A Publication of Human Rights Awareness And Promotion Forum (HRAPF)

BEYOND QUORUM: WHY THE ANTI-HOMOSEXUALITY ACT 2014 WAS UNCONSTITUTIONAL

SECOND ISSUE MARCH 2015 THE HUMAN RIGHTS ADVOCATE SECOND ISSUE, MARCH 2015

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 1 THE HUMAN RIGHTS ADVOCATE

EDITOR’S NOTE

elcome to the second issue of law in the Constitutional Court and on the Human Rights Advocate. 1st August 2014, the law was declared WThe Human Rights Advocate unconstitutional. This was on the basis is a bi-annual human rights magazine that the Act was passed by the legislature produced by Human Rights Awareness and without following the procedures provided Promotion Forum-Uganda (HRAPF). It is for in the Constitution and under the rules produced under the legislative Advocacy of Procedure of Parliament as regards and Networking Program. quorum.

HRAPF is an independent, not-for-profit, The Act sought to “prohibit any form non-partisan, and non-governmental of sexual relations between persons of organisation. It is fully incorporated under the same sex; prohibit the promotion the laws of Uganda. HRAPF focuses or recognition of such relations and to on human rights awareness, advocacy provide for other related matters.” The Act and access to justice for marginalised created offenses including: homosexuality, groups. It employs legal aid services, legal aggravated homosexuality, and attempt and policy analysis, legal research and to commit homosexuality. It also created documentation, and strategic litigation to the offences of aiding and abetting further its objectives. homosexuality, conspiracy to engage in homosexuality, having or conducting This magazine focuses on legislative a same-sex marriage, promotion of review and advocacy in favour of homosexuality, among others. All the marginalized groups. Each edition features offences could result in fines and prison writers on a topical legislative issue that sentences ranging from five years to life concerns marginalised groups in order to imprisonment. advocate for laws that promote human rights and access to justice for all. The law was a direct attack on the rights to: equality and freedom from discrimination, This second edition of the Human Rights privacy, press freedom, freedom of Advocate magazine is dedicated to expression, assembly and association, reasons why the Anti-Homosexuality property, freedom from cruel, inhuman Act 2014 (AHA) was unconstitutional, and degrading punishment, and civic even beyond the issue of quorum. The participation. Above all, the Act would Anti-Homosexuality Act was passed by institutionalise a culture of hatred and Parliament on December 20, 2013 and legitimise discrimination against one of signed by the President on February the most margainlised groups in Ugandan 24, 2014. It became operational on society. March 10, 2014. On 11th March 2014, HRAPF and 9 others challenged the The petition that nullified the Act is officially

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cited as Prof. J. Oloka Onyango, Hon. Fox and maintenance of universally accepted Odoi-Owyelowo, Prof. Morris Ogenga- standards of human rights which include inter Latigo, Andrew M. Mwenda, Dr. Paul alia, provision of equal opportunities and Semugoma, Jacqueline Kasha Nabagesera, gender equality as well as the recognition, Julian Pepe Onziema, Frank Mugisha, promotion and protection of human and Human Rights Awareness and Promotion people’s rights in accordance with the Forum and the Centre for Health, Human provisions of the African Charter on Human Rights and Development (CEHURD) v and Peoples’ Rights. However, this case has Attorney General, Constitutional Petition not been heard by the Court. No. 008 of 2014. The Petitioners were: a law professor, one of the MPs who This second edition of the Human Rights authored the minority report on the Anti Advocate contains the editorial, feature, two Homosexuality Bill 2009, a former leader opinion articles and three commentaries. of the opposition in the eigth parliament, It also includes articles on experiences a journalist and media house owner, a HIV of living with the AHA, the AHA from activist for men who have sex with men, international law perspective, legislative a gay activist, a trans activist, a lesbian history and updates on two cases filed against activist, an organisation offering legal aid the annulled Anti-Homosexuality Act 2014. services to marginalised groups, and an organisation working on health issues In the editorial, the editorial team explores respectively. It was filed on 11th April 2014; reasons why the AHA was unconstitutional a day after the Act came into force. The beyond quorum. The feature describes the case was heard and judgment delivered contents of the AHA. The first opinion article on August 1st 2014, leading to annulment reveals that almost all Ugandans could of the law. easily fall foul of the provisions of the Act, yet the second opinion article weighs the The law was also challenged at the East implications of the law on public health in African Court of Justice. The reference Uganda. In commentaries, the first article was filed on April 25, 2014 by HRAPF. exposes the time bomb of the death It is officially cited as Human Rights sentence that was hidden in Section 5(1) of Awareness and Promotion Forum (HRAPF) the Act, the second article illuminates the vs. Attorney General of the Republic of experience of judges in South Africa with Uganda, Reference No. 006 of 2014. It discriminatory apartheid laws and advised contends that Uganda was in violation Uganda’s judges to recognise the AHA as a of the Treaty for the Establishment of tool of oppression and marginalization, and the East African Community by enacting the third article assesses the implications the AHA, and that certain provisions of of the Anti-Homosexuality Act on the Uganda’s AHA are in violation of the right to health of Ugandans. Under real life Treaty for the Establishment of the East experiences, there is an article, which profiles African Community in Articles 6(d), 7(2) the harsh effects of living with the law for and 8(1)(c) , which provisions enjoin LGBTI persons, including what marginalised partner states to govern their populace people have already experienced since the on the principles of good governance, passing of the law. Under international law democracy, the rule of law, social justice perspective, there is an article discussing the

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 3 THE HUMAN RIGHTS ADVOCATE effects of the AHA from an international human rights implications of the Anti- law perspective while under legislative Homosexuality Act, and any similar anti- history, there is an article which journals homosexuality laws that may emerge. We the genesis and impact of recent legislation also hope that the issue will open people’s in Uganda. Case updates I and II gives an eyes to the dangers that such laws pose overview and update of the cases filed to every Ugandan. Finally, we hope that against the AHA in the Constitutional Court this information can be used in advocacy of Uganda and the East African Court against laws aimed at stigmatising and of Justice. Finally, the press statement marginalising people. released by HRAPF on International Women’s Day 2014 is included in the HRAPF would also like to acknowledge appendix. the contributors of articles to this issue of the magazine. Prof. J. Oloka Onyango of Although the AHA has been annulled, the School of Law, Makerere University; these articles remain relevant for several Dr. Stella Nyanzi (PhD) of the Institute of reasons. First, the AHA was annulled Social Research, Makerere University; Dr. based on the issue of procedure Paul Semugoma; Mr. Francis Tumwesige under which it was passed rather than Ateenyi; Mr. Edward Mwebaza; Ms. Linette substantive, grounds. These articles Du Toit, Ms. Joaninne Nanyange, Ms. Asia chronicle the harmful effects of the AHA Russel of Health Gap and Ms. Jenevieve and the ways in which it violated the Discar. HRAPF also acknowledges the Ugandan constitution as well as Uganda’s contribution of HRAPF members, the international obligations; as such, the AHA Board of Directors and staff who helped in was unacceptable for reasons outside of compiling, contributing to and reviewing and more significant than quorum. Second, this magazine. the AHA motivated and legitimised human rights violations against individuals and Adrian Jjuuko continues to do so, despite having been Editor annulled. Third, a similar bill is being proposed to be tabled before Parliament in the near future—in fact, a new draft bill EDITORIAL TEAM entitled The Prohibition of Promotion of Unnatural Sexual Practices was recently Editor leaked to the media, which though not owned by any entity is substantially similar Adrian Jjuuko to and, in some ways, worse than, the AHA.1 Thus, a comprehensive examination of the Associate Editor AHA remains necessary. Edward Mwebaza

We hope that readers find this to be a useful resource in analysing the legal and Contributors Flavia Zalwango

1 PROHIBITION OF PROMOTION OF UNNATURAL SEXUAL Joaninne Nanyange PRACTICES BILL, 2014 (Oct. 29, 2014), available at http://www. scribd.com/doc/245855111/The-Prohibition-of-Promotion-of- Jenevieve Discar Unnatural-Sexual-Practices-Bill-of-2014.

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PAGE IN THIS ISSUE

EDITORIAL: BEYOND QUORUM: REASONS WHY THE ANTI-HOMOSEXUALITY ACT WOULD BE 06 UNCONSTITUTIONAL. FEATURE: THE ANTI-HOMOSEXUALITY ACT 2014: 08 AN OVERVIEW OPINION: THE ANTI-HOMOSEXUALITY ACT IS A 13 THREAT TO EVERYONE

OPINION: THE ANTI-HOMOSEXUALITY ACT WAS AN 15 ATTACK ON UGANDANS’ HEALTH RIGHTS COMMENTARY: LET’S KILL THE GAYS: THE WOULD BE IMPLICATIONS OF SECTION 5 (1) OF THE 18 ANTI HOMOSEXUALITY ACT 2014

COMMENTARY: JUSTICE AT THE FALL OF A GAVEL: WILL THE UGANDAN JUDICIARY TAKE A STAND 20 AGAINST THE ANTI-HOMOSEXUALITY ACT?

COMMENTARY: THE ANTI-HOMOSEXUALITY ACT 2014 & THE 23 HEALTH OF UGANDANS

REAL LIFE LIVING WITH THE NEW EXPERIENCES: ANTI-HOMOSEXUALITY ACT (2014): 27 EXPERIENCES OF UGANDAN LGBTIQ INTERNATIONAL THE ANTI-HOMOSEXUALITY ACT: LAW IN VIOLATION OF INTERNATIONAL LAW 35 PERSPECTIVE:

LEGISLATIVE UNDERSTANDING THE GENESIS AND IMPACT 40 HISTORY: OF RECENT LEGISLATION IN UGANDA

CASE UPDATE I: USING COURTS OF LAW TO FIGHT ANTI-HUMAN RIGHTS LEGISLATIONS: THE CASE OF PROF. J. OLOKA 46 ONYANGO AND 9 OTHERS V. ATTORNEY GENERAL

CASE UPDATE II: TAKING THE FIGHT AGAINST THE ANTI-HOMOSEXUALITY ACT TO INTERNATIONAL COURTS: THE CASE OF HUMAN RIGHTS AWARENESS 49 AND PROMOTION FORUM V. ATTORNEY GENERAL 51 APPENDIX: HRAPF’S WOMEN’S DAY 2015 STATEMENT

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EDITORIAL: BEYOND QUORUM: REASONS WHY THE ANTI-HOMOSEXUALITY ACT WOULD BE UNCONSTITUTIONAL

hen the Anti-Homosexuality … the state shall take affirmative action Act 2014 (AHA) was nullified by in favour of groups marginalized on the Wthe Constitutional Court on the basis of gender, age, disability or any 1st of August 2013, the issue of quorum other reason created by history, tradition was the only one judged on to declare or custom, for the purpose of redressing it unconstitutional. However, this was imbalances which exist against them.” only one of ten grounds that were laid In the AHA, the state would violate this down by the petitioners challenging the mandate. constitutionality of this Act. It is thus unfortunate that the nine other issues In defining and criminalising consensual were not considered. same-sex sexual activity between adults in private, sections 1, 2 and 4 of the Whereas the Constitution protects all now nullified AHA contravened the people from any kind of discrimination, right to equality before the law without the AHA fuelled inequality and discrimination and the right to privacy discrimination. After the passage of the guaranteed under the Constitution. AHA, cases of discrimination and human Section 3(1)(b) of the Act would promote rights violations spiked against people discrimination against people living who identify as or were suspected to be with HIV/AIDS. Such discrimination and LGBTI. From January to July 2014, HRAPF stigmatisation is harmful to the entire recorded an increase in human rights society because the prevalence of HIV/ violations against persons suspected to AIDS is highest among men who have be LGBTI in Uganda. The victims were sex with men than any other most-at-risk subjected to brutal arrests, evictions, population group and due to stigma most family abandonment, loss of employment, of them have sex with women too. detention without trial, restricted health services, mob action, media harassment, Section 5(1) of the Act was a ticking time blackmail, extortion, and other human bomb that could result into grievous rights violations and inhumane treatment. bodily harm and death for LGBTI persons. This section provided that “a victim of The Constitution is very clear: “…a person homosexuality shall not be penalised for shall not be discriminated against on the any crime committed as a direct result of ground of sex, race, colour, ethnic origin, his or her involvement in homosexuality.” tribe, birth, creed or religion, social or A victim of homosexuality according to economic standing, political opinion or the Act includes someone who is involved disability.” 1 Article 32(1) continues that ,” in homosexual activities against his or her

1 Article 21(2) of the Constitution of the Republic of Uganda 1995

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will. This provision essentially meant that guaranteed under article 28(12) of the if someone is engaged in homosexual Constitution; and was in contravention of activities against their will, they can do the rights to property and privacy. Innocent anything to the offender. The victims entrepreneurs providing accommodation were being allowed, by law, to commit services like lodges and guest houses would crimes if they find themselves involved in end up in prison for seven years. homosexual activities against their will. They can do anything and this includes The provisions of the Anti-Homosexuality maiming or killing of the supposed Act also further contravene Uganda’s offender. The danger with such a obligations under international human provision is that it is the perfect excuse rights instruments ratified or assented for violence against LGBTI or suspected to by Uganda. These include; the African persons. Anyone accused of violence Charter on Human and Peoples’ Rights, the against LGBTI or suspected LGBTI Protocol to the African Charter on Human persons only needed to put up such a and Peoples’ Rights and the Rights of defence, and they would be exonerated. Women in Africa, the UN Covenant on Civil and Political Rights, and the UN Covenant Sections 7 and 13(1) & (2) of the on Economic, Social, and Cultural Rights. Act criminalised aiding, abetting, All these instruments protect the rights to counselling, procuring and promotion equality and non-discrimination. of homosexuality. These offences were overly broad and penalised legitimate As various individuals and groups debate, professional counsel, HIV- contemplate returning this law or a related service provision and access similar law to parliament, they should pay to health services in contravention of considerable attention to the human rights the principle of legality, the freedoms concerns raised above. The criminalisation of expression, thought, assembly and of consensual same sex relations and association, and the right to civic service provision to LGBTI groups or participation guaranteed under individuals undermines fundamental principle XIV of the National Objectives human rights enshrined in our supreme law and Directive Principles of State Policy - the Constitution and international human and other Articles of the Constitution rights instruments that Uganda ratified. of the Republic of Uganda 1995. Under these provisions, the work of all care Indeed since provisions of the nullified law providers including teachers, religious are being challenged in the East African leaders, doctors and lawyers among Court of Justice, it would only be prudent to others would be criminalised. await that regional court’s decision before going ahead with plans to return the same Section 11 of the Act classified houses or law to the legislature. rooms as brothels merely on the basis of occupation by homosexuals. This created an offence that was overly broad and in contravention of the principle of legality

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FEATURE: THE ANTI-HOMOSEXUALITY ACT 2014: AN OVERVIEW

by Edward Mwebaza Head, Legislative Advocacy & Networking, HRAPF

Introduction human rights instruments that Uganda he Anti-Homosexuality Act 2014 had ratified. The severe opposition and (AHA) was first tabled before the advocacy against the bill led to President TParliament of Uganda as a private Museven’s request to Parliament to ‘go member’s bill by Hon. David Bahati, slow on the bill’ since it had become Member of Parliament for Ndorwa East a sensitive foreign policy issue.3 From Constituency, Kabale District in October January 2010, the Government was seen 2009. The tabling of the bill drew mixed as slowly distancing itself from the bill. A reactions. On one hand, it was highly cabinet subcommittee issued a report to supported by religious leaders and the effect that the Bill was redundant. That conservative moralists. These groups committee recommended that the Bill be based their arguments on religious and dropped.4 cultural values and the need for the protection of children and the ‘traditional In Parliament, the Bill had been African family’. On the other hand, it drew referred to the Committee on Legal outright rejection and opposition from and Parliamentary Affairs. The work of human rights activists all over the world. Its the Committee was to collect views from provisions were criticised by many media stakeholders and compile a report for houses, researchers and leaders including the second reading of the Bill. Before the US President Barack Obama1, UK Prime committee could present the report, Minister Gordon Brown, and Archbishop the 8th Parliament came to an end. Desmond Tutu.2 Nevertheless, the Speaker of the 9th Parliament, Hon. Rebecca Kadaga, allowed In 2009, members of civil society formed a motion to ‘save’ all bills from the 8th the Civil Society Coalition on Human Parliament.5 The Committee’s report was Rights and Constitutional Law (CSCHRCL) presented to the 9th Parliament together to advocate against the Bill. The Coalition with the original text of the bill, and it was argued that the Bill’s provisions violated reintroduced by a resolution of Parliament fundamental human rights enshrined in Uganda’s Constitution and international 3 ‘Newvision: Museveni warns NRM on Homo Bill’ New vision Jan 12, 2010, http://www.newvision.co.ug/D/8/12/706894. Accessed 3rd 1 March 2014. Reuters: Obama Condemns Uganda anti-gay bill as “odious”, 4 Reuters Feb 4th, 2010, http://www.reuters.com/article/2010/02/04/ ‘Uganda’s Cabinet and Parliament at odds over anti-gay bill’, http:// us-uganda-gays-obama-idUSTRE6134EZ20100204. Accessed 2nd www.patheos.com/blogs/warrenthrockmorton/2011/08/22/ugandas- March 2014 cabinet-and-parliament-at-odds-over-anti-gay-bill/. Accessed 4th 2 March 2014. Timeslive: ‘Tutu likens Uganda Anti Gay Bill to apartheid laws’ 5 http://www.timeslive.co.za/africa/2012/12/12/tutu-likens-uganda- Parliamentary Debates (Hansard) Official report, third session- anti-gay-Bill-to-apartheid-laws. Accessed 2nd March 2014. second meeting, Friday, 20 December 2013

