Nine men who were sentenced to 8 years in jail last January, appeared at the Dakar Court of Appeal this morning, represented by five attorneys, to contest their judgment.
In their plea to overturn the ruling, the men's attorneys argued that the procedure presented technical irregularities contradicting the prescriptions of Article 45 of the Senegalese Code of Criminal Procedure, which determines that in a case of flagrante delicto like this one, there should be material proof of the accusations. However, the prosecution lacked such evidence in this case.
Lawyers for the nine men also argued that the procedure contravened Article 407 of the Senegalese Code of Criminal Procedure, since no specific complainant had filed criminal charges against the men, and there were irregularities regarding the time at which the men were arrested (after 10 p.m. at night – arrests can only take place between 6 a.m. and 6 p.m.), the conditions in which they were arrested (at a residence therefore violating the victims' privacy, and without a warrant) and the absence of witnesses/informants.
The prosecution did not contest the defence's plea. The appeal took place after the court rejected the men's application for bail on Monday March 30, 2009.
On December 19, 2008, police officers raided the apartment of Mr. Diadji Diouf, an important leader in the Senegalese lesbian, gay, bisexual and transgender (LGBT) community, and arrested him and eight other men. Mr Diouf, who heads AIDES Senegal, an organization providing HIV prevention services to men who have sex with men (MSM), and his guests were taken to the SICAP Mbao police station where they were detained until December 24 before being transferred to the Maison D'arrêt et de détention de Rebeuss.
On January 8, 2009, the nine men appeared in court to respond to charges of criminal conspiracy and engaging in acts against the order of nature. The International Gay and Lesbian Human Rights Commission (IGLHRC) was informed that lawyers for the defence had had limited access to case files and little time to prepare for the court hearing. The men were condemned to a sentence of 8 years in jail although the prosecutor had asked for a sentence of 5 years, which is the maximum penalty provided by Senegalese law in sodomy cases.
Under Article 3.913 of the Senegalese Penal Code, homosexual acts are punishable by imprisonment of between one and five years and a fine of 100,000 ($200) to 1,500,000 ($3,000) CFA francs.