Uganda Report of Violations Based on Sexual Orientation and Gender Identity 2016
September 2016 Uganda Report of Violations Based on Sexual Orientation and Gender Identity 2016
© A publication of Human Rights Awareness and Promotion Forum (HRAPF)
Human Rights Awareness and Promotion Forum (HRAPF) Plot 390 Professor Apollo Nsibambi Road P.O. Box 25603 Kampala Tel:+256-414-530-683 Email: [email protected] Website: www.hrapf.org Facebook: hrapf.uganda Twitter: @hrapf_uganda
Human Rights Awareness and Promotion Forum (HRAPF); Freedom and Roam Uganda; Sexual Minorities Uganda; Ice Breakers Uganda; and the Uganda National LGBTI Security Committee
Under the auspices of the Consortium on Monitoring Violations Based on Sex Determination, Gender Identity and Sexual Orientation Project Team
Researcher Joaninne Nanyange Contributors Sandra Ntebi Douglas Mawadri Gloria Mutyaba Bob Bwana Reviewer Edward Mwebaza Editor Adrian Jjuuko
1 Table of Contents
Project Team 1 About the contributing organisations 4 About the Consortium on Monitoring violations based on Sexual Orientation and Gender Identity 6 GLOSSARY 7 LIST OF ACRONYMS 8 EXECUTIVE SUMMARY 9 Key findings 9 Key recommendations 10 SECTION I: 13 INTRODUCTION 13 1.1 Introduction 13 1.2 Methodology 13 1.3 Challenges 15 1.4 Structure of the Report 16 SECTION II: 17 KEY DEVELOPMENTS INFLUENCING THE TRENDS OF SOGI VIOLATIONS IN 2015 17 2.1 An overview of key events influencing trends on SOGI violations in 2015 17 2.2 Developments in the law in 2015 and how they affected the rights of LGBTI persons 21 SECTION III 25 HUMAN RIGHTS VIOLATIONS BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY DOCUMENTED FOR THE YEAR 2015 25 3.1 General Overview 25 3.2 Violations By State Actors 25 3.2.1 Violations by the Uganda PoliceForce 25 3.2.2 Local Government authorities 39 The Uganda Registration Services Bureau 42 The Minister of Ethics and Integrity 42 3.3 VIOLATIONS BY NON-STATE ACTORS 43 3.3.1 Property owners 43 3.3.2 The media 44 3.3.3 Family members 45 3.3.4 Employers 45 3.3.5 The general community 46
2 3.4 Conclusion 50 SECTION IV 51 ANALYSIS OF THE TRENDS 51 SECTION V 53 CONCLUSION AND RECOMMENDATIONS 53 5.1 Conclusion 53 5.2 Recommendations 53 To the Uganda Police Force 53 To the Uganda Human Rights Commission 54 To Members of Parliament 54 To the Equal Opportunities Commission 55 To the Judiciary 56 To the Uganda Law Reform Commission 57 To the Ministry of Health 57 To the international community 57 To national human rights organizations and LGBTI organizations 57 To the Media 58 To the Uganda Registration Services Bureau 58 To the Uganda Prisons Service 58 To the President of the Republic of Uganda 59
3 About the contributing organisations
1. Human Rights Awareness and Lesbian, Bisexual and Transgender Promotion Forum (HRAPF) organisation. It was established in Human Rights Awareness and 2003 by a group of lesbians who were Promotion Forum (HRAPF)is a human constantly being harassed, insulted and rights advocacy and legal aid service discriminated against by a misinformed provision organisation with a particular society, and who were touched by the focus on the rights of marginalised plight of their sisters and brothers of groups. It operates the only specialised the same sexual orientation. It is one of legal aid clinic for LGBTI persons in the oldest organisations in Uganda that Uganda. It also engages in strategic work on issues of sexual orientation litigation for LGBTI rights and was and gender identity/expression through instrumental in the case that saw the lobbying, dialogue, visibility and voice. nullification of the Anti-Homosexuality Act, 2014. It also engages the Police, 4. Ice Breakers Uganda (IBU) the judiciary, the Uganda Human Ice Breakers Uganda is an LGBTI care Rights Commission and the Equal and support organisation that was Opportunities Commission on formed in 2004. It caters for LGBTI protection of the rights of LGBTI Ugandans above 18 years of age. Its persons, as well as engaging in research vision is a Uganda of total justice devoid and publications on LGBTI rights. of discrimination based on sexual HRAPF currently coordinates the orientation and free of HIV/AIDS and Consortium. its disastrous effects. Its mission is to support and raise awareness within the 2. Sexual Minorities Uganda LGBTI community about their human (SMUG) rights, issues in health, and advocate Sexual Minorities Uganda is an umbrella for change in attitude towards LGBTI Non-Governmental Organisation persons thereby reducing stigma on based in Kampala, Uganda. It was grounds of sexual orientation. established in 2004 to bring together all LGBTI organisations in Uganda 5. The Uganda National LGBTI that work for the improved lives and Security Committee observance of rights of LGBTI persons. The National Security Committee The organisation advocates for the was established by LGBTI activists in protection and promotion of the human 2008 but started actively working in rights of LGBTI Ugandans through 2010 after the murder of LGBTI rights human rights advocacy, research, activist, David Kato. It is a committee service provision, awareness creation of 7 members chosen from 7 different and networks and partnerships. LGBTI led organisations in Uganda. The committee provides emergency 3. Freedom and Roam Uganda support to the Most at Risk Ugandans (FARUG) who are threatened and attacked due Freedom And Roam Uganda is a to their actual or perceived sexual
4 orientation and gender identities. This emergency support is provided through rapid response, referrals to legal and medical service providers, safe housing and basic upkeep. The committee coordinates closely with LGBTI led organisations within Uganda and also extends its services to community members who are not affiliated to organisations.
5 About the Consortium on Monitoring violations based on Sexual Orientation and Gender Identity
The Consortium on Monitoring this report. The data is analysed and the violations based on Sexual Orientation report developed by the coordinating and Gender Identity (The Consortium) organisation, Human Rights Awareness was formerly known as the Consortium and Promotion Forum (HRAPF). The on Monitoring Violations based on contributing organisations are: Human Sex Development, Gender Identity Rights Awareness and Promotion and Sexual Orientation. It is a loose Forum (HRAPF); Freedom and Roam network of organisations that are Uganda; Sexual Minorities Uganda; engaged in documenting violations Ice Breakers Uganda; and the Uganda based on gender identity and sexual National LGBTI Security Committee. orientation in Uganda. The Consortium The Consortium uses Martus software aims at producing regular, accurate, developed by Benetech which also and harmonised data on violations provides technical support. The Civil based on the two parameters above. Society Coalition on Human Rights and This is aimed at steering evidence- Constitutional Law (CSCHRCL) plays based advocacy strategies for the an observatory role to the Consortium. rights of LGBTI persons. Its overall goal is to establish an evidentiary The Consortium has so far produced record and to create a high quality two annual violations reports, the first and sustainable monitoring system of one being in 2014 and the second one violations based on gender identity in 2015. This is the third consecutive and sexual orientation to support report. advocacy to create positive social and political change. The Consortium seeks to support community organisations to do successful advocacy against these violations and to build the capacity of members to carry out quality documentation of human rights violations through training in documentation and fact finding. It was established in 2014. Organisations voluntarily contribute data of violations they have handled and these are compiled together to form
6 Glossary
Bisexual: A person romantically and/or sexually attracted to men and women. Gay: A man romantically and/or sexually attracted to men. Gender Identity: A person’s conception of oneself as male or female or both or neither.
Homosexual: A person attracted to persons of the same sex. Intersex: A condition in which a person is born with a reproductive or sexual anatomy that does not seem to fit the typical definitions of female or male, or a person who may be born with genitals that seem to be in between male and female.
Lesbian: A woman romantically and/or sexually attracted to women. LGBTI Community: Self-identified LGBTI individuals who participate in social and professional activities with other self-identified LGBTI individuals and LGBTI allies. These individuals do not have to be but are often members of one or multiple LGBTI organisations.
Outing: The act of disclosing a lesbian, gay, bisexual, transgender, and/or intersex person’s true sexual orientation or gender identity without that person’s consent.
Perpetrator: The person or institution responsible for causing the violation. Sex: The genitals: the physical distinction between male and female. Sex Determination: The way by which the sex of an individual is determined. It may be based on the person’s gametes or sex chromosomes.
Sexual Minorities: A group whose sexual identity, orientation and/or practice differs from the majority of the surrounding society.
Sexual Orientation: A person’s emotional, physical and sexual attraction and the expression of that attraction with other individuals.
Transgender: Someone whose deeply held sense of gender is different from their biological sex assigned at birth.
Transgender man: A transgender person who was assigned the female sex at birth but has a male gender identity.
Transgender woman: A transgender person who was assigned the male sex at birth but has a female gender identity.
7 List of Acronyms
AG: Attorney General ATRI: Action for Transgender Rights Initiative CSCHRCL: Civil Society Coalition on Human Rights and Constitutional Law FARUG: Freedom And Roam Uganda GEF: General Inquiry File HRAPF: Human Rights Awareness and Promotion Forum IBU: Ice Breakers Uganda LGBTI: Lesbian, Gay, Bisexual, Transgender, Intersex MARPI: Most At Risk Populations Initiative NSSF: National Social Security Fund PEP: Post-Exposure Prophylaxis RHF: Rainbow Health Foundation SIPD: Support Initiative for People with Congenital Disorders SOGI: Sexual Orientation and Gender Identity SMUG: Sexual Minorities Uganda URSB: Uganda Registration Services Bureau
8 Executive Summary
Introduction perpetrated most of the The 2016 Uganda SOGI Violations violations, the Uganda Report is a collection of verified Police Force remains the violations against persons on the top individual perpetrator basis of actual or perceived sexual of violations against LGBTI orientation and gender identity, persons with 64 violations out documented in 2015. The report is of the 171 violations (37%). intended to act as an evidence based Property owners follow with advocacy tool in bringing to the fore 40 violations (23.3%). the marginalisation suffered by persons in Uganda that are perceived to be 4. A new violator for this year or actually identify as LGBTI. It shows is the Uganda Registration violations as perpetrated by the state Services Bureau which actors and non-state actors. The report denied registration to three uses facts of some of the documented organisations simply on the incidents to illustrate the violations. It basis of their names which it also has various recommendations found ‘undesirable.’ to different stakeholders, which recommendations are intended to 5. Private individuals continue to improve the observance of the rights violate rights of LGBTI persons of LGBTI persons in Uganda. with impunity as in most cases these actions are implicitly Key findings condoned by law enforcement authorities, as the Police usually 1. There were 171 verified does very little to investigate violations of the human rights the cases, and in some cases of LGBTI persons in 2015 even condones them. The state based on sexual orientation therefore remains liable under and gender identity. These international human rights violations arose out of 91 laws for failure to protect the different cases. rights of LGBTI persons from violations by third parties. 2. Of the 171 violations documented and verified 6. Most of the violations against for the report, 78 violations LGBTI persons are fuelled by (45.6%) were perpetrated by the prevalent homophobia state actors, while 93 violations in Uganda, which continues (54.4%) were perpetrated to make LGBTI persons by non-state actors. This is misunderstood. unlike previous reports where state actors perpetrated more 7. The nullification of the Anti- violations. Homosexuality Act did not do much to reduce the violations 3. Although non-state actors of the rights of LGBTI persons.
9 Perhaps the main change is that include such violations non state actors committed in annual reports to more violations that state Parliament, accompanied by actors. recommendations for policy changes. Key recommendations • Encourage various state To the Uganda Police Force institutions to incorporate the Human Rights Based Approach • The Directorate of Human into the fulfillment of their Rights and Legal Services respective mandates. should endeavor to train police officers in matters of human • Include violations of LGBTI rights, particularly the rights of persons’ rights in the Annual LGBTI persons in Uganda. This Report to Parliament as a should be intended to reduce specific category. human rights violations based on sexual orientation and To Members of Parliament gender identity like unnecessary arrests and parades before the • Enact laws that do not media. discriminate on the basis of sexual orientation and gender • The police should afford identity. Parliament should also LGBTI persons equal amend the existing laws that protection by ensuring that discriminate on those grounds violations perpetrated against and avoid enacting laws that LGBTI persons are properly further criminalise LGBTI investigated and dealt with persons. accordingly. This should include violations perpetrated • Condemn attacks or incitement by police officers. to violence against individuals or groups on the basis of sexual • The Directorate of Human orientation and gender identity Rights and Legal Services or expression. should issue guidelines to police officers on how to deal • Parliament should enact laws with cases involving LGBTI that protect the rights of LGBTI persons. persons.
To the Uganda Human Rights To the Equal Opportunities Commission Commission • Investigate and document • Investigate, on its own accord, reports of violence and abuse systematic stigmatisation and against individuals based discrimination of individuals on sexual orientation, sex based on their sexual determination, and gender orientation or gender identity. identity or expression, and
10 • Open up space and opportunity service providers on sexual orientation to partner substantively with and gender identity to enable provision organisations and other persons of discrimination free health services that work for the promotion of for everyone including LGBTI persons. the rights of LGBTI persons. • The Clinical Services To the Judiciary Department should issue proper guidelines for providing • The judiciary should hasten the medical care to all people hearing of cases brought before without discrimination even on them involving human rights the basis of sexual orientation violations as inordinate delays or gender identity. affect the protection of human rights. To the international community • The Constitutional court should • Call on the government urgently give judgment in the of Uganda to live up to its case of Adrian Jjuuko v AG in international human rights order to clarify the jurisdiction standards by protecting the of the Equal Opportunities rights of all persons including Commission tribunal regarding LGBTI persons. LGBTI persons. To national human rights To the Uganda Law Reform organisations and LGBTI Commission organisations • Issue formal recommendations • Build capacity of staff in to Parliament that the Penal documentation of violations Code sections that explicitly based on gender identity and discriminate on the basis of sexual orientation. And this sexual orientation or gender documentation should be identity be repealed, including actively used for advocacy. Section 145 on carnal knowledge against the order • Strengthen reporting systems, of nature. evidence collection and data storage to facilitate easy • Provide guidance on Penal verification of violations against Code sections that provide people based on their sexual for vagrancy offences. Such orientation and gender identity guidance should be in the form or expression. of written guidelines that are circulated to all police posts in To the Media Uganda. • Treat all people with respect To the Ministry of Health and dignity, regardless of gender identity, or sexual orientation. The Department of Community Health should institute training for healthcare • Learn about, monitor, and
11 report on abuses of human rights and dignity that LGBTI • Carry out trainings of prison Ugandans face. officials on rights of LGBTI persons. To the Uganda registration Services Bureau To the President of the Republic of Uganda • Objectively evaluate applications for reservation of • Veto legislation that is organization names and apply discriminatory on the basis of the same principles for all sexual orientation or gender organisations including LGBTI identity and call upon the police organisations. Section 145 of and all intelligence agencies to the Penal criminalises same sex investigate violations and abuse conduct and not the formation of the rights of persons based of organisations intended on their gender identity and to protect human rights of sexual orientation. persons regardless of their sexual orientation. • Ensure that issues of non discrimination are prioritised To the Uganda Prisons Service within the Cabinet and the executive generally. • Protect all prisoners including LGBTI prisoners from violence perpetrated by fellow prisoners or prison wardens.