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on 31 October 2011. raise a matter of quorum and it is ignored. That is a fact. So, I have raised it and I want On Friday, December 20, 2013, the Bill to repeat that this house does not have a was tabled before parliament once again. quorum now.” 11 This time it passed.6 During the session, a minority report was presented under Despite all cautions and calls by human Rule 194(1) of the Rules of Procedure of rights activists and world leaders to Parliament. The report recommended President Museveni not to assent to that the Bill be rejected in its entirety the law, on February 24, 2014 the Anti- since “what two consenting adults do Homosexuality Bill 2009 was signed into in the privacy of their bedrooms should law. It became operational on March 10th. not be the business of parliament.”7 On March 11, 2014 HRAPF and other 9 The report further revealed that the Bill petitioners under the stewardship of the violates provisions of Article 27 of the Civil Society Coalition on Human Rights Constitution of Uganda and contravenes and Constitutional Law (CSCHRCL) filed a many international conventions and petition in the Constitutional Court against treaties ratified by Uganda.8 The report the act. The petition was heard on July was not discussed.9 30-31, 2014 and its judgment delivered on August 1, 2014 annulling the Act. But what Some voices of reason and caution exactly was contained in the controversial were raised during the passing of Anti-Homosexuality Act 2014? the Bill. Prime Minister and leader of government business in parliament, What the AHA actually contained Hon. Patrick Amama Mbabazi’s was one The AHA contained 15 sections distributed of these. He stated that:“Madam Chair, in four parts. It was 11 pages long. According I rise on a point of procedure because I to the long title of the Act, the AHA was was not aware that this bill was on the intended “to prohibit any form of sexual order paper for today. If I had been relations between persons of the same aware, I would have informed the House, sex, prohibit the promotion or recognition as we had indicated before, that we of such relations and to provide for other have a few issues on which we are still related matters.” having consultations.” 10 He also noted that there was no adeqaute quorum to Section 1 provided for interpretations pass the law. In his words he said, “I have of key terms as used in the Act.12 For raised a matter of quorum. You cannot purposes of this overview, I will pick just a few that are closely related to the subject

6 of homosexuality. Homosexuality was Above 7 interpreted to mean “same gender or Above. 8 same sex sexual acts”. A Homosexual was Article 27 guarantees the right to privacy of person, home and other property. “a person who engages or attempts to 9 After Hon. Mwiru had presented the minority report, the engage in same gender sexual activity”. A Speaker asked other Members of Parliament to have comments or just to proceed to the committee stage. They unanimously chose serial offender was defined to refer to “a proceeding to committee stage and the report was not referred to anymore. See Parliamentary Debates (Hansard) 11 10 Above. Parliamentary Debates (Hansard) Official report, third session- 12 second meeting, Friday, 20 December 2013 The Anti-Homosexuality Act 2014, Section 1

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 9 THE HUMAN RIGHTS ADVOCATE person who has previous convictions of the age of 18 years;17 where the offender the offence of homosexuality or related is a person living with HIV;18 where the offences”.The meaning of a sexual act offender is a parent or guardian of was broadly defined to mean: a) physical the person against whom the offence sexual activity that does not necessarily is committed;19 or where the offender culminate in intercourse and may include is a person in authority over the person the touching of another’s breast, vagina, against whom the offence is committed.20 penis or anus; b) stimulation or penetration Aggravated homosexuality also applies of a vagina or mouth or anus or any part when the “victim” of the offence is a of the body of any person, however slight person with disability;21 where the offender by a sexual organ; and c) the unlawful is a serial offender;22 or when the offender use of any object or organ by a person uses any “drug, matter or thing with intent on another person’s sexual organ or anus to stupefy or overpower the victim so or mouth”. Touching was interpreted to as to enable any person to have unlawful include touching: “a) with any part of the carnal connection with any person of body; b) with anything else; and c) through the same sex.” 23 The punishment for anything”. It went further to state that it this offence was revised from the death “in particular includes touching amounting penalty (which had previously earned the to penetration of any sexual organ, anus Bill the gruesome nickname of the ‘Kill the or mouth”. The Act entirely interpreted Gays Bill’) to life imprisonment.24 The Act homosexuality in terms of sexual acts as also mandated compulsory HIV testing opposed to a form of sexual orientation. for everyone charged with the offense of aggravated homosexuality.25 It prescribed a life sentence to any person who commits the offence The Act further created the offence of of homosexuality.13 According to the attempt to commit homosexuality and Act, a person commits the offence of attempted aggravated homosexuality.26 homosexuality if he penetrates the anus The punishment for attempted or mouth of another person of the same homosexuality would be imprisonment sex with his penis or any other sexual for seven years,27 while that for attempted contraption;14 uses any object or sexual aggravated homosexuality would be contraption to penetrate or stimulate imprisonment for life.28 sexual organ of a person of the same sex;15 or if he or she touches another person 17 Above, Section 3(a) with the intention of committing the act 18 Above, Section 3(b) 16 of homosexuality. 19 Above, Section 3(c) 20 Above, Section 3(d) The Act also created the offence of 21 Above, Section 3(e) aggravated homosexuality. This offence 22 Above, Section 3(f) 23 is committed where the ‘victim’ is below Above, Section 3(g) 24 Above, Section 3(2) 13 25 No. 12 above, Section 2(2) Above, Section 3(3) 14 26 Above, section 2(1)(a) Above, Section 4 15 27 Above, Section 2(1)(b) Above, Section 4(1) 16 28 Above, Section 2 (1)(c) Above, Section 4(2)

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The Act claimed to protect, assist, and The Act also would create offences for compensate victims of homosexuality.29 other people other than ‘Homosexuals’. It exonerated the victim from any crime In Section 11, owners of houses and committed as a direct result of his or her apartments could be sentenced to seven involvement in homosexuality,30 assisted years in prison if their “brothels” are used him/her to participate in appropriate by homosexuals.39 This is very disturbing stages of the criminal proceedings,31 and as any landlord or landlady would be provided compensation for any physical, expected to know if inhabitants of the sexual or psychological harm.32 It would rooms committed homosexuality. afford discretion to courts to determine the amount of compensation to the victim. Even though same-sex marriags were already prohibited under the constitution Section 6 (1) of the AHA provided for in Uganda, the Act would criminalise the right to privacy of the victim. The any person or institution conducting a offender’s right to privacy was neglected. wedding ceremony between people of It barred any form of publishing materials the same sex. Individuals would be liable concerning the identity of the victim to imprisonment for a maximum of seven without the authority of the victim or years and institutions could have their court.33 It prescribed a fine not exceeding licenses revoked.40 two hundred and fifty currency points on conviction.34 Another serious offence that the AHA would create is the promotion of The Act also created the offence of aiding homosexuality.41 The offence would occur and abetting homosexuality.35 The offence if a person participated in production, would be committed by any person “who procuring, marketing, broadcasting, aids, abets, counsels or procures another publishing of pornographic materials for to engage in acts of homosexuality.” It purposes of promoting homosexuality;42 prescribed imprisonment for seven years funded or sponsored homosexuality or upon conviction. The offences of conspiracy other related activities;43 offered premises to engage in homosexuality,36 procuring and other related fixed and movable homosexuality by threats, 37 and detention assets for purposes of homosexuality; with intent to commit homosexuality were 44 used electronic devices to promote also created under Part III.38 Convictions homosexuality;45 acted as an accomplice for all of these offences could result in a or attempted to promote; or in any prison sentence of seven years. way abeted homosexuality and related practices.46 29 Above, Section 5 30 Above, Section 5(1) 39 31 Above, Section 11(1) Above, Section 5 (2) 40 32 Above, Section 12 (2) Above, Section 5 (3) 41 33 Above, Section (13) Above, Section 6(3). This was ideally a good provision 42 34 Above, Section 13 (1)(a) One currency point is equal to twenty thousand shillings. 43 35 Above, Section 13 (1)(b) Above, Section 7 44 36 Above, Section 13 (1)(c) Above, Section 8 45 37 Above, Section 13(1)(d Above, Section 9 ) 46 38 Above, Section 13 (1)(e) Above, Section 10

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The punishment prescribed here was a fine for five thousand currency points or imprisonment for a minimum of five years and maximum of seven years or both fine and imprisonment. Corporate bodies, businesses, associations or non- government organisations convicted could have their certificates of registration cancelled and their proprietors imprisoned for seven years.47 This section meant that human rights groups and other organisations seeking to promote tolerance and put an end to violence on the basis of sexual orientation and gender identity, as well as organisations providing The law had even other social services to lesbian, gay, affected Ugandans bisexual and transgender (LGBT) people, could easily be shut down, and their “ in the diaspora. It directors and key staff could face prison sentences of five to seven years. provided for extradition of offenders if any of The law had even affected Ugandans in the diaspora. It provided for extradition the above offences of offenders if any of the above offences were committed in were committed in other states with in which Uganda has extradition treaties. 48All other countries where“ people, homosexual or not, who commit any of the offences in another country, Uganda has extradition would be brought back to Uganda to be treaties. tried.

Finally, the Act instructed the minister to make regulations by statutory instrument for its execution.49

47 Above, Section 13(2) 48 Above, Section 14 49 Above, Section 15

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OPINION: THE ANTI-HOMOSEXUALITY ACT WAS A THREAT TO EVERYONE*

by Francis Tumwesige Ateenyi Advocate of the High Court of Uganda, and former Legal Officer, HRAPF

* An earlier version of this article appeared in the Observer newspaper of Wednesday, April 3, 2014

hen the Anti-Homosexuality Bill It also covered funding or sponsoring was presented in Parliament in homosexuality or other related activities, WSeptember 2009, three aspects offering premises and other related were prominent: the death penalty, the fixed or movable assets for purposes of nullification of international human homosexuality, or promoting homosexuality. rights treaties, and its extra-territorial It was also illegal to use electronic means application to crimes committed outside such as internet, films, mobile phones for Uganda. Due to relentless pressure purposes of homosexuality or promoting from civil society and the international homosexuality. Attempting to promote community, the first two of these homosexuality or acting as an accomplice provisions were dropped from the were the other components of the offence. law, which was ultimately passed by Parliament in December 2013. However, What exactly constituted this offence? For one offence, which never attracted much example, could publishing of this article attention, promotion of homosexuality, in this magazine have offended the law? made it into the final text. While this What would be the fate of an individual who article cannot provide a full consideration would be found in possession of a magazine of the would be legal and human rights containing this article? The answer is not implications of the Anti-Homosexuality an easy one to find and therein laid the Act 2014, here is a brief scrutiny of the problem with the offence of promoting offence of promoting homosexuality. Of homosexuality. It was vague and wide particular concern is the scope of this sweeping. offence, which was vague and infinite. For a criminal provision to pass the test The offence prohibited participating of validity, its wording and definition of in “production, procuring, marketing, an offence must be clear enough for broadcasting, disseminating and an ordinary person to grasp the nature publishing, pornographic materials for and extent of prohibited conduct. Article purposes of promoting homosexuality.” 28(12) of our constitution states as much.

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In fact article 28(12) was the basis for the This was worrying given the ongoing Supreme Court to strike out the offence abuse of the existing anti-sodomy law of sedition from the Penal Code. Among in Section 145 of the Penal Code. In other things, the Court said the language 2014, Human Rights Awareness and was far too broad. “It is so wide and catches Promotion Forum (HRAPF) and the Civil everybody to the extent that it incriminates Society Coalition on Human Rights and Constitutional Law (CSCHRCL) released the findings of a study which revealed that during the five-year period between from 2007 to 2011, there were numerous arrests of individuals suspected to be homosexuals, but not a single conviction

or acquittal was available on any court record in Kampala, the sample area. No sodomy case was found to have gone to

It is so wide and catches full trial; rather, the law was used to abuse our criminal justice system. Interpreting everybody to the extent the findings, the Executive Director of that it incriminates a “ HRAPF, Mr. Adrian Jjuuko, noted “What this “ means is that the law is used to perpetrate person in the enjoyment extortion, blackmail and bribery.” Once arrested, a suspect has limited options of one’s right of either to buy their freedom by way of a expression of thought. hefty “police bond” or a police mediated settlement with the complainant, or they are sent on remand to languish in jail until court dismisses the case for lack of prosecution.

I call upon all Ugandans to address the issue of homosexuality with reason as opposed to passion because the possible consequences are not just for the a person in the enjoyment of one’s right homosexuals but for all persons in Uganda of expression of thought.” (See Onyango and beyond. Obbo & Another vs Attorney General). The trouble with a section such as this is that it is so boundless in its application that anyone can fall foul of the law regardless of their individual persuasion about the correctness of homosexuality. A mild accusation coupled with overzealous police officers and tired magistrates could land many innocent suspects in jail.

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OPINION: THE ANTI-HOMOSEXUALITY ACT WAS AN ATTACK ON UGANDANS’ HEALTH RIGHTS

by Asia Russell Health Gap

s with many laws focused pledged publicly in the health services. on scapegoating days after the President Aand inflaming hatred assented to the Act that Importantly, the Act’s against an unpopular the new law “should clauses that prohibited minority, an unstated goal of not affect” access to the “promotion of the Government of Uganda in health services, this homosexuality” as well passing the Anti-Homosexuality pledge had not been as “aiding and abetting Act (“the Act”) was to score upheld because the homosexuality” would political gain — particularly government had made criminalise urgently needed in the lead up to the 2016 no efforts to assert service delivery and make elections. that health facilities patients, health workers, and were environments civil society organizations Robust challenges in the where the Act could vulnerable to hefty fines, Constitutional Court and the not be enforced. Such substantial prison time, and East African Court of Justice inaction had rendered de-registration. were fundamental measures the Ministry’s promise for dismantling the Act. But in hollow. This Act would sabotage the meantime, its enforcement targeted service delivery had triggered backlash, The Act had already for LGBT groups, carrying retaliation, and rights violations exacerbated the a disastrous impact on the for lesbian, gay, bisexual, or marginalisation, response of the nation as transgender (LGBT) Ugandans discrimination and a whole to HIV as well as and their communities. exclusion of people other public health priorities. known to be or This clause would also put In particular, the grave suspected of being international and National consequences for access to lesbian, gay, bisexual Health Service providers essential preventative and or transgender with funded by international curative health services— due increased criminal donors at risk of criminal and for public health more sanctions for consensual prosecution if they discussed broadly — had already begun sexual activities between homosexuality in the course to emerge, as had advocates’ people of the same sex. of their work. demands for corrective action The resulting fear of by the government. violence, recrimination, A daytime police raid on and abuse deters LGBT April 3, 2014 of the Makerere While the Ministry of Health had people from seeking University - Walter Reed

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Medical Research Project LGBT communities mean Furthermore, driving clinic in Nakasero, triggered they are less able to lesbian, gay, bisexual and by allegations of ‘illegal access health services transgender communities homosexual research,’ because of fear of arrest, away from services would provided a dramatic early intimidation, violence, endanger not only them but example of the risk of the and discrimination. For also the Ugandan population Act to access to services example, men who at large — approximately and to scientific research have sex with men in 75% of men who have sex approved by the Government Uganda report higher HIV with men participating in a of Uganda. The research prevalence and higher recent serosurvey report project, funded by the US rates of syphilis and other having sex with women as Department of Defense, had sexually transmitted well as men.3 Discrimination been targeted because it infections than the general undermines their health as was providing services for population.1 HIV prevalence well as the public health of marginalized groups and among men who have sex the population of Uganda as doing research with those with men in Kampala is a whole. patient populations — the 13%, more than three times very services government the average prevalence The Act’s anti-promotion promised“ should not be among heterosexual men clause would even threaten affected” under the law. in Kampala (4.1%) and urgently needed service about twice as high as the delivery, including models Just weeks later, deeply national average of 7.3%. of care supported by the flawed draft guidelines on After years of success Government of Uganda, health service delivery for in the fight against HIV, which recently announced ‘homosexual Ugandans’ by Uganda’s incidence rate plans to implement the Ministry of Health had has been rising since government-funded clinics assigned health workers a 2005—contrary to the designed to reach men who front line role in enforcing trends of virtually all other have sex with men and sex the law — contradicting countries with a high HIV workers.4 the pledge made by burden in Sub-Saharan Government. Those draft Africa.2 A health worker’s basic guidelines had been put ethical obligations not to on hold due to criticism All people need essential discriminate in the provision while advocates push for a health services, not of medical services and to government commitment to the criminalization protect patient confidentiality non-enforcement of the law and discrimination are paramount — but in the health sector, pending the Act would foment. the Act would creates a a ruling in Constitutional culture of fear of arrest Court on the petition for 1 and imprisonment among Hladik W, Barker J, Ssenkusu JM, Opio injunctive relief. A, Tappero JW, et al. (2012) HIV Infection service providers. While a among Men Who Have Sex with Men in Kampala, Uganda–A Respondent Driven Laws and policies that Sampling Survey. PLoS ONE 7(5): e38143. 3 doi:10.1371/journal.pone.0038143 Above increase stigma and 2 4 WHO: Global HIV/AIDS Response, Outrage, scepticism at Uganda U-turn on discrimination among Epidemic Update and Health Sector LGBTI clinics,” 9 Dec 2013. Available at: http:// Progress Towards Universal Access, www.irinnews.org/report/99289/outrage- Progress Report, 2011. p. 12-17. scepticism-at-uganda-u-turn-on-lgbti-clinics

