Big Win For LGBTQ+ in Saint Kitts and Nevis

In a second case of historic precedent, the Eastern Caribbean Supreme Court in the Federation of Saint Christopher and Nevis (St. Kitts and Nevis) has affirmed the constitutional rights of LGBTQ+ citizens by striking down the country’s buggery law. The Eastern Caribbean Alliance for Diversity and Equality (ECADE) and the Saint Kitts Nevis Alliance for Equality (SKNAFE) welcome this repeal of anti-LGBTQ laws in St. Kitts and Nevis.

In declaring void sections 56 and 57 of the Offences Against the Person Act, the High Court of Justice in St. Kitts and Nevis affirms the laws that criminalise consensual, private sexual acts between adults to be unconstitutional.

The Honourable Justice Trevor M. Ward QC held that sections 56 and 57 of the Offences Against the Person Act, known as the buggery laws, contravene the constitutionally guaranteed rights to freedom of expression and protection of personal privacy.

Following a similar ruling in Antigua and Barbuda delivered on the 27th June 2022, these laws have been declared void to the extent that they apply to persons above the age of consent who engage consensually and in private in the sexual acts described. The offence of buggery continues to be in force in circumstances where the sexual acts are not consensual or involve minors.

This is the second progressive judgment in a five-country legal challenge launched by ECADE in 2020. ECADE applauds this decision on behalf of all lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) people in St. Kitts and Nevis and across the Caribbean, whose privacy and security are no longer compromised by these outdated laws.

Executive Director of ECADE, Kenita Placide says of the ruling, “[Of] the seven Caribbean and 34 Commonwealth countries that criminalised same sex intimacy, this is the second to strike down these discriminatory laws in 2022. Our strategy has been multilayered; working with activists on the ground, our colleagues, friends, allies and family. This win is part of the transformative journey to full recognition of LGBTQ persons across the OECS. It is a definitive yes to change, yes to privacy, yes to freedom of expression, and we are happy to be part of this historic moment.”

“This decision strongly establishes that a person’s sexuality should never be the basis for any discrimination,” says Tynetta McKoy, Executive Director of SKNAFE. “We welcome the recognition of this fact, one for which we have long advocated.” SKNAFE and Jamal Jeffers were claimants in this case, which was contested by the Attorney General on behalf of the Government of the Federation of Saint Christopher and Nevis.

ECADE remains committed to challenging the harmful beliefs that underpin these laws and create an atmosphere where stigma and discrimination against individuals perceived to be LGBTQ+ are acceptable.

Appearing in this case on behalf of the claimants were E. Anthony Ross QC of E. Anthony Ross Professional Services and Nadia Chiesa of WeirFoulds LLP. ECADE’s partners include a team of Caribbean lawyers and the Faculty of Law UWI Rights Advocacy Project (U-RAP). The legal team is led by Senior Counsel Douglas Mendes SC and Veronica S. P. Cenac, Attorney-at-Law.

Discriminatory Sexual Offences Laws and Criminal Codes in the islands date back to the British colonial era and unfairly target LGBTQ+ people. Although custodial sentences are rarely imposed, those convicted under these laws can face imprisonment for up to ten years. Other constitutional challenges in Barbados and Saint Lucia, are expected to be concluded before the end of 2022.

Justice Trevor M. Ward QC declarations and orders in the above case are as follows:

“Section 56 of the Offences Against the Person Act, Cap.4.21contravenes sections 3 and 12 of the Constitution of the Federation of Saint Christopher and Nevis, namely, the right to protection of personal privacy and the right to freedom of expression, and, as such, is null and void and of no force and effect to the extent that it criminalises any acts constituting consensual sexual conduct in private between adults.

Section 57 of the Offences Against the Person Act Cap.4.21contravenes sections 3 and 12 of the Constitution of the Federation of Saint Christopher and Nevis, namely, the right to protection of personal privacy and the right to freedom of expression, and, as such, is null and void and of no force and effect to the extent that it criminalises any acts constituting consensual sexual conduct in private between adults.

For the purpose of giving effect to the declaration in 1 above, Section 56 of the Act shall be read as if the words “This section shall not apply to consensual sexual acts between adults in private” were added at the end of the section.

For the purpose of giving effect to the declaration in 2 above, Section 57 of the act shall be read as if the words “save and except where the acts which would otherwise constitute an offence are done in private between consenting adults.”

The claimants have succeeded on the claim, and as such, the normal rule that costs follow the event applies. The defendant shall pay the claimants’ costs to be assessed if not agreed within 21 days.

The industry and resourcefulness and thoroughness of counsel on both sides is to be highly commended.”