LGBT Individuals Forced into Silence in South Sudan

Introduction

South Sudan, the world's youngest nation, ranks among the most dangerous countries on earth for lesbian, gay, bisexual, and transgender (LGBT) individuals. Same-sex conduct is criminalised under the Penal Code Act 2008, with penalties reaching life imprisonment. In a context of ongoing armed conflict, institutional collapse, and pervasive social conservatism, LGBT persons face not only legal persecution but also violence from state and non-state actors, forced displacement, and the near-total absence of support services. This article examines the legal framework governing LGBT rights in South Sudan, documents patterns of abuse, analyses international legal obligations, and considers the implications for asylum seekers who identify as LGBT.

Historical Background

South Sudan inherited colonial-era penal provisions criminalising same-sex conduct from Sudan, which had itself enacted such laws under British colonial administration in the early twentieth century. When South Sudan gained independence in July 2011, the Penal Code Act 2008—drafted during the interim period and based heavily on Sudanese law—was retained as the operative criminal statute. Unlike some post-colonial states that have revisited such provisions, South Sudan has never undertaken meaningful legislative reform in this area.

The civil war that erupted in December 2013, following a political rupture between President Salva Kiir and former Vice-President Riek Machar, devastated already fragile institutions and entrenched authoritarian control. Successive peace agreements, including the Revitalised Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) of 2018, have failed to address human rights systematically. LGBT concerns have been entirely absent from transitional justice and constitutional reform processes.

Current Legal Framework

Section 248 of the Penal Code Act 2008 criminalises "carnal intercourse against the order of nature," a formulation inherited directly from British colonial law. The provision carries penalties of up to ten years' imprisonment for a first offence and life imprisonment for subsequent offences. Section 250 criminalises "gross indecency" between persons of the same sex, with a maximum penalty of two years' imprisonment. Neither provision requires proof of coercion or harm; the consensual nature of the conduct is irrelevant to criminal liability.

South Sudan has no anti-discrimination legislation protecting LGBT persons in employment, housing, healthcare, or education. There is no legal recognition of same-sex partnerships or families. Transgender and intersex persons have no legal pathway to identity document amendment. In practice, civil registration systems are deeply dysfunctional even for the general population; for LGBT individuals, the risks of exposure during registration processes create additional barriers to documentation, heightening vulnerability to statelessness.

In 2021, a proposed National Security Service Bill included provisions that would have granted the NSS sweeping surveillance powers applicable across civil society, including the monitoring of perceived sexual minorities. Although the bill was not enacted in its original form due to international pressure, the attempt illustrated the legislative direction of government thinking regarding social control.

Patterns of Human Rights Violations

Documented violations against LGBT individuals in South Sudan reflect a consistent pattern across multiple actors: state security forces, armed groups, customary authorities, and family or community members.

Arbitrary arrest and detention of suspected LGBT persons have been documented by the UN Commission on Human Rights in South Sudan and by Human Rights Watch. In a 2022 report, Human Rights Watch documented cases in which men perceived to be gay were arrested in Juba by National Security Service personnel, held without charge for extended periods, subjected to degrading treatment, and released only after paying informal payments to officers. Women suspected of lesbian relationships have faced family-initiated detention, forced marriage, and "corrective" sexual violence.

Armed groups operating across the country, including those nominally aligned with the government and those in opposition, have carried out targeted killings of individuals perceived to be LGBT. In 2023, credible reports emerged of summary executions by armed factions in Upper Nile and Jonglei states, where individuals were accused of homosexuality in the context of broader purges of perceived social deviants. Because South Sudan lacks independent investigative journalism and operates in a climate of severe press freedom restrictions, many such incidents go unrecorded.

Customary courts, which operate alongside formal judicial structures and hold substantial authority in rural communities, routinely adjudicate matters of sexual conduct according to local norms that are deeply hostile to any non-normative sexuality or gender expression. Penalties issued by customary courts—including forced payment of bride price to "restore" family honour, corporal punishment, and community exile—fall outside the formal legal system and are therefore largely invisible to international monitors.

Comparison: LGBT Legal Status in the Region

International Legal Framework

South Sudan is a State Party to the International Covenant on Civil and Political Rights (ICCPR), having acceded in 2011. Under Article 17 of the ICCPR, states are prohibited from arbitrarily interfering with privacy. The UN Human Rights Committee, in Toonen v Australia (1994), established authoritatively that laws criminalising consensual adult same-sex conduct violate Articles 17 and 2(1) of the ICCPR. South Sudan is also bound by Article 7 (prohibition of cruel, inhuman, or degrading treatment) and Article 9 (right to liberty and security of person), both of which are engaged by the documented pattern of arbitrary arrest and ill-treatment of LGBT persons.