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clause was removed from HIV. This is not due to the Uganda AIDS Commission earlier versions of the Act an intrinsic condition to support sexual minorities as that anyone suspected of of homosexuality at-risk populations requiring being homosexual must but a harmful effect evidence-based treatment be reported to the police, of homophobia. For and prevention interventions the clauses prohibiting example, men who have were being threatened. promotion and aiding and sex with men in Kampala Because these populations abetting homosexuality who have experienced are enumerated in national would still create chilling verbal or physical policy documents, advocates effects. Several health care homophobic abuse are would work to defend their service providers were five times more likely right to access essential reporting privately that they to be HIV positive than health services despite the Act had decided to reluctantly men who have sex with and would still pressure the suspend provision of LGBT men who have not government to deliver on its health outreach services experienced such abuse.5 political statements to protect out of fear. For example, the This indicates a strong access to health services. U.S. government announced association between on March 24 that a CDC- stigma and intolerance funded survey of men who with the risk of HIV have sex with men had been infection. Hatred and suspended. stigma drive vulnerable and isolated communities Ugandans seeking health from essential services in the public preventative and curative and private sectors had health services. This is frequently reported being what the act would drive. questioned by health workers about their sexual The Act’s harmful activities and marital status, consequences for the which would create a right to health for all legitimate fear of retaliation Ugandans provided and discrimination for compelling evidence of sexual minorities if they are the urgent need to repeal honest about their sexual this dangerous law — in orientation. Unfortunately, addition to the threats it this climate of fear would posed to the fundamental increase now that the Act freedoms that should be had the force of law. enjoyed by all Ugandans. The fragile gains Scientific research also made by the LGBT and shows a powerful association public health advocacy between homophobic community in challenging abuse and violence and the Ministry of Health and increased vulnerability to 5 Above, note 2.

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COMMENTARY: LET’S KILL THE GAYS: THE WOULD BE IMPLICATIONS OF SECTION 5 (1) OF THE ANTI HOMOSEXUALITY ACT 2014

by Joaninne Nanyange Legal Associate, Human Rights Awareness and Promotion Forum (HRAPF)

t its first tabling in Parliament, the victim. This provision in essence meant that Anti-Homosexuality Bill had provisions if someone was engaged in homosexual Afor the death penalty for the offence activities against their will, they had a free pass of aggravated homosexuality. This prompted to do anything that they found necessary to the media to dub it the ‘Kill the Gays’ Bill’. In get themselves out of such situations. In this December 2013, there were amendments by context, anything meant something illegal, Parliament that removed the death penalty, even a crime as expressly stipulated in the so the Bill no longer called for the killing of section itself. So-called victims were being the gays--at least so we thought! On a close allowed, by law, to commit crimes if they analysis of the final law however, it is evident found themselves involved in homosexual that the Act would still ‘allow’ killing of the activities against their will! gays, albeit in a subtle way. The word ‘gays’ is used in this article to embrace the whole This provision can be compared to spectrum of LGBTIQ persons. defences like provocation, self-defence and the discussed gay panic defence. In all these This subtle death sentence for the gays was defences, defendants claim that they were in embedded--very silently--in Section 5(1) of the a situation where they had no choice but to now nullified Act. This section provided that “a commit a crime. The gay panic defence goes victim of homosexuality shall not be penalized further to impute an unstable state of mind for any crime committed as a direct result created by perceptions of homosexuality of his or her involvement in homosexuality”! towards the defendant. These perceptions (emphasis provided) This provision had for make the defendant so furious and disgusted the most part gone unnoticed by both pro- that they lose their mind temporarily. Of gay rights groups and anti-gay rights groups. course there is no scientific proof that gay However, it was a ticking time bomb; in fact, it actions can make someone insane; and in could easily have been the most dangerous fact, this defence is slowly being erased from provision in the Anti Homosexuality Act 2014 a number of jurisdictions for its absurdity. had it not been nullified. What was significantly different between A “victim” of homosexuality according to these defences and section 5(1) is the fact the Act was someone who is involved in that these defences do not take away all “homosexual activities” against his or her will. liability from the perpetrator. They are merely It is not clear what was meant by “homosexual used as mitigating factors to lessen the crime activities,” and this could even make it more and the sentence. The person still remains dangerous because it could mean anything. criminally liable for the crime they committed. Therefore anyone could claim to be a On the other hand, section 5(1) extinguished

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all liability on the part of the offender. The would be ‘victimised’ by the vice of section made this clear by using words like homosexuality. This situation was akin to ‘shall’ and ‘any’. So if someone kills a gay giving an untrained person a gun and telling person for making advances towards them, them to shoot whoever they feel like. this section could not be used to convict such person of a lesser offence like manslaughter. Gay people have a semblance of rights No! That person would absolutely have no and protection. Crimes are not randomly case to answer! They could not be penalised committed against them because for any crime if they are victims. perpetrators know that they would be held accountable. We have precedents where The section would legitimise homophobia courts have held that an LGBT individual’s and justify violence against gay people. It rights have been violated. But now with this would rationalise prejudice and imply that section, that era would be gone. Gay on homophobic and prejudicial premises, people could be violated on the basis of this someone was being allowed to commit section and they would have no recourse crimes. One did not have to be in danger to because the perpetrators would be justified. commit the crime like in the case of self- defence. One did not have to be extremely This provision would leave gay people provoked to the standards enforced by court. helpless and hopeless with no protection One just had not to like gay people! One just whatsoever. This is an endangered had to show that he or she was a victim of community that needs protection from the ‘homosexual activities’ and needed to repel moralists and religious and cultural fanatics such behaviour! And all would be forgiven. who are the majority in Uganda. What the gay people need most is a safe place This section would give homophobes an to run to and a place to seek refugee open licence to satisfy their prejudicial anger. when things get bad--not a law that would The legislature had joined the hate campaign put them in more trouble. They need their against homosexuality and had gone a step rights respected, like they are entitled to. further by implying that the lives and welfare Section 15 (6) (d) of the Equal Opportunities of gay people and perceived gay people were Commissiion Act 2007 which limits LGBTI worthless than those of others. The section persons’ access to the Commission and would put the lives and welfare of gay the criminalisation of homosexuality were people in jeopardy. Anyone could do anything enough to make gay people drown in to them and they would not be penalised. doubt and self-pity. This section would make it worse and throw them in a panic! This section was arguably the most They wouldnot be sure what was defined dangerous section in this law. It was worse as homosexual behaviour, who may be a than the death sentence. The death sentence victim, and what crimes would have been came after due process, in a court of law, committed against them. with a judge that might not allow prejudice to overshadow reason. This section, however, As the law was annulled, we celebrated the would put the death sentence in the hands removal of the death penalty. ‘Kill the gays’ of angry mobs and homophobic minds. It might have no longer been in black and white would allow people with already established in the Anti-Homosexuality Act 2014, but with hate to decide what to do whenever they section 5 (1), it was just a matter of time!

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COMMENTARY: JUSTICE AT THE FALL OF A GAVEL: WHAT UGANDAN JUDGES COULD LEARN FROM SOUTH AFRICA IN DEALING WITH ANTI-HOMOSEXUALITY LEGISLATION

by Linette du Toit Former Intern at HRAPF from the Centre for Human Rights, University of Pretoria

hat happens if the similarity of these situations, In the early 1970s, Professor positive laws of it may be worthwhile to John Dugard called upon Wa country are no take a look at how some judges to trade this strict longer in step with justice? principled South African positive approach to legal What should a judge do judges dealt with their pre- interpretation for a more about laws, duly enacted democratic predicament. value-oriented approach.6 He by Parliament, which encouraged the judiciary to prescribe discrimination, the Prior to 1994, the sovereign be guided by the legal values deprivation of fundamental South African Parliament and principles “which promote rights of certain members enacted a plethora of laws the worth of the individual,”7 of society, and the brutal in order to enforce severe and listed some of these enforcement of inequality? racial discrimination.2 When principles as freedom from The aim of this article is to it came to interpreting these arbitrary arrest and detention consider the potential role laws, positivism was the without trial, freedom of the Ugandan judiciary dominant legal philosophy.3 from cruel and unusual in upholding justice in the This means that the punishment, equality before face of the laws like the now generally accepted role of the law, freedom of assembly, nullified Anti-Homosexuality judges was to mechanically and freedom of movement.8 Act. find and apply the will of the legislature.4 This approach Some principled judges The marginalisation of a allowed judges, who failed to succeeded in curtailing the group by means of blatantly acknowledge their creative effects of apartheid legislation unjust laws is not unique to role in the law-making by invoking the technical rules Uganda. In fact, there runs a process, to apply statutes, of statutory interpretation. A clear line of similarity between which suppressed liberty the denial of rights that the and equality without bearing 6 Ugandan LGBTI community the moral responsibility for Dugard is a South African professor 5 of International Law who has authored a suffers under anti- what ensued. comprehensive study of the law of apartheid. 7 homosexuality legislation and Dugard expresses that these jural postulates the oppression suffered by “form part of our legal heritage and are designed to foster the basic political and legal ideal of 2 black South Africans under This legislation include the Natives Land Act, modern Western society…” (n 3 above) 197. 1 1913 and the Natives (Urban Areas) Act, 1923. 8 apartheid laws. Due to the 3 Other principles are the right to legal Dugard J “The judicial process, positivism interpretation when the individual’s liberty is at and civil liberty” South African Law Journal stke, the right to be heard in one’s own defence 1 (1971) 187. before one’s liberty is curtailed and freedom I specifically refer to the Anti-Homosexuality 4 of speech and literary expression. Dugard (n 3 Act, 2014 and clause 15(6)(d) of the Equal As above. above) 197. 5 Opportunities Commission Act, 2007. Dugard (n 3 above) 187.

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prime example of how legal citizens would have been It was foreseeable that values can triumph over an too afraid of prosecution the Ugandan judiciary unjust law at the instance of to offer any support to will also be tasked with the judiciary is found in the those on the frontlines.13 defining the borders of 1972 case of S v Ffrench- However, the Appellate an unjust law as soon as a Beytagh.9 Justice Edwin Division, instead of case on “the promotion of Cameron10 gives a colourful mechanically applying the homosexuality” in Section 13 retelling of this case in his provisions of the Terrorism of the Anti-Homosexuality recent publication Justice: Act, chose to make a value Act comes before it.17 The A Personal Account.11 In this judgment and interpreted Ugandan Parliament clearly case, a reverend was put on the Act accordingly. The intended the activities trial for allegedly breaching Chief Justice delivered a of nongovernmental the Terrorism Act of 1967 judgement that a person organisations which advocate by providing money to could only be successfully for the human rights of members of a banned anti- prosecuted for “aiding” the LGBTI community to apartheid organisation. The and “encouraging” be criminalised by this purpose of the Terrorism Act terroristic activities if it provision. However, Ugandan was to suppress any activity, could be shown that this judges may still choose to which opposed the apartheid help actually resulted interpret the provisions of regime. The Act had wide in unlawful deeds on the Act in accordance with provisions to the effect that the part of an anti- transcending legal values a person committed the apartheid combatant.14 and principles rather than crime of terrorism if he took Justice Cameron notes the exact intentions of the any action which “aided” or that it would have been legislature. Better yet, if the “encouraged” someone else extremely difficult for Ugandan judiciary could to commit an act with that the prosecution to prove deal with the constitutional intent.12 This provision could that the help of a non- petition and application with potentially be interpreted combatant, in whichever a permanent injunction, the to mean that a person who form, actually resulted in interpretation of its draconian provided an anti-apartheid terrorist activities. 15By provisions may not even be combatant with a meal setting this high bar for necessary.18 and some money could be proving the “aiding” and guilty of terrorism. Justice “encouraging” of acts of Unlike the apartheid judges, Cameron notes that such a terrorism, the Court made the Ugandan judiciary need broad interpretation could the continued provision of not search as far as Dugard’s have resulted in a complete vital material support to suggested judicial postulates stifling of the resistance anti-apartheid movements or universally accepted movement, as ordinary possible, without which 17 Section 13 of the Anti-Homosexuality Act their efforts could not criminalizes the promotion of homosexuality .16 which could easily be interpreted to extend to 9 have succeeded 1972 (3) SA 430 (A). the activities of nongovernmental organisations 10 which advocate for the rights of the LGBTI Justice Cameron has been one of the 11 community. justices of the Constitutional Court of South 18 Africa since 2009. 13 On 11 March 2014, a constitutional petition Cameron (n 11 above) 23. was filed challenging the constitutionality of the 11 14 Cameron, E Justice: A personal account S v Ffrench-Beytagh(n 9 above) at p.439. Anti-Homosexuality Act. An application was (2014, Tafelberg, Cape Town) 13-29. 15 also made for a permanent injunction against 12 Cameron (n 11 above) 27. media houses from publishing pictures, names, Section 2(1)(a) of the Terrorism Act 83 of 16 and addresses of suspected homosexuals. 1967. Cameron (n 11 above) 29.

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 21 THE HUMAN RIGHTS ADVOCATE legal values in order to the constitutionality of defuse unjust laws. These legislation which infringes transcending principles, upon the fundamental which promote the wellbeing right of minorities, paint and free development of the a less encouraging individual, are neatly codified picture.23 A judiciary and protected in Uganda’s committed to universal supreme law.19 The Ugandan legal values, or simply the Constitution not only values and provisions of provides for equal protection its Constitution, ought to of the law and a vast number be active in ensuring that of fundamental rights,20 unjust laws are disposed but it also acknowledges of as expeditiously as the existence of universal possible. democratic values and principles to which every If it was possible for democratic society adheres.21 South African judges, in the pre-democratic era, The High Court has lit to create a safeguard for a flame of hope in the legal rights which were battle against the Anti- threatened by a sovereign Homosexuality Act by Parliament, the Ugandan affirming that the rights in judiciary can do the the Ugandan Constitution same (and much more!) apply equally to everyone to ensure that justice regardless of their sexual prevails in the face of the orientation.22 However, the laws like the now nullified Constitutional Court’s delay Anti-Homosexuality Act in delivering judgment simply by upholding their in a case which involves Constitution.

19 The Constitution of the Republic of Uganda, 1995. 20 23 Article 21 ensures equal protection of the Adrian Jjuuko v Attorney General. In law and prohibits discrimination. Chapter 4 of this case, a constitutional petition was the Constitution also enshrines fundamental brought against section 15(6)(d) of the rights such as the right to privacy (Article 27), Equal Opportunites Commission Act, freedom of expression and association (Article which excludes certain minorities from 29), and the protection of personal liberty the functioning of the Equal Opportunities (Article 23). Commission. The matter was filed in 21 Article 43, which is the general limitation January 2009 only to be heard in October on fundamental and other rights and freedoms, 2011, and the judgment has not yet been provides that no person shall prejudice the delivered. public interest in the exercise of his rights and freedoms. It also provides that the public interest shall not permit the limitation of rights and freedoms beyond what is acceptable in a free and democratic society. 22 Kasha Jaqueline and Others v Giles Muhame and Another. This case was heard prior to the enactment of the Anti-Homosexuality Act.

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COMMENTARY: THE ANTI-HOMOSEXUALITY ACT 2014 & THE HEALTH OF UGANDANS

by Dr. Paul Semugoma Uganda Medical doctor, leading HIV activist and the 5th petitioner in the case that led to the nullification of the Anti-Homosexuality Act, 2014.

Introduction Homosexuality is not a disease, nor a here was robust discussion in Uganda disorder. Doctors don’t ‘treat’ homosexuality. on the passage and effects of the Anti- For each unique individual consulting with THomosexuality Act (AHA) 2014. Possible a physician, there is slight but important effects on health have been alluded to, but chance that they are homosexual in sexual mainly in light of cuts in foreign aid. What orientation. This may modify the diagnosis was not been widely discussed are the actual and treatment they need. health impacts on Ugandans as individuals, communities, and the country. The AHA As doctors, we cannot condemn our would have had health implications for all of patients. We shouldnot push our morals us Ugandans with severe implications on our on our patients. We shouldn’t treat them collective sexual health, Sexually Transmitted differently because they differ from others. Infections (STIs), and HIV. But, doctors and health workers are The Individual humans. We stay in the communities we When someone goes to see a doctor, all live in. We can also be as homophobic, one goes as an individual. Health workers uncaring and unsympathetic as many evaluate you in knowledge of your unique Ugandans who are demonstrating and characteristics and personality. This is our shouting ‘No Gays.’2 We can believe the responsibility. The more we see you as a unique myths of the terrible evil of homosexuals human being, the better our interventions are and can be biased when faced with a on your behalf. homosexual patient.

