49 A Human Rights Impact Assessment of the Ugandan Anti-homosexuality Bill 2009 Sylvia Tamale On 14 October 2009, the Anti-homosexuality Bill was introduced before the parliament of Uganda. The Bill received international criticism from human rights organisations and states alike. If passed, the Anti-homosexuality Bill would legitimise, institutiona- lise, increase and perpetuate the profound discrimination and gross inequality suffered by lesbian, gay, bisexual and transgender (LGBT) people in Uganda today. On 18 November 2009, Dr. Sylvia Tamale, Professor of Law and Trustee of The Equal Rights Trust, delivered this speech at Makerere University, Kampala, assessing the im- pact that this Bill would have on human rights. I would like to thank the Human Rights and Peace Centre for inviting me here this after- the struggle for human rights over the years; noon to share my views on this bill. It is great hatred and discrimination that has affected that HURIPEC organised this to be a dialogue iii. Third, I will highlight the social meaning and not a debate because debates have a of the bill; and tendency to polarise and divide along irra- iv. Finally, I shall put on my legal hat and out- tional gut-level responses. A dialogue, on the line the legal implications that this bill holds other hand, usefully sets the stage for people for our country if passed into law. to listen to each other with understanding and tolerance and helps build bridges. I hope 1. Common Issues of Concern stepping stone for all of us to embark on a I have scrutinised the bill thoroughly and the rewardingthat this public journey dialogue of mutual will respect, mark the simple first Honourable Member of Parliament David decency and fairness. Bahati will be surprised to learn that I share some of his convictions. For example, Hon. Mr. Chairperson— Bahati, I share your desires as expressed in the preamble to the bill: My brief talk this afternoon is divided into 1. To strengthen the nation’s capacity to deal four sections: with emerging internal and external threats to the family unit. It is nevertheless impor- i. First, I will address issues of mutual con- tant to point out that most of these can hardly cern that I share with Hon. Bahati [the MP be fought through the regulatory mechanism who introduced the Anti-homosexuality Bill of the law; – editor's note]; 2. To protect the cherished culture of the ii. Secondly, I will open the window of his- people of Uganda, particularly the positive aspects of it; tory and offer us a glimpse of the politics of The Equal Rights Review, Vol. Four (2009) 50 3. To protect Ugandan children and youth d) Levirate marriages where a man inherits who are vulnerable to sexual abuse and ex- his dead brother’s wife were a customary re- ploitation—whether the abuse is hetero- or quirement in many African communities. homosexual. While these may have been cultural practices I do not have the time and space this after- at some point in our history, it is also impor- noon to engage in a detailed sociological dis- tant to recognise that family institutions all cussion of the concept that the bill refers to over the world are undergoing rapid trans- formation. The changes that we see in this it is my humble opinion that the concept basic unit of society are the result of many needsas the “Traditionalto be unpacked African and Family”. scrutinised. However, Mr. factors, including economic crises, an in- Chairperson, as you very well know, Africa is creasing number of working mothers, tech- a vast continent with an extremely rich and diverse cultural history. Indeed, it would be natural disasters, globalisation, migration, next to impossible to mark a particular insti- thenological HIV/AIDS advancements, pandemic, etc. armed Many conflicts, of these tution as the one and only “Traditional Afri- changes and indeed the evolution of culture cannot be halted, certainly not through law. Ican will Family”. cite just a few examples to demonstrate Perhaps the undisputed value that is a com- that matrimonial relations among various mon denominator in all traditional insti- tutions of the family in Africa is the group deal: solidarity that we have embedded in our ex- African communities have differed a great tended family networks. Unfortunately, the support, stability, love and respect that were traditionally taboo among the Baganda, mar- the hallmark of this family model are rapidly riagesa) While among marriage blood-related between firstkin were cousins consid was- being eroded and will soon become history. ered the best unions among the Bahima here in Uganda; Thus, while I agree with you, Hon. Bahati, that we must seek ways of dealing with is- b) There is the phenomenon of chigadza- sues that threaten our families, I do not agree mapfihwa where the family of a barren