Ugandan Anti-homosexuality Bill

The precarious situation of LGBTI (lesbian, gay, bisexual, transgender and intersex) defenders in Uganda has been widely documented. For example, the country has criminalised homosexuality under section 145 of its Penal Code Act 1950, which punishes ‘unnatural acts’ with life imprisonment.  An even more draconian Anti-Homosexuality Bill was proposed in 2009 by Parliamentarian David Bahati, a member of President Yoweri Museveni’s ruling party, the National Resistance Movement. The Bill, which clearly violated international human rights law, would have introduced the death penalty for acts of ‘aggravated homosexuality’ and criminalised the ‘promotion’ of homosexuality.

 

Following the proposal of the Anti-Homosexuality Bill, international civil society and human rights organisations, including the International Bar Association, Front Line and Human Rights Watch, issued statements voicing their concerns for the safety of sexual minority defenders in the region. A communication issued by Amnesty International USA, also expressed worry for the future of Ugandan LGBTI activists, stating:  ’In an attack on the freedom of expression, a new, wide-ranging provision would forbid the “promotion of homosexuality” – including publishing information or providing funds, premises for activities, or other resources.’

International condemnation, pressure from U.S. President Barack Obama and Secretary of State Hillary Clinton, and the possibility of losing international aid from countries such as Sweden led President Museveni to distance himself from the Bill. At the beginning of 2010, he appointed a committee to review it. In May, the committee recommended the Bill be withdrawn.

Clause 13

 

The committee based its decision to recommend the withdrawal of the Bill on the document’s ‘technical defects in form and content.’ It found that nearly all of the clauses were redundant, repetitive of existing laws or useless. In fact, the committee found that only Clause 13 of the draft legislation, which concerns the promotion of homosexuality, had some merit. According to the Committee’s report, Clause 13 ‘appears to be the core of the draft legislation and should be upheld due to the fact that there was massive recruitment to entice people into homosexuality going on, especially among the youth.’

Clause 13 is a wide-ranging provision that would prohibit the ‘promotion of homosexuality.’ It seeks to punish ‘participation in production, procuring, marketing, broadcasting, disseminating, publishing pornographic materials for purposes of promoting homosexuality; the funding or sponsoring of homosexuality or other related activities; the offering of premises and other related fixed or movable assets for purposes of homosexuality or promoting homosexuality; the use of electronic devices which include internet, films, mobile phones for purposes of homosexuality or promoting homosexuality.’

Persons who ‘promote homosexuality’ face ‘a fine of five thousand currency points or imprisonment of a minimum of five years and a maximum of seven years or both fine and imprisonment.’ If the offender is a business or a non-governmental organization, its certificate of registration will be cancelled on conviction, and the promoter will face imprisonment for up to seven years.

Clause 13 also restricts freedom of assembly and association in human rights defence work, rights that are protected by the Ugandan Constitution, the African Charter (Article 13) and the International Covenant on Civil and Political Rights (Article 22).  The right to strive for the realization of human rights is also enshrined in the UN Declaration on Human Rights Defenders (UNHRD), adopted by consensus by UN member states. Key among the standards contained in the UNHRD is the recognition that organizations who work on issues of human rights have the rights to freedom of expression, association and peaceful assembly. The African Commission on Human and Peoples’ Rights has called upon its member states to ‘promote and give full effect to the [UNHRD], to take all necessary measures to ensure the protection of human rights defenders.’

The UNHRD also recognises that human rights defenders are frequently subjected to violence because of their work; Uganda thus has the responsibility protect them against threats and reprisals within its jurisdiction. In response to a similar law in Nigeria attempting to limit the work of sexual orientation and gender identity human rights defenders, the UN Special Rapporteur on human rights defenders commented: ‘In particular, serious concern is expressed in view of the restriction such law would place on freedoms of expression and association of human rights defenders and members of civil society, when advocating the rights of gays and lesbians.’

Although the Bill has been withdrawn, concerns remain over its impact  on the promotion of sexual orientation and gender identity human rights issues, as well as over the potential implementation of Clause 13. Furthermore, Uganda’s Minister for Ethics and Integrity, Dr. James Nsaba Buturo, announced in September that the government would soon introduce new anti-pornography legislation, which is also intended to reduce homosexuality, declaring: ‘Pornography breeds homosexuality[…]. The days of the homosexuals are over.’

 

Threats to freedom of association

In addition to these actual and proposed legislative violations of their rights, LGBTI defenders also face media smear campaigns and heavy de facto restrictions on the group’s rights of freedom of assembly and association. For example, in November 2007, the Ugandan police prevented members of Sexual Minority Uganda (SMUG), a coalition of LGBTI human rights organisations, from participating in the Commonwealth Head of Government Meeting (CHOGM), by forcibly throwing members of the organisation out of the conference.  The conference had been organized ‘to provide opportunities to share in the diversity and richness of the Commonwealth people’ and give people ‘renewed energy to facilitate social change with a clear sense of building the future together.’  Yet, SMUG representatives were harassed, and those trying to help them access the meeting were caned by police.

 

During another episode, a local police officer forcefully entered the residence of Victor Mukasa, a representative of the LGBTI movement, and arrested him and his partner. While in custody, they were subjected to inhuman and cruel treatment.

According to the International Federation of Human Rights 2009 Report on human rights defenders (HRDs) in Uganda, the safety of LGBTI activists is of concern. The report highlights the case of three activists who, in June 2008, were arrested by police at the 2008 HIV/AIDS Implementers’ Meeting during a peaceful protest against the government’s failure to offer HIV/AIDS prevention programs and treatment to LGBTI people. They were released on bail after having been charged with ‘criminal trespass.’

 

According to LGBTI defender Franck Mughisha, LGBTI organisations in Uganda also lack of support from other civil society organisations, who do not want to be associated with the promotion of human rights for sexual minorities and gender identity issues. As he puts it: ‘Many civil societies that want to work with us fear that if they do so, their certificates of registrations will be withdrawn.’

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