Homosexuality is a normal variation of Understandably, a gay Ugandan would human behavior and sexuality. To many be unwilling to tell their health worker Ugandans, this may sound like a radical and that they are gay. Stressed by conditions false statement. But it was settled as long ago at home, church, or work, they may have as 1973 (DSM3); and in 1990 the 43rd World difficulties in their neighborhoods, but still Health Assembly endorsed its de-classification find it impossible to talk about it with health as a disease by the World Health Organisation care providers, fearing (realistically) that (WHO), which keeps the International the providers are also homophobic.3

Classification of Disease (ICD-10).1 2 Buzzfeed. Uganda celebrates anti-gay law with five hour ceremony available at http://www.buzzfeed.com/lesterfeder/uganda-celebrates- anti-gay-law-with-five-hour-ceremony. http://www.monitor.co.ug/ News/National/I-signed-anti-gay-law-to-reaffirm-Uganda-s- 1 Wikipedia: ‘Psychology’ available at http://en.wikipedia.org/wiki/ sovereignty/-/688334/2264484/-/38sap7/-/index.html. Accessed 4th Homosexuality#Psychology accessed 4th April 2014. April 2014

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In addition, as a result of our environment, more complicated. many of our health care workers simply don’t appreciate that a homosexual A study done amongst gay men in Kampala Ugandan is not ‘sick’ because of their reports them being discriminated against homosexuality. Their sexual orientation is at Mulago National Referral Hospital. They a normal variation of what is normal for have been made to wait, mocked, and denied humanity. Such a health worker may focus services simply because they are known to be on ‘treating’ the sexual orientation, not only gay. The myth that all Ugandans receive the giving a wrong diagnosis but also making same services (or lack of services) is simply things worse for the patient. a myth. Those who are known to be gay may actually receive no services at all, or services There have been reports of health care can be so difficult to access that they choose workers refusing treatment to gay people not to go.4 The AHA would have legalised and when they realise that they are gay. There legitimised such discrimination. have also been reports of health care workers reporting gay patients. Because of On April 4, 2014, Ugandan police raided a their sexual orientation, patients become research clinic providing HIV prevention, care ‘criminals’ that need to be reported to the and treatment in Kampala. Because it police instead of being given treatment. provided equal services to heterosexual and Mandatory reporting was removed from homosexual Ugandans, the police accused the final version of the Anti-Homosexuality the Makerere University Walter Reed Project Act, but it still created an atmosphere of ‘training youths into homosexuality.’5 Sadly, of fear and anxiety for any gay person this was foreseeable under the AHA, as was trying to talk to a health practitioner in predicted in an article I co-authored in 2012.6 Uganda. What if one had an anal issue? Would the health worker be sympathetic? These are just a few examples of the Or would they ask others to come see this problems faced by gay Ugandans. They ‘homo’ or even report to police without report discrimination by the health services giving treatment? These are all thoughts in all of our research. This discrimination is that would go through the mind of a not recognised by the health sector, who gay Ugandan trying to access health have again and again said that there is no care in Uganda in the presence of such a discrimination. The Minister of Health had said law. It is thus understandable that many that there would be no problem in services people are reluctant to access health to gay Ugandans after the law was passed.7 services, especially with respect to Sexually But within a month the clinic was raided and Transmitted Infections (STIs). This has been 4 reported again and again in research on King R, Barker J, Nakayiwa S, Katuntu D, Lubwama G, et al. (2013) Men at Risk; a Qualitative Study on HIV Risk, Gender Identity and Violence among Men the continent and elsewhere. It affects the Who Have Sex with Men Who Report High Risk Behavior in Kampala, Uganda. PLoS ONE 8(12): e82937. doi:10.1371/journal.pone.0082937 health of the individual, making it more 5 Pink News: Ugandan police raids US funded HIV Project accused of likely for them to come in later, with more training homosexuals availbale at http://www.pinknews.co.uk/2014/04/04/ severe diseases and when symptoms are ugandan-police-raid-us-funded-hiv-project-accused-of-training- homosexuals/. Accessed 10th April 2014. 6 3 Paul Semugoma , Chris Beyrer& Stefan Baral (2012): Assessing the effects King R, Barker J, Nakayiwa S, Katuntu D, Lubwama G, et al. (2013) of anti-homosexuality legislation in Uganda on HIV prevention, treatment, Men at Risk; a Qualitative Study on HIV Risk, Gender Identity and and care services, SAHARA-J: Journal of Social Aspects of HIV/AIDS: An Violence among Men Who Have Sex with Men Who Report High Risk Open Access Journal, 9:3, 173-176 Behavior in Kampala, Uganda. PLoS ONE 8(12): e82937. doi:10.1371/ 7 journal.pone.0082937 BBC: Uganda says health care is for all despite anti-gay laws. Availbale at http://www.bbc.com/news/world-africa-26349166. Accessed on 10th April 2014.

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closed as a result.8 had to learn to hide at all times more so with such a law. It would have been Social Support & Social Capital more hard for them to build what is called As a human being, no person is an island. ‘social capital’ by investing in friends, family You live in a family, with relatives. You have and society for support, because they neighbours and live in a community. You go might be ‘found out‘ as gay and punished. out to drink or church with friends. All these It might have been from something as people contribute to your emotional health simple as touching, the ‘homosexual and wellbeing. touch’ which would be criminalised by life imprisonment.11 These issues are very real Before the signing of the Bill, and after the for all gay Ugandans. They lead to problems AHA became law, there had been an outbreak with coping, including drinking, taking of violence against people who are presumed recreational drugs excessively, risky sexual to be homosexual in Uganda. This is because activities and other behaviors. the intense debate and condemnation has stigmatised these communities. They are STIs and HIV pariahs, outcasts, people who are undesirable. STIs For those who are known to be gay, the All normal adult human beings have a consequences may be as bad as being asked sex drive. It is normal, expressed in our to leave the house you rent by the Local sexuality, our ability to be attracted to other Council authorities,9 or even the landlord.10 human beings, have sex with them, form (The AHA criminalised a landlord renting to stable relationships, and create families. a known homosexual person). One may fall This desire and drive is normal, occuring foul of ‘mob justice’, beaten by people on the for heterosexual as well as homosexual streets. Ugandans.

The intensely hostile environment of Uganda Having sex puts one at risk of Sexually makes most gay Ugandans react by staying Transmitted Infections (STIs/STDs). Many in the closet. They hide from their families Ugandan health practitioners may have no and friends. They get married to the opposite clue about how an STI may be different sex. This constant hiding is stressful. It was for a homosexual Ugandan. The AHA increased by the AHA, which criminalised would even have made it more difficult for and provided punishlife imprisonment as the them to learn since their behavior would punishment for same-sex sexual activities. be interpreted as breaking the law. Many The AHA would remove social supports Ugandans who may get an STI from a from affected individuals. Family and friends homosexual encounter may have found it could not be trusted. Churches and mosques difficult to tell their health worker exactly would no longer be of help. The gay Ugandan how they got the problem. This makes diagnosis difficult. When we treat STIs, we 8 Pink News: US state department suspends Ugandan HIV organisation usually tell a person to inform or bring their over police raid. Available at http://www.pinknews.co.uk/2014/04/05/us- state-department-suspends-ugandan-hiv-organisation-over-police-raid/. sex partners for treatment. Was the gay Accessed on 20th March 2014 Ugandan going to tell their Health worker 9 Word Press: Another eviction letter avialable at http://sebaspace. that they are gay with such a law? Would wordpress.com/2014/03/09/another-eviction-letter. Accessed 26 Mar 2014.

10 Sebaspace.wordspace.com: Ugandan lesbian evicted because of new-anti 11 gay law. available at http://sebaspace.wordpress.com/ ugandan-lesbian- Anti-Homosexuality Act. Section 2(1)(c). evicted-because-of-new-anti-gay-law/ Accessed 05th March 2014.

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 25 THE HUMAN RIGHTS ADVOCATE they? Was the health worker going to tell with the anti-sodomy parts of the Penal Code others, or going to tell police? If an STI is inherited from our colonial masters. The not well treated, then it is a problem for the AHA would even be a tougher law aimed to individual as well as the community. Sexual make all homosexual sex illegal. But, making networks include heterosexuals as well as something ‘illegal’ does not mean it will no those who are hom osexual. longer happen. Prostitution in Uganda is It is not only gay Ugandans communities, illegal, but it is common. but all of us who are affected. As you may realise, this problem is even worse for HIV Marginalising a key population and denying treatment and prevention. them HIV treatment and care because of this law would have severe implications for HIV public health. Doing HIV prevention amongst Since the HIV epidemic was recognised in gay men would be criminalised, making 1981, it was clear that it was spread through health service providers guilty of ‘promoting sex, and that one high risk group was men homosexuality’. Most research targeting who have sex with men (MSM). Nowadays gay Ugandans had been stopped. It was we call this a ‘Key Population’ and MSM are believed that the research would only make more highly affected by HIV than many the men more vulnerable and unsafe, and other groups. that researchers would also be unsafe.12 Not only were gay Ugandans targeted and their Unfortunately, stigma and prejudice conditions made worse, but researchers about gay sex has been so prevalent in could be put at risk of arrest for doing Africa that we have not studied this high scientific research. risk population. In Uganda, the first study under tough conditions in 2005 was This is in effect was not only criminalising stopped before it was finished because gay Ugandans, but it was criminalising those the press reported that it was a ‘census’ who for any reason are researching or of gay men. In 2008-2009, another study intervening on their behalf. was done with HIV testing. It was difficult to finish because gay men in Uganda hid The overall effect would be that we as and were afraid to come out. The study Ugandans have this key population within revealed that gay men in Kampala are our midst. They are hidden and cannot three times more likely to be HIV positive, come out. We cannot reach them, because but that many do not know how to protect we too would also be criminalised. So they themselves from HIV. Qualitative results don’t know how to have safer sex (which also highlighted discrimination in the is criminal), but they will continue having health sector. Being denied health care and unsafe sex, getting STIs/STDs and HIV. STI health information, and hiding from family, and HIV infection rates are especially high friends, and community and society, were in same-sex prisons, so imprisoning people among the litany of reasons why this high would not stop infections from spreading or risk population is not getting HIV treatment reaching the broader community. and prevention.

12 Underlying this is the ‘illegality’ associated Advocate.com: US formally responds to Uganda’s Jail gays law available at http://www.advocate.com/world/us-formally-responds-ugandas-jail- gays-law. Accessed 24th March 2014.

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REAL LIFE LIVING WITH THE NEW EXPERIENCES: ANTI-HOMOSEXUALITY ACT (2014): EXPERIENCES OF UGANDAN LGBTIQ

by Stella Nyanzi (PhD) Makerere Institute of Social Research

uman rights advocates who believe and communities before it was annulled. I in the need for protection against discuss the experiences of individuals and Hdiscrimination on grounds of non- groups belonging to the local Lesbian, Gay, heteronormative sexual orientation and Bisexual, Trans, Intersex and Queer (LGBTIQ) non-conforming gender identity had communities. In the essay, the names of variously described the Anti-Homosexuality individuals have been changed to protect Bill (2009) (AHB) as a ‘bad law,’ ‘Draconian identities, ensure anonymity and maintain legislation,’ ‘threat to peaceful coexistence the confidentiality of sexual minorities. of diversity,’ ‘human rights violation,’ ‘Kill the gays bill,’ ‘anti-human rights,’ ‘anti- Closure and reduced operations of democracy,’ ‘anti-public health,’ ‘anti- LGBTI support groups constitutional agenda,’ which was ‘heinous,’ In the period following the passing of ‘prejudiced,’ ‘rooted in biased judgments the AHB by a tiny group of Members of and spurious accusations rather than facts Parliament in December 2013, several and reality,’ ‘fuelling sentiments of hatred grassroots organizations run for and by and persecution in the name of culture,’ same-sex loving Ugandans collected their and ‘provided for targeted discrimination materials, equipment, documentation, of sexual and gender minorities.’ These records and publications and stored them descriptions were previously hypothetical away for safekeeping. Organizational because this proposed legal reform had banners, posters, advertisements, not yet become law. However, on 24th brochures, handbills, reports and other February 2014, President Yoweri Museveni materials used for LGBTIQ advocacy and assented to an amended version of the bill, lobbying were pulled down, packed into boxes thereby giving license to a new repressive and transported away from operational regime of monitoring, surveillance, arrest, premises in preparation for eventual raids penalizing and deterring alternative by police. While a few organisations made sexualities in Uganda using the legal tool of advance preparations of digitising their the Anti-Homosexuality Act (2014) (AHA). records and documentation through Ugandans had been living with the new scanning, digital photography and backing law for less than three months, but we up onto secure servers, most others resorted had already seen dramatic effects. to destroying any potentially incriminating materials through burning. Employees of two This essay is an exploration of the LGBTIQ organizations report below. immediate consequences of the AHA on Uganda’s same-sex loving individuals Program Officer: When we heard that

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Parliament had passed the bill and it was restricted to providing essential services only left with signing by the President, we to members and clients. Lobbying, had a meeting where we decided as a advocacy, networking and consultations collective that we should burn up all our were transformed from organizational materials which refer to our daily work of offices to homes of residence, internet raising community awareness about the cafes, restaurants and hotels, as well as to rights of homosexual youths in Uganda. the internet through mailing lists, email, When the bill became a law, we burnt up all and social media. those documents because we did not want to give anybody evidence to come and These precautionary measures were arrest us. So we collected all the materials, neither driven by paranoia nor extreme records, receipts with people’s names, our reactions considering the numerous clients and members’ records – everything articulated threats of Rev. Fr. Simon like that - we used some petrol and lit a Lokodo, the Minister of Ethics and match. The fire burnt up the documents Integrity, to shut down and de-register completely and only left ashes behind. 38 civil society organizations known to support and work for LGBTIQ rights in Administrator: The day after the president Uganda. Furthermore, the infiltration, put his signature on the law, we met in raiding by police officers and subsequent the office with the different assistants. shutting down of the Walter Reed Research We decided to collect two to four boxes Project on 4th April 2014 gave currency of important documents, including the to fears by LGBTIQ organizations. financial records, bank documents, daily operations, lists of our members and their Arbitrary arrests contact details and activities, any reports The arbitrary arrest of LGBTIQ individuals detailing our activities, the DVDs and CDs and couples had increased. When asked for safe-sex education and anything that to name the offense or crime that the would be used to blame us for promoting arrested person committed, it is evident homosexuality. We boxed and sealed that these people were often handcuffed these materials, drove them to one of our and taken away for unnamed crimes allies for storage. The office was left bare, upon the moment of arrest. It is only with only condoms and some furniture. during processing at the police station or police post, when the charge-sheet Many LGBTIQ support organisations is produced that the arrested persons had closed their operational offices as a discover their alleged crime. Yummy measure of safety. Staff members were Tuhairwe, a 25-year-old trans-woman advised not to report for work until explains below. further notice. Some other offices were converted into residential premises as Yummy Tuhairwe: When I was arrested a decoy of ongoing work. A few others in the market area in Kisenyi slum, the had transferred their offices into new policemen just put me on the back of premises that did not necessarily reveal the kabandaali police truck. They were the nature of work carried on. Of those shouting at me to stop walking like a LGBTIQ organizations that continued woman, to stop making myself act as a working, operations were reduced and woman. They looked at my arms, the way