12 SECTION I INTRODUCTION
1.1 Introduction report is intended to provide evidence The 2016 Uganda SOGI Violations of violations of human rights based on Report is a collection of verified gender identity and sexual orientation violations against persons on the in Uganda.It is a rather common basis of actual or perceived sexual suggestion made mainly by state officials orientation and gender identity, that there is in fact no violation of the documented in 2015. The report is rights of LGBTI persons based on their intended to act as an evidence based gender identity or sexual orientation. advocacy tool in bringing to the fore That LGBTI persons in Uganda are the marginalisation suffered by persons treated just like any other Ugandan in Uganda that are perceived to be and there is no evidence of violations or actually identify as LGBTI. It shows beyond what other people or groups violations as perpetrated by the state suffer. The continuous publication of actors and non-state actors. The report these reports puts such allegations uses facts of some of the documented to rest as they provide concrete incidents to illustrate the violations. It evidence proving the existence of also has various recommendations these violations, and the need for to different stakeholders, which relevant action to address them. The recommendations are intended to reports are intended to be used as improve the observance of the rights advocacy tools to various stakeholders of LGBTI persons in Uganda. and as pointers to what the problems are and what the necessary actions This is the third annual report of should be, as the report includes violations based on Gender Identity targeted recommendations to various and Sexual orientation covering the stakeholders and duty bearers. year 2015. Such reports are published annually documenting human rights 1.2 Methodology violations suffered by LGBTI persons in Following the methodology adopted by Uganda. The first of such reports was the Consortium right at inception, both published in 2014, showing violations quantitative and qualitativemethods documented in the year 2013 and were used to collect and verify data before.The second one was published for this report. Quantitative methods in 2015 for the year 2014. were used in terms of collecting numbers of cases from the different The violations constituting this report organisations while qualitative methods were documented by different were employed in understanding organisations working with LGBTI violations in these cases and analysing persons in Uganda and have been fully the violations further. verified under parameters established by the Consortium. All the contributing organisations do in different ways and capacities Just like the two reports before it, this handle cases of violations against
13 LGBTI persons. HRAPF provides legal should be available, documentary aid services, while the others process evidence was relied on more. The security concerns and also document documents required were those complaints. As such it is quite frequent thatcould adequately prove that what that one case is handled by different was being alleged actually happened. organisations on different aspects: The main documents used were: legal aid, security, and documentation. eviction letters to prove evictions; Data collection was done following medical forms to prove medical the mandates and methodologies of examinations;charge sheets to prove the organisation collecting the data charges; police statements to show and care was taken to ensure that that the police took down statements; cases handled by multiple people were newspaper clippings to prove that a classified as one case. case was reported in the media or that outings happened; police bond forms 276 cases in total were collected with to show when a person was released HRAPF contributing 133; the National on police bond;judgments of courts Security Committee 117; Ice Breakers to prove that a case was decidedand Uganda 13; Sexual Minorities Uganda records of interviews to prove that 8; and Freedom and Roam Uganda 5. certain conversations took place. Of the 276 cases, only 91 had verifiable violations and are what made it to this The second method of victim/ report. Due to the fact that some cases witness corroboration was only used have multiple violations, the 91 verified in instances where the documentary cases had a total of 171 violations that evidence was not sufficient to prove were analysed for this report. the existence of a violation. In most cases this was due to the lack of Pursuant to the need to have a clear and proper documenting guidelines where verifiable record of violations against some organisations were not keen on LGBTI persons in Uganda based on securing the necessary documents to sexual orientation and gender identity, prove certain claims, and also the fact it wasimperative to ensure that the that violations, actions or allegations data published in these reports can be cannot be proved by documents. In relied on by the different stakeholders. such cases, victims/witnesses were To this end, there are strict verification contacted to give an account of the guidelines that have to be followed for event as they witnessed them. Only a violation to be included in this report. those who suffered or who saw others Not all documented violations are suffering the violations could have their included in this report because during evidence used as verifying evidence. the verification process, some of them Care was taken to have more than one fail to make the cut for lack of proper witness where possible to be able to documentary evidence and adequate fully corroborate the case story. witness corroboration. All cases that were not adequately The verification process is entirely proved using both methods were not based on primary evidence. As such considered for this report. This is not only documentary evidence and in a way to say they never happened, witness statements/corroboration are but rather to re-enforce the reliability accepted. For cases where documents of these reports. It is important that the
14 target persons and institutions are able be because more violations happen in to fully rely on these reports by trusting Kampala, but rather because of the high that all the cases that are published here concentration of LGBTI organisations are done so after a rigorous verification in Kampala and its metropolitan areas process and can therefore be relied compared to rural and up-country upon. In a way, this process also sets areas. This can be explained by several high quality standards which encourage socio-economic factors, however better documentation of LGBTI cases. it makes it hard to understand and document the occurrence and trends 1.3 Challenges of violations in those areas. This is The biggest challenge encountered worsened by the fact that even the few during verification was the lack of a organisations in these up-country areas standardised form of documentation lack the capacity to properly document for the contributing organisations. their cases and therefore even the few While all these organisations receive cases documented in those areas rarely and handle complaints/cases concerning pass the strict verification criterion. LGBTI persons, they all have different This biases the results which continue documentation mechanisms due to to under and/or misrepresent the their mandates. They thus handle cases lived realities of these communities for different reasons and therefore in those areas. There is thus need for prioritise information based on what empowering rural LGBTI communities they need. This sometimes excludes to organise and in addition or in the documentation of information or alternative, provide capacity building to evidence that they might not need, the existing organisationsto properly but which proves the occurrence of a document the violations that occur violation. There is therefore need for so as to be able to publish credible organisations that handle LGBTI cases representative data. to not only solve a case but also ensure that every case or complaint is properly Overall, there is still a prominent lack documented and verified. of capacity to properly document cases among organisations working with There were also various instances of LGBTI persons, as well as the need to lost information from the contributing more effectively document cases from organisations. This loss was majorly as a upcountry. This report therefore does result of attacks on these organisations not purport to give a complete picture and theft. Computers and hard drives of violations but rather focuses on what on which cases had been documented the verified violations show. As time were lost and all that information lost goes on and the capacity of organisations along with them. This left out many develops more, there is hope for more documented violations which ended accurate and comprehensive reports. up giving a skewed picture of the There is a great need for organisations violations in Uganda. Complete loss to understand that the documentation of data creates incurable gaps that they do serves an even greater purpose affect our use of data/evidence based beyond the clients they serve, and advocacy. that hence there is need to do it with that in mind. There is an urgent need There is still a biased concentration of to develop the capacities of all these cases arising from Kampala. This may not organisations as poor documentation
15 excludes many cases from being published and considered and does not give a proper and true picture of the lived realities of LGBTI persons in Uganda, who continue to face these violations.
1.4 Structure of the Report Section I: Introduction Section II: Overview of the key events in 2015 that influenced the SOGI violations in the report Section III: Violations against LGBTI persons in 2015 based on their sexual orientation and gender identity Section IV: Analysis of the trends of violations Section V: Conclusion and Recommendations
16 SECTION II KEY DEVELOPMENTS INFLUENCING THE TRENDS OF SOGI VIOLATIONS IN 2015
2.1 An overview of key events public officials on this issue.2This kind influencing trends on SOGI of environment created self-censorship violations in 2015 within the LGBTI community and its allies as there was uncertainty as 2015 started five months after to the future of the criminalisation the nullification of Uganda’s Anti- of homosexuality in Uganda. This Homosexuality Act, 2014 by the situation of uncertainty was further Constitutional Court.1 2014 had perpetuated by concerns that a new been a year of ups and lows for the bill, the Prohibition of the Promotion of LGBTI community in Uganda with Unnatural Sexual Offences Bill,3which the Anti-Homosexuality Bill passed by targeted service provision for the LGBTI Parliament in December 2013, signed community was to be introduced. The by the President in February 2014, Attorney General had also filed a notice coming into force in March 2014, and of intention to appeal the decision of being nullified in August 2014. The the Constitutional Court.4 passing of the law saw organisations that were providing services to LGBTI In the meantime, the Anti- persons threatened, with a raid on Homosexuality Act continued to be Makerere University Walter Reed challenged at the East African Court Project, and the suspension of the of Justice in the case of Human Rights services of the Refugee Law Project, Awareness and Promotion Forum key allies of the LGBTI community. This (HRAPF) v Attorney General of the created tension and fear among the community of service providers, which 2 For example the original mover of may have affected the level of support the Anti-Homosexuality Bill, Hon. David services available to LGBTI persons. Bahati , Hon. Benson Obua Ogwal and the Imam of Parliament Hon. Latif Ssebagala. Throughout the whole year, there were Also see ‘MPs start process to retable gay concerns that a new law would be bill ’The Daily Monitor 3 September 2014; introduced in Parliament to replace the ‘Anti-Homosexuality Bill will be retabled, annulled Act, and although this never MPs’ Parliament of Uganda http://www. materialised, its halo hung over the lives parliament.go.ug/index.php/about- of LGBTI persons and persons working parliament/parliamentary-news/442-anti- with them for the whole year. There homosexuality-bill-will-be-retabled-mps were statements continuously made by 3 There was a leaked copy of this bill, which however was never tabled in Parliament and it was not officially acknowledged or 1 This was on 1st august 2014 in the owned up to by anybody. case of Prof J. Oloka Onyango& 9 Others 4 ‘We have received public backlash for v Attorney General, Constitutional Petition annulling antigay law-judge’The Daily No. 8 of 2014. Monitor 30 September 2014.
17 Republic of Uganda.5In the reference, that of the UNAIDS accepted.7By the the applicant argued that the passing date of publication, the case had been of the Anti-Homosexuality Act and heard pending judgment. The case is some of its provisions contravened very instrumental as it is the first case Articles 6(d), 7(2) and 8(1)(c) of the filed in an international court in Africa Treaty for the Establishment of the concerning LGBTI rights. East African Community that enjoins partner states to abide by the principles In the midst of the talk about the Anti- of the rule of law, social justice and the Homosexuality Act being re-introduced, maintenance of universally accepted the Non Governmental Organisations standards of human rights. That the Bill (NGO Bill) emerged. The bill was Anti-Homosexuality Act provisions passed on 27th November 2015 by the on the immunity of ‘victims’ of Parliament of Uganda. While the NGO homosexuality from being tried for any Bill, later passed into the NGO Act, did offence committed when ‘protecting’ not have particular provisions on LGBTI themselves against homosexuality; organisations, many of its provisions promotion of homosexuality; and would have negatively affected LGBTI abetting homosexuality were a organisations as discussed by HRAPF violation of the principles of good in its first analysis of the Bill.8 While governance set out in the treaty some of the troubling clauses in the bill which are democracy, the rule of law were left out of the Act, some are still and the recognition, promotion and part of the law, like the provision that protection of human and peoples’ prohibits organizations from engaging rights in accordance with the African in activities that are prejudicial to the Charter on Human and Peoples’ Rights. By the end of 2015, the case had not been heard on its merits, but court had heard four applications from different stakeholders in the region seeking to No. 20 & 21 of 2014, Dr. Ally Possi& Centre be amici in the case. These applications for Human Rights, University of Pretoria v were filed by Health and Development Human Rights Awareness and Promotion Initiative (HDI)- Rwanda, UHAI- The Forum (HRAPF) & The Attorney General of East African Sexual Health and Rights the Republic of Uganda, Application No. 1 Initiative (EASHRI)-Kenya, Dr. Ally of 2015. Possi (Tanzania) together with the 7 Secretariat of the Joint United Nations Centre for Human Rights, University Programme on HIV/AIDS v Human Rights of Pretoria (South Africa) and the Joint Awareness and Promotion Forum (HRAPF) Secretariat of the United Nations on & Attorney General of Uganda, Application HIV/AIDS (UNAIDS). The first three No. 3 of 2015. applications were rejected6 and only 8 These had been identified by HRAPF in its first analysis of the Bill. See Human 5 Human Rights Awareness and Promotion Rights Awareness and Promotion Forum Forum v Attorney General, Reference No. The NGO Bill 2015 and its Practical 6 of 2014 and Human Rights Implications on 6 UHAI EASHRI & Health Development Organisations Working on the Rights of Initiative- Rwanda v Human Rights MarginalisedPersons(2015)
18 security9 and dignity10 of Ugandans. which the complainant alleged that the HRAPF has pointed out the challenges accused person invited him for a job that these provisions present to LGBTI offer and instructed that they meet in organisations.11 They could easily the accused’s house to discuss the fine achieve the purpose of the ‘promotion details of his employment contract. of homosexuality’ provisions in the Anti That when the complainant went to Homosexuality Act. the house, the accused offered him drugged water to drink upon which Besides the NGO Act, the Sexual he lost consciousness and woke up Offences Bill was introduced towards abandoned at a farm, with pain and the end of 2015 and seeks to be the bleeding from his anus. He went for codified penal law on sexual offences medical checkup and was informed that in Uganda. The Bill retains the Penal he had been sodomised. The Magistrate Code sections that criminalise same convicted the accused on the medical sex sexual conduct and as a matter of evidence and other circumstantial fact, expands the criminalisation to also evidence like the presence of the include women12, who are currently complainant’s shoes at the accused’s excluded under the Penal Code Act. residence. He was sentenced to 10years HRAPF has done an analysis of how imprisonment. The second case was this Bill would affect LGBTI persons.13 the case of Uganda v Christopher Mubiru Kisingiri.15 In this case, there were two There were two highly publicised complainants who both alleged that court cases that further led to public the accused had sodomised them. One condemnation of homosexuality as they of the complainants alleged that he had were highly discussed by the media in gone for a party at the accused’s place, terms that conflated consensual same but found that the party had ended. sex relations with non-consensual same He says that he was then drugged sex relations. These were the cases by the accused and raped. The other of Uganda v Shabhaz Muhammed14 in complainant said that the accused ‘sodomised’ him after they both agreed 9 Non-Governmental Organisations that the complainant would be paid (Registration) Act, 2006 Sec 44(d) 500, 000 Uganda shillings in exchange. 10 n 9 above Sec 30(1)(a) The magistrate dismissed the latter 11 Human Rights Awareness and complaint for reasons of unreliability in Promotion Forum Position Paper on the evidence of the complainant and the Non-Governmental Organisations the accused was convicted on the first Act, 2016 (March 2016).
