immoral, you know this is against our religion. I’ll risk my place.’”

Nkom continues calmly: “I said, ‘This is the not the way I saw it. I read the constitution.’”

Cameroon’s constitution begins with the text from the Universal Declaration of Human Rights.

At length the official capitulated, but, she says, new rules were then introduced which mean NGOs can no longer be formed with aims like ADEFHO’s.

Jonathan Cooper questions why the rate of prosecutions against gays has increased, and cites the Ugandan anti-homosexuality bill which is “simmering away” at the country’s Parliament.

“It’s appaling what happens to people, in the 21st century, who are engaging in consensual sexual conduct. The texting case is so ridiculous.”

One of Nkom’s clients, Jean-Claude Roger Mbede, had sent a text message to an acquaintance explaining that he had begun to have feelings for him and wanted to discuss what was going on. He arranged to visit his friend’s house.

The police were waiting for him when he arrived.

“It’s being encouraged from the top-down”, Cooper says. He references the Ugandan bill which would require teachers and other professionals to report gays to the authorities, and Nkom talks about a homily given by Cameroon’s archbishop which led to newspapers naming 50 supposedly gay officials.

Nkom is trying to get a case to the Supreme Court, who have the authority to strike an unconstitutional law down, but she says, in her efficient style of English, it is necessary to “motivate” the court clerks.

And a case in the Supreme Court can only happen after an appeal, which follows the original trial.

In Cameroon, Cooper says, even getting a person charged with homosexual offences to that first stage is a challenge.

He refers to another of Nkom’s cases; two men arrested after being seen wearing makeup.

“They haven’t been convicted of anything and they’ve been in prison since July.” The case is on its third judge.

“Horrible conditions,” Nkom adds.

The prison service does not give detainees food, it must be bought. Cooper says: “The only support you get is the support you can bring. If you’re rejected by your family because you’re gay, you won’t get anything.”

I ask how many cases ADEFHO is involved in. Alice has completed 50 trials, and negotiated 50 people out of custody before trial.

10 trials ended in acquittal, and many more with the defendant being released immediately, having already served the equivalent of the sentence in police custody.

Mbede, who was arrested after sending a text message, was sentenced in April. His appeal will take place next year.

While Nkom fights primarily to defend people against these laws, the Human Dignity Trust will equip local lawyers who want to challenge their validity.

“The background to the Trust was the Ugandan anti-homosexuality bill,” Cooper says. “Tim [Otty QC, Chair of the Trusts’s Board] was asked to advise the Commonwealth Lawyers Association.

“Very simple, straightforward piece of advice, really, in relation to Uganda’s international human rights treaty obligations. They’ve ratified all UN human rights treaties. Uganda has its own constitution which protects human rights in a similar way, and therefore it was clearly in breach of Uganda’s own domestic law and its treaty obligations.”

“I’m very, very familiar with the way the law in which the law fails to protect vulnerable people who are vulnerable on the basis of the sexual orientation or gender identity.”

“Tim was appalled.”

From that advice, Otty went on to engage jurists around the Commonwealth, and the list of names who endorse the Trust is impressive.

Patrons include former Chief Justices of South Africa and Barbados, a former Justice of the High Court of Australia, Lord Lester of Herne Hill QC, former Attorney Generals of Guyana and India, a former Secretary General of the Commonwealth and the Rt Hon the Lord Woolf, the first Lord Chief Justice of England and Wales.

“International human rights law is so clear on the issue,” Cooper says when we discuss the patrons.

“These are not your regular gay activists, or activists at all.”

Their involvement, Cooper says, “shows the clarity of it as a human rights issue”.

Between them, law firms will donate £2 million of pro bono support every three years. “We don’t see why local lawyers should have to bear the burden of this financially, so we will fund this litigation.

The first cases will be in those places where they have a more “benign” approach. The first case is in Belize on 5 December and Jamaica will be next.

In Belize “they haven’t used the law in years. The constitution is very favourable to these issues. You get a fair trial in Belize, the judges are independent.”

Cooper believes that the Pacific countries will be most amenable to change. After them, the countries which border South Africa, which has legal provisions for gay marriage, tend to be more liberal. West Africa, he believes, will be hardest.

But he is quick to clarify how the Human Dignity Trust will approach the task.

“We will offer our support and our services, but if people don’t want us, we won’t go.” Turning up uninvited “wouldn’t work”.

There is a clearly defined area of expertise, legal support, and a clearly defined goal, decriminalisation. The Trust has no views beyond the inconsistency of criminalising homosexuality and maintaining human rights obligations.

“We do not stray beyond criminalisation. There is no consensus in international human rights law beyond criminalisation.”

How far away global decriminalisation is remains to be seen. But Nkom, now 66, is a striking example of what these laws and attitudes mean for gay people today.

Last month, the UK government confirmed plans to reduce direct aid to the governments of Commonwealth countries who do not recognise gay rights. Some commentators suggested gay communities might be blamed for the reduction in a government’s direct budgetary aid, suffering more persecution as a result.

Standing up to leave, I ask Nkom if she fears such a backlash for gay people. As she fixes me with a steady, kind look and shakes her head unequivocally, I realise that, speaking to Alice Nkom, fear may have been the wrong word to use.