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Sexual Orientation and the Law: a Case Study of Homosexuals in Kampala District

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Sexual Orientation and the Law: a Case Study of Homosexuals in Kampala District SEXUAL ORIENTATION AND THE LAW: A CASE STUDY OF HOMOSEXUALS IN KAMPALA DISTRICT BY MIRRIAM ACHIENG REG. NO. 2009/HDO9/15489U DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF MASTER OF LAWS OF MAKERERE UNIVERSITY JULY, 2013 i DECLARATION I Achieng Mirriam do hereby declare that this is my original work. Where other people‘s works have been quoted, they have been duly acknowledged. I further declare that this work has never been submitted before to any institution whatsoever and for any academic award of any kind. Signed: ………………………………………………………………. Mirriam Achieng (Researcher) Date: ………………………………………………………………….. Signed: ……………………………………………………………….. Prof Sylvia Tamale (Supervisor) Date: ………………………………………………………………….. i DEDICATION This dissertation is dedicated to my father, James Okoth, my mother Rosemary Okoth, my brothers: Andrew Okoth, Richard Otieno and Godfrey Ogweno and to my sisters: Doreen Reacher, Christine Akinyi and Moureen Arwa. ii ACKNOWLEDGEMENT Words are not enough to express my sincere deep felt gratitude to Prof. Sylvia Tamale, School of Law, Makerere University Kampala for her dedication, patience, availability and inspiring supervision of this research work. Her meticulous, tireless effort, knowledge and wisdom have contributed tremendously to the last breadth of this research. I would not have made it without her. I will forever be grateful for her help. I am very grateful to my parents who supported me financially in pursuing this course. This study would not have been possible without their financial support. Their encouragement and belief in me has always made me aim higher. I am greatly indebted to them. My special thanks go to Dr. Rose Nakayi for taking time off amidst her busy schedule to edit this work. Her motivation and encouragement meant a lot and kept me going. Thanks to Enid Asiimwe Mutambuka and Nicole Mwesigwa who constantly stood with me in prayer. Surely if the lord had not been on my side I wouldn‘t have come this far. It has not been by might, nor by power but by his spirit that I have been able to do this piece of work. Glory be to God. Finally I want to extend my appreciation to all the participants for the information they provided that contributed towards this academic piece of work. iii TABLE OF CONTENTS DECLARATION ............................................................................................................................. i DEDICATION ................................................................................................................................ ii ACKNOWLEDGEMENT ............................................................................................................. iii TABLE OF CONTENTS ............................................................................................................... iv LIST OF ACRONYMS ................................................................................................................ vii LIST OF CASES.......................................................................................................................... viii LIST OF STATUTES .................................................................................................................... ix LIST OF APPENDICES ................................................................................................................. x ABSTRACT ................................................................................................................................... xi CHAPTER ONE ........................................................................................................................... 1 1.1 Introduction to the study ........................................................................................................... 1 1.2 Background to the study ........................................................................................................... 3 1.3 Statement of the problem .......................................................................................................... 8 1.4 General objective of the study .................................................................................................. 8 1.5 Specific objectives .................................................................................................................... 8 1.6 Research Questions ................................................................................................................... 9 1.7 Theoretical framework .............................................................................................................. 9 1.8 Significance of the study ......................................................................................................... 14 1.9 Definition of terms .................................................................................................................. 14 1.11 Methodology ......................................................................................................................... 15 1.11.1 Research Design ............................................................................................................. 15 1.11.2 Sampling Procedure ....................................................................................................... 15 1.11.3 Data collection and instruments ..................................................................................... 16 1.11.4 Data analysis .................................................................................................................. 16 1.11.5 Limitations ..................................................................................................................... 16 1.11.6 Ethical issues .................................................................................................................. 16 1.12 Summary of the chapters ...................................................................................................... 17 iv CHAPTER TWO ........................................................................................................................ 18 ASSESSING THE LITERATURE ON HOMOSEXUALITY ............................................... 18 2.1 Introduction ............................................................................................................................. 18 2.2 Theorizing the Prohibition of Homosexuality ........................................................................ 18 2.3 Law, Policy and Human Rights Issues ................................................................................... 39 2.4 Conclusion .............................................................................................................................. 48 CHAPTER THREE .................................................................................................................... 50 ASSESSMENT OF THE CONSTITUTIONAL AND LEGAL FRAMEWORK ................. 50 GOVERNING SAME SEX RELATIONS IN UGANDA ....................................................... 50 3.1 Introduction ............................................................................................................................. 50 3.2 The Legal Regime ................................................................................................................... 50 3.2.1 The right to equality and non-discrimination. .................................................................. 52 3.2.2 The right to Privacy .......................................................................................................... 54 3.2.3 The right to freedom of association and expression ......................................................... 56 3.2.4 The right to health ............................................................................................................ 58 3.2.5 The right to liberty ............................................................................................................ 59 3.2.6 Job discrimination ............................................................................................................ 59 3.2.7 Legal Attempts that Discriminate Against Homosexuals ................................................ 60 3.3 Conclusion .............................................................................................................................. 69 CHAPTER FOUR ....................................................................................................................... 70 DISCRIMINATION IN THE DIFFERENT AREAS OF THE LIVES OF .......................... 70 HOMOSEXUALS ....................................................................................................................... 70 4.1 Introduction ............................................................................................................................. 70 4.2 Substantive Findings and Analysis ......................................................................................... 70 4.2.3 Discrimination in Educational Institutions ....................................................................... 76 4.2.4 Discrimination from Family and Friends ......................................................................... 79 4.2.5 Discrimination in Employment ........................................................................................ 80 4.2.6 Discrimination in Healthcare Facilities ............................................................................ 83 v 4.2.7
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