19 rather forced sexual relations, but be ‘undesirable.’ The reason given by nevertheless they evoked public the Registrar of Companies was that emotions and continued to propagate the name could not be reserved or the widely held but flawed belief that the organisation incorporated as it LGBTI persons are peadophiles and intended to work with LGBTI persons, abusers. Despite the negativity around which violates the laws of Uganda, the cases, they were instrumental particularly Section 145 of the Penal in the interpretation of section 145 Code Act which criminalises unnatural of the Penal Code, as they were the offences. The rejection of SMUG saw first documented convictions on the the beginning of a worrying trend where section. The cases took away all doubt the URSB started critically scrutinizing that same sex sexual activities indeed organisations taken for incorporation form part of the conduct criminalised and as a result, rejected incorporation under the section as they laid down of two other organisations in 2015. the ingredients of the offence. Most These were Born This Way Uganda importantly, the Christopher Mubiru and Action for Transgender Rights case watered down the relevance and Initiative (ATRI). All these rejections utility of the use of anal examinations were solely based on the undesirability as evidence in cases of same sex sexual of the proposed names. This trend is conduct. The magistrate noted that in making it hard for LGBTI organisations cases of consensual sex, it would be to organise and is hampering the service hard to find signs of penetration and provision most of these organisations yet this is what anal exams look for. engage in. By the end of 2015, there This is because in such cases, there is were advanced plans to challenge this consent and use of agents like lubricants trend in the courts of law. which ease penetration and reduce the likelihood of there being any bruising or On a more positive note, 2015 saw marks. This is an important authority as closer cooperation between state it could potentially reduce the likelihood institutions and the LGBTI community. of anal exams, which are some of the The Directorate of Human Rights and common ways in which suspected Legal Services at the Uganda Police LGBTI persons are humiliated and Force continued to engage with the degraded. LGBTI community. The Police cleared and even provided protection for The year also saw the development the 2015 Pride events. The Uganda of a new trend targeting LGBTI Human Rights Commission also organisations. Many of them were actively engaged on LGBTI issues denied incorporation by the Uganda and even started doing workshops Registration Service Bureau (URSB) on that were focused on human rights grounds that they work with people violations faced by LGBTI persons. The that engage in criminalized behaviour. Equal Opportunities Commission also Initially, LGBTI organisations seeking continued to receive updates on the incorporation as companies limited by situation of LGBTI persons. guarantee were incorporated provided their objectives were not specific to Generally, 2015 was a mixed bag for LGBTI persons. However when Sexual LGBTI rights in Uganda. There was a Minorities Uganda (SMUG) sought lot of progress as far as protection of incorporation, its name was found to LGBTI rights by the state is concerned,
20 and at the same time, there were many marriage and therefore does not in other less positive developments that a way expand the criminalization of threatened LGBTI rights. All these homosexuality under the Penal Code. developments had an impact on the trends of violations and protection of In 2009, the Anti-Homosexuality Bill LGBTI rights in 2015 as reflected in this was introduced in Parliament and it report. was intended to be the codified law on homosexuality in Uganda. Unlike the 2.2 Developments in the law in Penal Code Act that merely criminalises 2015 and how they affected sexual activity, the Bill sought to extend the rights of LGBTI persons this criminalization to also include The nullification of the Anti- identifying as LGBTI and even providing homosexuality Act as well as other legal services to LGBTI persons, which was developments in 2015 left the question termed as promotion of homosexuality. of whether there was a substantive Under the Bill, all aspects of being change in the legal framework governing LGBTI were criminalized, including the rights of LGBTI persons in Uganda. criminalization of activities that were For a very long period of time, the Penal engaged in by persons that were not Code Act, adopted in Uganda in 1950, necessarily LGBTI persons. It was was the only law that had provisions on very extensive. The Bill was passed by same sex practices. This was in sections Parliament in December 2013, signed 145 and 146 which criminalised having into law by the president in February carnal knowledge against the order 2014, and came into force in March of nature and attempting to have 2014. The law repealed the above carnal knowledge against the order mentionedsections of the Penal Code of nature respectively.These sections as it was comprehensive enough. It was still exist in the Penal Code. Although however annulled by the Constitutional the sections do not expressly mention Court in August 2014 on grounds that LGBTI persons, it is taken as trite that it was passed by Parliament without those sections actually specifically the requisite quorum.17For the time target LGBTI persons. Various other it was in force, it provided expansive provisions in the Penal Code Act have criminalization of homosexuality, and been continuously used against LGBTI many violations of the rights of LGBTI persons like section 147 on indecent persons could be properly placed assaults on boys under eighteen and within the ambit of its implementation. section 148 that creates the offence With its annulment however, Uganda of indecent practices. Even then, the went back to relying on the sections above sections do not criminalise the of the Penal Code Act that criminalise whole spectrum of being LGBTI as sexual activity, and this remains the their primary focus are sexual acts. position to date. In 2005, during the amendment of The Penal Code besides section Uganda’s Constitution by Parliament, 145 and 146, has other provisions an article was introduced that expressly that are used against LGBTI persons. prohibits marriage between same sex These are the offences of: indecent persons.16 This article is specific to 16 Constitution of the Republic of Uganda 1995, Article 31(2a) 17 Prof. Oloka Onyango(n 1 above)
21 practices,18 common nuisance,19 being is interpreted. In the Shabhaz idle and disorderly,20 being rogue and Mohammed case, the magistrate also vagabond21 and personation.22 Most of laid down ingredients of this offence these offences are used as alternative which were:There has to be carnal offences to charge LGBTI persons since knowledge, there has to be medical it is hard to successfully prosecute the evidence to prove unnatural sex ad it offence of unnatural offences. must be proved beyond reasonable doubt that the accused committed the In addition to the Penal Code Act, crime. Unlike the previous case, this there are also other laws that have case does not even attempt to break provisions that affect LGBTI persons.23 down the offence.It just reproduces the However, these laws do not have as section. The magistrate also includes much impact on the lived realities of the issue of evidence as part of the LGBTI persons like the Penal Code ingredients, implying that it is only section 145. Most of these are rarely medical evidence that can be used to implemented as most emphasis is prove this offence. Nevertheless, both placed on the criminalisation. This cases, without any detailed justification emphasis is what has subsequently or explanation took it as trite that the caused the continued violations of offence of unnatural offences applies to LGBTI persons, under the blanket of homosexual sex.24 criminalisation. That essentially leaves section 145 as the main provision used Although the ingredients of the offence against LGBTI persons. were formulated basing on the facts of each case, they remained in line The two main criminal cases decided with what the High Court ruled in the in 2015 on this section(The Shabhaz Rollingstone case25 that section 145 was Muhammed the Christopher Mubiru case) limited to sexual practices. shed some more light on the ingredients of the offence under section 145(a). In From the section and above the Chris Mubiru case, the magistrate interpretations therefore, one should stated that the offence of unnatural deduce that it is only same sex sexual offences has two ingredients:anal sexual activities that are criminalised under act was performed against the victim section 145, and not someone’s sexual and the accused participated in the act. orientation or the work of organisations These ingredients seem to have been working on such issues. There is formulated taking into consideration nevertheless a tendency to widen the the particular circumstances of the scope of section 145. This was done case. The case can however be used in the 2014 decision in the case of as a guideline on how the section Nabagesera & 3 ors v Attorney General
18 Penal Code Act, 1950, Cap 120 Sec 148 24 HRAPF ‘Summary 19 n 18 above, Section 160 and legal analysis of the Chris Mubiru 20 n 18 above, Section 167 judgment’(2015) p5 21 n 18 above, Section 168 25 Kasha Jacqueline, 22 n 18 above, Section 381 Pepe Onziema& David Kato Vs Giles 23 HRAPFA guide to the normative legal Muhame and The Rolling Stone Publication framework on the human rights of LGBTII Limited High Court Miscellaneous Cause persons in Uganda (2015) No. 163 of 2010.
22 &Anor.26In that case, the applicants the limitation clause in the constitution were suing the Attorney General and to reach its conclusion, and the case the Minister of Ethics and Integrity was decided on its own facts. The alleging that the latter’s actions of case was still on appeal by the time of closing down a skills training workshop publication.30 for LGBTI persons was a violation of a host of rights including freedom of Some state institutions have also speech, freedom of assembly, the right adopted a widened interpretation of to participate in peaceful activities to section 145 and key of these is the influence government policies, and Uganda Registration Services Bureau the right to equal treatment. In his (URSB). The Bureau has continued to judgment, Judge Musota held that deny the incorporation of organisations the minister was justified in closing working with LGBTI persons, on down the workshop as holding such grounds that doing so would amount workshops for LGBTI persons is to the promotion of an illegality. This criminalised under the Penal Code in interpretation has been challenged sections that criminalise incitement before the High Court.31 of someone to commit an offence,27 conspiring with another to commit an Nevertheless, the rights of LGBTI offence28 and conspiracy to effect any persons remain protected under unlawful purpose e.g. promotion of the Constitution. One of the key an illegality.29According to the judge, characteristics of human rights is the holding such workshops would amount fact that they accrue to all human beings to incitement to commit homosexual by virtue of their being human. They acts and conspiracy to effect an are therefore not the exclusive dictate unlawful purpose which is unlawful. In of the state to be given and taken addition to the above, the judge also away when it pleases.32 In Uganda, this held that the minister did not violate characteristic is anchored in Article 20 any rights of the applicants as they of the Constitution which provides that; were limited in public interest, which was to protect the morals and values (1) Fundamental rights and freedoms of Ugandans. In essence, the court in of the individual are inherent and that case held that any activities done not granted by the state. in the promotion of the rights of LGBTI persons are considered criminal as they (2) The rights and freedoms of are actions of conspiracy and incitement the individual and groups to LGBTI persons to engage in conduct enshrined in this Chapter shall be prohibited under Section 145. This respected, upheld and promoted notwithstanding, it is important to note by all organs and agencies of that this case did not widen the reach Government and by all organs of section 145 of the Penal Code but and agencies of Government and rather used the provisions of the Penal Code on parties to an offence, and 30 Frank Mugisha& 0thers v Attorney General, Civil appeal 195 of 2014. 26 Misc cause No 033 31 Frank Mugisha, Dennis Wamala of 2012 &Ssenfuka Warry Joanita v Uganda 27 PeAnal Code (n 18 above) Sec 21 Registration Services Bureau Miscellaneous 28 n 27 above, Sec 390 Application No 96 of 2016. 29 n 27 above, Sec 392(f) 32 HRAPF (n 23 above)15
23 by all persons. In addition to the above article, the Constitution provides for different rights including the right to equality and freedom from discrimination,33 the right to liberty,34 the right to freedom from inhuman and degrading treatment,35 the right to privacy,36 the right to found a family,37 the right to freedom of expression, thought, opinion and assembly,38 affirmative action in favour of marginalised groups,39and the right to civic participation.40All these rights apply to LGBTIpersons in as much as they apply to other persons.41 Therefore, the recent developments in the law do not divert from the basic premise that consensual same sex relations are criminalised in Uganda, but that the rights as protected in the Constitution apply to LGBTI persons too.
