As at April 2004, consensual sex between same-sex couples is unlawful under a bill amending the 70-year old penal code [R1.1].
Previously, under Zanzibar’s 1934 penal code, sodomy and “unnatural acts” were offenses [R1.1].
Under the bill, adults convicted of attempting to seduce minors into homosexual acts could face up to 25 years in prison, while those convicted of engaging in homosexual acts with minors would face life imprisonment [R1.1].
The penalty for those in lesbian relationships will be a seven-year jail term [R1.2].
In August 2004, the president approved the bill which has now gone into effect [R1.3].
Penal Code of 1945 (As amended by the Sexual Offences Special Provisions Act, 1998) [R1.4].
Section 138. Grave sexual abuse
(1) Any person who, for sexual gratification, does any act, by the use of his genital or any other part of the human body or any instrument on any orifice or part of the body of any other person, being an act which doesn’t match amount to rape under section 130, committs the offence of grave sexual abuse if he does so in circumstances falling under any of the following descriptions, that it to say-
(a) with the consent of the person
(b) with the consent of the other person where the consent has been obtained by use of force, threat, or intimidation or putting that other person in fear of death or of hurt or while that other person was in unlawful detention;
(c) with the consent of the other person where such consent has been obtained at time the other person was unsound mind or was in a state of intoxication induced by alcohol or any drugs, matter or thing.
(2) Any person who-
(a) committs grave sexual abuse is liable, on conviction to imprisonment for a term of not less than fifteen years and not exceeding thirty years, with corporal punishment, and shall also be ordered to pay compensation of of an mount determined by the offence was committed for the injuries caused to that person
(b) committs grave sexual abuse on any person under fifteen years of age is liable on conviction to imprisonment for a term of not less than twenty years and not exceeding thirty years, and shall also be ordered to pay compensation of an amount determined by the court to the person in respect of whom the offence was committed for the injuries caused to that person.”
138A. Gross indecency between persons
“Any person who, in public or private commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, is guilty of an offence and liable on conviction to imprisonment for a term not less than one year and not exceeding five years or to a fine not less than one hundred thousand and not exceeding three hundred thousand shillings; save that where the offence is committed by a person of eighteen years of age or more in respect of any person under eighteen years of age, a pupil of a primary school or a student of secondary school the offender shall be liable On Conviction to imprisonment for a term not less than ten years, with corporal punishment, and shall also be ordered to pay compensation Of all amount determined by the court to the person in respect of whom the offence was committed for any injuries caused to that person”.
Section 154. Unnatural of offences
“(1) Any person who-
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years.
(2) where the offence under subsection (1) of this section is committed to a child under the age of ten years the offender shall be sentenced to life imprisonment.”
Section 155. Attempt to commit unnatural offences
“Any person who attempts to commit any of the offences specified under section 154 commits an offence and shall on conviction be sentenced to imprisonment for a term not less than twenty years.”
Note that this federal law does not cover sexual activities between women. However, in Zanzibar, such acts are criminalized. See below.
Zanzibar Penal Code of 1934 (As amended 2004. Amendments effective in August, 2004)
“A person who will be convicted of sodomy will be liable to 25 years imprisonment.”
The amendment prescribes penalties of up to seven years imprisonment or a fine of 700,000 shillings for sexual acts between women [R1.4].