Tonga

Same-sex sexual activity is prohibited under the Criminal Offences Act, which criminalises acts of ‘sodomy’. This provision carries a maximum penalty of ten years’ imprisonment. While this provision is termed in gender-neutral language, only male, same-sex, sexual activity seems to be generally acknowledged in Tonga.

Although never formally colonised, the law was inherited from the British while a protectorate state. Tonga retained the provision upon independence and continues to criminalise same-sex sexual activity today.

There is no evidence of the law being enforced, and it appears to be largely obsolete in practice. Nevertheless, the mere existence of this provision is itself a violation of human rights and underpins further acts of discrimination (see further). There have been few reports of discrimination and violence being committed against LGBT people in Tonga in recent years. The indigenous leiti population, a traditional Tongan transgender community, is said to be accepted by society, although the President of the Tonga Leitis Association was murdered in a high-profile incident in 2021.

2015 

In April, Tonga’s Chief Executive of Internal Affairs Lopeti Senituli said the government planned to amend the country’s Deaths, Births and Marriages Registration Act to explicitly prohibit same sex marriage. This move came in response to concerns raised by some community and church leaders that Tonga’s planned ratification of CEDAW may oblige Tonga to legalise same-sex marriage.

2012

Section 16 of the Criminal Offences (Amendment) Act 2012 repealed the offence of ‘attempted sodomy’ under section 139 of the Criminal Offences Act, defined as “Whoever shall attempt to commit the said abominable crime of sodomy or shall be guilty of an assault with intent to commit the same or of any indecent assault upon any male person.” The offence of ‘sodomy’ under section 136 remained in place.

2020

The US Department of State report stated that there are no reports of prosecutions under this provision for consensual sexual activity between adults.

2013

Tonga stated in its second UPR cycle: “Tonga however wishes to record that it has not yet prosecuted any same sex adults for committing the act of sodomy, and so far, the criminal prosecutions for sodomy have only been restricted in the context of criminal offending, rather than against consensual same sex partners.”

2021

In May, the President of Tonga Leitis Association, Polikalepo Kefu, was found dead on a beach near his home. A 27-year-old man was charged with murder after he surrendered himself to police following the incident. In October, the man was sentenced to life imprisonment after pleading guilty to murder. The Lord Chief Justice, who was responsible for sentencing, described the murder as one of the worst in Tongan legal history, and was said to have seriously considered giving the offender the death penalty.

2020

The US Department of State report noted that society accepted a “subculture of transgender dress and behaviour”, and a prominent NGO’s annual festival highlighted transgender identities. The report also noted that social stigma or intimidation may have prevented reporting of incidents of violence or discrimination. The reports for 2018 and 2017 each recorded one incident of violence on the basis of sexual orientation or gender identity.

2018

The report of Tonga’s UPR third cycle noted that the indigenous leiti community is recognised in Tonga, and permitted to undertake educational and advocacy programmes to highlight issues of the leiti population and wider LGBT community. However, although described as “tolerant” of same-sex relationships, Tonga did not formally recognise them.

2015

Outside a conference on Sexual Diversity and Orientation in the Pacific held in Tonga in May, a group of protesters held up a banner which read: “Go back to your country with your immorality, Tonga do not want you evil people.”

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