33 n 16 above, Art 21 34 n 16 above, Art 23 35 n 16 above, Article 24 36 n 16 above, Article 27 37 n 16 above, Article 31 38 n 16 above, Article 29 39 n 16 above, Article 32 40 n 16 above, Article 38 41 For a full discussion on how these rights apply to LGBTI persons, see HRAPF (n 23 above)
24 SECTION III HUMAN RIGHTS VIOLATIONS BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY DOCUMENTED FOR THE YEAR 2015
3.1 General Overview are entitled to the protection of the Unlike in previous reports, most of the rights enshrined within international violations documented and analysed and domestic law.42 However, this is for this report were perpetrated by not the case in practice. More often non-state actors. Of the 171 violations than not, state institutions have directly identified from the 91 verified cases, been involved in the violation of the state actors directly perpetrated rights of LGBTI persons directly or 78(45.6%) while non-state actors implicitly. The violations perpetrated by perpetrated 93 of them (54.4%). Most state actors are described below. state perpetrated violations were registered by the legal aid service 3.2.1 Violations by the Uganda provider-HRAPF-where the state Police Force perpetrated 62of the 99 violations The Uganda Police Force has the identified and documented by the primary mandate to enforce laws in HRAPF legal aid clinic. From the other Uganda, and keep law and order.43In contributing organisations, most of 2015, the Uganda Police in some the violations identified from the respects fulfilled this mandate and cases they received were perpetrated in others, it stood out as the leading by either community members or violator of the rights of LGBTI persons. family members. This variation can be explained by the known different Protection of LGBTI rights by the mandates of the different organisations Police as already discussed above. As the trend has been before, the authors of this report acknowledge 3.2 Violations By State Actors the increased cooperation between The state has the principal obligations the Police leadership and the LGBTI to fulfill, respect, and protect the rights community. The Police’s leadership and of its citizens. Different state institutions especially the Directorate of Human are established and given the mandate Rights and Legal Services continued to to carry out these duties. The above be actively engaged in the protection stated obligations are substantially of LGBTI rights. The Director himself, anchored in different provisions of Assistant Inspector General of Police international human rights treaties Erasmus Twaruhukwa and his staff and Uganda’s laws. In the context of were always available throughout the LGBTI persons in Uganda, various state year, and could be contacted at any institutions have actively been involved time in case the Police were violating in the protection and promotion of the the rights of LGBTI persons. Activists rights of LGBTI persons, and have also and lawyers used this channel on many been a prominent contributing factor occasions and in all those cases there to the violations of the said rights. 42 HRAPF (n 23 above) LGBTI persons, like all other Ugandans, 43 Constitution (n 16 above), Art 212
25 was a positive outcome. if not for human rights concerns, then for their safety. Such opportunities can In a number of instances, the Police be harnessed and used as progressive came out to protect the rights of LGBTI examples. persons. Like in 2014, five separate incidents were verified in 2015 where On 15 January 201545, Police arrested police protected LGBTI persons. What nine suspected gay men in Ntungamo should be of note is that in all but one district and detained them on charges of these cases of protection, there of sodomy. HRAPF engaged police to were violations being committed by try and release them but they were the Police and this one instance simply reluctant until HRAPF contacted the stood out. The protection was done in Directorate of the legal and Human various ways and they are the following: Rights Affairs of the Uganda Police Force, which intervened and secured Protection from mob violence the release of the suspects. Such There were two cases in which the engagement creates a space that Police protected LGBTI persons from could be exploited to actively engage mob justice. In a case documented in police on LGBTI rights. In that same January 201544, Kikajjo police post in case, when Police agreed to release Namasuba arrested a transgender man the suspects, they set a condition that for theft and detained him with male they could only release them if HRAPF inmates. There were no problems found a secure place for them to stay. until day break when he was doing The reason they were being detained chores and the inmates saw that at police for long periods of time was he had developed breasts. This was to protect them from incensed mobs reported to the officer on duty who that wanted to attack them. These directed a female officer to check the mobs had attacked the post at which inmate and ascertain his actual sex. The they were first detained and police female officer checked the inmate and therefore took it upon themselves to concluded that he was female. He was protect them. HRAPF had to work with taken to a clinic which confirmed this. SMUG and the Security Committee to After ascertaining this, the officer on secure safe housing for them before duty decided not to send the inmate they were released. Despite even the back to the cells as he thought that homophobic tendencies among the keeping him with either male or female officers themselves, they were willing to inmates would pose a grave danger to protect the suspects and even insisted him. To protect him from any assault on it. This re-enforces the fact that or attacks, police kept the inmate in regardless of one’s perceived or actual one of the offices until he was released. sexual orientation or gender identity, Considering that one of the advocacy they deserve as much protection as points for transgender persons regarding other people. detention is establishment of separate cells for them, this was encouraging Assistance in accessing property and showed that if properly engaged, On 30 January 201546, a suspected detention authorities could understand gay man was forced out of his rented the need to protect transgender premises after his landlady accused him persons by separately detaining them, 45 HRAPF/G/7/01/15 44 HRAPF/T/2/01/15 46 HRAPF/G/17/01/15
26 of being gay and even opened up a the mandate and powers to apprehend police case against him. He sought to anyone that is found breaking the law leave the house and as a result, wanted or anyone suspected of doing so. Even to access his property and take it. He was then, that mandate should be exercised however denied access to the house within the ambit of the international and property by the landlady, together and domestic human rights framework with the local council chairperson. that Uganda is governed by. However, When HRAPF contacted police, they Police have continuously disregarded wrote a letter instructing the landlady this and have used their mandate to and the chairperson to allow HRAPF continue violating the rights of LGBTI and its client access to his property and persons. As already mentioned, of even offered to provide security. This the 78 violations perpetrated by state also re-enforced the notion that all actors, the Police were responsible for persons deserve protection regardless 64 of these. The violations are going to of one’s sexual orientation or gender be discussed below, categorised under identity. the different rights that were violated.
Release of suspect after declaration In previous reports, the Police that cross-dressing is not an offence have been cited as the top most In September 201547, a transgender perpetrators of violations of rights of woman was arrested and detained at LGBTI persons.49This trend has not Kyanjale Police post in Masaka district, changed even for this year as violations for ‘dressing like a woman’. She was documented in this report also show however detained very briefly and that the Police remain the biggest released after police concluded that perpetrators of violations of rights of they did not really see a problem LGBTI persons. Despite the fact that with cross dressing. The person was the non-state perpetrated violations released without charge. Very many are more than those perpetrated by times transgender persons are arrested the state, the Police are still responsible for cross dressing and accused of for single-handedly perpetrating being frauds and criminals. However most of the violations. Out of the 78 this was a very progressive action and violations perpetrated by state actors, deeper engagement with police can police are responsible for 64 of these, be used to end the arbitrary arrests which translate into 82%of the state that transgender persons are usually perpetrated violations. subjected to. Right to personal liberty Violations by the Police The Right to personal liberty is The above notwithstanding, there guaranteed under Article 23 of were numerous incidents in which Uganda’s Constitution. The Article police grossly violated the rights of clearly gives circumstances when a LGBTI persons. It is important to note that same sex sexual activities are respectively. criminalised in Uganda.48The Police have 49 The Consortium on monitoring violations based on Sex Determination, 47 HRAPF/T/4/09/15 Gender Identity and Sexual Orientation 48 Penal Code (n 18 above) Secs 145 and ‘Uganda Report of Violations Based 146 of criminalise Unnatural offences and on Gender Identity and Sexual attempts to commit unnatural offences Orientation’(2015) p21.
27 person’s liberty can be taken away,50 As noted above, the where an arrested person should be Constitution clearly provides detained,51the right of an arrested or for circumstances under detained person to be informed of the which someone’s personal reason for their arrest or detention in a liberty can be taken away. language they understand and the right The circumstances are quite to a lawyer of their choice,52the right extensive and include execution of an arrested person to be released of court orders or sentences, or produced in court not later than or upon suspicion that a 48 hours from the time of arrest or person has committed a crime detention,53 the right of the arrested or is about to commit a crime. or detained person to inform their However, in six verified cases in next of kin; the right of the arrested 2015, the Police arrestedLGBTI person’s next of kin, lawyer and doctor persons without any justifiable to be allowed reasonable access to the reason for such arrest and/or arrested or detained person; the right detention. For example on 30 of the arrested or detained person January 2015, a gay man was accessing medical treatment;54and the arrested57 when he was found right to compensation for a person walking at night with his friends. who is unlawfully arrested, restricted, He did not have residential or detained by any person or authority identification but had an whether it is the State or an agency employee identification card. of the State or other person or He was arrested and detained authority.55It should however be noted at Mawanda Road Police post that the right to liberty is not non- and was only released without derogable and can therefore be limited charge after the intervention of under Article 43.56Even then, as will be HRAPF. His arrest was clearly discussed below, police have continued not justified as he was not to grossly violate this right without any found in any circumstances justifiable reasons. that would suggest that he was about to commit a crime or a) Circumstances of arrest that he had committed one. 50 n 16 above, Article 23(1) In another instance,58 on 27 51 n 16 above, Article 23(2) September 2015, a gay man 52 n 16 above, Article 23(3) was found walking at 10:30pm 53 n 16 above, Article 23(4) by four police officers. He was 54 n 16 above, Article 23(5) asked where he was coming 55 n 16 above, Article 23(7) from and also asked to show 56 The Article provides that some rights what he was carrying in his can be limited in the interest of the rights bag. He informed them that of others or the public interest. However, he was coming from work the limitation should not be beyond what and showed them what he is acceptable and demonstrably justifiable was carrying in his bag, which in a free and democratic society, or what is were his working tools. They provided in this Constitution. The Article however went ahead to arrest also clearly states that public interest shall not permit political persecution and 57 HRAPF/G/18/01/15 detention without trial. 58 HRAPF/B/05/10/15
28 and detain him at Kira Police one case at Katwe Police Station Station and charged him with where a transgender woman being rogue and vagabond, was arrested for ‘dressing like after which the charge was a woman’ and charged with changed to being idle and being a public nuisance.60 disorderly. These arrests are very unjustified and baseless as Of all the above cases, one in such a circumstance; there case resulted into a conviction was no reason for the arrest and this was on a plea of and subsequent detention and guilt.61Pleas of guilt in vagrancy trial of the suspect because he trials are always made to avoid complied with all that police long pre-trial detention periods asked him to do. because such cases usually take long as there is no credible Police have also continuously evidence that is adduced. arrested persons for cross- These continued unjustified dressing. In 2015, four cases59 arrests and detention by police were verified in which persons are a violation of Article 23 of were arrested for dressing the Constitution. in a manner that does not necessarily reflect their b) Places of detention natural sex. While it has been When a person is arrested, they sparsely reported by police are required to be detained in that people, especially men, places authorised by law. In dress like women to commit most cases, these are police crime, there is nothing to show cells before a person is taken that this is common place. As to court and prisons if a person a matter of fact, all cases that has been remanded. In 2015, HRAPF has intervened in that one case62 was verified where involved arrest of persons a suspected gay man was for cross dressing show that arrested by plain clothed police these persons were never officers and detained in Local found committing crimes and Council offices for almost an there was nothing to suggest hour before being transferred that they intended to commit to the Police station. This illegal crimes. This is because for most detention was not explained of them, this is always their and was clearly unjustified lifestyle and the people that considering that the suspect live and work with them always was arrested by police and testify that they live with them was within the geographical in harmony, regardless of their jurisdiction of the arresting cross dressing. Their arrests police station i.e. the suspect therefore are always unjustified was arrested in Kazo, right and they end up being charged with vagrancy offences, like in 60 HRAPF/T/04/11/15 61 HRAPF/T/3/05/15, City Hall Court 59 HRAPF/T/6/04/15, HRAPF/T/3/05/15, CRB: 343/2015 HRAPF/T/4/09/15, and 62 HRAPF/G/4/02/15, Kawempe Police HRAPF/T/04/11/15 Station OB No GEF: 004/15
29 within geographical jurisdiction should not constitute reason of Kawempe Police Station. for arrest. Therefore, generally speaking, most cases involving In one other case,63 the suspect arrests on the basis of sexual was detained in one of the orientation or gender identity/ police offices but this was to expression are arbitrary as protect the suspect from any police use a non-existent attacks from fellow inmates. criminal offence as basis to The suspect, a transgender man, arrest. However specifically, had been detained with male there are instances where police inmates who later discovered do not even inform the suspect that he had breasts. After being that they are being arrested checked by a police officer because they are suspected and medical personnel and of being homosexuals or ascertaining that the suspect’s otherwise. This happened in sex was female, he was detained all four verified cases where in an office to protect him transgender women were from other inmates. This case arrested for cross-dressing.65All however does not discount these women were taken from other cases where transgender their places of work without persons are detained with being informed of why they persons of a different gender were being arrested. from them. Although this can be categorized as a violation, in the In another incident in February Ugandan context there is still a 201566, a suspected gay man dilemma on how detention of was arrested and detained transgender persons should without being told that he was be handled, considering being arrested or being told the existing legal and policy why he was being arrested. framework and resource issues. He had been communicating with someone on social media c) Informing suspects of reason of after which they decided to arrest and right to a lawyer meet somewhere. When he The Constitution requires that went to the meeting place, when a person is being arrested, he was instead apprehended they should be informed of the by plain clothed men who did reason of their arrest. When not identify themselves, who arresting LGBTI persons, the beat him and took him to the Police normally accuse them offices of the Local Council of being homosexuals and as Chairperson and detained such, that that would constitute him there for almost an hour reason for arrest. It should be before they took him to noted that homosexuality in police. It turned out that the Uganda is not a crime64 and men that had arrested him were actually police officers. 63 HRAPF/T/2/01/15 (Kikajjo Police Post) 64 What is criminalized under Section 65 See n 59 above 145 of the Penal Code is sexual activity 66 HRAPF/G/4/02/15, Kawempe Police and not orientation or identity Station OB No GEF: 004/15
30 However all this time, he did Needless to say, in no case of not know who they were and arrest do the police inform the why they had apprehended, suspect of their right to a lawyer. beaten and detained him. He The continued arbitrariness only got to know this when he of the police arrests are a was taken to the police station violation of the constitutionally and asked to make a statement guaranteed right to liberty. regarding reports that he was homosexual. d) Right to be released or produced in court not later than 48 hours On the night of 30 January, a The Constitution requires that gay man was arrested after a when a person is lawfully being found walking with arrested, they should be his friends at night.67 The released or produced in court Police asked for residential anytime not more than 48 identification documents but he hours after their detention. In did not have any as he only had 2015, five cases were verified a work identification document. in whichLGBTI suspects were He was arrested and detained detained by police for more at Mawanda Road Police than the constitutionally without informing him of why required 48 hours before being he was being arrested. He was released or produced in court. released after a day without being charged and after the In one case,69 two gay men were intervention of HRAPF lawyers. reportedly found together in a guesthouse in Namuwongo. On the night of 27 September They were arrested and taken 2015, a gay man was found to Kisugu Police Station on 13 walking at 10:30pm and May 2015, after which they asked to identify himself and were transferred to Kabalagala show what he was carrying.68 Police Station and charged with He complied and there was gross indecency and unnatural nothing incriminating. However offences. They were however the police officers told him to only produced in Makindye give them money or else they court on 19 May 2015, past would arrest him. For fear of the 48 hours required which arrest, he gave the officers violated their right to liberty. money but they still arrested him and detained him at Kira In another case,70an intersex police station. He was never man was arrested on allegations informed of the reason of of murder. He was detained arrest and was told that he was at Rukungiri Police Station being charged with being idle and disorderly after getting to 69 HRAPF/G/6/05/15, Kabalagala Police the police station. Station SD: 47/13/05/15, Makindye Court MAK/00/CR/498/15 70 HRAPF/I/9/09/15, Rukungiri Police 67 See n 57 above Station CRB: 1688/2015, Rukungiri Court 68 See n 58 above RUK-00-CR-CO-025/15
31 on 5 August 2015 and taken contact people on the suspects’ to court on 14 August 2015. behalf. This in itself is a violation Although the grant of police of the right guaranteed in the bond is discretionary and this Constitution and should be was a capital offence, there was discouraged but be that as it no evidence given by police to may, sometimes even after show that the refusal to grant payment of this money, the bond fell within the ambit of suspects are not allowed to the circumstances under which make any contact. bond can be refused. This therefore violated the right to On the night of 27 September liberty. 2015, a group of four police officers arrested a gay man In January 2015, three after they found him walking suspected gay men were at night. When they got to the arrested in Ntungamo on station, he requested to inform allegations of homosexuality. his next of kin that he had been The suspects were held in arrested. The police officers police custody for five days initially refused but the day after, where they were beaten by they accepted on condition both police and inmates. They that the suspect facilitates the were later released without call with 2000 Uganda Shillings. being produced in court to be The suspect allowed and asked prosecuted.71 to access his belongings so that he could get the money which e) Right to access lawyer/next of kin he gave the officers. However and medical treatment even then, they refused to Four cases72 were documented allow him contact anyone. He in which suspects were denied was only able to do so after access to legal counsel or their being given his belongings as he next of kin. The common was being taken to court.73 practice with Uganda Police is that suspects pay to contact In another case where three their next of kin or legal suspected gay men were counsel. This is usually because arrested in Ntungamo74, they suspects are not detained were detained at police for with their phones. The money five days and during this time, they pay is therefore usually they were denied access to any supposed to facilitate the police visitors merely because they officers’ use of their phones to were suspected homosexuals on charges of sodomy. 71 SMUG ’And That’s How I survived being killed: Testimonies of human rights In other cases, lawyers were abuses from Uganda’s sexual and gender denied access to their clients. It minorities’ ( 2016) 2 should be noted that for most 72 HRAPF/G/4/02/15, LGBTI clients, it is hard to get HRAPF/G/10/08/15 (Mpala Police Station/ Entebbe Police Station SDE: 03/14/8/15), 73 See n 58 above HRAPF/B/05/10/15, SMUG (n 71 above) 74 SMUG(n 71 above)
