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A Human Rights Impact Assessment of the Ugandan Anti-homosexuality Bill 2009 Sylvia Tamale

On 14 October 2009, the Anti-homosexuality Bill was introduced before the parliament of . The Bill received international criticism from human rights organisations and states alike. If passed, the Anti-homosexuality Bill would legitimise, institutiona- lise, increase and perpetuate the profound discrimination and gross inequality suffered by lesbian, gay, bisexual and transgender (LGBT) people in Uganda today. On 18 November 2009, Dr. Sylvia Tamale, Professor of Law and Trustee of The Equal Rights Trust, delivered this speech at , , assessing the im- pact that this Bill would have on human rights.

I would like to thank the Human Rights and Peace Centre for inviting me here this after- the struggle for human rights over the years; noon to share my views on this bill. It is great hatred and discrimination that has affected that HURIPEC organised this to be a dialogue iii. Third, I will highlight the social meaning and not a debate because debates have a of the bill; and tendency to polarise and divide along irra- iv. Finally, I shall put on my legal hat and out- tional gut-level responses. A dialogue, on the line the legal implications that this bill holds other hand, usefully sets the stage for people for our country if passed into law. to listen to each other with understanding and tolerance and helps build bridges. I hope 1. Common Issues of Concern stepping stone for all of us to embark on a I have scrutinised the bill thoroughly and the rewardingthat this public journey dialogue of mutual will respect, mark the simple first Honourable Member of Parliament David decency and fairness. Bahati will be surprised to learn that I share some of his convictions. For example, Hon. Mr. Chairperson— Bahati, I share your desires as expressed in the preamble to the bill: My brief talk this afternoon is divided into 1. To strengthen the nation’s capacity to deal four sections: with emerging internal and external threats to the family unit. It is nevertheless impor- i. First, I will address issues of mutual con- tant to point out that most of these can hardly cern that I share with Hon. Bahati [the MP be fought through the regulatory mechanism who introduced the Anti-homosexuality Bill of the law; – editor's note]; 2. To protect the cherished culture of the ii. Secondly, I will open the window of his- people of Uganda, particularly the positive aspects of it; tory and offer us a glimpse of the politics of

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3. To protect Ugandan children and youth d) Levirate marriages where a man inherits who are vulnerable to sexual abuse and ex- his dead brother’s wife were a customary re- ploitation—whether the abuse is hetero- or quirement in many African communities. homosexual. While these may have been cultural practices I do not have the time and space this after- at some point in our history, it is also impor- noon to engage in a detailed sociological dis- tant to recognise that family institutions all cussion of the concept that the bill refers to over the world are undergoing rapid trans- formation. The changes that we see in this it is my humble opinion that the concept basic unit of society are the result of many needsas the “Traditional to be unpacked African and Family”. scrutinised. However, Mr. factors, including economic crises, an in- Chairperson, as you very well know, Africa is creasing number of working mothers, tech- a vast continent with an extremely rich and diverse cultural history. Indeed, it would be natural disasters, globalisation, migration, next to impossible to mark a particular insti- thenological HIV/AIDS advancements, pandemic, etc. armed Many conflicts, of these tution as the one and only “Traditional Afri- changes and indeed the evolution of culture cannot be halted, certainly not through law.

Ican will Family”. cite just a few examples to demonstrate Perhaps the undisputed value that is a com- that matrimonial relations among various mon denominator in all traditional insti- tutions of the family in Africa is the group deal: solidarity that we have embedded in our ex- African communities have differed a great tended family networks. Unfortunately, the support, stability, love and respect that were traditionally taboo among the Baganda, mar- the hallmark of this family model are rapidly riagesa) While among marriage blood-related between firstkin were cousins consid was- being eroded and will soon become history. ered the best unions among the Bahima here in Uganda; Thus, while I agree with you, Hon. Bahati, that we must seek ways of dealing with is- b) There is the phenomenon of chigadza- sues that threaten our families, I do not agree mapfihwa where the family of a barren wife that homosexuality is one of those issues. Mr. among the Ndaus of Zimbabwe would "do- Chairperson, ladies and gentlemen, what is- nate" her brother’s daughter to her husband sues currently threaten our families here in to become a co-wife and bear children on be- Uganda? I will name a few: half of the barren woman; a) Blood-thirsty Ugandans and traditional c) Practices of non-sexual woman-to-woman healers that believe that their good fortune marriages among various African customs, will multiply through rituals of child sacri- for example the Nandi and Kisii of Kenya, the Igbo of Nigeria, the Nuer of Sudan and the Kuria of Tanzania for purposes of coping b)fice; Rapists and child-molesters who pounce with various reproductive, social and eco- on unsuspecting family members. Research nomic problems; shows that over 50% of child sexual abuse undertaken by the NGO Hope after Rape