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I grow and sharpen my long fingernails, Late one night, Jacquie and Sheelah, two my plaited hair, my soft face and they lesbians in a relationship and living in the concluded for themselves what they same house, were arrested together and wanted. They shouted at me to show them taken from the safety of their residence by my husbands so that they can come and men wearing police uniforms. Although they arrest them for sodomy. were not caught having sexual intercourse, both were accused of homosexuality during Interviewer: But what were you arrested an intimidating four hours of riding through for? the night. The police officials asked for an exorbitant amount of money totaling One Yummy Tuhairwe: What can I tell you? Million Uganda Shillings (1,000,000/= UGX) I was walking freely in the Kikuubo back in order to release the lesbian couple and alley, not minding anyone. Then they came drop any charges from being made at the and took me away. Later when I was at the police station. Exorbitant bail prices, high police giving the statement, they told me police fees and the lack of enough sureties that I was lucky that they only charged are common challenges faced by LGBTIQ me for being idle and disorderly instead individuals who are arrested and charged of homosexuality because the new law for offenses related to homosexuality. has started. But can these people really just find me walking and they arrest me Extortion and blackmail for homosexuality? It is our lawyers who Other than bail, police officers and security helped me to get a bail from the police personnel had reportedly extorted huge after two days of being arrested. sums of money from individuals known or suspected to be involved in homosexual Several LGBTIQ people have been activities. These cash payments are arrested for unnamed crimes and detained non-negotiable in order for the police without knowledge of their offenses. When officers to remain silent about and not arrested, many LGBTIQ individuals are arrest or pursue investigations into the subjected to intrusive bodily searches alleged homosexuality. In many instances, aimed at ascertaining their ‘true gender,’ as the victim of extortion is an otherwise well as invasive manual examinations of aggrieved LGBTIQ individual reporting a the anus and genitalia to provide evidence suspect or offender who instead turns for sodomy. Furthermore, beatings, insults the tables by revealing or alluding to the and torture have been experienced during accuser’s homosexual practice. Dr. Julius violent and traumatizing interrogation Bwogi, a medical officer working at the processes. Many LGBTIQ individuals who main national referral hospital at Mulago were arrested prior to the commencement reveals his ordeal below. of the Anti-Homosexuality Act (2014) were fearful that the proceedings Dr. Julius Bwogi: The last time we had and judgments of their cases would be sex, Yassin must have drugged me influenced by the new stricter legal regime. because I passed out and when I gained consciousness my television set, laptop, Exorbitant bail and police fees music system, micro-wave oven and Arrests do not only occur in public spaces, electric shavers were all stolen. The doors but also from the privacy of homes. were wide open. It was shocking. I think he

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 29 THE HUMAN RIGHTS ADVOCATE made a copy of my keys before that. When young men. I said that I was going to report him to the police, this thief threatened to tell the police Although police officers conduct about my homosexual practice. So I kept extortion, money is mostly solicited and quiet because I did not want to lose my job extorted from homosexual Ugandans at the hospital. My colleagues, superiors, by fellow members of the LGBTIQ nurses, students and patients at the hospital community. Extortionists mainly comprise do not know about my bisexuality. current same-sex partners, or aggrieved ex-partners, particularly in asymmetrical Interviewer: But if you did not report him to relationships involving significant the police, how do you know that he was not differences in age, class, social status or just bluffing and that he would really have income levels. These extortionists claim outed you to the police? to have photographic, film, financial, communication or other evidence Dr. Julius Bwogi: It happened to me incriminating their targeted victims. They recently. Another young man I have been repeatedly threaten to leak this evidence dating also stole my touch-screen phones to the police, public media, employers, and he threatened me that he will report to spouses, religious leaders or to others in the police if I take the case there. I actually authority. Threats were issued verbally, reported to the police officers who helped via text messages, telephone calls, me to track down my touch-screen phone. Facebook, email and other social media. He had given it to his cousin. When the In order to conceal their homosexuality cousin pointed to my ex-lover, this young from the public and from authorities, man told the police officers during the victims silence their blackmailers by investigation that I am a pedophile who paying considerable amounts of money. loves sodomizing much younger boys Extortion and blackmail by either current than me. He told the police investigators or previous same-sex partners is much that I gave him the phone in exchange more prevalent among gay men and for sex with him. The policeman in charge transgender women than among lesbian of the investigation changed his attitude women and transgender men in Uganda. toward me, asked me to stop the case, The evidence availed in several drop the charges and pay some money police cases and public media outings to quiet down my ex-lover who was talking were produced upon the refusal of about suing me for homosexuality. He asked targeted victims to pay extortionists and me for a million shillings. I negotiated for blackmailers. much less, arguing that I could never afford such money. We agreed on four hundred Forced or pretend bisexuality thousand Uganda Shillings to keep him In order to avoid public surveillance and quiet. I paid half the money and gave him scrutiny, some individuals within the my bicycle as collateral until I have paid LGBTIQ communities in Uganda had up all the money at the end of this month adopted the decoy of publicizing their when I receive my salary. I am paying the newfound heterosexuality. Partnerships installments through the police officer. with members of the opposite sex had The case just turned against me when the quickly been forged in order to pass off as police officer heard that I have sex with being in stable heterosexual relationships.

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Some of these newfound heterosexual they reported to be homosexuals or partnerships are created with members of promoters of homosexuality. Specifically, the opposite sex from within the LGBTIQ the English tabloids called the Red Pepper, community. For example, Christine, a Hello, and Kampala Sun, an English daily leader within the lesbian community, paired newspaper called the Monitor and a off in an assumed heterosexual union Luganda language tabloid called Kamunye with Donald from the gay community. contained the details of several LGBTIQ This charade was carried right to their individuals and their allies. The Red Pepper rural-based hometowns, where traditional was most virulent in this period, publishing rites in preparation for the marriage defamatory stories about diverse aspects ceremony were held. They circulated as of homosexuals’ lifestyle in Uganda on a a new heterosexual partnership in public daily basis until a petition was filed in the spaces, sharing their couple portrait Constitution Court against the AHA on pictures on social media in order to pass 11th March 2014. The petition sought an as heterosexuals and thus avoid public injunction against public media houses scrutiny. Such heterosexual performances publishing defamatory reports about have also become important facades individuals perceived to be homosexual. to sell to concerned parents, family, relatives, and colleagues – some of whom Evictions from residences of whom have previously been responsible The AHA had created new groups of for pressuring, intimidating, threatening or outlawed Ugandan subjects with outing LGBTIQ people. numerous crimes and harsh penalties written in the law. It also created another Public media outings avenue for people in authority to Immediately after President Museveni delineate and cordon off those individuals assented to the AHA, the public media deemed fit to associate with and those resumed broadcasting and publishing who were criminalized by the new law. series discussing and debating the Depending on a leader’s sensibilities and consequences of this new law upon understanding of human rights, boundaries individuals, social groups and Ugandan were drawn concerning those whose society as a whole. Of particular public sexuality was acceptable versus that which concern was the impact of the new was not. legislation on individuals, groups and institutions known to either be homosexual Many of the individuals who were or else those who supported sexual forcefully outed in the public media minority rights. As journalists, editors and received security threats of beatings, public media houses excessively exercised being reported to the police, as well their rights to freedom of speech and as intimidation, verbal insults and expression, the right to privacy of LGBTIQ physical abuse. Landlords, neighbours people and their allies were violated. and residential area leaders variously demanded that some of these exposed Print media outlets overstepped the individuals leave their premises, or boundaries of responsible journalism by altogether vacate from their locality. repeatedly disclosing the names, pictures Landlords issued immediate eviction and personal details of several individuals orders, regardless of any current tenancy

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 31 THE HUMAN RIGHTS ADVOCATE agreements, or balances of paid rent. Given the lack of due notice to leave, Eviction letters were rarely issued. Many many evicted homosexual Ugandans threatened individuals reported violent were caught unawares and thus ill- verbal evictions implemented by rowdy prepared to transfer their belongings. groups of people, sometimes including Several lacked money and requisite Local Council (LC) I officials or police knowledge to adequately search for officers. Violence and mob justice were and acquire alternative instantaneous widely feared, particularly by LGBTIQ accommodation. Some were unable to youths who lived in crowded peri-urban afford the transport costs for transferring areas. Nature Rainbow, a 25-year-old their property to a new safe location. While cross-dresser and gay man explains his some sought refuge with their family and predicament below. relatives in rural areas, many others were unable to return to their homes because Nature Rainbow: My photos appeared in some family members were homophobic the Red Pepper newspaper. I was living and previously caused the painful with my friend in a Kazigoone-roomed departure of the homosexual relative. house which he was renting. We lived There were also a few instances of families in a line of one-roomed houses facing issuing ultimatums to their children to another line of the same. When the boys either denounce homosexuality or else at the shop saw the Red Pepper story, they leave the family home. started gossiping loudly. They made a loud discussion about homos. They shouted In this case, LGBTIQ individuals’ right to at me when I was passing by their shop. I safe housing and shelter was violated. had not yet seen the newspaper. Then my Furthermore, their security of person and friends started calling me to tell me about property were undermined. Emergency the story. I froze because I feared what my evacuation out of unsafe or violent parents would say if they saw me. I passed environments, relocation to immediate by a newspaper vendor and bought the temporary safe shelter, and acquisition of paper. I was shocked to see my pictures alternative affordable longer-term secure taken at Pride 2013. I was only wearing housing were among the most urgent glitter for a shirt. My chest was bare. I was security requirements of Uganda’s LGBTIQ smiling proudly and there was a handsome community in the aftermath of the AHA. man standing behind me. I was in the Sadly, the local LGBTIQ movements and picture with a man whom I don’t even its allies were ill-prepared to adequately know. When I got home, I could hear the tackle this security need with emergency neighbourhood women talking and could response. Earlier negative experiences hear them saying that all this while they with different models of safe-houses for did not know that I was a spoil person LGBTIQ individuals facing securing threats using my buttocks to make money. They paralyzed effective strategizing to address said they were not going to allow me to this need. live among them and their young sons. One of them called the landlord on the Termination from employment, phone. That is when I quickly packed a and expulsion from schools small polythene bag of clothes and I left. There was an increase in reported unexplained terminations from

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employment by employers who were of two gay men was published in the skeptical about employing same-sex public media, the numbers of homosexual loving individuals. Furthermore, LGBTIQ Ugandans living the country has swelled Ugandans were expelled from schools after the advent of the AHA. Individuals and institutions of higher learning after with personal means or the help of others the advent of the AHA. A few others purchased air-tickets, obtained short-term lost prestigious opportunities when their visas and left the country. Many processed homosexuality or involvement in LGBTIQ their applications for asylum, refugee status, rights advocacy was publicized. Ashley or naturalized citizenship after arriving at Nakato explains her loss below. their destination countries that observe gay rights in Europe, North America, Asia and Ashley Nakato: I am a lesbian, the type South Africa. Several others without a lot called a dyke. I am also a fine artist. Oh of wealth fled into refugee settlements or yes, I graduated from Makerere University camps in neighbouring, Kenya where their with a bachelor’s degree and I had started plight sometimes multiplied. Many other to pursue my graduate studies. Anyway, I homosexual Ugandans, who remained in was very honoured to receive a prestigious the country, dream, plan, strategise and residency program that would further attempt to join the exodus of LGBTIQ people develop my knowledge, skills and expertise from the country. However, some bold in fine art. And then my picture was shown individuals chose to remain in the country in the newspapers when we had gone to and do their advocacy and re-strategising the Constitutional Court to petition against for LGBTIQ rights, wellbeing and citizenship. the Anti-Homosexuality Act. Another Thus the country has lost several able- picture of mine appeared in another local bodied nationals who were contributing tabloid under the heading ‘Normal by day, towards the national development project Lesbian by night.’ Believe it or not, but then simply because their sexual orientation was the administrators of my residency called outlawed by the AHA me and asked about the allegations in these newspapers. I said I was an advocate Conclusion: The persecution of LGBTIQ of LGBTIQ rights. And I lost my residency Ugandans rises just like that. It is a very painful loss for me Prior to its passing as law within the statute as a professional, but then the struggle for books of Uganda, the AHB was variously human rights must continue. critiqued by human rights advocates and pro-gay rights activists. They predicted that Fleeing from Uganda to seek this proposed legislation aimed at further asylum marginalizing a small minority group based Faced with growing fear, intimidation and on the re-criminalization of their non- the range of specific forms of persecution heteronormative sexual orientations and highlighted above, several LGBTIQ non-conforming gender identities. In this individuals fled from Uganda in search essay, I have explored and identified several of asylum in other countries. Although specific forms of persecution that same- the exodus of same-sex loving individuals sex loving individuals in Uganda have faced started in the late 1990s in response to since the passing of the AHA. President Yoweri Museveni’s order to arrest all homosexuals after a wedding

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Figure 1: A star-diagram of the effects of Anti-Homosexuality Act (2014) on LGBTIQ in Uganda

Arbitrary Arrest

Closing down LGBTIQ Freezing of gay-friendly spaces support groups

Detention without trial Destruction of records

High police fees Public media outings

Exorbitant bail Extortion Evictions from home Threats Effects of AHA Mob justice Physical Abuse Expulsion from schools Forced bisexuality Loss of employment

Blackmail Reduced services by LGBTIQ organisations Denial by family Verbal Insults Chased from residential areas

As summarised in figure 1 above, public media outings, forced bisexuality, individuals and groups within Uganda’s verbal abuse, physical violence, mob LGBTIQ communities faced a range of justice, eviction from residencies, persecutions and violations of their termination of employment, expulsion human rights including closure of from school, denial by family or relatives, some LGBTIQ support groups, reduced flight and exodus from Uganda in operations and services of some search of asylum in more tolerant LGBTIQ organizations, freezing of gay- countries. The AHA was challenged by friendly social spaces, destruction of a petition filed within the Constitutional documentation and materials, arbitrary Court of Uganda. The varied experiences arrests, arrests for unnamed crimes, of individuals and groups of people exorbitant bail, high un-receipted police belonging to Uganda’s LGBTIQ fees, extortion, blackmail, threats of communities that are highlighted within arrest and reporting, confusions by this essay proffer a purposive sample of justice officials over which laws to apply human rights violations that have been in the trial and prosecution of individuals conducted in the short period following arrested before the new law, forceful the signing of this Draconian law.

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INTERNATIONAL THE ANTI-HOMOSEXUALITY LAW PERSPECTIVE: ACT: IN VIOLATION OF INTERNATIONAL LAW

by Jenevieve Discar Intern at HRAPF (2015) and Law student at the University of California Law School.

Introduction death.2 In February 2014, Ugandan President ganda’s anti-homosexuality Yoweri Museveni signed into law the highly movement has become infamous controversial Anti-Homosexuality Act.3 Uin the international community. In Though the final version was modified Uganda, lesbian, gay, bisexual, transgender such that “aggravated homosexuality” and intersex (LGBTI) people and their was punishable by life in prison rather supporters suffer severe marginalisation, than a death sentence, the bill was widely widespread discrimination, hate crime criticised as draconian.4 Among other violence, and arrests and detention.1 harsh provisions, the AHA imposed Uganda criminalises homosexuality and jail terms of up to life for “aggravated more than four-fifths of the population homosexuality,” which includes gay believe homosexuality to be morally sex with a minor or while HIV-positive. unacceptable. The AHA also criminalised “promoting homosexuality” and “aiding and abetting This article seeks to examine the ways in homosexuality,” effectively silencing LGBTI which the now nullified Anti-Homosexuality activists. Additionally, the AHA criminalised Act, 2014 (AHA) would violate rights that keeping any home, room, or place “for are guaranteed by international treaties to the purposes of homosexuality,” which led which Uganda is party. Furthermore, this Ugandan landlords to evict LGBTI tenants.5 article will demonstrate that, by passing the AHA, Uganda reneged on international Furthermore, the AHA fueled violence obligations and damaged foreign relations. against the LGBTI community in Uganda. Newspapers printed the names, addresses, Relevant background and photos of suspected homosexuals, In 2009, a group of American preachers 2 traveled to Uganda for an anti- Jeffrey Gettleman, Uganda Anti-Gay Law Struck Down by Court, THE NEW YORK TIMES, available at http://www.nytimes.com/ homosexuality conference and helped world/africa/uganda-anti-gay-law-struck-down-by-court.html?_r=0. Accessed 1st August 2014 Ugandan legislators draft an anti- 3 Alexis Okeowo, A Precarious End to Uganda’s Anti-Gay Act, THE homosexuality bill under which those NEW YORKER (Aug. 5, 2014), http://www.newyorker.com/news/ convicted of homosexuality could be put to news-desk/end-ugandas-anti-homosexuality-act-now. 4 See Jeffrey Gettleman, Uganda Anti-Gay Law Struck Down by Court, THE NEW YORK TIMES. Available at http://www.nytimes. com/2014/08/02/world/africa/uganda-anti-gay-law-struck-down-by- 1 court.html?_r=0. Accessed 1st August 2014. Communities Under Siege: LGBTI Rights Abuses in Uganda, 5 HUMAN RIGHTS FIRST, available at http://www.humanrightsfirst. Alexis Okeowo, A Precarious End to Uganda’s Anti-Gay Act, THE org/wp-content/uploads/Discrimination-against-LGBTI-Ugandans- NEW YORKER available at http://www.newyorker.com/news/news- FINAL.pdf. Accessed 6th Dec. 2014 desk/end-ugandas-anti-homosexuality-act-now.;NeelaGhoshal& Maria Burnett, Is It Now Legal to Be Gay in Uganda?,HUMAN RIGHTS WATCH available at http://www.hrw.org/news/2014/08/07/ it-now-legal-be-gay-uganda. Accessed 5th August 2014 and 7th August 2014 respectively.