32 legal representation because In another case,76 the lawyer was of the existing stigma against allowed access to the suspect them. Therefore the legal but was also denied privacy. He counsel they get is always in therefore had to conduct the form of legal aid. Most of the interview in the full presence lawyers are informed of such of the people that had attacked arrests by third parties and and beaten the suspect and also therefore by the time they go caused his arrest. These people to police, the suspects do not started threatening the lawyer even know that they have legal and even started recording counsel. For LGBTI persons, the interview with the client whose lifestyle and identity are which went unabated by the largely taken to be criminalised, present police officers until the coupled with a lack of proper lawyer opened up a case of understanding and appreciation threatening violence against at of what could be incriminating the police station. for them and what could not, deserve urgent legal counsel. In addition to guaranteeing However, four cases were access to legal counsel and the documented in which police next of kin, the Constitution refused counsel access to the provides that any detained suspects. person shall be accorded access to medical treatment. However In one case, the suspect was in two of the verified cases, arrested on allegations of police deniedsuspects access homosexuality when he went to medical care, even when to meet with a ‘friend’ he met the care was to be at their on social media. A lawyer was cost. In one case77, a suspected informed of the arrest and gay man was arrested after proceeded to Kawempe Police being attacked by a mob at Station to seek a remedy for the Nkumba University. This was client. The lawyer was however after someone alleged that he denied access on grounds that had tried to sodomise him. the case was a case of ‘public He was brutally beaten and interest.’Not only is this not a injured before being arrested ground on which legal counsel and detained at Mpala Police can be denied, it was also not Station. A lawyer was informed substantiated by Police. The of the arrest and as part of lawyer was only allowed access the interventions, sought the following day after much the release of the suspect to insistence, and on condition receive medical treatment. This that he met with the suspect in was refused albeit the evident presence of other inmates and physical injuries the suspect police officers.75 76 HRAPF/G/10/08/15, Mpala Police Station/Entebbe Police Station SDE: 03/14/8/15 75 See n 66 above 77As above
33 had suffered. While the suspect was arrested and detained on was detained on 14 August allegations of sodomy. However 2015, he was only released to when legal counsel interacted receive medical treatment on with police, they informed them 17 August 2015. This was after the client had not been arrested the suspect was transferred so he could be prosecuted from Mpala Police Station to through a judicial process, but Entebbe Police Station. rather so that he could reform. They then promised that if he Right to a fair trial agreed to reform and stop The Right to a fair trial is guaranteed being homosexual, they would under Article 28 of the Constitution. release him. This is against all The right has different components and tenets of justice as the suspect those most relevant to LGBTI persons was arrested, and on grounds of regarding the police are: entitlement no proven allegation, convicted to a fair, speedy and public hearing by police and a punishment of before an independent and impartial reform imposed on him. It was court or tribunal78; the presumption after insistent engagement by of innocence for anyone charged with lawyers that the suspect was a criminal offence79; the right to be released from custody.82 In that informed immediately of the nature of same case, police conducted a offence that one is being charged with80; search of the suspect’s house and the freedom from being charged as part of their investigations. with non-existent offences.81The right However the search was done to a fair hearing is one of the non- in the absence of the suspect. derogable rights under Article 44 of the As a result, it was found that the Constitution. Police had planted evidence of five condoms at the suspect’s a) Entitlement to a fair trial house in order to record it as While most components part of the evidence against of a fair trial are about the him. This was in violation of actual court trial, they could the right to fair trial since it did be purposively interpreted to not afford the suspect ample include actions done by the chance to understand the Police as they are responsible evidence against them. for the initial stages of criminal procedure, that give rise to trial. In the case that involved the In 2015, seven instances were arrest of an intersex person verified where police did not on allegations of murder,83 the afford the suspects any tenet of suspect’s statement was taken a fair trial. In one instance, the as part of police procedures. suspect, a suspected gay man As required, the statement was recorded in English after being 78 Constitution (n 16 above) Art 28(1) translated from the suspect’s 79 Constitution (n 16 above) Art 28(3)(a) vernacular in which it was given. 80 Constitution (n 16 He was then asked to sign above) Art 28(3)(b) 81 Constitution (n 16 82See n 66 above above) Art 28(7) 83See n 70 above
34 it without it being read back arrived at the scene, they only to him. This did not offer the arrested the two transgender suspect chance to understand men and charged them with the evidence being recorded assault, leaving the men that against him. attacked them. Police have also exhibited a In the case of the suspected worrying trend of failing to gay attacked at Nkumba investigate violations against University,86police refused to LGBTI persons. In most apprehend the people that cases, instead of assisting attacked, beat up and injured and investigating such cases, the suspect on suspicions of they instead arrest the LGBTI sodomy. This was despite the persons and prefer charges fact that they were present at on them based on their sexual the police station continuing orientation and gender identity. to threaten the suspect and his In one case84, a suspected gay lawyers. Such cases discourage man fought with his partner and LGBTI persons from reporting was badly injured. He went to violations against them and are police to report a case of assault a violation of the right to fair and after making his statement, trial as it discourages access to he and his partner were justice. instead arrested on charges of sodomy. While the offence of b) The presumption of innocence assault could not discount the The general principle as to presence of another offence, it the presumption of innocence was a violation of the right t fair is that a person is presumed trial when police completely innocent until they have been disregarded the crime reported tried by a competent court and of assault and instead tried to found guilty, or until such person pursue another. pleads guilty to the offence. This is one of the cardinal principles In another case85, on the night of Uganda’s criminal justice of 18 October 2015, two system. However, there are transgender men were involved nine incidents documented and in a bar brawl with fellow verified in 2015 in which police revelers. The male revelers violated this right and principle. attacked the transgender men This was done through and accused them of being various means particularly lesbians who were taking away media outings,87public their women. When police 86 See n 76 above 84Case reported by the Security 87There are four verified incidents of Committee media outings. In such incidents, police 85HRAPF/T/07/10/15, Jinja Road Police parades the suspects before media with Station SD: 02/18/10/15 information that they are criminals.
35 outings,88arresting suspects as the face of it therefore, all a form of punishment,89 and transgender persons are public statements ‘convicting’ considered criminals until they suspects.90 are proved otherwise which goes against the tenets of a fair The most notorious of such trial. statements was made by the Uganda Police Spokesperson c) The freedom from being charged Fred Enanga in May 2015. A with non-existent offences transgender woman had been It is a principle of criminal law arrested from a local bar in that a person should only Bukoto and detained at Kira be charged with an offence Road Police Station. She was that is prescribed under the taken to the City Hall Court law. This is to eradicate any where she pleaded guilty to injustice that would be caused a vagrancy offence and was by a lack of clarity on what sentenced to one month’s conduct is criminalized and imprisonment. On commenting what is not, if people were to about the case, the police be charged with offences that spokesperson accused are not prescribed under the transgender persons of being law. It is rooted in the idea criminals and murderers who that people need fair warning targeted foreigners.91Such a on what conduct could attract statement from a high ranking criminal sanctions. Regarding police officer vindicates all LGBTI persons however, police transgender persons and have continuously arrested strips them of the right to and charged suspected LGBTI be presumed innocent. On persons with non-existent offences. In 2015, seven 88 These involved cases where police cases were verified where paraded the arrested suspects before the suspected LGBTI persons public to see. For the two verified cases, were arrested, detained and the 12 suspects were walked through charged with offences that their villages by police, with the public are not prescribed under the being informed that the suspects were law. Such offences included homosexuals that were being punished. homosexuality,92 sodomy,93and 89 For example a case in Kawempe where a suspected gay man was arrested 92 HRAPF/G/3/01/15 (Salaama Road with no prospects of prosecution, but Police Station, SD REF: 21/06/01/15); rather as an incentive to reform. In this HRAPF/T/8/02/15 (Katwe Police Station, case police made themselves the arbiter SD REF: 16/23/2/15); HRAPF/G/7/07/15 in the matter by imposing a reformatory (Ntinda Police Station, SED REF: sentence on the suspect as though he had 27/07/15) already been convicted. 93 HRAPF/G/7/01/15 (Ntungamo 90 There were two verified cases where Police Station, SD REF: 15/15/01/2015); such statements were made, and these HRAPF/G/5/07/15 (Musajjaalumba were both cases of transgender women. Police Post, SD REF: 13/25/07/15); 91 Information on HRAPF file HRAPF/G/10/08/15 (Mpala Police Station, HRAPF/T/3/05/15 SD REF: 03/14/8/15)
36 attempted sodomy.94Needless torture.97 Suspected LGBTI persons to say, none of these cases are habitually subjected to different ever went beyond the police acts that violate this right. They include stations for prosecution. Their the following; continued use encourages arbitrary and baseless arrests a) Forced anal exams of suspected LGBTI persons For the year 2015, five cases who are arrested as a form of were verified that included punishment. This does not only forced anal exams.98The anal constitute violation of rights, exams are always conducted but is also a blatant abuse of on suspected gay personsas a the criminal justice system. means of obtaining evidence of same sex sexual intercourse. Freedom from torture, inhuman This practice is not only highly and degrading treatment or invasive, inhuman, degrading punishment and humiliating, it is also The right to respect for human unnecessary. This is because dignity and protection from inhuman the evidentiary purpose of anal treatment is provided for under Article exams has been ruled out by 24 of the Constitution. The Article forensic experts.99According simply provides that ‘No person shall to the experts, there are 15 be subjected to any form of torture or medical conditions ranging from cruel, inhuman or degrading treatment constipation to Parkinson’s or punishment.’ This right is non- disease that can cause derogable therefore it cannot be indications similar to those that violated under any circumstances.95This some doctors see as signs of notwithstanding, police have gone homosexuality. In one of the ahead to subject actual and perceived cases documented in 2015,100 LGBTI persons to very degrading and the Magistrate discredited the inhuman treatment. The terms cruel, anal exam evidence that the inhuman and degrading treatment have not been clearly defined under 97 http://ccnmtl.columbia.edu/projects/ Ugandan law.96 However, they have mmt/udhr/article_5/meaning.html been generally defined to mean 98 HRAPF/G/6/05/15 (Kabalagala acts that inflict mental or physical Police Station, SD REF: 47/13/05/15); suffering, anguish, humiliation, fear HRAPF/G/13/08/15 (Mukono Magistrates or debasement, but that fall short of Court C.O 474/2013); HRAPF/11/09/15 (Buganda Road Chief Magistrates Court, Ug v Christopher Mubiru); 94 HRAPF/G/17/01/15 (Kasubi Police HRAPF/G/7/01/15 (Ntungamo Police Post, SD REF: 13/30/01/2015) Station SD REF: 15/15/01/2015); SMUG 95 Constitution (n 16 above) Art 44(a) (n 71 above) 96 The Anti-Torture Act under Section 99 Neela Ghoshal ‘Anal exams that 7 only defines them as conduct that test for homosexuality amount to does not amount to torture. The section torture’ http://www.advocate.com/ provides that what amounts to cruel, commentary/2016/7/27/anal-exams-test- inhuman and degrading shall be decided homosexuality-amount-torture upon considering circumstances of each 100 Christopher Mubiru case (n 15 case. above)
37 prosecution had adduced. In case, lubricants were used to her judgment, the magistrate ease penetration. These are held that in cases of consensual therefore unnecessary and yet sex, it is likely that lubricants they continue to be done on are used to ease penetration suspects in a very degrading and it would therefore be and inhuman manner. improbable that there would be any signs of injury or scars b) Outings that are consistent with forced Suspected LGBTI people are anal penetration. She also said consistently outed to the that anal exams that are taken public by the Police using after a long period of time after very humiliating and degrading the alleged intercourse cannot means. Eight cases were be relied on to prove a crime. verified in 2015 in which All this goes to show that anal police outed suspected LGBTI exams are unnecessaryand persons through media102 and yet they continue to be used through walking them through bythe Police which violates public places like markets the suspects’ rights to freedom and towns.103 The parading from cruel, inhuman and of suspects before the media degrading treatment contrary and walking them through to the Constitution. public places like markets and towns on strict allegations In addition to anal exams, by police that they are gay is there was a documented case very humiliating and inhuman. in which two suspects’ penises Considering the prevalent were checked to try and get homophobia in Uganda, such evidence of engagement in actions expose the suspects to homosexual sex.101 This, like ridicule and contempt, which the anal exams is very cruel, constitutes a violation of the inhuman and degrading as it suspects’ right to freedom from created feelings of humiliation cruel, inhuman and degrading within the suspects. Needless treatment. to say, such evidence is of no evidentiary value as it cannot c) Use of excessive force during be used to conclusively prove arrests engagement in homosexual The police in some cases sex. As the judge noted in the used excessive force in Christopher Mubiru case, it is hard to use such tests as proof 102 These were six cases: as it is unlikely that consensual HRAPF/T/2/01/15 (Bukedde TV); same sex intercourse would HRAPF/G/7/01/15 (Radio West and leave any kind of bruises or Radio Kigezi); HRAPF/T/20/01/15 marks and yet that is what the (NBS TV); HRAPF/T/2/03/15 (Bukedde Police primarily looks for. This TV); HRAPF/T/6/04/15 (Bukedde TV); is so because like in the above HRAPF/L/8/05/15 (Red Pepper) 103 These were two cases: 101 HRAPF/G/6/05/15 (Kabalagala Police HRAPF/G/7/01/15 (Rubaare Trading Station SD REF: 47/13/05/15) Centre); SMUG (n 71 above)
38 conducting arrests and in three and did not identify themselves. documented cases, suspects were brutally beaten by police In the third case,106 the Police even when they did not resist arrested three suspected gay the arrests. In one case,104 men from their home and beat the suspect, a bisexual man, them up with accusations that was found walking at night at they are homosexuals that are around 10:30pm and he was spreading the vice in the area. arrested and charged with When they got to the Police being rogue and vagabond. and were detained, their fellow During the arrest and before inmates also beat them up as his detention, he was asked by police officers watched on and the four officers to give them did not bother to stop the money in order to avoid being beating. This excessive force arrested. He gave them the used by the Police is very cruel money but they instead went and unnecessary and a violation ahead and took him to police. of rights of the suspects. When they got to police and asked him to enter, he refused 3.2.2 Local Government and demanded that the officers authorities give him his money back since Local government authorities are they went ahead and arrested established by the Local Governments him. He also asked to first speak Act107and within them is established to his relatives. This prompted administrative units/councils and the police officers to beat him committees108 and leadership positions up and force him into the cells, including County Chairperson and parish without giving him his money and village executive committee.109One back. of the functions of these leaders is to assist in the maintenance of law, order In another case,105 the suspect and security, and in some few cases was tricked into meeting they have done this but in the majority someone he met online but of cases, they have failed to do this. found out he was meeting police officers. The officers Protection by local government were plain clothed and when authorities they arrested him, he sought In a few incidents, the local council to know why he was being authorities have been instrumental in arrested. He was badly beaten protecting the rights of LGBTI persons. by the officers using batons For the year 2015, two such incidents and later detained at the LC’s were verified. offices, before being taken to police. He had not resisted Protection from mob violence arrest and was simply inquiring In one incident, nine men were about the arrest since the arrested in Ntungamo on allegations officers were not uniformed 106 SMUG (n 71 above) 104 HRAPF/G/4/02/15 (Kira Police 107 Cap 243 Laws of Uganda Station) 108 n 107 above Section 45 105 n 66 above 109 n 107 above Section 47
39 of homosexuality110and were detained also been documented incidents in at Rubare Police post. They had been which local council authorities violated made to walk through the village and the rights of LGBTI persons. It should Police had told people that the suspects be noted that in carrying out their were promoting homosexuality in the functions under the Local Governments area. After the residents knowing that Act, these authorities are enjoined they had been detained at the police by the constitution to respect the post, they organised to go and attack fundamental human rights guarantees the police post and lynch the suspects. enshrined there in. However in six The Local area chairperson got to verified cases, the authorities violated know and informed police that the rights. The actions engaged in by most suspects were in danger and asked that of these authorities were evictions they be transferred. They were then and banishments from villages on transferred and detained at the sub the basis of sexual orientation. This county offices after which they were is a violation of the right to freedom taken to Ntungamo police station. The from discrimination112 and the right chairperson also refused to talk to media to freedom from cruel and inhuman when two radio stations contacted him treatment.113 However, other violations for information on the case. He declined also took place. and said that he could not comment on the case as it would possibly put the The right to property suspects in more trouble. Such conduct The right to property is protected under is commendable and appreciated as it Article 26 of the Constitution which was a way of protecting the suspects provides that every person has the from further harm. right to own property either individually or in association with others. The Protection from arrest through article also prohibits the compulsory mediation deprivation of one’s property without In another incident,111the family of a satisfying the Constitutional conditions. suspected gay man reported him to the These conditions include public Police and to local council authorities morality which could be used to justify and asked that he be arrested for deprivation of property from actual or being a homosexual. When the area suspected LGBTI persons. However, if chairperson got to know about the such a condition is to be used to justify allegations, he sought to mediate the deprivation of one’s property, it between the suspect and his family to must be proved that such deprivation avoid any adverse actions like arrest. is demonstrably justifiable in a free and Although none of the parties agreed democratic society. In 2015, an incident to the mediation, the effort by the of deprivation of property was verified chairperson to mediate the family was for this report. very commendable as he tried to avoid the arrest of the suspect.