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reports involve children below ten years of i) Rising poverty levels and growing food age, and the perpetrators are heterosexual insecurity which lead to hunger, disease, suf- men who are known to the victims;1 the latest report from the Uganda Bureau of c) Sexual predators that breach the trust Statisticsfering and show undignified that over living. 60% Figures of Ugandans from placed in them as fathers, teachers, religious living in rural areas live below the poverty leaders, doctors, uncles, and sexually exploit line.6 young girls and boys. A 2005 report by Rais- ing Voices and Save the Children revealed I do not see how two people who are in a lov- that 90% of Ugandan children experienced ing relationship and harming no one pose a 2 threat to the family simply because they hap- pen to be of the same sex. The argument that d)domestic Abusive violence partners and who defilement; engage in domestic homosexuality is a threat to the continuity violence, whether physical, sexual or emo- of humankind and that it will lead to the ex- tional. The 2006 national study on domes- tinction of human beings in the world simply tic violence by the Law Reform Commission does not hold water because there are too - many heterosexuals in the world for that to sive in our communities. Sixty-six percent of become a reality. How many of you in this peopleconfirmed in all that regions domestic of Uganda violence reported was perva that domestic violence occurred in their homes time soon?... So, just as the priests, nuns and and the majority of the perpetrators were monksroom would who are “convert” sworn toto a homosexuality life of celibacy willany 3 The Uganda not cause the extinction of humanity, homo- Demographic Health Survey of 2006 put the sexuals will not either. “male heads of households”.4 2. Lessons from History figuree) Parents slightly who higher force at 68%; their 14-year old daughters to get married in exchange for Anyone who cares to read history books bride price and marriage gifts; knows very well that in times of crisis, when people at the locus of power are feeling vul- f) A whole generation of children who were nerable and their power is being threatened, either born and bred in internally displaced they will turn against the weaker groups in persons camps or abducted by the Lords Re- society. They will pick out a weak voiceless sistance Army (LRA) in the northern sub-re- group on whom to heap blame for all society’s troubles—refugees, displaced populations, stateless persons a.k.a. illegal immigrants, g)gion The of millionsKitgum, ofGulu children and Pader orphaned districts; by HIV/ minorities with no status, children, the poor, AIDS. The Uganda Aids Commission puts the the homeless, commercial sex workers, etc. cumulative number of orphans due to AIDS at 2 million;5 point: I will offer a few examples to illustrate this h) The all-powerful patriarchs that demand ■ In Uganda, colonialists at various times total submission and rule their households blamed traditional chiefs and elders as well with an iron hand; as Muslims as the main impediments to progress and civilisation;

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■ Dictator Idi Amin blamed Asians for Ugan- where did the idea of destroying homosexu- da’s dire economic problems and expelled all ality come from? As his Excellency President Indians in the early 1970s; Museveni pointed out at the inaugural Young Achievers Awards Ceremony last weekend, ■ homosexuals existed prior to the coming of threatened during his second regime in Europeans to Uganda. According to the Presi- the When early Milton 1980s Obote’s he embarked political on power a deliber was- dent, “[t]hey were not persecuted but were ate campaign of hostility towards refugees not encouraged either".8 The idea of destroy- in Uganda, particularly those of Rwandese ing homosexuality came from colonialists. In - other words, homosexuality was not intro- yarwanda in Uganda and the whipping up duced to Africa from Europe as many would ofextraction. anti-Rwandese Obote’s sentiments persecution included of the Ban the want us to believe. Rather, Europe imported constant reference to his political opponent legalised homophobia to Africa. Yoweri Museveni as a “foreigner from Rwan-