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 35 THE HUMAN RIGHTS ADVOCATE triggering violent community reactions.6 Degrading Treatment or Punishment Sexual Minorities Uganda reported (CAT).9 The Anti-Homosexuality Act more than 162 incidents of anti-LGBTI violated a number of fundamental human violence following the passing of the Anti- rights, recognised as such by the various Homosexuality Act, an increase from international treaties to which Uganda is the mere 19 incidents of similar targeted party. These include the following: the right violence that Sexual Minorities Uganda to freedom from discrimination; the right to reported in 2012.7 These violent incidents freedom of expression; the right to freedom include an attempted lynching, violent of association; the right to privacy; the right mob attacks, arrests, firings, evictions, to work; the right to health; the right to suicides, and arson. housing, and; the right to property. The AHA’s violations of the right to privacy, the In August 2014, the AHA was annulled, right to health and the right to adequate but on grounds of the procedure through housing are further discussed below. which it was passed and not on grounds of its contents. Under Section 145 of Uganda’s Right to privacy Penal Code, homosexuality remains illegal The right to privacy is guaranteed by Article and punishable by life imprisonment.8 17 of the ICCPR, which states that “no one Additionally, a similar bill is anticipated shall be subjected to arbitrary or unlawful to surface before Parliament in the near interference with his privacy, family, home future. or correspondence, nor to unlawful attacks on his honour and reputation” and that Internationally recognized “everyone has the right to protection of the rights violated by the Anti- law against such interference or attacks.”10 Homosexuality Act Furthermore, in the seminal case of Toonen Uganda has ratified or assented to a v. Australia, the UN Human Rights Committee wide range of international human rights expressly held that laws prohibiting treaties, including the International consensual sex between adults of the same Covenant on Economic, Social and Cultural sex violate the right to privacy, as guaranteed Rights (ICESCR), the Convention on the by international human rights law.11 Thus, Elimination of All Forms of Discrimination due to its criminalisation of consensual sex against Women (CEDAW), the International between same sex adults in Sections 2 and Covenant on Civil and Political Rights 4, the Anti-Homosexuality Act was a clear (ICCPR), and the Convention against violation of the right to privacy. Torture, and other Cruel, Inhuman or Right to health 6 Mariah Blake, Meet the American Pastor Behind Uganda’s Anti-Gay The right to health is protected by Crackdown, MOTHER JONES, available at http://www.motherjones. com/politics/2014/03/scott-lively-anti-gay-law-uganda. Accessed Article 16 of the ACHPR, Article 12 of the 10th March 2014, 5:30 AM ICESCR, Articles 11 (1) (f), 12, and 14 (2) (b) of 7 SunnivieBrydum, Tenfold Spike in Anti-LGBT Attacks in Uganda Since Antigay Law’s Passage, ADVOCATE (May 12, 2014, 3:35 PM), Available at http://www.advocate.com/world/2014/05/12/tenfold- 9 spike-anti-lgbt-attacks-uganda-antigay-laws-passage. Accessed 20th Fact Sheet: Health and Human Rights in Uganda, WORLD HEALTH Feb. 2015 ORGANIZATION. 8 10 Chris Johnston, Uganda holds first pride rally after ‘abominable’ International Covenant on Civil and Political Rights (Dec. 16, 1966), anti-gay law overturned, THE GUARDIAN (Aug. 9, 2014, 11:12 AM), available at http://www.ohchr.org/en/professionalinterest/pages/ccpr. http://www.theguardian.com/world/2014/aug/09/uganda-first-gay- aspx. Accessed on 2oth Feb 2015 pride-rally-law-overturned. Accessed 21st Feb. 2015. 11 See Toonen v Australia, Human Rights Committee, 1994.

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CEDAW, the ICCPR, the ACHPR and CAT.12 international law, both due to providers’ Specifically, Article 12(1) of the ICESCR reticence to treat LGBTI people and LGBTI calls upon state parties to recognise the patients’ reasonable fear of being arrested. right to “the enjoyment of the highest attainable standard of physical and mental Right to adequate housing health.” Additionally, according to the Adequate housing was recognised as part of African Commission, state parties have an the right to an adequate standard of living affirmative obligation to “respect, protect, in the 1948 Universal Declaration of Human promote and fulfil” the rights guaranteed Rights and in the 1966 International Covenant by the ACHPR, which include the right to on Economic, Social and Cultural Rights.16 health, and state parties must “take the Article 11 of the ICESCR, considered to be necessary measures to protect the health the central instrument for the protection of of their people and to ensure that they the right to adequate housing, refers to “the receive medical attention when they are right of everyone to an adequate standard sick.” Thus, limiting access to healthcare of living for himself and his family, including… constitutes a violation of the right to health, housing.”17 The right to adequate housing guaranteed by international law. is also recognised in Article 17 of the ICCPR and Articles 14(2) and 15(2) of CEDAW.18 After the enactment of the AHA, Women Significantly, the United Nations Committee Arise for Change identified seven clinics on Economic, Social and Cultural Rights, that refused to extend medical treatment has declared that the right to adequate to lesbian and bisexual sex workers.13 Some housing includes “protection against forced medical providers suspended services to evictions,” defined as the “permanent or LGBTI out of fear of stigmatization, while temporary removal against their will of others simply allowed the AHA to validate individuals, families and/or communities existing prejudices. Additionally, due to the from the homes and/or and land which they harsh provisions of the AHA and the climate occupy, without the provision of, and access that it created, LGBTI people avoided HIV/ to, appropriate forms of legal or other AIDS clinics, fearing that the police would protection.”19 Having ratified or assented to raid the clinic and arrest the patients.14 In fact, the ICESCR, the ICCPR, and CEDAW, Uganda Icebreakers, an LGBTI support organization is committed to protect the right to adequate that runs a sexually transmitted infections housing and protect its people against forced clinic and provides free medication to LGBTI evictions. people, experienced a 50 percent decline in the number of LGBTI people who visited Under Section 11 of the Anti-Homosexuality the clinic while the AHA was in force.15 Thus, Act, keeping any home, room, or place the Anti-Homosexuality Act severely limited “for the purposes of homosexuality” was LGBTI access to healthcare, in violation of punishable for up to seven years in prison and a landlord who “induces or knowingly 12 Fact Sheet: Health and Human Rights in Uganda, WORLD HEALTH ORGANIZATION. 16 13 The Right to Adequate Housing, OFFICE OF THE UNITED Uganda: Rule by Law: Discriminatory Legislation and Legitimized NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (May Abuses in Uganda, Amnesty International (Oct. 16, 2014), http:// 2014), available at http://www.ohchr.org/Documents/Publications/FS21_ www.amnesty.org/en/library/info/AFR59/006/2014/en. Accessed 24th rev_1_Housing_en.pdf. February 2015 17 14 Above. Above. 18 15 Above. Above. 19 Above.

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 37 THE HUMAN RIGHTS ADVOCATE suffers any man or woman to resort to or Uganda” and various other rights groups be upon such premises for the purpose calling the laws “abominable.”23 of being unlawfully and carnally known by any man or woman of the same Significantly, many Western donors have sex…commits a felony and is liable, on withdrawn or redirected aid in response conviction, to imprisonment for five to Uganda’s anti-homosexuality laws. years.”20 Following the enactment of the Foreign aid funds approximately 20 AHA, scores of Ugandan landlords evicted percent of Uganda’s annual state their LGBTI tenants.21 While some landlords budget.24 After President Museveni refused to house LGBTI people due to signed the Anti-Homosexuality Act into fear of prosecution under the AHA, others law, Uganda lost nearly $200 million in forced tenants out due to pressure from aid donations from Europe and North the community and others simply allowed America.25 In fact, the Ugandan shilling the AHA to validate existing prejudices. depreciated by 2% a mere day after The result was devastating for the LGBTI President Museveni signed the Anti- community; in fact, eighty per cent of the Homosexuality Act into law.26 requests for assistance received by the National LGBTI Security Team involved Specifically, the World Bank froze a relocation.22 The AHA further prevented £60 million new loan to the country, evicted LGBTI tenants from seeking legal while its experts analysed whether recourse, since such evictions appeared the new legislation would adversely to be prescribed by the AHA and, if they affect development strategies.27 The brought forth a complaint, LGBTI people Netherlands and Norway froze aid to would likely face arrest. Thus, the AHA the Ugandan government as well.28 The represented a severe violation of the UK also cut off all of its direct budget right to adequate housing guaranteed by international law. 23 Uganda: Rule by Law: Discriminatory Legislation and Legitimized Abuses in Uganda, Amnesty International (Oct. 16, Effect of the Anti-Homosexuality 2014), http://www.amnesty.org/en/library/info/AFR59/006/2014/ en; Chris Johnston, Uganda holds first pride rally after ‘abominable’ Act on foreign policy anti-gay law overturned, THE GUARDIAN (Aug. 9, 2014, 11:12 AM), http://www.theguardian.com/world/2014/aug/09/uganda- The international community has first-gay-pride-rally-law-overturned. Accessed 20th Feb. 2015 24 recognised the ways in which Uganda’s anti- Sweden resumes aid to Uganda after suspending it over anti-gay law, BUSINESS INSIDER (July 28, 2014, 9:04 AM), http://www. homosexuality laws violate human rights businessinsider.com/r-sweden-resumes-aid-to-uganda-after- and has condemned the laws accordingly, suspending-it-over-anti-gay-law-2014-28. Accessed 24th Feb. 2015 25 Amnesty International stating that such Thom Senzee, The state of LGBT equality in Africa, LGBT WEEKLY (Nov. 17, 2014), http://lgbtweekly.com/2014/11/17/the- laws “threaten the core of human rights in state-of-lgbt-equality-in-africa. Accessed 20th Feb. 2015. 26 20 Gibson Ncube, Hypocrisies and contradictions: Western THE ANTI-HOMOSEXUALITY ACT 2014, available at http:// aid and LGBT rights in Africa, CONSULTANCY AFRICA www.refworld.org/pdfid/530c4bc64.pdf. Accessed at 25th Feb. 2015 INTELLIGENCE (Apr. 14, 2014, 2:48 PM), http://www. 21 Alexis Okeowo, A Precarious End to Uganda’s Anti-Gay Act, consultancyafrica.com/index.php?option=com_content&view THE NEW YORKER (Aug. 5, 2014), http://www.newyorker. =article&id=1673:hypocrisies-and-contradictions-western-aid- com/news/news-desk/end-ugandas-anti-homosexuality-act- and-lgbt-rights-in-africa&catid=91:rights-in-focus&Itemid=296. now.;NeelaGhoshal& Maria Burnett, Is It Now Legal to Be Gay in Accessed 20th Feb. 2015 27 Uganda?,HUMAN RIGHTS WATCH (Aug. 7, 2014), http://www. Mike Pflanz, Keep your gays and keep your aid, Uganda hrw.org/news/2014/08/07/it-now-legal-be-gay-uganda.Accessed tells the West, TELEGRAPH (Feb. 28, 2014, 3:45 PM), http:// 23rd Feb. 2015 www.telegraph.co.uk/news/worldnews/africaandindianocean/ 22 Uganda: Rule by Law: Discriminatory Legislation and Legitimized uganda/10668278/Keep-your-gays-and-keep-your-aid-Uganda- Abuses in Uganda, Amnesty International (Oct. 16, 2014), http:// tells-the-West.html. Accessed 26th Feb. 2015. 28 www.amnesty.org/en/library/info/AFR59/006/2014/en. Accessed Above. 20th Feb. 2015

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support to the Ugandan government.29 the Uganda government to human According to a representative for the UK rights organizations and private sector Department for International Development, organizations instead, and the latter the UK will only provide direct support suspending $9 million in aid to Uganda and to other governments when they meet increasing funding for human rights and “a specific set of principles, including democracy groups.36 upholding human rights.”30 Earlier in the year, Sweden also suspended aid to Although President Museveni claims that Uganda but, after further consideration, he is not concerned about foreign aid, decided to provide 1.35 billion crowns over stating that “Uganda is growing in spite of the next five years specifically to “improve the ‘aid’ cuts,” he has expressed concern child and maternal health, sustainable that Uganda’s anti-homosexuality laws growth and employment.”31 may negatively impact international trade.37 President Museveni has noted The US responded with a multi-pronged that “homosexual lobby” can “intimidate approach.32 Among other measures, the potential buyers from buying from us” and US discontinued a $2.4 million program furthermore, has recognized that “they that supported the Uganda Police have already started.”38 Force community-policing program.33 According to the White House blog, Conclusion this was in response to government The AHA infringed upon fundamental concerns regarding “the extent to which human rights and, as such, had a the Ugandan police may be involved in negative impact on Uganda’s foreign abusive activities undertaken in the name relations, damaging international of implementing the [Anti-Homosexuality perceptions of Uganda as well as the Act].”34 The US also redirected funds that economy. Recognizing this, Ugandan had previously supported the Ministry of leadership must consider Uganda’s Health and other health programming, international obligations and the potential citing concerns regarding equal access.35 backlash before passing a similar bill.

Denmark and Norway similarly redirected aid, the former giving the equivalent of $10 million originally intended for

29 Above. 30 Above. 31 Sweden resumes aid to Uganda after suspending it over anti- gay law, BUSINESS INSIDER (July 28, 2014, 9:04 AM), http:// www.businessinsider.com/r-sweden-resumes-aid-to-uganda-after- 36 suspending-it-over-anti-gay-law-2014-28. Acccessed 23rd Feb. 2015 Jill Mahoney, Uganda’s anti-gay law causes significant cuts to 32 foreign aid, THE GLOBE AND MAIL (last updated Feb. 26, 2014, See Grant Harris & Stephen Pomper, Further U.S. Efforts to 1:10 PM), http://www.theglobeandmail.com/news/world/ugandas- Protect Human Rights in Uganda, THE WHITE HOUSE BLOG (June anti-gay-law-causes-significant-cuts-to-foreign-aid/article17112073. 19, 2014, 2:04 PM), http://www.whitehouse.gov/blog/2014/06/19/ Accessed Feb 20th 2015. further-us-efforts-protect-human-rights-uganda. Accessed 24th Feb. 37 2015. Zack Ford, Ugandan President Worries Anti-Gay Laws Might 33 Above. Lead to International Trade Boycotts, THINK PROGRESS (Oct. 7, 34 2014), http://thinkprogress.org/lgbt/2014/10/07/3576274/uganda- Above. museveni-gay-rights-trade. Accessed 27th Feb. 2015. 35 38 Above. Above.

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 39 THE HUMAN RIGHTS ADVOCATE

LEGISLATIVE THE BROADER PICTURE: HISTORY: UNDERSTANDING THE GENESIS AND IMPACT OF RECENT LEGISLATION IN UGANDA

by Professor J. Oloka-Onyango MakerereUniversity School of Law and the first petitioner in the case that nullified the Anti-Homosexuality Act 2014

Introduction targets porn-dealers, newspapers like ost recent commentary on Uganda the notorious tabloid Red Pepper, and has focused on the passing of the people who, according to the Minister of MAnti-homosexuality Act (AHA)—a Ethics and Integrity, (former) Rev. Father piece of legislation that drew a barrage Simon Lokodo, publicly expose their of criticism from many countries in the ‘private bodily parts’ for ‘…primary sexual West, but marshaled popular support excitement.’ On its part, the AHA focuses and acclaim at home. Western reaction on homosexuals who Ugandan society focused mainly on the human rights prefers to view as ‘deviants’ and ‘perverts.’ implications of legislation once dubbed Two out of three of the laws refer to the ‘Kill-the-gays’ bill, which represented issues of morality and social order, which a significant step back in the protection Lokodo declared to have reached a stage of sexual minorities on the continent. of national disintegration. However, the nearly-exclusive focus on the rights of LGBTI individuals failed to take Although more directly political, the account of the broader political context POMA is intricately linked to the other within which the AHA was enacted. It two. Indeed, each of the laws affects all also did not place the passage of the law Ugandans, regardless of political opinion against the backdrop of the enactment of or status, sexual preference or position. two other pieces of legislation that have It affects Ugandans whether they wear significant implications for politics and the shorts or trousers, burkas or saris, busutis democratic struggle in Uganda. The first of or mushanana. And they apply to Ugandans these is the Public Order and Management whether or not they have ever watched a Act (POMA), which came into force on pornographic movie. Finally, they are of October 2, 2013, while the second is the concern whether or not one believes in Anti-Pornography Act (APA), which was human rights. This essay demonstrates why. signed into law on February 6, 2014, barely two weeks before President Museveni’s The Public Order and Management dramatic and public signing of the anti-gay Act law. The long title to the POMA stipulates that it was designed to ‘… provide for the On the face of it, the three laws apply to regulation of public meetings; to provide different categories of people. The POMA for the duties and responsibilities of police, ostensibly applies to dissidents, protestors, organizers and participants in relation and what the Inspector General of Police to public meetings; [and] to prescribe has described as ‘hooligans.’ The APA measures for safeguarding public order.’