Violations by local council 112 Constitution (n 16 above) Art 21 authorities 113 Banishment from villages has The above notwithstanding, there have been held to violate that right by the Supreme Court in the case of Salvatori 110 n 45 above Abuki and Another v Attorney General 111 HRAPF/G/3/01/15 (Salaama Road) Constitutional Court Case No. 2 of 1997.
40 The case was in Kasubi,114 where a degrading treatment are provided for suspected gay man was blackmailed by in articles 21 and 24 respectively. The his friend when he reported him to his right to freedom from discrimination landlady that he had tried to sodomise prohibits discrimination on the grounds him. The landlady reported a case at stated therein. Although sexual police and also reported to the area orientation and gender identity are not chairperson. This forced the suspect to included in the grounds listed, the list is leave his rented house during which he an open list not closed. Other grounds left his property behind. HRAPF tried can therefore be interpreted into it. to access the suspect’s property but Freedom from inhuman and degrading access was denied by the local area treatment prohibits persons from chairperson working with the landlady. being in ways that violate their dignity This was denying the suspect the right as human beings. Various actions fall to access his property and access was within this ambit. These two have been only granted after police intervention. combined to deal with evictions, as the manner in which evictions of LGBTI Right to liberty persons are carried out jointly violate The right to liberty is guaranteed under these rights. article 23 of the constitution. The article provides the ingredients of the There were four cases of evictions right, circumstances when one’s liberty of suspected LGBTI persons from can be taken away among others. their premises occasioned by local This is one of the most violated rights government authorities, and in all these regarding LGBTI persons. Although it cases, it was solely because of the sexual is usually violated by police, an incident orientation and/or gender identity. was documented and verified in 2015 where local authorities participated in A suspected lesbian in Nabweru was the violation of this right. evicted by the Local Council I Secretary of the area from her rented house and When a suspected gay man was being also banished from ever residing in arrested by plain clothed police officers that village again.116In the eviction letter in Kawempe, he was beaten up and served on her, the secretary said that the area chairperson was among the she was being evicted because she was people that set him up and beat him a lesbian, which was against the cultural up.115 As a matter of fact, after the norms and beliefs of the people in that arrest of the suspect, he was detained area. She lost her job since she worked in the chairperson’s office before being in that area and had to look for shelter taken to police. The use of excessive among friends. force by the chairperson together with the police was a gross violation of the Another suspected lesbian in Kyengera suspect’s rights. was evicted from her rented premises and also banished from the village by Freedom from discrimination and the area chairperson.117 In the eviction inhuman and degrading treatment letter, the chairperson said that he The rights to freedom from was banishing her on grounds that discrimination and inhuman and she would influence other children to
114 HRAPF/G/17/01/15 116HRAPF/T/3/03/15 115n 66 above 117HRAPF/L/1/09/15
41 become lesbians. The case was also are incorporated by the Bureau as reported to police. companies limited by guarantee. However during 2015, the Bureau Other two cases were documented refused the incorporation of three and verified by the security committee LGBTI organisations on the grounds in which two suspected gay men were that homosexuality is criminalised evicted by their area chairpersons after in Uganda under section 145 of the being published in a tabloid that they Penal Code Act, thereby violating are homosexuals. It should be noted their right to freedom of association. that in all these cases, especially those This started with the incorporation of regarding evictions and banishments, Sexual Minorities Uganda, an umbrella multiple violations arise. This is because organisation bringing together 18 most of the victims work in the same LGBTI organisations in Uganda. The areas they live in and this banishment Registrar General refused to reserve affects their livelihood. They always the name Sexual Minorities Uganda end up homeless and with no means saying that it was undesirable.119 In his of sustenance. There is therefore need letter to HRAPF, the Registrar General for the local council authorities to start cited section 145 of the Penal Code fulfilling their respective mandates Act and concluded that incorporating without violating the rights of persons an organisation to work with LGBTI in the process. persons would be ‘aiding an illegality.’
The Uganda Registration This did not only stop with SMUG. Services Bureau Two other organisations were The Uganda Registration Services denied incorporation by the Bureau Bureau is established by the Uganda in 2015. These were Born This Way Registration Services Bureau Act118 Uganda120 and Action for Transgender to, among other things, carry out Rights Initiative.121The name Action all registrations required under the for Transgender Rights Initiative was law. Among these registrations is rejected on grounds that it was contrary the registration/incorporation of to public policy and that it was immoral companies. Through this function, the under the laws of Uganda. It should be URSB emerged as a violator of the noted that the section cited in the Penal rights of LGBTI persons: Code only criminalises sexual activity and not advocacy or service provision. The right to freedom of association Using it to deny the organisations This right is covered under article incorporation is therefore a violation of 29(1)(e) and it includes the freedom the freedoms of expression, association to form and join associations including and equality and non-discrimination. civic organisations. This includes LGBTI organisations. While this reight is not This trend is new and worrying as it absolute and can be limited in terms might discourage the legal organising of article 43, the limitation has to be of LGBTI persons in Uganda and affect justified and demonstrably justifiable in service provision to the community as a free and democratic society. most of these organizations engage in Various LGBTI organisations in Uganda 119 Information on file at HRAPF 120 HRAPF/ORG/4/09/14 118 Cap 210 Laws of Uganda 121 HRAPF/ORG/10/01/15
42 advocacy and service provision. actors were evictions of suspected LGBTI persons from their homes. Some The Minister of Ethics and of these were outright evictions while Integrity others were a result of insecurities arising from threats and attacks. This Freedom of expression left many LGBTI persons homeless The freedom of expression is and without means of sustenance. The guaranteed under article 29(1)(a) and perpetrators responsible were property it contains freedom of speech, press owners, families, community members and other media. This freedom can and in a few instances, places of work. be limited in terms of article 43 of the The violations below are categorised Constitution however, such limitation according to the perpetrators. has to be justiable. The freedom cannot be limited merely because what is being 3.3.1 Property owners said is considered annoying by a certain Property owners are landlords and section of society, or merely because landladies that rent out premises that are such expression makes a section of used as residential premises by LGBTI society uncomfortable. persons. These property owners have The Minister of Ethics and Integrity, continuously evicted suspected LGBTI Rev Fr Simon Lokodo, in January persons, and in some cases refused to 2015 summoned LGBTI activist Kasha compensate them for money paid and Jacqueline Nabagesera for a meeting not utilised. This is done mostly with and even threatened her with arrest.122 the help of local council authorities. This was in regards to a queer magazine called the Bombastic Magazine that is The right to freedom from periodically produced with Kasha as discrimination the Chief Editor. The minister alleged Although the prohibited grounds of that the distribution of the magazine in discrimination listed under article 21 different places in Uganda amounted do not include sexual orientation or to promoting pornography and gender identity, the list is open ended. homosexuality, which were criminal Courts of law in Uganda have also and unacceptable in Uganda. Although held that LGBTI persons are entitled the meeting never took place and Kasha to the same rights as everybody else. was never arrested, the threat of arrest The violations perpetrated by property because of publication of the magazine owners involved evictions and these discouraged freedom of expression evictions were solely carried out on the and opinion. basis of the victims’ perceived or actual sexual orientation or gender identity. 3.3 VIOLATIONS BY NON- This constitutes discrimination. In 2015, STATE ACTORS 40 of such violations were verified as having been perpetrated by property As earlier noted, non-state actors 123 were the majority perpetrators of the owners. violations documented in this report. Of the 171 violations, they were responsible for 93 of these. Most of the perpetrated violations by non-state 123 3 were documented by HRAPF, 32 by the Security Committee, 1 by SMUG 122 HRAPF/L/12/01/15 and 4 by Ice Breakers Uganda.
43 In one of the cases,124 the suspected gay a visible transgender person,129 and after man had been arrested on allegations landlord finding out that the person is of homosexuality and detained at employed by an LGBTI organisation.130 Kawempe police. After his release, his Only three of these evictions had a landlady based on his arrest to evict him semblance of lawfulness where letters from her premises, on grounds that he were written to the suspected LGBTI could not harbor homosexuals on her persons. Otherwise, they are always property. The suspect had paid rent for carried out arbitrarily and without notice about three months in advance but the and/or compensation. This increases landlady refused to refund this money the vulnerability of LGBTI persons as and yet insisted that he had to leave. In they are always left homeless. such cases, the person has no option but to leave as trying to stay at such premises forcefully might expose them to dangers like attacks and arrests. An example is a case where a friend to a suspected gay man reported him that he had attempted to sodomise him.125 The landlady asked the suspected gay man to leave her premises but she was not ready to compensate him for the months due. When he tried to stay, she reported a case of attempted sodomy against him which exposed him to arrests if he remained in the premises. Most of these evictions are effected after someone is either arrested or appears in the press as a homosexual.126 However some of them have occurred after various incidents like suspicious reports from neigbours,127 after being found having homosexual sex,128 being
124 n 66 above 125 n 114 above 126 Refer to cases documented by the security committee 127 In one of the cases documented by Ice Breakers Uganda, the neighbours reported to the landlord that the suspected gay man always only had male visitors and they were suspicious of his character. They demanded for his eviction which was effected by the landlord. 129 Case documented by the Security 128 Case documented by Ice Breakers Committee Uganda 130 As above
44 3.3.2 The media The Red Pepper published two stories The media is one of the documented about a suspected lesbian on 11 May perpetrators of violations against 2015 under the headline ‘NSSF boss LGBTI persons. In the process of doing forces 20 juniors into homo sex’ and on their work, the media violate the rights 25 May 2015 under the headline ‘NSSF of LGBTI persons. This is done through homo boss fired’. These stories were publication and broadcasting of biased regarding a case of sexual allegations,134 and damaging stories about actual which case was being heard in court. or perceived LGBTI persons which Publishing such information about consequentially violates rights to privacy, a person facing trial is very biasing, fair trial (presumption of innocence) damaging and violates the presumption and the freedom from cruel, inhuman of innocence. In another case,135 and degrading treatment. In 2015, six media houses were documented as The Kampala Sun on 23 October having perpetrated eight violations 2015 published a story about a bar against LGBTI persons. These included brawl that had taken place at a bar two TV stations,131 two radio stations132 in Kampala involving two transgender and two newspapers.133 men. The article claimed that one of the transgender men was promoting Rights to a fair trial, privacy and unbecoming behavior at the bar freedom, from inhuman and because of his dress code. These were degrading treatment allegations made in the middle of an The rights to a fair trial, privacy and investigation into the bar fight. freedom from inhuman and degrading treatment are guaranteed under articles The television stations continuously 28, 27 and 24 of the Constitution run stories of especially transgender respectively. The right to a fair trial persons calling them impostors and has various tenets one of which is the frauds which violates the presumption presumption of innocence under article of innocence and creates skewed 28(3)(a). It is to the effect that all persons opinions of transgender persons as are presumed innocent until proved criminals. As opinion leaders and guilty, or until such person pleads guilty. shapers of discourse, the media need to Publication of damning stories about be held accountable for the violations LGBTI persons in the media create they perpetrate. bias and violate this right. Different media houses also publish information 3.3.3 Family members regarding people’s perceived or actual Homophobia is still very prevalent sexual orientations or gender identities, in Uganda and therefore there is and subject such persons to ridicule, a prevalent lack of acceptance of hatred and humiliation considering LGBTI persons, even by their families. the existing homophobia and societal Family members have therefore been prejudices, in violation of the rights to documented to perpetrate violations privacy and freedom from inhuman against their actual or perceived LGBTI and degrading treatment respectively. relatives.