wife that homosexuality is one of those issues. Mr. among the Ndaus of Zimbabwe would "do- Chairperson, ladies and gentlemen, what is- nate" her brother’s daughter to her husband sues currently threaten our families here in to become a co-wife and bear children on be- Uganda? I will name a few: half of the barren woman; a) Blood-thirsty Ugandans and traditional c) Practices of non-sexual woman-to-woman healers that believe that their good fortune marriages among various African customs, will multiply through rituals of child sacri- for example the Nandi and Kisii of Kenya, the Igbo of Nigeria, the Nuer of Sudan and the Kuria of Tanzania for purposes of coping b)fice; Rapists and child-molesters who pounce with various reproductive, social and eco- on unsuspecting family members. Research nomic problems; shows that over 50% of child sexual abuse undertaken by the NGO Hope after Rape The Equal Rights Review, Vol. Four (2009) 51 reports involve children below ten years of i) Rising poverty levels and growing food age, and the perpetrators are heterosexual insecurity which lead to hunger, disease, suf- men who are known to the victims;1 the latest report from the Uganda Bureau of c) Sexual predators that breach the trust Statisticsfering and show undignified that over living. 60% Figuresof Ugandans from placed in them as fathers, teachers, religious living in rural areas live below the poverty leaders, doctors, uncles, and sexually exploit line.6 young girls and boys. A 2005 report by Rais- ing Voices and Save the Children revealed I do not see how two people who are in a lov- that 90% of Ugandan children experienced ing relationship and harming no one pose a 2 threat to the family simply because they hap- pen to be of the same sex. The argument that d)domestic Abusive violence partners and who defilement; engage in domestic homosexuality is a threat to the continuity violence, whether physical, sexual or emo- of humankind and that it will lead to the ex- tional. The 2006 national study on domes- tinction of human beings in the world simply tic violence by the Law Reform Commission does not hold water because there are too - many heterosexuals in the world for that to sive in our communities. Sixty-six percent of become a reality. How many of you in this peopleconfirmed in all that regions domestic of Uganda violence reported was perva that domestic violence occurred in their homes time soon?... So, just as the priests, nuns and and the majority of the perpetrators were monksroom would who are “convert” sworn toto a homosexuality life of celibacy willany 3 The Uganda not cause the extinction of humanity, homo- Demographic Health Survey of 2006 put the sexuals will not either. “male heads of households”.4 2. Lessons from History e)figure Parents slightly who higher force at 68%; their 14-year old daughters to get married in exchange for Anyone who cares to read history books bride price and marriage gifts; knows very well that in times of crisis, when people at the locus of power are feeling vul- f) A whole generation of children who were nerable and their power is being threatened, either born and bred in internally displaced they will turn against the weaker groups in persons camps or abducted by the Lords Re- society. They will pick out a weak voiceless sistance Army (LRA) in the northern sub-re- group on whom to heap blame for all society’s troubles—refugees, displaced populations, stateless persons a.k.a. illegal immigrants, g)gion The of millionsKitgum, ofGulu children and Pader orphaned districts; by HIV/ minorities with no status, children, the poor, AIDS. The Uganda Aids Commission puts the the homeless, commercial sex workers, etc. cumulative number of orphans due to AIDS at 2 million;5 point: I will offer a few examples to illustrate this h) The all-powerful patriarchs that demand ■ In Uganda, colonialists at various times total submission and rule their households blamed traditional chiefs and elders as well with an iron hand; as Muslims as the main impediments to progress and civilisation; The Equal Rights Review, Vol. Four (2009) 52 ■ Dictator Idi Amin blamed Asians for Ugan- where did the idea of destroying homosexu- da’s dire economic problems and expelled all ality come from? As his Excellency President Indians in the early 1970s; Museveni pointed out at the inaugural Young Achievers Awards Ceremony last weekend, ■ homosexuals existed prior to the coming of threatened during his second regime in Europeans to Uganda. According to the Presi- the When early Milton 1980s Obote’she embarked political on power a deliber was- dent, “[t]hey were not persecuted but were ate campaign of hostility towards refugees not encouraged either".8 The idea of destroy- in Uganda, particularly those of Rwandese ing homosexuality came from colonialists.