(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
LEGAL INFORMATION
National Law
Same-sex sexual conduct was legalised in Cape Verde in 2004. Until Cape Verde’s new Código Penal (penal code) came into force, Article 71(4) of the previous 1886 law provided for ‘security measures’ against people who habitually practise ‘vice against nature’.
Although Cape Verde does not criminalise homosexual acts, same-sex marriage is not recognised under the law. However, Article 71 (4) of the Código Penal made the age of consent (16) applicable to both heterosexual and same-sex couples. Article 141 (1) of the code suggests that sexual crimes are not gender specific.
The Constitution of the Republic of Cape Verde (1992) suggests a wide applicability of freedom of speech. Article 27 (1) emphasises that ‘the right to freedom shall be inviolable,’ and Article 27 (2) states: ‘Freedom of thought, expression, of association, religion… shall be guaranteed.’ In Cape Verde it is yet to be established whether this extends in its application on LGBTI people and their rights.
Article 36 of the Constitution covers the right to asylum. Article 36 (1) states: ‘Aliens or stateless persons persecuted for political reasons or seriously threatened of [sic] persecution on account of their activity in favour of national liberation, democracy or the respect for human rights, shall be granted the right of asylum in the national territory.’ There are, however, no reports of LGBT refugees fleeing to Cape Verde for protection.
There is no systematic procedure in place to register and process asylum claims. In practice, the government provides protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion, and allows UNHCR to evaluate asylum cases.
Article 38 provides for the right to intimacy of personal and family life. It is not specified in the law whether this includes same-sex and heterosexuals relationships, suggesting that the provisions may extend to all people, regardless of gender and sexual orientation.
Article 44(1) appears contradictory; although it stipulates that ‘Everyone shall have the right to marry,’ the law is not applicable to same-sex marriage. There is no direct mention of same-sex or transgender relationships in the Cape Verdean Constitution.
The Novo Código Laboral Cabo-Verdiano is Cape Verde’s labor code. Article 15 (1) of the Legislative Decree 5/2007 suggests that ‘equality at work’ may create some anti-discrimination rights for LGBTI workers, although this has not been clearly defined in the legislation. The decree does not specifically indicate that a dismissal based on discriminatory grounds towards an LGBTI person will be prohibited; however, Article 406 (1) states, ‘Those who dismiss an employee for political or ideological reasons is [sic] sanctioned with a fine equivalent to up to a year of retribution to compensate that worker’ (unofficial translation).
International Law
Cape Verde does, however, play its part in supporting the non-discrimination of LGBTI people. In 2008, the UN General Assembly reaffirmed ‘the principle of non-discrimination, which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity‘. Of the 66 countries involved, Cape Verde was included as a signatory, suggesting that the country’s laws reach LGBTI networks.
Furthermore, in March 2011, at the second recall at the United Nations Assembly in Geneva on the Joint Declaration to Decriminalize Homosexuality, the number of African countries who signed rose from six to eleven, including Cape Verde.
The US Department of State’s 2012 Human Rights Report (released April 19, 2013) indicated that although not a signatory to the 1951 Convention relating to the Status of Refugees, Cape Verde has acceded to the 1967 Protocol. However, twenty years after its accession to the protocol, the country has yet to establish national legislation or an institutional body for granting asylum or refugee status.
UNHCR does not have an established presence in Cape Verde. This means that asylum seekers who request protection and assistance are referred by the International Organization for Migration to UNHCR’s regional representation for West Africa in Dakar, Senegal, which conducts refugee status determination.
The UNHRC’s Universal Periodic Review in 2008 did not emphasize LGBTI rights in Cape Verde, nor did it direct the country to provide further protection to the LGBTI community.
CASE LAW
We do not currently list any Case Law for Cape Verde, but we welcome suggestions.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
In June 2013, Cape Verde held its first ever Gay Pride in the city of Mindelo. For the first time, visibly and openly, lesbian, gay bisexual and transsexual Cape Verdeans fought against discrimination. Local activists reported that they ‘are sure this week will be a landmark in the history of Cape Verde, and it will provide its contribution in the defence of LGBT human rights of Africa’. This event was organised at the initiative of the Cape Verdean Gay Association. There are no legal or governmental impediments to the organization of LGBTI events. However, anti-discrimination laws are not promoted and there is very little information about LGBT life in Cape Verde available to the public. Thus, overall, Cape Verdean law does not seem to be either particularly discriminatory or particularly supportive of LGBT rights.
The US Department of State reported that there were no anti-discrimination laws applicable to lesbian, gay, bisexual, and transgender (LGBT) persons in Cape Verde. There were also no reported cases of official or private discrimination against LGBT individuals in employment, occupation, housing, statelessness, or access to education or health care, and there were no reported incidents of violence against LGBTI persons.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
We do not currently list any LGBTI NGOs in Cape Verde, but we welcome suggestions.
COUNTRY OF ORIGIN SPECIALISTS
We do not currently list a specialist in LGBTI issues in Cape Verde, but we welcome suggestions.
Researched by: Jessica Sweet
email: jessicajanesweet@gmail.com