131 Bukedde TV and NBS TV 132 Radio West and Radio Kigezi 133 The Red Pepper and The Kampala 134 HRAPF/L/8/05/15 Sun 135 HRAPF/T/08/10/15
45 Rights to privacy, equality and non- orientation and/or gender identity. discrimination and freedom from cruel and inhuman treatment Right to work These rights are provided for in articles There were four cases verified for this 27, 21 and 24 of the Constitution report in which suspected gay men lost respectively. As already discussed, the their jobs because of their perceived constitution implicitly protects LGBTI sexual orientation. persons from discrimination. The freedom from inhuman and degrading In one of the cases, three suspected treatment and the right to privacy gay men were arrested in Ntungamo protect the integrity and dignity of a and detained for a week.140 The person. arrests were made on allegations of homosexuality. During their arrests, For 2015, seven violations were police walked them through their village documented that were perpetrated by and announced to the public that the family members. In two cases, family suspects were homosexuals and the members reported their suspected pubic was entitled to know what they gay relatives to the Police and cases of had done and what was happening. homosexuality were opened up against After their long detention, they were them,136 in three cases, the family released only to find that their arrest members banished and/or evicted had caused a lot of stigma and that their their suspected LGBTI relatives137in employers were no longer interested one case, the family members outed in continuing to employ them. the suspected gay man to the police using a text message138 and in another, In another case, a suspected gay the family disowned and rejected man was terminated from his job three suspected gay men after they in February 2015 on suspicions that had been arrested on allegations of he is a homosexual.141He received a homosexuality.139 These actions not termination letter from his employer only violate the rights to privacy, equality informing him that despite his hard and non-discrimination and freedom work and flexibility, he was being let from cruel and inhuman treatment, go for reasons that could not be listed they also increase the vulnerability of in the letter. This was after several of LGBTI persons hence entrenching their the suspect’s workmates confronted marginalization. their employer and complained about the suspect’s sexual orientation. The 3.3.4 Employers suspect was left with no means of Employers violate the rights of LGBTI sustenance and could take no legal persons through dismissals and action for fear of exposing his sexual terminations based on their sexual orientation. 136 HRAPF/G/3/01/15 (Salaama A suspected gay man, who worked as Road police SD REF: 21/06/01/15); a teacher and counselor at a school HRAPF/G/7/07/15 (Ntinda Police station in Kampala was terminated from his SD REF: 27/07/15) employment on suspicions that he was 137 HRAPF/G/14/10/15, 2 cases documented by Ice Breakers Uganda 138 SMUG (n 71 above) 140 SMUG (n 71 above) 139 As above 141 SMUG (n 71 above) 26
46 gay.142These suspicions arose when he against LGBTI persons, there are other befriended and counseled two students violations that have been perpetrated that had been suspended for smuggling by general community members, who phones into school and engaging in may not necessarily be categorised. homosexuality. His close relationship with these boys was questioned Violation of the right to and bred suspicion among his fellow freedom from inhuman and teachers on what his motives were. On degrading treatment, privacy and 24 January 2014, he was summoned by discrimination his boss, who told him that the Board The general community was responsible of Directors had made a decision to for 30 violations documented and terminate his contract and asked him to verified in 2015. Of these cases, 19 vacate the school residential premises. were physical attacks, eight were cases of threatening violence, three were In another case, a suspected gay man cases of blackmail, two were cases of in Jinja was terminated from work banishment from villages, one was a after being arrested and outed by case of gang rape and one was a case the police.143On the fateful day, the of eviction. suspected gay man was summoned to his place of work, where he met with The cases of physical attacks were the Board of Directors and was asked perpetrated sometimes by unknown to hand over his work materials. He mobs and sometimes by known was not given any reasons as to why persons. They were always targeted he was asked to do so and in addition, and intended to injure and intimidate he was told that he owed the company suspected LGBTI persons. 5million shillings. He had no idea how he came to owe the company such On 21 October 2015,144 a an amount of money and yet he was transgender woman was attacked in detained for two days. He was however Kansanga,Luwafu as she went to visit released without charge but he still lost a friend. She was attacked by around his job. five people that kept saying that they should beat her and even remove her For these LGBTI persons that are teeth. This was after her neighbors had unfairly terminated, there is not much threatened to beat her up and burn recourse for them. This is because they her and her friends, because they did are wary of taking legal actions for fear not understand the kinds of friends she of issues of their sexual orientation and hosted at her home. This warning had gender identity coming up, and also been given to her on 18 October 2016 in most cases, there are no reasons and she had relocated to a safer place expressly given. They are therefore left to avoid any attacks. It is from there with no proper recourse and with no that she was going to visit her friend remediesto their violations. when she was attacked.
3.3.5 The general community On 14 August 2015 at Nkumba Apart from the above specific groups University, a suspected gay man was of persons that perpetrate violations attacked by a one John Shilimi who accused him of trying to sodomise 142 SMUG (n 71 above) 28 143 SMUG (n 71 above) 29 144 HRAPF/T/11//10/15
47 him.145 He started beating the suspect the victims were too wary of reporting and even called other people to help the case to police for fear of issues of him. A mob joined in the beating and their sexual orientation coming up and the suspect was dragged from Nkumba causing their arrest. For others like in University to Mpala police station the second case, there were efforts to where he was detained. He was visibly report the cases to police but the cases injured at the time of detention and were never taken on. In that case for his attackers accompanied him to the example, the attackers of the suspect police station but interestingly, none of were at the police station issuing threats them was charged with any offence. to him and police never arrested them or registered the suspect’s assault During the 2015 pride week, a complaint. For other cases like the last transgender man got a bodabodaride one, police registered the complaint back home.146 On the way home, but no investigations were made and the bodaboda cyclist stopped and therefore the perpetrators were never robbed the transgender man. During brought to book. Almost all these the robbing, the cyclist realized that attacks also included theft and robbery. the transgender man was binding his Such violations go unpunished and are breasts. The cyclist got curious, and encouraged since police appear to wanted to check his private parts to condone them. ascertain whether he was a man or a woman. When the transgender man Many times, community members refused, the cyclist beat him up badly, threaten suspected LGBTI persons with before leaving him by the roadside. violence which creates an environment of apprehension that multiplies into In another incident on 18 February different violations. In February 2015,148 2015, a suspected bisexual woman a suspected gay man kept receiving was attacked in Kizungu in Kasese threats from his neighbors warning him district.147She was coming from that he was going to be beaten up and conducting a community outreach his house burnt for being homosexual. session with LGBTI persons and sex This forced the suspect to flee and re- workers in Kasese when she was locate to a safer place. attacked by unidentified men that brutally beat her and injured her. They In May 2015, a gay man reported a accused her and her colleagues of case of threatening violence in which promoting homosexuality in the area a neighbor known to him regularly and putting their children in danger. insulted him and threatened to kill The attack was after the suspect had him because he was suspected to be been warned and threatened several gay.149 According to the perpetrator, times by the unidentified men in the they could not allow to stay near such Kizungu trading centre. a person as he would corrupt their morals and the morals of their children. In all these and more cases, the The gay man was living in fear and had perpetrators were never brought to to seek a safer place to stay. book. In some cases, like the first case, In one incident, residents of a village 145 n 76 above 146 Case documented by FARUG 148 HRAPF/G/2/02/15 147 HRAPF/B/5/03/15 149 HRAPF/G/1/05/15
48 forced a mother to evict and disown for safer places to stay, which more her two transgender daughters.150 This often than not, leaves them homeless. was after these residents made threats of attack to the mother, saying that they The LGBTI community faces a challenge could not live with such people in their of black mail. This is mostly done by village. They told her if she could not friends of LGBTI persons and fellow let them go, she would be attacked and members of the LGBTI community. banished. She was therefore forced to For example in one case, a gay man evict her children. hosted his friend at his home. When he stepped out to go to the shops to One of the contributing organisations buy a few groceries, his friend stole his to this report, FARUG, continues to flat iron, computer and other personal receive threats to the organisation, property.151When he called his friend its members and its staff. The threats to find out what had happened, the are usually made on the organisation’s friend warned him not to try and hotline, which is made available to report a case against him as this would community members to call in case they force him to reveal details about his need assistance. The identities of the sexual orientation. He continued the callers are never revealed. Sometimes blackmail and told the victim that he had they call and say that they are following reported a case of sodomy against him a particular person-normally staff-and and that it would be wise not to follow even go ahead to describe how such up the case. It was never established a person is dressed. FARUG staff say that the case was actually reported but the threats increased when another the threats caused him apprehension. LGBTI organisation, SMUG, established offices in almost the same area, which Another gay man hosted a friend, who made local residents feel that their area asked him for money to buy him a is under siege by LGBTI persons. These phone.152 The gay man refused to give continued threats continue to cause the money and the former then told him apprehension. that if he did not give him the money, he would open up a case against him, In another case, a suspected gay man claiming that he tried to sodomise him. was continuously threatened by a When the money was not forthcoming, gang of men who accused him of he reported the victim to his landlady being a homosexual. This gang took alleging that he tried to sodomise his property, extorted money from him, after which a case of attempted him, blackmailed him and treated him sodomy was opened up against him at with a lot of indignity merely because Kasubi police post and forced to leave he was suspected to be gay. He could his rented home. Blackmail is used not report the case to police as he to prey on the uncertain parameters feared backlash and possible arrest. of LGBTI criminalisation in Uganda For most of these cases of threatening and the existing homophobia. And in violence, the victims fear reporting the most cases, such incidents cannot be treats to police for fear of riling up the reported for fear of arrest. community and risking arrest. They are therefore in most cases forced to look A case of corrective rape was
150 Case documented by Ice Breakers 151 HRAPF/G/11/03/15 Uganda 152 HRAPF/G/17/01/15
49 documented in the year.153 A suspected violation of various rights like equality lesbian was gang raped by four men and freedom from cruel, inhuman and at night as she walked home from degrading treatment and leaves LGBTI a bar. The men kept telling her that people homeless, vulnerable and at the they knew that she was lesbian and mercy of a very homophobic society. wanted to show her how natural sex should be. She reported the case to 3.4 Conclusion FARUG who took her to the MARPI Although this report cannot exhaustively clinic for PEP treatment and counseling. report on every case of human rights They advised her to report a case to violations based on peoples sexual police but she declined, fearing stigma orientation or gender identity in and embarrassment. At the time of Uganda, the foregoing discussion collecting this data, the victim was shows that there is a lot of human living in seclusion in an upcountry rights violations going on in Uganda. district. Such incidents of corrective These violations further indicate that rape are suffered especially by lesbians LGBTI people are increasingly finding it and transgender men but are never difficult to live a normal and dignified reported for fear of stigma. life in a country of their own. Both state and non-state actors are responsible Apart from local council leaders, for these violations and there is urgent ordinary community members have need to address them. also banished suspected LGBTI persons from villages. In one incident, nine suspected gay men were arrested on 15 January and outed in Rubare village.154Residents threatened to lynch them and they had to be protected by police. After they were released, the residents warned them that if they stayed in the village, they would attack them and lynch them. They were told to leave Rubare and never come back as their behavior could not be tolerated. In another incident in Katwe,155neighbors of a transgender woman forced her to leave her rented home as they could not understand her behavior. She took refuge in a shrine as she had nowhere else to go. However when the local residents heard this, they attacked the shrine and burnt it down saying they did not want her anywhere in their village. As already discussed, banishment is a
153 Case documented by FARUG 154 HRAPF/G/7/01/15 155 Case documented by Ice Breakers Uganda
50 SECTION IV ANALYSIS OF THE TRENDS
What stands out most in 2015 is the fact The emergence of the URSB as one of that there were more violations by non the violators is also worrying. In 2015, we state actors than by state actors for the documented the first incident in which first time in the history of these reports. the URSB denied the incorporation This is a worrying trend since it is much of an LGBTIorganisation, on grounds more difficult to bring individuals and non that the organisation works with state actors to book than it is with state persons that engage in conduct that is actors. Also the fact that there are many criminalised. This first incident involved cases of mob justice is very worrying Sexual Minorities Uganda however by since mob justice is quite a common the end of the year, two other incidents trend in Uganda and it usually results into involving Action for Transgender Rights deaths.The other thing to note about this Initiative and Born This Way Uganda trend is the state’s obligation to protect. were documented.This is a worrying International human rights standards trend as it affects the rights to freedom require that the state should protect of association, expression, and assembly persons from human rights violations by of LGBTI persons. third parties. As such by doing nothing much to protect LGBTI persons from For the first time, a report on these attacks by non state actors, the violations showed that non-state state can be said to be in violation of its actors perpetrated more violations human rights obligations. This therefore than state actors. Of the 171 violations requires the state to do more to protect documented in this report, state the rights of LGBTI persons. actors perpetrated 93 of these which translate into 54.4% of the violations. The change in trends may also reflect This is a unique development, and a feeling by the common people that it is hard to attribute it to anything they need to take the law in their in particular. It could be that there hands in light of the nullification of is more documentation of these the Anti-Homosexuality Act. The violations or that the non-state actors unfortunate part of the nullification have become more emboldened to is that many felt that the nullification carry out these violations. It should of the law left a vacuum as there be noted that among the non-state was no law under which same sex actors, property owners ranked as relations were punishable. This is of the top most violators. It would not course not true since Article 32(A) of be so farfetched to presume that the Constitution prohibits same sex the property owners are increasingly marriages and section 145 of the Penal violating rights of LGBTI persons Code punishes same sex relations with because their actions feel justified and life imprisonment. This perception is a in most cases, they are condoned by dangerous development and the state duty bearers like the Police. Most of needs to be ready to protect LGBTI the violations perpetrated by property persons from further attacks. owners are forceful evictions. These
51 are rarely punished or addressed as in In addition to the above, this report most cases, the property owners feel shows that the Uganda Police Force justified to evict actual or perceived still remains the top most violator of LGBTI persons as most of these the rights of LGBTI persons. Of the evictions are pursuant to complaints 171 documented violations in the from the general community. The report, police perpetrated 47 of these, treating of LGBTI persons as outcasts compared to the 40 perpetrated is the accepted norm and this could by property owners. Even with the be emboldening property owners and annulment of the Anti-Homosexuality other non-state actors to violate rights Act, police continue to carry out arbitrary of LGBTIpersons. arrests against LGBTI persons and along with them, various other violations. Uganda is also party to various Even when the arrests continue, these international human rights instruments cases are not fully prosecuted and including the International Covenant on are continuously used as an end in Civil and Political Rights, International themselves. The Police leadership’s Covenant on Economic, Social and engagement with the LGBTI community Cultural Rights, the Convention on the does not necessarily translate into their Elimination of All forms of Discrimination ensuring that police officers respect the Against Women, the Convention rights of LGBTI persons. There is thus Against Torture, the Convention need for the Police to acknowledge that on the Rights of a Child, the African its officers violate the rights of LGBTI Charter on Human and Peoples’ Rights, persons and thus issue guidelines or and the Treaty for the Establishment in any other way ensure that LGBTI of the East African Community. All persons are protected these instruments provide for different rights and in their implementation and The above trends show that violations interpretation, these rights have been against LGBTI persons based on their held to apply equally to LGBTI persons, sexual orientation and gender identity the same way they apply to all other still exist, and it is only trends that keep persons.156Just like the Constitution, changing. The lack of implementation of these instruments create obligations the mandate of duty bearers like police to respect, protect and fulfill the rights has encouraged non-state actors to enshrined therein and these obligations increasingly violate the rights of LGBTI are binding. The obligation to protect persons, as they are implicitly condoned specifically enjoins states to protect and feel justified. On the other hand, persons from violations perpetrated by police and the general community still third parties. It is a positive obligation feel the need for the punishment of that requires the state to take action LGBTI persons but there is a lacuna in and this could include prosecution of the law that does not expressly allow perpetrators. The implicit condoning for this and so they continue to use of the violations of the rights of LGBTI arbitrary arrests and their associated persons by non-state actorsis therefore violations as punishments against a violation of this obligation. LGBTI persons. All these need to be looked out for going forward, including the expansion in the interpretation and 156 For full discussion on how international implementation of existing laws, and instruments apply to LGBTI persons in the possible enactment of new laws. Uganda, see HRAPF (n 23 above)
52 SECTION V CONCLUSION AND RECOMMENDATIONS
5.1 Conclusion most violators of the rights of LGBTI Although the Anti-Homosexuality Act persons. There is therefore room for was annulled leaving homosexuality un- improvement and such improvement criminalised in Uganda, the continued can be registered by doing the following; existence of sections 145 and 146 of the Penal Code Act largely undermine • The Directorate of Human the impact of the annulment. Albeit Rights and Legal Services criminalizing only same sex sexual acts, should endeavor to train police the sections continue to be interpreted officers in matters of human out of context and coupled with rights, particularly the rights of homophobia and societal prejudices, LGBTI persons in Uganda. This continue to be used as a basis for the should be intended to reduce violation of rights of LGBTI rights. The human rights violations based violations in 2015 also show an alarming on sexual orientation and increase in violations perpetrated non- gender identity like unnecessary state actors thus emphasisng the need arrests and parades before the for the responsible state agencies media. to fulfill their obligation to protect third parties from violating rights of • The police should afford others, in addition to their obligation LGBTI persons equal to respect these rights. The increased protection by ensuring that use of alternative laws to narrow violations perpetrated against space for LGBTI person also raises LGBTI persons are properly concern as it seems opportunistic. All investigated and dealt with the above notwithstanding, 2015 was accordingly. This should a year of renewed and strengthened include violations perpetrated partnerships between stakeholders in police officers. the LGBTI community and government institutions. This is commendable and • The Directorate of Human should be harnessed as one of the Rights and Legal Services should best opportunities to improve the provide continuing education observance of rights of LGBTI persons and training to police officers in Uganda. to ensure that they are abreast with new legal developments 5.2 Recommendations to avoid unnecessary arrests.