in Uganda directly through laws that were im- ■da”; In the 20 years that northern Uganda suf- portedHomosexuality from Britain was introducedduring colonialism. as an offence And what did these same colonialists think of the

atfered Kony armed7 and conflict, the LRA the was National blamed Resistance for all the certainly did not introduce sodomy laws in Movement administration pointed fingers order“Traditional to protect African the Family”traditional in Uganda? African Theyfam- north. ily. In fact they believed that the traditional atrocities and suffering of the people in the African family was inferior to their nuclear ■ The transmission of HIV/AIDS at various monogamous one and considered the for- points in our history has been blamed on mer barbarous and "repugnant to good con- - science and morality". This colonial attitude mercial sex workers, truck drivers, young womendifferent aged “weak” 15-23 constituents and others. including com case of R. v. Amkeyo, in which Justice Hamil- tonwas dismissed well exemplified customary in themarriages infamous as 1917mere ■ When native South Africans faced a dire "wife purchase". economic crisis, they turned against black - Today, with all the economic, social and po- litical crises facing Uganda, homosexuals xenophobic“foreigners”, attacksblaming against them for helpless the high immi un- grants/migrantsemployment rates and and refugees sparking in May off 2008. brutal - present a convenient group to point fingers The lesson drawn from these chapters in our gentlemen,at as the “biggest the re-criminalisation threat” or the “real of homo prob- recent history is that today it is homosexu- sexualitylem” to society. is meant Mr. to Chairperson, distract the attention ladies and of als under attack; tomorrow it will be another Ugandans from the real issues that harm us. exaggerated minority. It conveniently diverts the attention of the millions of Ugandans who have been walk- Homosexuality has troubled people for a very ing the streets for years with their college

and there are many debates around it. Mr. gentlemen, homosexuals have nothing to do Chairpersonlong time. Some and religionsdistinguished find itparticipants, distressing withcertificates the hundreds and no jobsof thousands on offer. ofLadies families and

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that sleep without a meal or the thousands mother who is trying to come to terms with of children who die unnecessarily every day her child’s sexual orientation may be dragged from preventable or treatable diseases such to police cells for not turning in her child to as malaria, diarrhoea, measles, pneumonia, the authorities. The same fate would befall etc. Homosexuals are not the ones respon- teachers, priests, local councillors, counsel- sible for the lack of drugs and supplies at pri- lors, doctors, landlords, elders, employers, mary health care centres. MPs, lawyers, etc.

3. The Social Implications of the Bill to the Furthermore, if your job is in any way related Average Ugandan to human rights activism, advocacy, educa- tion and training, research, capacity building You may think that this bill targets only ho- or related issues, this bill should be a cause mosexual individuals. However, homosexu- for serious alarm. In a very undemocratic and unconstitutional fashion, the bill seeks include “touching another person with the to silence human rights activists, academ- intentionality is defined of committing in such a broad the act fashion of homo as to- ics, students, donors and non-governmental to abuse and puts all citizens (both hetero- the space of civil society. The bill also under- andsexuality”. homosexuals) This is at a provisiongreat risk. highlySuch a provi prone- minesorganisations. the pivotal If passed role of into the medialaw, it willto report stifle sion would make it very easy for a person to freely on any issue. The point I am trying to witch-hunt or bring false accusations against make is that we are all potential victims of their enemies simply to destroy their repu- this draconian bill. tations and cause scandal. We have not for- gotten what happened to Pastor Kayanja and Dr. Martin Luther King Jr. told us many years 9 ago, “Power at its best is love implementing the demands of justice, and justice at its best is other men of God in the recent past. love correcting everything that stands against term of imprisonment for up to three years love.” Article 1 of the Universal Declaration of forMoreover, any person the bill in authorityimposes aover stiff a homosexfine and -a Human Rights instructs us: “All human beings are born free and equal in dignity and rights.” hours of acquiring such knowledge. Hence Many great people that we respect and ad- theual who bill requiresfails to report family the members offender towithin spy on24 mire have spoken out for the rights of homo- one another. This provision obviously does sexuals. These include international award not strengthen the family unit in the manner winners and champions of freedom and that Hon. Bahati claims his bill wants to do, humanity - President Nelson Mandela, Arch- but rather promotes the breaking up of the bishop Desmond Tutu and President Barack family. This provision further threatens rela- tionships beyond family members. What do former president of Botswana Festus Mogae I mean? If a gay person talks to his priest or addedObama. his Just voice yesterday, to those it who was have reported come that out in opposition to the Bahati Bill.10 bill requires that the priest or doctor breach his doctor in confidence, seeking advice, the We must remember that the principal mes- individual and immediately hand them over sage at the heart of all religions is one of totheir the trust police and within confidentiality 24 hours. Failure with the to gaydo love. (And now these three remain: faith, hope and love. But the greatest of these is love - 1 puts them at risk of being arrested. Or a