South Sudan is a party to the African Charter on Human and Peoples' Rights. In Res. 275 (2014), the African Commission on Human and Peoples' Rights called on states to end violence and other human rights violations based on sexual orientation and gender identity, specifically noting the obligations of African Charter member states. Resolution 275 is not binding but reflects a normative consensus within the African human rights system.

South Sudan has not ratified the Convention Against Torture (CAT), despite repeated recommendations from UN treaty bodies. This gap is significant given the credible evidence of torture and degrading treatment of LGBT detainees.

State Obligations and Failures

The UN Commission on Human Rights in South Sudan, established by the Human Rights Council in 2016, has consistently documented the government's failure to investigate, prosecute, or prevent human rights violations, including those targeting LGBT individuals. In its 2023 report, the Commission noted that impunity remained "pervasive" and that accountability mechanisms were "largely non-functional."

During the Universal Periodic Review (UPR) of South Sudan in 2021, several states—including Iceland, the Netherlands, and Canada—raised concerns about the criminalisation of same-sex conduct and recommended decriminalisation. South Sudan rejected all such recommendations, stating that they conflicted with "cultural values and national sovereignty." This response is inconsistent with South Sudan's treaty obligations under the ICCPR, which do not permit cultural relativism as a basis for derogating from core rights.

Civil society organisations working on LGBT issues operate in extreme danger in South Sudan. There are no registered LGBT advocacy organisations within the country. International organisations such as UNHCR and UNFPA have attempted to provide limited services in Juba, but access to LGBT individuals in displacement settings remains highly constrained by social stigma and security risks.

Displacement and the Asylum Context

South Sudan has produced one of the largest displacement crises in the world. As of early 2024, approximately 2.3 million South Sudanese were refugees in neighbouring countries, and a further 1.7 million were internally displaced. LGBT individuals fleeing persecution within this population face compounded vulnerabilities: they are persecuted both as South Sudanese citizens in the context of broader conflict and specifically as sexual minorities.

Refugee settings in Uganda, Ethiopia, and Kenya—the primary destinations for South Sudanese refugees—offer inconsistent protection for LGBT asylum seekers. Uganda's enactment of the Anti-Homosexuality Act in 2023 rendered the largest hosting country an active source of additional persecution for LGBT South Sudanese who had fled there. Kenya, while not having enacted comparable legislation, has a deeply hostile social environment and a track record of police extortion targeting gay men in urban refugee communities in Nairobi.

Under the 1951 Refugee Convention, sexual orientation and gender identity can constitute membership of a "particular social group" for refugee status determination purposes. This was affirmed by UNHCR's 2012 Guidelines on International Protection No. 9. Decision-makers in receiving countries must therefore assess individual LGBT asylum claims from South Sudan against the documented country conditions, recognising that state persecution is compounded by non-state actors and that internal relocation is not a viable option given the nationwide nature of criminalisation and social hostility.

Expert Analysis

"LGBT persons in South Sudan are simultaneously invisible and endangered. The law makes them criminals; the war makes them targets; the culture makes them unspeakable. There is no safe space — not in the home, not in the community, not in the state. When they flee, they often find that the countries hosting them offer no better protection. The international community must ensure that LGBT South Sudanese refugees receive individualised, rights-based protection rather than being absorbed into mass encampment systems where they face renewed persecution."

Dr. Nanjala Nyabola, Kenyan political analyst and author of Digital Democracy, Analogue Politics, speaking at a 2023 panel on African refugee law

Conclusion

South Sudan's treatment of LGBT individuals constitutes a sustained pattern of state-sanctioned persecution compounded by widespread societal violence. The criminalisation framework inherited from colonial law has never been challenged domestically and is actively enforced. In the context of a fragile peace and dysfunctional institutions, LGBT persons enjoy no meaningful legal protection and face acute risks of arbitrary detention, torture, forced displacement, and violence. South Sudan's obligations under the ICCPR and the African Charter require it to decriminalise same-sex conduct, investigate violations, and provide non-discriminatory access to public services—obligations it is manifestly failing to meet. For individuals who have fled, recognition of their well-founded fear of persecution is essential to ensuring refugee protection compliant with international law.