To the Uganda Police Force • The Inspector General of Police The Uganda Police has the original should foster a conducive mandate to keep law and order. There partnership environment in has been commendable progress in the which different individuals observance of rights of LGBTI persons and organizations working for by the police but they remain the top the observance of the rights
53 of LGBTI persons can easily functions. The commission has so far access police and engage them been progressive regarding LGBTI on matters regarding the rights rights. It should therefore continue of LGBTI persons. doing the following; • The Inspector General of • Investigate and document Police should strengthen reports of violence and abuse mechanisms to fight bribery against individuals based and extortion by the police, on sexual orientation, sex including by: strengthening and determination, and gender further supporting the role identity or expression, and of the Professional Standards include such violations Unit and lobbying for increased in annual reports to funding directed to increasing Parliament, accompanied by police salaries and improving recommendations for policy police conditions in order to changes; reduce incentives to arrest people for the purpose of • Continue working with civil extortion. society organisations to monitor, document, expose, • The Inspector General of and address incitement Police, working with the to violence, homophobia, Directorate of Human Rights violence, and abuse on the and Legal Services should basis of sexual orientation, engage relevant stakeholders sex determination, and gender to see that the police force identity or expression and to introduces cells for transgender popularize the commission persons, to reduce the among LGBTI persons; incidents of violence suffered by transgender persons that • Advise parliament on laws and are detained in general cells. bills that may increase stigma and discrimination against • The Directorate of Human LGBTI persons; Rights and Legal Services should issue guidelines to • Encourage various state police officers on how to deal institutions to incorporate the with cases involving LGBTI Human Rights Based Approach persons. into the fulfillment of their respective mandates. To the Uganda Human Rights Commission • Include violations of LGBTI The Uganda Human Rights Commission persons’ rights in the Annual is established by the Constitution with Report to Parliament as a the primary mandate of investigating specific category. incidents of human rights violations and ensuring that different state organs To Members of Parliament observe the protection and promotion The Parliament of Uganda is the of human rights in carrying out their principal law making body, responsible
54 for debating and enacting laws that • Parliament should enact laws govern the country. Parliament also has that protect the rights of LGBTI powers to provide checks and balances persons. to various state institutions. To the Equal Opportunities • Enact laws that do not Commission discriminate on the basis of The Equal Opportunities Commission sexual orientation and gender is the institution with the constitutional identity. Parliament should also mandate to address marginalization and amend the existing laws that discrimination in Uganda. It provides discriminate on those grounds the best platform for addressing the and avoid enacting laws that violations suffered by LGBTI persons further criminaliseLGBTI on grounds of sexual orientation and persons. gender identity. The commission therefore needs to do the following to • Amend Uganda’s Constitution be able to use its mandate to address to include a specific prohibition these violations. of discrimination based on sexual orientation, gender • Investigate, on its own accord, identity, and sex determination. systematic stigmatisation and discrimination of individuals • Condemn attacks or incitement based on their sexual to violence against individuals orientation or gender identity. or groups on the basis of sexual orientation and gender identity • Train the commission staff or expression. in matters of the rights of LGBTI persons in order to build their capacity in handling • Call upon the Uganda matters of discrimination and Human Rights Commission marginalization based on sexual to monitor violations affecting orientation and gender identity. LGBTI Ugandans. Every year, This is to ensure that when the Uganda Human Rights such complaints are filed with Commission presents a report the commission tribunal, they on the situation of human are handled with the objectivity rights in Uganda to Parliament, they deserve. Parliament through the Speaker should use this opportunity • Open up space and opportunity to urge the Commission to to partner substantively with investigate and report on organizations and other persons violations of rights of LGBTI that work for the promotion of people. the rights of LGBTI persons. • Engage LGBTI persons and • Join the Civil Society Coalition organizations in the formulating for Human Rights and and discussing of laws especially Constitutional Law in demanding through the Parliamentary that the case of Adrian Jjuuko v committee AG that challenges a section of
55 the Equal Opportunities Act is to handle cases on LGBTI rights disposed off urgently. This is to objectively. remove the barriers to sexual minorities filing complaints with • The Judiciary should hasten the the commission. hearing of cases brought before them involving human rights • Compile reports on violations as inordinate delays discrimination and affect the protection of human marginalization based on sexual rights. orientation and gender identity. These reports can be used To the Uganda Law Reform to make recommendations Commission to various stakeholders The Uganda Law Reform Commission on how to better reduce is established by the Constitution under such marginalization and article 248. Its Constitutional mandate discrimination. is to suggest areas of law reform, and it is now in the process of reviewing the • Include LGBTI persons on the Penal Code Act. This is the right time list of the officially recognized to end legal discrimination of people groups of vulnerable and based on their sexual orientation or marginalised persons in Uganda. gender identity. The ULRC should therefore: To the Judiciary The Uganda Judiciary has the • Issue formal recommendations constitutional mandate to interpret and to Parliament that the Penal apply the laws of Uganda. To protect Code sections that explicitly rights of LGBTI persons, the following discriminate on the basis of should be done: sexual orientation or gender identity be repealed, including • The Court of Appeal should Section 145 on carnal hasten the hearing of the knowledge against the order appeal case of Kasha Jacqueline of nature. &Ors v AG &Anor. The judgment appealed from poses a danger • Provide guidance on Penal to the observance od rights of Code sections including LGBTI persons. Section 160 (common nuisance), Section 167 (idle • The Constitutional court should and disorderly), and Section urgently give judgment in the 168 (rogue and vagabond) case of Adrian Jjuuko v AG in to ensure that they are not order to clarify the jurisdiction used by the police and private of the Equal Opportunities parties to harass people based Commission tribunal regarding on their sex determination, LGBTI persons. sexual orientation, and/or gender identity. Such guidance • Judicial officers should be should be in the form of written trained on rights of LGBTI guidelines that are circulated to persons to give them capacity all police posts in Uganda.
56 To the Ministry of Health issues domestically and abroad The Ministry of Health is responsible and influence the adoption of for proper and accessible health care non discriminatory legislation in Uganda. It has been very progressive against LGBTI persons. and has had various health policies that are inclusive of LGBTI persons, especially policies on HIV. There is • Support initiatives aimed at however improvement needed in the creating public awareness- provision of these inclusive services to on sexuality, sexual and LGBTI persons. To achieve this: health rights, and violence and discrimination and those • The Department of Community aimed at influencing policy that Health should institute training ensures service provision to for healthcare service providers LGBTI persons in Uganda. on sexual orientation and gender identity to enable To national human rights provision of discrimination free organizations and LGBTI health services for everyone organizations including LGBTI persons. The existing CSOs in Uganda that work for the promotion of human • The Clinical Services rights in general and rights of LGBTI Department should issue persons in particular have the onus proper guidelines for providing to create a substantive conversation medical care to all people about the rights of LGBTI persons and without discrimination even on the violations they suffer. They should the basis of sexual orientation therefore do the following: or gender identity. • Build capacity of staff in To the international community documentation of violations The international community has based on gender identity and leverage and considerable and can sexual orientation. And this influence state institutions in Uganda document should be actively to adopt policies and measures that used for advocacy. ensure equal treatment of all persons regardless of their sexual orientation • Support public education and and gender identity. This however has awareness-creation programs to be done cautiously to avoid backlash. on sexuality, sexual and The community should therefore: health rights, and violence and discrimination by targeting • Call on the government law enforcement agencies of Uganda to live up to its and health service provision international human rights institutions. standards by protecting the rights of all persons including • Support the Uganda Human LGBTI persons. Rights Commission’s mandate to monitor and document • Use quiet diplomacy to sensitise reports of violence, abuse, and Ugandan leaders on LGBTI discrimination based on sexual
57 orientation and gender identity “outed” by the media. or expression. To the Uganda Registration • Strengthen reporting systems, Services Bureau evidence collection and data The URSB has the mandate to storage to facilitate easy incorporate organisations and thus verification of violations against give different entities legal status. people based on their sexual In 2015 however, a worrying trend orientation and gender identity emerged where the Bureau refused or expression. to incorporate different LGBTI organisations on grounds on section • Create information sharing 145 of the Penal Code Act. This systems so that reports hampers service provision to the of violations can be used LGBTI community and violates rights. simultaneously by multiple The Bureau should do the following: parties. • Objectively evaluate • Hold awareness sessions with applications for reservation of staff members to sensitize organization names and apply them on issues affecting the same principles for all LGBTIUgandans. organisations including LGBTI organisations. Section 145 of • Create partnerships with other the Penal criminalises same sex organisations to monitor and conduct and not the formation document abuses of LGBTI of organisations intended rights. to protect human rights of persons regardless of their To the Media sexual orientation. The media plays an important role of informing society and has power to To the Uganda Prisons Service control narratives, which must be used The Uganda Prisons Service plays a responsibly. Members of the media great role in Uganda’s criminal justice should: system. Prisons have been centres of violation of rights of LGBTI persons • Treat all people with respect before. There is therefore need to do and dignity, regardless of the following: gender identity, or sexual orientation. • Establish separate areas for the detention of transgender • Learn about, monitor, and people to avoid the violence report on abuses of human that occurs to them as a result rights and dignity that LGBTI of being detained with people Ugandans face. of a different gender. • Protect the privacy of LGBTI • Protect all prisoners including individuals who may be LGBTI prisoners from violence threatened, assaulted, or even perpetrated by fellow prisoners killed as a result of being or prison warders.
58 • Carry out trainings of prison officials on rights of LGBTI persons.
To the President of the Republic of Uganda The president has a constitutional mandate to assent to or reject laws passed by Parliament. The office of the president is therefore key to the law-making process and to ensuring that the laws enacted respect and observe the rights of all people without discrimination. The person of the President commands respect among the citizens and has a high capacity to influence the attitudes and perceptions of the public to tackle homophobia. The President should: • Veto legislation that is discriminatory on the basis of sexual orientation or gender identity and call upon the police and all intelligence agencies to investigate violations and abuse of the rights of persons based on their gender identity and sexual orientation. • Ensure that issues of non discrimination are prioritised within the Cabinet and the executive generally.
59 Human Rights Awareness and Promotion Forum (HRAPF)
Under the auspices of the Consortium on Monitoring Violations Based on Sex Determination, Gender Identity and Sexual Orientation
Plot 390, Professor Apolo Nsibambi Road, (20 meters off Balintuma Road, Namirembe) P. O. Box 25603, Kampala - Uganda. Tel: +256-414-530683 or +256-312-530683 Email: [email protected] | Website: www.hrapf.org