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Corinthians 13:13). All religions teach the The interpretation section (Clause 1) repli- virtues of tolerance and urge their followers to desist from passing judgment. Ladies and for elsewhere. Its novel provisions lie in the gentlemen, this bill promotes hatred, intoler- cates several definitions that are provided- ance, superiority and violence. Even if you lated activities. I have already alluded to the believe that homosexuality is a sin, this bill potentialattempt to danger define thathomosexuality Ugandans and face its from re is not the best method to address the issue. It the threatening and broad fashion in which is valid to have religious and spiritual anxiet- ies but our jurisprudence has a long history of separating the institutions of religion from Clausethe bill 13defines which a attempts“homosexual to outlaw act”. the “pro- the law. The law, Mr. Chairperson, does not - seek to ally any legal principle with a par- atic as it introduces widespread censorship ticular religion. Mr. Stephen Langa is free to andmotion undermines of homosexuality” fundamental is veryfreedoms problem such deliver his lectures on morality but it is unac- as the rights to free speech, expression, as- ceptable to reduce what he is preaching into sociation and assembly. Under this provision an unscrupulous person aspiring to unseat a 11 a legal analysis of this bill. member of parliament can easily send the in- law. In my final submission I want to turn to cumbent MP unsolicited material via e-mail 4. The Legal Implications of the Bill or text messaging, implicating the latter as Mr. Chairperson, ladies and gentlemen, the Anti-homosexuality bill has a total of 18 one “promoting homosexuality”. After being clauses; 12 of these 18 clauses (i.e., 67%) Secondly,framed in by that criminalising way, it will the be “funding very difficult and are not new at all as they simply replicate sponsoringfor the victim of to homosexuality shake free of the and “stigma”. related what we already have on our law books. So - liament has been given a bill two-thirds of activities”, the bill deals a major blow to thewhose first content point I duplicates want to highlight existing is laws. that Par Take, for example, the Most At Risk Popula- tions’Uganda’s Initiative public introduced health policies by the and Ministry efforts. of So, let us examine the content of the remain- - ing six clauses that introduce new legal pro- lations in a comprehensive manner to curb visions. theHealth HIV/AIDS in 2008, scourge. which targets If this specific bill becomes popu law, health practitioners as well as those that Clause 6 provides for the recognition of the have put money into this exemplary initiative will automatically be liable to imprisonment victim of homosexual assaults. This is a pro- for seven years! The clause further under- ceduralright to issue privacy that and no confidentialityone can dispute for and the it mines civil society activities by threatening can easily be inserted in the Penal Code pro- visions that criminalise rape and aggravated intimidating tactics to shackle their directors andthe fundamentalmanagers. rights of NGOs and using

defilement. Clause 14 introduces the crime of “failure to extremely problematic from a legal point of view.Nevertheless, They violate the remainingUganda’s Constitution five clauses andare have noted above, under this provision any many regional and international instruments persondisclose in the authority offence” is obliged of homosexuality. to report a ho -As I mosexual to the relevant authorities within

that Uganda has ratified.

