Men who have sex with men in St Kitts and Nevis are free to have relationships in the open after the Eastern Caribbean Supreme Court decriminalized the island’s buggery laws.
On Monday the court upheld a motion by an openly gay man named Jamal Jeffers who challenged the constitution that made it illegal to have sexual intercourse with men.
The specific section of the law under question was sections 56 and 57 of the Offences Against the Person Act.
The entire situation transpired when in January 2021, Jeffers, along with the St. Kitts and Nevis Alliance for Equality (SKNAFE), filed a motion, declaring “that sections 56 and section 57 of the Act contravene the constitutional rights enshrined in sections 3, 7, 12 and 15 of the Constitution of the twin island Federation”, according to court documents Jeffers and the second claimant in their case, argued that as a result, “those sections of the Offences Against the Person Act are null and void and of no force and effect to the extent that it applies to consensual sexual intercourse in private between persons 16 years of age or more”.
And in his ruling, High Court judge, Justice Trevor M. Ward agreed, saying that Section 56 of the Offences Against the Person Act, contravenes sections 3 and 12 of the Constitution “namely, the right to protection of personal privacy and the right to freedom of expression”.
The judge ruled that “as such, is null and void and of no force and effect to the extent that it criminalizes any acts constituting consensual sexual conduct in private between adults”.
According to Judge Ward, Section 57 of the Act also contravenes the Constitution 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 criminalizes any acts constituting consensual sexual conduct in private between adults.
For the purpose of giving effect to the declaration …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” the ruling states.
Justice Ward added “for the purpose of giving effect to the …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 state’s attorneys said in their arguments that “the extent to which these sections should apply to children, and the protections and defences which a legislature may put in place are issues that are likely to attract a high degree of scrutiny and much debate in society”.
They also argued that the matters engage policy issues concerning health and education and the social and cultural values of the society as a whole.
But the defendant submitted that these “issues are more appropriately considered and determined by Parliament which is the appropriate forum where the policy, limitations, and protections to be afforded to children ought to be decided upon in an open, inclusive and transparent manner, with all relevant parties who so desire being given the opportunity to shape the debate and the eventual outcome”.
The defendant contended that in the circumstances of this case, a declaratory order is sufficient to vindicate the claimants’ rights.
But in his ruling, Justice Ward said he “respectfully disagree”
Justice Ward said “The court cannot shirk from its duty to interpret the Constitution and to uphold its provisions without fear or favour.
The court is empowered by the modification clause in Schedule 2 to construe existing laws that are unconstitutional to bring them into conformity with the Constitution. it is similarly mandated by section 2 of the Constitution to void any law that is inconsistent with the Constitution to the extent of its inconsistency. This is a clear mandate to the court to be proactive in its guardianship of the Constitution unless it cannot do so without usurping the role of the legislature.”