Homosexuality is illegal in Eritrea according to Article 600 of the 1957 Penal Code that strictly prohibits “sexual deviations” which includes performing sexual acts with someone of the same sex. These defined “unnatural carnal offences” are punishable by simple imprisonment which is outlined by Article 600 of the 1957 Penal Code  as a sentence applicable to offences of a minor nature committed by persons who are not a serious danger to society. Simple imprisonment can extend from a period of ten days to three years.

Eritrea adopted a new Constitution on 23 May 1997, which suggests that homosexuality is legal. However, the provisions of the new Constitution have not yet come into force. As stated in paragraph 17.4 of the judgment in the British case of YF Eritrea v Secretary of State for the Home Department (2003) “we are therefore led to conclude (although hesitantly, given the lack of sufficient objective material before us) that homosexuality is technically not legal in Eritrea but will become legal when the provisions of the Constitution of May 1997 become fully implemented”.

At the 2010 UN review of the human rights situation in Eritrea, the Eritrean government was challenged to repeal all legislation criminalizing same-sex activity by consenting adults. The Eritrean government refused to legalize same-sex activity stating that it was “in direct contradiction with the values and traditions of the Eritrean people.”