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24 hours of acquiring knowledge of their sexual orientation. Not only does this pro- any rational basis for such inordinate at- vision infringe on the right to privacy but it tentionsuch provision to homosexuality. is made. It Andis difficult how exactlyto see is practically unenforceable. It dangerously will they enforce this provision? Is the gov- opens up room for potential abuse, black- ernment going to storm the bedrooms of mail, witch-hunting, etc. Do we really want to consenting adults, or deploy spies to follow move sexual acts between consenting adults them when they travel abroad in order to into the public realm? establish who they have slept with and how they did it? Does this include heterosexual Clause 16 relates to extra-territorial juris- couples that engage in anal sex? What about diction, and basically confers authority on our constitutional right to privacy? In short, Ugandan law enforcers to arrest and charge this provision of the Bill is a gross abuse of a Ugandan citizen or permanent resident the principle of extra-territoriality. But more who engages in homosexual activities out- importantly, the bill carries hidden venom side the borders of Uganda. This law enforce- that is bound to spread beyond persons that ment model is normally used in international engage in homosexuality. crimes such as money laundering, terrorism, etc. The Ugandan Penal Code already pro- Perhaps the most shocking aspect of this vides for crimes that call for extra-territorial- bill is Clause 18, which requires Uganda to ity. All these touch on the security of the state opt out of any international treaty that we - e.g. treason, terrorism and warmongering (see S. 4 of the PCA). spirit of the bill. Article 287 of the Constitu- tionhave obligespreviously Uganda ratified to fullythat goessubscribe against to the all within and partly outside Uganda, the Penal prior to the passing of the 2005 Constitution. CodeWhen provides: it comes to offences committed partly Weits international cannot legislate treaty or obligations simply wish ratified these obligations away. Indeed, international law “When an act which, if wholly done prohibits us from doing such a thing. Article within the jurisdiction of the court, would be 26 of the Vienna Convention on the Law of Treaties clearly sets out the pacta sunt ser- within and partly beyond the jurisdiction, ev- vanda rule which requires that “Every treaty anery offenceperson who against within this the jurisdiction Code is done does partly in force is binding upon the parties to it and or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly Articlemust be 123performed (1), a by provision them in good deliberately faith.” placed in Chapter Seven of the Constitution (dealing with the powers of the Executive) Notewithin that the clausejurisdiction.” 16 of the[Section Bill employs5] the says: than S.5 of the Penal Code that uses the con- “The President or a person autho- disjunctive “or”, which gives it wider reach- rised by the President may make treaties, con- poses to do is to elevate homosexual acts to a ventions, agreements, or other arrangements positionjunctive of“and”. such Therefore, importance what that the they Bill appear pro between Uganda and any other country or be- to be at an even higher plane than murder, tween Uganda and any international organi- rape or grievous bodily harm for which no

sation or body, in respect of any matter.”

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This is a wide power that can only be limited private member’s bill. Do we really in our by express language under the Constitu- heart of hearts want our country to be the tion itself. A major procedural limitation is - found in the next clause of the same article, ers spy on their children, that teachers refuse which provides: first on the continent to demand that moth that our gay and lesbian citizens are system- “Parliament shall make laws to aticallyto talk about and legallywhat is, terrorised after all, “out into there” suicide? and Ladies and gentlemen, you may strongly agreements or other arrangements made un- disagree with the phenomenon of same-sex govern ratification of treaties, conventions, erotic conduct; you may be repulsed by what you imagine homosexuals do behind their Anotherder clause substantive (1) of this article.” limitation (Art. is 123 found (2)) in bedroom doors; you may think that all ho- mosexuals deserve to burn in hell. However, President cannot by the mechanism of Ar- it is quite clear that this Bill will cause more the Bill of Rights, in Chapter 4. In effect, the problems around the issue of homosexuality be to amend the Constitution. Indeed, any than it will solve. I suggest that Hon. Bahati’s suchticle 123(1)treaty wouldsign treaties be, as awhose matter effect of munici would- bill be quietly forgotten. It is no more or less pal law, null and void to the extent of such than an embarrassment to our intelligence, inconsistency, in terms of Article 2 (2) of the our sense of justice and our hearts. Constitution. Thank you for your attention. Parliament therefore has only a procedural Responses in the Questions and Answers role to incorporate treaties into Ugandan law Session – and that is the full extent of its powers. It cannot purport to proscribe ex ante the limit Mr. Chairperson, in the interest of time I will of the President’s treaty-making powers. Nor respond to only three issues: indeed can parliament bind its own future action by purporting to exercise in advance ■ its power to scrutinise treaties signed by the President and determine which of them are “Mad some people”, of the words“like bats used seeing to describe the world ho- to ratify. All that parliament can do is to ei- mosexualsupside down”, by the “animals”, audience. “wicked”… All the heckling These ther ratify or refuse to ratify a treaty after it and vicious jeering… Mr. Bahati, you com- is signed, and in the latter case such a treaty menced your talk this afternoon by saying, does not become part of Ugandan law. This is the balance of executive power and demo- you were in any doubt about the fact that cratic input achieved by Article 123, and one your“We arebill is not whipping in the hate up hatred campaign.” and violence Well, if that clause 18 of the Bill is incompetent to amend. discourse that transpired in the room this af- ternoon.against homosexuals, just reflect back on the Mr. Chairperson, distinguished participants, I wish to end by appealing to members of ■ Secondly, Mr. Chairperson, I think it is the parliament and all Ugandans who believe in height of paternalism and arrogance for Hon. human rights and the dignity of all human Bahati and Mr. Langa to stand here and say beings to reject the Anti-homosexuality bill. they are legislating against homosexuals I am imploring Hon. Bahati to withdraw his because they love them, they feel sorry for