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A short trip back in history will show that the right. POMA was designed in the heat of the Walk- to-Work (W2W) protests led by opposition Secondly, the ABA/POMA places an leader Colonel (rtd.) KizzaBesigye. Besigye inordinate degree of discretionary power has thrice stood in elections against President with the police, and specifically with Museveni; the latest in a controversial poll on the Inspector General of Police. This is 18 February, 2011, won by the incumbent.1 In obviously problematic because it makes a broad sense, the POMA can therefore be the IGP prosecutor and judge in his own referred to as the Anti-Besigye Act or the cause, violating basic principles of natural ‘ABA,’ as it was clearly designed to tighten justice. Thirdly, the law gives lower-ranking the grip of the police and security forces in police officers the perfect excuse for not the wake of popular protests that rocked the taking action to support human rights. country in the aftermath of the election. In Rather, they are encouraged to curtail its earlier manifestation—with provisions that them. Hence, the first words out of the barred three people from holding a meeting mouths of officers charged with breaking without police permission—it reflected a up an opposition demonstration are: ‘I’m government in an extreme state of panic (simply) acting on orders from above.’ as the winds from the ‘Arab Spring’ in North Africa blew further South. Aside from the contents of the Act, there is another dimension that is often lost in Despite its professed noble intensions with the discussion. A recent Constitutional Court regard to the maintenance of law and order, case challenged the excessive powers of the ABA/POMA is a fatally flawed piece of the police, especially those in Section 32 of legislation for several reasons. In the first the Police Act, which allowed the Inspector instance, the Act reverses the basic premise General of Police to prohibit the convening on which the right to freedom of peaceful of an assembly allegedly “on reasonable assembly is based. This is done by making grounds.” Agreeing that this provision was people who wish to demonstrate or protest unconstitutional, Justice Mpagi Bahegeine against the government seek permission stated, from the police in order to stage such actions. In other words, the ABA/POMA Where individuals assemble, if the police forces those who oppose the government entertain a “reasonable belief” that some and want to translate such opposition into disturbances might occur during the protest to justify why they should not be assembly, all that can be done is to provide stopped from protesting. In diverse countries security and supervision in anticipation of around the world, this colonial mode of disturbances. It is the paramount duty of policing has long been changed. Thus, the Act the police to maintain law and order but should instead be compelling the police to not to curtail people’s enshrined freedoms give sound reasons for refusing a protest to and liberties on mere anticipatory take place. Objective rather than subjective grounds which might turn out to be factors should be the only mitigating factors false. Lawful assemblies should not be in giving expression to this basic democratic dispersed under any circumstances. Most importantly in such cases the conveners 1 See J. Oloka-Onyango (2012), ‘Uganda Elections: ‘An Exercise in Shame- of the assemblies can be required to give faced Endorsement,’ in FirozeManji&SokariEkine (eds.), AFRICAN AWAKENINGS: THE EMERGING REVOLUTIONS, Pambazuka Press, an undertaking for good behavior and in Oxford, at 111-115.

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 41 THE HUMAN RIGHTS ADVOCATE default face the law.2 change their clothes, and even the case of a judicial officer summarily sentencing In complete defiance of the court two women in her courtroom to a 3-hour judgment, Section 3 of the ABA/POMA imprisonment for wearing miniskirts!4 It gives the IGP (or an authorised officer) is this upsurge in sexual harassment and the power to regulate the conduct of all the imposition of a de facto dress code on public meetings in accordance with the women that is most problematic from a law, effectively reintroducing the repealed legal and human rights point of view. Section 32. The reintroduction of this provision of the law is in direct violation Although the government attempted to of Article 92 of the 1995 Constitution of claim that the law neither imposed a dress Uganda, which provides that ‘Parliament code nor was addressed to women, the shall not pass any law to alter the decision above actions pointed to the opposite or judgment of any court….’ To make result. Indeed, the language of the Act matters worse, the definitions of places opens it up to ‘unrestrained interpretation.’5 of assembly and the types of prohibited Such interpretation is available to anyone meetings covered in the Act are so broad regardless of whether or not they are a as to embrace any kind of gathering and government official, but also to all kinds of to subject them wholly to the subjective actions that such a person deems fit in belief of the Police and not to any objective the circumstances. Government assertions standard of oversight. The ABA/POMA that the Act was gender neutral and had thus introduces a slippery slope of growing only been ‘misunderstood’ by the public infractions, and is a perfect representation obviously raises the question as to why it of a downward slide in the protections of was only women and not men targeted fundamental human rights in the country. by the mobs. Secondly, few other laws in recent Ugandan history have caused as The Anti-Pornography Act much confusion in terms of interpretation Although largely ignored outside Uganda, and enforcement as did the APA, engulfing the APA produced the most immediate and both the police and the judiciary as part vocal reaction from the domestic public, of the general public confusion. What particularly from women and human is even more surprising is how such a rights activists.3 The provisions in the Act discriminatory law escaped the attention most responsible for this development are of not only the Attorney General but also the definition of the term ‘pornography’ of the many women representatives in and section 13 of the Act, which stipulated Parliament. the penalty for the offence. The passing of the law was met by vigilante acts of After all is said and done, there can be undressing women by street mobs, of little doubt that the law is in fact inherently police officers stopping women in the street discriminatory and amounts to an attack and ordering them to return home and on women’s personal autonomy and expression. But worse, according to Stella 2 See MuwangaKivumbi v. AG, [Constitutional Petition No.9 of Mukasa, 2005], accessed at: http://www.ulii.org/ug/judgment/constitutional- court/2008/4. 20th Feb 2014 3 4 See Stella Mukasa, ‘Anti-Pornography Act a setback for gains made in See Malik Jingo, ‘Women get three-hour jail term for wearing women’s rights,’ http://www.monitor.co.ug/OpEd/Commentary/Anti- miniskirts’ Daily Monitor, March 7, 2014 Pornography-Act-a-setback/-/689364/2249082/-/aywph5/-/index. 5 Jimmy Senteza, ‘Language in the Law Against Pornography is Vague, html. 5th Feb. 2014 Biased,’ New Vision, March 4, 2014 at 12.

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The Anti-Pornography Act clearly set the supremacy of the Constitution, violation stage for a rollback of women’s personhood of the principles of equality and freedom and autonomy as upheld by our constitutional from discrimination, and the right to guarantees on equality before and under privacy. Its annulment was a triumph of the law, including laws that protect women constitutionalism and rule of law. The from sexual and gender-based violence, Act had gone so far as criminalising intimate partner violence, and Female Genital touching by a person of the same sex and Mutilation, to mention a few. other offences that were overly broad. Problems were also being raised with It is nevertheless naïve to view the passing of the criminalisation of consensual same the APA in isolation. Rather, its enactment sex/gender sexual activities among adults must be married to the broader attack on the in which one is a person living with HIV rights of women and the failure of the State or in which one is a person with disability, in Uganda to effectively ensure that issues and with creating a compulsory HIV test concerning women’s security, autonomy for all homosexual suspects. Finally, by and well-being are better protected. It is criminalising so-called aiding, abetting, part and parcel of the traditional attempts of counselling, procuring and promotion the patriarchal state to regulate and control of homosexuality, the AHA would create women’s sexuality and reproductive capacities. offences that could capture virtually Hence, the NRM government has still failed anybody. It would also have penalized to enact a progressive law on marriage and legitimate debate and professional counsel divorce and has instead reverted to passing in direct contravention of the principles laws which undermine, marginalise and of legality, the freedoms of expression, directly discriminate against women. The thought, assembly and association, government’s condemnation of the reported academic freedom and the right to civic unlawful acts by the public were too little, participation. The Act went over the top too late and only a smokescreen to protect a in classifying houses or rooms as brothels regime that has abandoned the cause of the merely on the basis of occupation by protection of women’s rights. Ironically—and to homosexuals, thereby collapsing the underscore the interconnectedness between distinction between sex for love or pleasure the laws under discussion—the Police invoked with sex for sale. It would basically create the ABA/POMA in order to prevent women victimless crimes against people who are human rights activists from protesting the otherwise law-abiding citizens of society. APA!6 But the AHA would be more The Anti-Homosexuality Act problematic at a broader level in Few recent laws passed by the Parliament of that it would institutionalise homophobia Uganda have caused as much controversy as and thereby promote a culture of hatred the Anti-Homosexuality Act both domestically against LGBTI individuals. Like the ABA/ and internationally. Together with several other POMA and the APA, the AHA was motivated activists, I challenged the constitutionality of by hatred, discriminatory impulses, and the law on grounds, inter alia, relating to the the overarching desire to suppress and dominate political and civil society. It is 6 Kashmira Gander, ‘Uganda mini-skirt ban: Protests after women are assaulted and forced to undress in public,’ accessed at: http://www. in this respect that we have to turn independent.co.uk/news/world/africa/uganda-miniskirt-ban-protests- from only looking at the law to a critical after-women-are-assaulted-and-forced-to-undress-in-public-9155773.html accessed 6th Feb. 2014.

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 43 THE HUMAN RIGHTS ADVOCATE examination of the politics that led to the called ‘science’ over ‘emotion’ by setting passing of the Act, especially given that so up a panel of Ugandan scientists to advise much of the story has been told from the whether homosexuality was genetic or perspective of Western critics. behavioural.8 The presentation of the Panel’s report coincided with a retreat of ruling Law, Sex And Politics: Unveiling party MP’s where it became apparent that The Other Side Of The Story a second rival to the Presidential throne had When the Anti-Homosexuality Bill first made emerged, Prime Minister Amama Mbabazi, an appearance in 2009, the Government who was greeted on arrival at the meeting distanced itself from the action in the by chants of “Our Man!” claim that it was a private member’s bill. Subsequently, and following increased Returning briefly to the Panel, what did the pressure from Western governments, scientists commissioned by the President President Museveni met his party’s say? In a twelve-page report, the following Members of Parliament and advised them were the main conclusions of the study: that the matter had become a foreign policy issue which should be left to him a. There is no definitive gene responsible to resolve. For some unknown reason, for homosexuality; however, the President did not take concrete b. Homosexuality is not a disease; steps to stop the process of moving the Bill c. Homosexuality is not an abnormality; through the various stages of legislative d. In every society, there is a small number action. Thus, he was caught off guard when of people with homosexual tendencies; the Speaker of Parliament, Rebecca Kadaga— e. Homosexuality can be influenced by considered a potential rival for the office of environmental factors (e.g. culture, President in the 2016 elections—promised to religion, information, peer pressure); give Ugandans a ‘Christmas gift’ with the law f. The practise needs regulation like any and indeed passed it in a hastily convened other human behaviour, especially to session of the House on December 20, 2013. protect the vulnerable; and President Museveni was livid and chastised g. There is a need for studies to address the Speaker for passing a law without the sexualities in the African context. necessary quorum,7 but was now backed into a corner as Ugandan law states that Following the presentation of the report, all legislation must be assented to by the the President declared: “The scientists have President. The question became to sign or spoken: I will sign the bill,” to rapturous not to? applause from his partisan audience. Interestingly, the Presidential statement in In trying to balance what had become a relaying his decision to the Ugandan public domestically hot political potato with the stated: “Homosexuality is not a disease but growing external pressure from the West, merely an abnormal behavior which may be Museveni sought recourse in what he learned through experiences in life.”

7 See letter from the President of Uganda to the Speaker and members of Parliament, dated December 28, 2013, http://wp.patheos.com. What did this mean? First of all, the President s3.amazonaws.com/blogs/warrenthrockmorton/files/2014/01/ deliberately distorted the message which presidents-letter-on-the-ahb.pdf at p.3: accessed 7th Feb. 2014. ‘How can you “pass” law without the quorum of Parliament after it has been 8 pointed out? What sort of Parliament is this? How can Parliament be cf. SulaimanKakire (interview), ‘Fox Odoi: Why the Antigay Law is the one to break the Constitution and the Law repeatedly?’ Illegal,’ The Observer, March 24-25, 2014, at 23-24.

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the scientists had given him.9 Secondly, the corner by rivals within his own party who President clearly abandoned the key message are asking the question: Why not me? being sent by the scientists both about the Finally, the AHA fits precisely into what multiplicity of explanations for homosexuality has been described as the “Anwar Ibrahim and about the need for more sobriety on the Syndrome,”12 i.e., the use of sexual-oriented issue than the legal/punitive approach, and he legislation to penalize legitimate forms of substituted it with a political/populist message political opposition. It is only a short step that would earn him political points against his away for those who oppose President two main rivals for the presidency, Speaker Museveni—male or female—from being Kadaga and Premier Mbabazi. charged with aggravated homosexual rape. In sum, the AHA can be added to the Thus, although the debate about the APA and other arsenal of punitive laws to curtail the AHA has been mainly about sex, in my the expression of democratic opposition view that is not the real issue at stake.10 Rather, to the government of the day. the focus on sex served as a major point of distraction from more important issues of Conclusion governance and democracy. Focusing on sex— Although the preceding analysis has especially when it is represented as ‘deviant’ largely looked at the individual aspects or ‘abnormal’ as the President did—helped to of each of these l aws, there is a larger find a scapegoat for the larger problems of picture. In other words, by focusing in on governance and democratic failures that are the individual Acts, we could fail to see rife in contemporary Uganda. As Dr. Sylvia the forest for the trees. Taken together, Tamale points out: the enactment of these laws reveals a definite and clear pattern of desperate Intensive scrutiny, regulation and control measures in desperate times. It is not of non-conforming sexualities and gender surprising that such desperation has identities reflect both a deep historical culminated in proposals for a new law to connection to colonial structures of instill ‘Patriotism’ among Ugandans, which governance and marginalization, and to will simply add to the arsenal of legislation more contemporary attempts to control the deployable against political opponents. body. In this way, sexuality is deployed as a Nor is it surprising that there are rumors tool for perpetuating patriarchy, inequality, that the next round of constitutional and injustice and to consolidate the process amendments will target the age limit of of othering.11 75 years old — which President Museveni will cross during his next tenure in office. Focusing on sex also provides an escape route At the same time, the NRM government for a President who after 28 years in power is strenuously resisting any serious is finding himself increasingly backed into a discussion on reforming the skewed rules governing the electoral process. In the final 9 analysis, the spate of legislative action by Michael Balter, ‘Science Misused to Justify Ugandan Antigay Law,’ in Science (www.sciencemag.org), Vol.343, February 28, 2014, at p.956. the NRM government is not accidental; it 10 Godwin Murunga, ‘The Issue is Not Sex but the Social Consequences of simply represents the next stage of total Homosexual Acts,’ Saturday Nation, March 1, 2014 at 14. 11 dictatorship. Sylvia Tamale, ‘Standing, Sitting and Sleeping: Unveiling the Politics of Sexuality and Gender Identity in Africa,’Nelson Mandela Lecture on Human 12 Rights presented at the Pennsylvania State University, USA, November 2, Ibrahim was Deputy Prime Minister to Malaysian dictator Mahatir 2011, at 1-2. bin Mohamed and was charged with sodomy when he criticized the latter over his dictatorial methods of governance.

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CASE UPDATE I: NULLIFICATION OF THE ANTI-HOMOSEXUALITY ACT 2014: THE CASE OF PROF. J. OLOKA ONYANGO AND 9 OTHERS V. ATTORNEY GENERAL

HRAPF Legal Officer (c) Ms. Fridah Mutesi in the Constitutional Court during the hearing of a petition against the Anti- Homosexuality Act 2014.

The Petition doctor; and Jacqueline Kasha Nabagesera, he case of Prof. J. Oloka-Onyango Julian Pepe Onziema and Frank Mugisha, and 9 others v. Attorney General, who are all human rights activists. The TConstitutional Petition N0. 8 of two organisations are: Human Rights 2014 was filed on March 11, 2014 under Awareness & Promotion Forum (HRAPF) the auspices of the Civil Society Coalition and Centre for Health, Human Rights & on Human Rights and Constitutional Development (CEHURD). The case was Law. It challenges the constitutionality heard and judgment delivered on August of Uganda’s Anti-Homosexuality Act 1st 2014, leading to annulment of the law. 2014 (AHA) and its contravention of the fundamental human rights. This Background to the Petition challenge was brought before Uganda’s When the Parliament of Uganda passed Constitutional Court by eight citizens of the Anti-Homosexuality Bill 2009 without Uganda and two mainstream human rights quorum and with flagrant violations of organisations as petitioners. The individuals human rights, civil society and human are: Prof. J Oloka-Onyango of the School of rights advocates took these concerns to Law Makerere University; Hon. Fox Odoi- the President, who promised to deal with Oywelowo, Member of Parliament; Andrew Parliament on the matter. However, in what MujuniMwenda, Independent Journalist was viewed as a sudden change of heart, and Proprietor of The Independent News the President signed the Bill into law on Magazine; Prof. Morris Ogenga Latigo, February 24, 2014, thereby enacting the former Leader of Opposition in Parliament; AHA. Dr. Paul Nsubuga Semugoma, medical

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The AHA sought to “prohibit any form of (1) Any question as to the interpretation of sexual relations between persons of the same this constitution shall be determined by the sex; prohibit the promotion or recognition Court of Appeal sitting as the constitutional of such relations and to provide for other court. related matters.” It creates offenses that include: The offence of homosexuality, (2) A person who alleges that – aggravated homosexuality, attempt to commit homosexuality, aiding and abetting (a) an Act of parliament or any other law or homosexuality, conspiracy to engage in anything in or done under the authority of homosexuality, same sex marriage, promotion any law; or of homosexuality, procuring homosexuality by threats, and detention with intent to commit (b) any act or omission by any person or homosexuality. All the offences attract authority, sentences of five years to life imprisonment and heavy fines. Is inconsistent with or in contravention of a provision of this constitution, may petition The petitioners and the other persons who the constitutional court for a declaration to opposed the Act found it to be a direct attack that effect, and for redress where appropriate. on the right to freedom from discrimination, right to privacy, press freedom, freedom (3) Where upon the determination of the of expression, assembly and association, petition under close (3) of this article the right to property, right to equality before the constitutional court considers that there is law without discrimination, freedom from need for redress in addition to the declaration cruel, inhuman and degrading punishment, sought, the constitutional court may- and right to civic participation. It thereby contravened the Constitution of the Republic (a) grant an order of redress; or of Uganda and Uganda’s ratified obligations in international human rights treaties. Above (b) reference the matter to the high court to all, the Act institutionalised a culture of hatred investigate and determine the appropriate and legitimises discrimination against LGBTI redress. persons in society. The Act also suppressed individuals and groups legitimately working to These provisions apply to matters that promote human rights and democracy. call for constitutional interpretation. The Ugandan Constitution allows any person The legal basis of the petition or organization, even if that person is not This petition was filed in the Constitutional affected by a law, to bring a case against the Court of Uganda under Articles 137(1) & (3) (a) violation of the rights of another person and (b), (4) of Constitution of Uganda and the or persons. Constitutional Court (Petitions and References) Rules, S.I. 91/2005. The petition is also grounded in Article 2 of the Constitution, which provides that the Article 137(1) & (3)(a) and (b) and (4) of Constitution is the supreme law of Uganda the Constitution of the Republic of Uganda and that any law that is inconsistent with provide that: it is void to the extent of its inconsistency.

