The finding in Mamoon v Canada [2009] FC 578, that criminal laws punishing homosexuality are rarely applied in Tanzania is contradicted by evidence of arbitrary arrests of gay and lesbian activists in June 2009 and September 2009, brought by the International Gay & Lesbian Human Rights Commission. More specifically in September 2009, 39 gay and lesbian activists were arrested and detained for two weeks in Dar es Salaam according to the report. As the US State Department confirmed in 2012, “unnatural offences” constitute the most common ground for pre-trial detention, including the detention of minors.

Men who have sex with men are subjected to violence by the police. According to a detailed 2013 report by Human Rights Watch entitled US State Department , men in Dar es Salaam have been reportedly beaten with belts, and stripped naked.
The same report explains that transgender and intersex identities are received incredulously by police authorities. The distinction between transgender and intersex or even the existence of transgender and intersex persons is doubted by members of the public, reports Integrated Regional Information Networks. A transgender interviewee who is biologically male but passes as a woman was reportedly sexually assaulted by the police, according to Human Rights Watch.

Alongside official authorities, several community policing organisations and vigilante groups such as “polisi jamii” (‘community police’ in Kiswahili) operate in Tanzania and have committed human rights violations in both mainland Tanzania and Zanzibar, according to Human Rights Watch. Gay men have been beaten by police officers but reports to the police have not been followed up; in one interviewee’s case, the police extorted a Tsh 5,000 bribe to release him from custody.

General social stigma against LGBTI populations is particularly heavy. A 2005 World Bank-commissioned report highlights that gays and lesbians are violently persecuted, mistreated, hated and ostracised.

In July 2012, LGBTI activist Morris Mjomba was murdered in Dar es Salaam. Further, public discussion on the status of LGBTI populations in Tanzania has indeed met considerable uproar. In 2007, a Tanzanian bishop came under fire for proposing dialogue about homosexuality in the community and the church, reports The Guardian. In 2011, during the Gender Festival, participants who self-identified as LGBTI noted during interviews with Human Rights Watch were chased by media and forced to evacuate the premises, to be then violently attacked by members of the public who reportedly ‘wanted to kill gays’.

Moreover, recent interviews conducted with 40 self-identified LGB persons in Dar es Salaam for the University of Oxford’s Forced Migration Review indicated that many of them have experienced discrimination from family members, removal from school, derogatory and hate language, police harassment and, in one case, corrective rape. Human Rights Watch also provides evidence of discrimination in housing, education, and employment against lesbian or bisexual women and gay or bisexual men.

The government of Tanzania is failing to take steps to afford protection to LGBTI populations. During the Universal Periodic Review conducted by the UN Human Rights Council in October 2011, all three recommendations made by the Council (1. To take steps to protect all persons irrespective of sexual orientation; 2. To adopt anti-discrimination legislation and 3. To decriminalise consensual same-sex conduct) were refused by Tanzania. Similar criticisms were also voiced by the UN Human Rights Committee in 2009. Against that backdrop, officials were particularly critical of comments by British Prime Minister David Cameron to the effect that the country’s LGBTI record would impact British foreign aid determination.

Access to refugee protection in neighbouring countries is virtually impossible for LGBTI applicants, given that claims based on sexual orientation are not recognised. Integrated Regional Information Networks (IRIN) reports a recent case of a Tanzanian gay man whose claim for protection on grounds of sexual orientation was rejected in Malawi, Zambia, and Zimbabwe.

Although asylum was denied on the facts, the South African Refugee Appeal Court (decision dated 5 December 2011) held that police harassment in the form of continual arrests and prosecution under the Penal Code on the basis of an applicant’s sexual orientation could amount to persecution (para 21).

Mamoon v Canada [2009] FC 578: the Federal Court of Canada held that criminal laws punishing homosexuality are rarely applied in Tanzania (para 12).