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them, that they face the risk of cancer, that human beings as worthy of dignity and rights their lives are reduced by 20 years, etc. Ho- and I am not obsessed with how people have mosexuals are not asking for your pity, love, sex in the privacy of their bedrooms. I sup- approval or redemption. They only want you port the rights of all human beings regardless of how and with whom they have sex as long as they are adults and are not harming any- to affirm their humanness and their right to one. So, the question should not be whether ■exist Finally, and be Mr. different. Chairperson, Hon. Bahati asked I support homosexuality, or heterosexuality the question, “Tamale, do you support homo- for that matter. that I am a simple woman who recognises all Thank you very much, Mr. Chairperson. sexuality?” I would like to tell Hon. Bahati

1 A study cited in Uganda Youth Development Link, Report on Sectoral Study on Commercial Sexual Exploitation of Children in Uganda Labour and Social Development, January 2004. , Commissioned by the International Labour Organisation (ILO) and the Ministry of Gender, 2 See Raising Voices and Save the Children (edited by Dipak Naker), Violence Against Children: The Voices of Ugan- dan Children and Adults

3 See Law Reform Commission,, 2005, available A Study Report at: http://www.raisingvoices.org/files/VACuganda.RV.pdf. on Domestic Violence, April 2006, p. 112.

4 See http://www.measuredhs.com/pubs/pdf/FR194/FR194.pdf.

5 Value for Money Audit Report on Uganda AIDS Control Project,

See Report by the Office of the Auditor General, 6October 2007,Spatial available Trends at: of http://www.oag.go.ug/docs/UACauditreport.pdf. Poverty and Inequality in Uganda: 2002-2005, February 2009.

7 SeeJoseph UBOS, Kony (b. 1961) is the Head of the Lord’s Resistance Army, a guerrilla group that was engaged, since 1986, in a violent campaign in the northern part of Uganda to establish a theocratic government based on the Christian Bible. (Editor’s note)

8 See , Nov. 16, 2009, p. 2.

9 In 2009, a scandal erupted when Pastor Robert Kayanja of the Miracle Centre Cathedral in Kampala was accused ofahead sexually of a visitabusing by American two teenage preacher male church Benny members.Hinn to the Other Miracle pastors Centre had Cathedral. assisted the(Editor’s teenagers note) in filing their complaints, which were later withdrawn. Kayanja's supporters accused rivals of seeking to damage his reputation 10 See Daily Monitor, November 17, 2009, p. 10.

11 Stephen Langa was the organiser of a March 2009 conference in Kampala of evangelical Christians featuring militant U.S. preachers whose purpose was to promote traditional family values and oppose homosexuality. The conference is said to have had a strong impact on Ugandan politicians and to have facilitated the elaboration of the (Editor’s note)

Anti-homosexuality Bill introduced in October 2009.

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