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Legal remedies sought It was heard and decided by a panel of The petitioners sought the following five Judges composed of: Hon. Justice remedies from the Constitutional Court: Mr. Stephen Kavuma, Hon. Justice Augustine Nshimye, Hon. Justice Ruby 1. A declaration that the Anti- Opio Awere, Hon. Lady Justice Solomy Homosexuality Act 2014 is unconstitutional; Balungi Bbosa and Hon. Justice Eldad Mwanguhya delivered its judgment and 2. Permanently staying the unanimously found that the passing of the operationalization of the Anti- Anti-Homosexuality Act 2014 without the Homosexuality Act 2014; required quorum was in contravention of the Constitution. That though the burden 3. Permanently staying the gazetting of proof to prove that there was no of the Anti-Homosexuality Act, 2014. This quorum was on the petitioners, there is an may be impossible since by the time the exception where the respondent does not petition was filed, the Act had been already expressly deny the allegations. They noted gazetted; that in this case, the Attorney General did not deny the allegation that there was no 4. Permanently prohibiting any person, quorum, and as such this fact was taken organization, company and/or entity to as admitted. Again since this was a civil write, publish, or mount a campaign against matter, the standard of proof was ‘balance adult persons who profess and engage in of probabilities’ and so the affidavits of Hon. consensual same sex/gender sexual activity Fox Odoi and the hansards were enough to among themselves as adults; prove the absence of quorum. The Court also found that the act of the Hon. Speaker of 5. Permanent injunction and/ Parliament of not entertaining the question or gagging order against persons, of quorum when it was raised was an illegality organisations, or companies restraining under the Parliamentary Rules of Procedure them from publishing, or writing in the print and this rendered the enacting process and and electronic media, including the internet, the resulting Act a nullity. The court did not articles, letters, against adult persons find it necessary to consider the other issues who profess and engage in consensual raised in the petition because this would same sex/gender sexual activity among be an academic exercise. themselves as adults, which may bring such persons into public ridicule, odium and With that judgment, the Anti- Homosexuality hatred; Act ceased being law in Uganda.

6. Any other relief that the Court may The Lawyers: deem fit The petitioners were represented by a team of Seven lawyers. These were: Ladislaus Results of the petition Rwakafuzi, Dr. Henry Onoria, Caleb Alaka, The petition against the Anti- Homosexuality Nicholas Opiyo, John Francis Onyango, Act was heard by the Constitutional court Adrian Jjuuko and Fridah Mutesi. on July 30th – 31st 2014. On 1st August 2014, the Court delivered its judgment in the The state was represented by Principal State petition. Attorney, Patricia Mutesi

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CASE UPDATE II: CHALLENGING THE ANTI-HOMOSEXUALITY ACT IN INTERNATIONAL COURTS: THE CASE OF HUMAN RIGHTS AWARENESS AND PROMOTION FORUM V. ATTORNEY GENERAL OF UGANDA, REFERENCE NO. 6 OF 2014

Some of the petitioners in court during the delivery of the ruling at the Constitutional Court.

The Reference obligations specified in and Peoples’ Rights. This case oon after the Petition the treaty. The Reference, has not yet been heard by the challenging the contendss that certain court. SAnti-Homosexuality provisions of Uganda’s Act was filed before the Anti-Homosexuality Act Legal Basis of the Constitutional Court, Human of 2014 are in violation of Reference Rights Awareness and Articles 6(d), 7(2) and 8(1) This petition was filed under Promotion Forum under the (c) of the Treaty, which Article 6(d), 7(2), and 30(1) of umbrella of the Civil Society require partner states to the Treaty for the Establishment Coalition on Human Rights enforce principles of good of the East African Community and Constitutional Law governance, democracy, and Rule 24 (1), (2), (3), (4) of (CSCHRCL) filed a reference the rule of law, social justice the East African Court of Justice before the East African Court and the maintenance Rules of Procedure 2013. of Justice. The Reference of universally accepted contends that Uganda is in standards of human rights. Article 6(d) of the Treaty for violation of the Treaty for These include the provision the establishment of the East the Establishment of the of equal opportunities and African Community stipulates East African Community gender equality, as well as the principles of the community by enacting the Anti- the recognition, promotion as: “Good governance Homosexuality Act 2014, and protection of human including adherence to the certain provisions of which rights in accordance with principles of democracy, the are inconsistent with the the provisions of the rule of law, accountability, African Charter on Human transparency, social justice,

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 49 THE HUMAN RIGHTS ADVOCATE equal opportunities, gender General References or any 6(d) of the Treaty to the equality, as well as the person under Articles 28, Establishment of the East recognition, promotion 29, 30 respectively of the African Community on and protection of human Treaty shall be instituted the principles of good and people’s rights in by lodging in the Court a governance, rule of law, accordance with the statement of reference.” social justice and the provisions of the African maintenance of universally Charter on Human and This reference argues accepted standards of Peoples’ Rights.” Article that in enacting the human rights, which 7(2) of the Treaty enjoins Anti-Homosexuality include provision of equal all partner states of the Act 2014, Uganda was opportunities and gender East African Community to: in contravention of equality as well as the “abide by the principles of the Treaty for the recognition, promotion and good governance, including Establishment of the East protection of human and adherence to the principles African Community that peoples’ rights in accordance of democracy, the rule of enjoins partner states to with the provisions of the law, social justice and the govern their populations African Charter on Human maintenance of universally on the principles of good and Peoples’ Rights; accepted standards of governance, democracy, human rights.” the rule of law, 2. A declaration that social justice, and the sections 7 and 13(1) and (2) Article 30 of the treaty maintenance of universally of the Anti-Homosexuality further states that: “Subject accepted standards of Act 2014 and its spirit of to the provisions of Article human rights, which encouraging homophobia 27 of this Treaty, any include provision of equal violate Article 7(2) of the person who is resident opportunities and gender Treaty for the Establishment in a Partner State may equality as well as the of the East African refer for determination recognition, promotion Community that enjoins by the Court, the legality and protection of human governments to abide by of any Act, regulation, rights in accordance with the rule of law, social justice directive, decision or the provisions of the and the maintenance action of a Partner State African Charter on Human of universally accepted or an institution of the and People’s Rights. standards of human rights; Community on the grounds that such Act, regulation, The legal remedies 3. Any other reliefs that directive, decision or sought the court may deem fit. action is unlawful or is The applicant seeks the an infringement of the following remedies from Current status of the provisions of this Treaty.” the court. application The Reference at the East The East African Court 1. A declaration that African Court of Justice of Justice Rules and section 1, 2, 4, 2(1)(c), 3(1) has not yet been fixed for Procedures (r.24) provide (b), 3(1)(e), 4(2) and 5(1) hearing. that: “A reference by a of the Anti-Homosexuality Partner State, the Secretary Act 2014 violate article

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APPENDIX: HRAPF’S WOMEN’S DAY 2014 PRESS STATEMENT THE RECENT LAWS AND EQUALITY FOR ALL WOMEN: ARE WE PROGRESSING OR RETROGRESSING?

very 8th of March, the world comes the United Nations General Assembly and together to mark International ratified by Uganda on 22nd July 1985. Article EWomen’s Day to celebrate the social, 1 of CEDAW states that “For the purposes political and economic achievements of of the present Convention, the term women while focusing world attention on ‘discrimination against women’ shall mean areas requiring further action. The first any distinction, exclusion or restriction International Women’s Day was held in 1911. made on the basis of sex which has the The theme for 2014 is Inspiring Change. effect or purpose of impairing or nullifying the recognition, enjoyment or exercise Human Rights Awareness and Promotion by women, irrespective of their marital Forum (HRAPF) joins the rest of the world status, on a basis of equality of men and to celebrate International Women’s Day women, of human rights and fundamental 2014 with a self-evaluation phrase: “The freedoms in the political, economic, social, recent laws andequality for all women: cultural, civil or any other field.” Are we progressing or retrogressing?” and a commitment to eliminate all forms of While Uganda has had progress in as far discrimination against all women through as equality of women is concerned, we are the law. witnessing a back track in the commitment to the protection and observance of human The struggle for equality of women started rights for all people, which obviously is more than a generation ago. Since then, it bound to affect rights of women as well. has generated positive gains, but the world A number of new laws have been recently is still unequal. This inequality is still curtailing passed, which have a detrimental effect on full equality for women and therefore the advancement of women and these are: instigates violence and abuse of their rights. The Anti-Homosexuality Act 2014: The In 1945, the Universal Declaration of Human law violates the rights of Ugandans including Rights (UDHR) was promulgated. The lesbian women and transgender women to Declaration stated that all human beings non-discrimination, dignity of the person are born free and equal in dignity and rights and privacy. It legitimises hatred, violence and that everyone is entitled to all the rights and the persecution of marginalised groups. and freedoms set forth therein, without It restricts civil society space for human distinction of any kind, including distinction rights organisations, prohibits dialogue based on sex. The human rights regime and suffocates freedom of expression is therefore a booster to the struggle for and association for the very organisations equality of women. that have fought so hard for the rights of women. It also discourages health service On 18th December 1979, the Convention on providers from handling sexual and the Elimination of All Forms of Discrimination reproductive health issues for women who against Women (CEDAW) was adopted by may be regarded as lesbian or transgender,

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through the largely far reaching provisions society by culture and history. The section on aiding, abetting, procuring and counseling reinforces power imbalances and inequalities as well as promotion of homosexuality. among marginalised Ugandans, rather than addressing them by subjecting the The Anti-Pornography Act 2014: investigation of cases concerning minorities Expressly and implicitly, the law mainly to the views of the majority. This section focuses on women, and has indeed seen was challenged in the case of Jjuuko Adrian vigilante groups of youth all over Uganda vs. Attorney General of 2009 but judgment undress or attempt to undress women. The has not been delivered to date. law has taken the country steps back in the struggle for equality and empowerment of Other equally detrimental laws are being women. It takes us back to a period where considered by Parliament. These include women were restricted on what to do, the HIV/AIDS (Control and Prevention) Bill including what they can wear and how they 2010, which undermines patients’ rights, can present themselves. dignity of the person and general human rights principles which should underpin The Public Order Management Act 2013: any legislation in a democratic society. This restricts the space available to women Provisions for mandatory testing and forced and other persons to discuss political issues. disclosure of test results violate the right It is a direct attack on the freedom of to privacy under Article 27 and personal assembly and expression and it limits the dignity under Article 24 of the Constitution. citizen’s role in governance and demanding Practically, these provisions could have for accountability from the state contrary a counter-productive effect with people to article 29 of the Constitution on freedom avoiding public health facilities and resorting of expression, assembly and conscience. to informal and unlicensed establishments, It should be recalled that the women’s which may frustrate the purpose and spirit movement has achieved what they have of the bill. Since women are the majority achieved because of expression of their users of the testing services, this may have point of view through demonstrations an everlasting negative effect on their and awareness. An example is the recent health. stoppage of a protest over the Anti- Pornography Act in Kampala which was led As we celebrate this year’s Women’s Day, by women. let us all remember that the struggle for equality of women has been shaped through The Equal Opportunities Commission human rights and the law. Enacting laws Act 2007: This includes Section 15(6)(d) that may bring about marginalisation and which prevents the Equal Opportunities discrimination of women is something Commission from investigating matters that we should desist from if women are involving behaviour that is regarded to attain full equality. ‘immoral and socially harmful’ or ‘unacceptable’ by the majority of the We therefore call upon the government to cultural groupings and social communities repeal these laws or the particular provisions in Uganda. This provision undermines of these laws that promote discrimination the very object and purpose for which against women and other marginalised the Commission was set up, which is groups. to redress power imbalances created in

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ABOUT HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) Legal status Human Rights Awareness and Promotion Forum - Uganda (HRAPF) is an independent, nonpartisan, non-governmental organisation. It is incorporated under the laws of Uganda. HRAPF is specifically interested in human rights awareness and advocacy for the most marginalised in society. It works with likeminded organisations and institutions to further its interest. It employs legal and policy analysis, legal aid, legal research and documentation, and strategic litigation to further these ends.

VISION: A society where the human rights of all persons including marginalised groups are valued and respected

MISSION: To promote respect and observance of human rights of marginalised groups through legal and legislative advocacy, research and documentation, legal and human rights awareness, capacity building and partnerships.

SLOGAN: ‘Taking Human Rights to all’

ORGANISATIONAL OBJECTIVES: 1. To sensitise Ugandans on the international and national human rights regime in order to promote a culture of respect for human rights of marginalised groups. 2. To undertake research and document human rights abuses suffered by marginalised groups for appropriate remedial action. 3. To influence legal and policy developments in Uganda to ensure compliance with human rights principles. 4. To offer legal assistance to marginalised groups in order to enhance access to justice. 5. To share information and best practices on the rights of marginalised groups in order to strengthen the human rights movement in Uganda. 6. To network and collaborate with key strategic partners, government, communities and individuals at a national, regional and international level. 7. To build a strong and vibrant human rights organisation.

VALUES: 1. Non-discrimination 2. Equal opportunities 3. Justice 4. Practical Approach 5. Team work

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PROGRAMS 1. Access to Justice Program The objective of this program is ‘To promote sustainable access to justice for marginalised groups in Uganda specifically: sexual minorities, poor women and children living with HIV/AIDS and poor men and women and the elderly’.

It focuses on: criminal justice, land justice, family justice (HIV/AIDS related) and sexual and gender-based violence.

The program employs: legal assistance, strategic interest litigation, research and documentation, legal and human rights education and information, education and communication material development, and legal aid advocacy to achieve its objectives.

2. Legislative Advocacy and Networking Program The objective of this program is ‘To work with likeminded organisations and institutions to advocate for and influence the adoption of polices and legislation that promote equality and non-discrimination in order to prevent discrimination of marginalised groups.’

Under this program, HRAPF undertakes advocacy to influence legislative reform of laws/proposed bills such as: the Anti-Homosexuality Bill, 2009, the HIV/AIDS Prevention and Control Bill, 2010, the Equal Opportunities Commission Act, 2007, Sexual Offences Bill, the Public Order Management Bill, 2009, and the Legal Aid Bill, among others.

The program employs: legal and policy analysis, legal research and documentation, strategic interest litigation, and partnerships to achieve its objectives.

3. Organisational Development and Capacity Building Program as described below: The Objective of this program is to create the appropriate institutional structures and organisational framework for the efficient and effective implementation of the program activities and realisation of the program Goal.

It focuses on five priority areas: Policy Development, Human Resource Management and Development, Strengthening Governance Structures & Building membership, Strengthening HRAPF’s Monitoring and Evaluation Systems, and Increasing Resources for Increased Needs.

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ORGANISATIONAL STRUCTURE The General Assembly This is the supreme policy-making body of the organization. It is made up of all members. Currently HRAPF has 50 members. Membership is open to all persons interested in human rights awareness, promotion and advocacy.

The Board of Directors (BOD) The BOD is responsible for the day-to-day running of the organisation. The BOD is composed of seven members: the Chairperson, who is a co-opted member, the Vice Chairperson, the Secretary General, the Treasurer, two other members, and the Executive Director as ex-officio.

The Secretariat This is the implementing body of the Organisation. It is headed by the Executive Director and is currently made up of 19 staff members.

HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF) www.hrapf.org | [email protected] 55 CONTACT INFORMATION Human Rights Awareness And Promotion Forum (HRAPF) Plot 390 Prof. Apolo Nsibambi Road, Namirembe, Kampala. P. O. Box 25603, Kampala. Tel: +256-414-530683 / +256-312-530683 Email: [email protected] Website: www.hrapf.org