Any semblance of the rule of law was out of the window the minute President Yoweri Museveni signed the Anti-Homosexual Bill into law in February 2014 in Uganda. Spearheaded by MP David Bahati, this private members bill was introduced in the Parliament in 2009 with a view to “strengthen the nation’s capacity to deal with emerging internal and external threats to the traditional heterosexual family.” During the passage of this bill basic principles such as participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency seemed to have been empty words for the legislators of this law.
The Act, which is divided in 4 parts, prohibits homosexual activity and prescribes punishment of imprisonment up to life for offences falling under the head of “Aggravated Homosexuality”. The law also details punishments for “repeat offenders”, whatever that is supposed to mean. This expanded criminalisation of homosexual conduct has been brought about after citing certain baseless reasons such as homosexuality is un-African, it is mutable and is merely a mental disorder, that it is necessary in order to curb HIV/AIDS, that it is necessary to protect the traditional African family units etc.
Funnily enough, the African idea of “family” means “to be embedded in the community.” According to the Ubuntu philosophy people are truly human only when they affirm the humanity of others. In this scenario, the legislators have not only strayed far away from this philosophy but also defiled it. They harness a misplaced belief that this law is in place to protect the cherished culture of the people, their legal, and religious and traditional values against the attempts of sexual rights activists seeking to impose their “values of sexual promiscuity.” Moreover, they seem to be under the impression that there is a massive “recruitment drive” by the LGBTI community which targets children and intends to erode into the family unit with their western lifestyle.
Where is this coming from?
Sadly, Uganda is not the only nation to have such views. A few months ago a seasoned leader in Indian politics said that rape was merely a misdemeanour and that “boys will be boys”. With this is mind, it is disheartening to hear that the stand on homosexuality is extremely harsh. Like the right-wing religious extremists in India, the US conservatives have a strong role to play in this resurgence of hate for homosexuals in Uganda and other African nations. Homosexuality has been linked to paedophilia, ritual child murder, corruption in the opposition parties, pornography and other social ills. And let’s not ignore the extremely “sound” finding that the homosexuals were responsible for the Nazi Holocaust. Yes, you read that right. Scott Lively claims this in his book, “The Pink Swastika”, which he religiously promoted at a seminar in Uganda.
Majority of the people in Uganda have been goaded into believing that homosexual behaviour is an import from the western world and is “un-African”. Unless time travel has been invented, the cave paintings in Zimbabwe beg to differ.
Contrary to popular belief, Christian and Islamic forces oppressed the indigenous social and religious systems and paved a new path for taboos and stigma that have won against time for survival. And of course, the colonisers have long since moved on from this callous and oppressive legal idea. Uganda, however, is more resolute than ever to bring down this so called movement and “cure” the homosexuals; 96% of the population remains intolerant of homosexuality, and the minister for ethics and integrity went on record to say that rape of underage girls by men is way more natural and acceptable than homosexuality. From this, it seems to me that the African condemnation of homosexuality is an attack on the west rather than an avowal about human sexuality.
The penal code in Uganda already criminalises “carnal knowledge against the order of nature,” but the new law has taken some giant strides in the wrong direction by criminalizing various forms of same-sex conduct, with life imprisonment. It has provisions for punishment for “promotion of homosexuality” which puts legitimate public health work at risk of criminal prosecution. The buck does not stop there, it goes further on and usurps extra-territorial jurisdiction and provides mandates for extradition of offenders. And if that wasn’t sufficiently irrational, the blatant disregard for fundamental rights to freedom of expression, association, and privacy make up for it.
It is interesting to note that the President, prior to signing the bill, set up a scientific inquiry in to the question whether homosexuality is inborn. The report, which was published in the form of a press release summarized the findings, essentially stating that there was no genetic linkage when it comes to sexual orientation. Incidentally, these findings are almost completely hogwash, as proven by the American Association for the Advancement of Science. There is fresh evidence which shows that there is molecular linkage between male sexual orientation and a specific genetic region. Curiously, the Ugandan scientists have declared that their findings were distorted and misrepresented and that the President was to sign the bill regardless of their report.
But the most remarkable aspect of this whole charade is the impeccable timing of the debates on the Anti-homosexuality Bill when some different pressing and more vital problems were begging for attention. In February 2012, the President signed an agreement with a company named Tullow Oil despite a parliamentary moratorium on new oil production-sharing agreements and within 3 days the Anti-Homosexuality Bill was re-introduced in the Parliament. Several similar incidents point towards the possibility that the Government used the Anti-Homosexuality Bill as a diversion tactic in order to avoid public scrutiny.
Justice has a long way to go
In August 2014, when the constitutional court declared the Act null and void, it did so based on a mere technicality of insufficient quorum. It is my opinion that this annulment came with a view to appease the International community’s furore over the passing of this bill; The World Bank, US and several European countries, including Sweden, the Netherlands, Norway and Denmark have either suspended the funding or redirected it to non-governmental institutions. However, an appeal has already been filed to the Supreme Court, and the law makers are now gunning to re-pass the bill. In such a hurry to pass this law, rules of procedure are merely blurred lines.
What the court cannot control, however, is the mass movement against homosexuals in Uganda. Hence, the question of effectiveness of this law becomes essentially moot as public vigilante justice enters the scenario. As of now, no one has been prosecuted under this discriminatory and ambiguous law, but several arbitrary arrests, police extortion, loss of employment, evictions, and homelessness have taken place. Moreover, health providers were instructed to reduce essential services for LGBTI people. Frightening as it is, the corrupt government continues to feed this everlasting fire of hatred. It does not realise that the impact of this overturned legislation is far reaching and in certain cases irreversible.
Where the international community prescribing sanctions is the microscope, the fight against HIV/AIDS is the ant under it. Research and treatment efforts may be effectively covered under the provisions of ‘promotion of homosexuality’, which may invite prosecution under this vile law. The key to successful HIV programming is non-discriminatory access to sexual health services. Based on ample medical and scientific evidence, it is safe to say that criminalisation of homosexuality has severe adverse consequences for HIV programming and hence, public health in general. The move to expand criminalisation through the Act can only aggravate the situation in Uganda.
Personally, I think this Act is not only bad in law but also irrational, unjust and absurd. There is no justification for the expansion of criminal sanctions against a small group of already marginalised people. Furthermore, the procedural aspect of this inane law seems to have been overlooked completely, affording a free hand to various institutions such as the police or in this particular case, the public at large.
Not only is the Act in violation of Uganda’s own constitution along with International Human Rights Treaty obligations, but also of principles of natural justice. The only saving grace in this picture is the liberal attitude of the courts which keep the hope of the rule of law alive.
The need of the hour is for the African scientists to carry out research that will stand strong against the tide of irrational and unbiased views on human sexuality. Furthermore, it is necessary to broaden the political analysis of anti-homosexuality law to include an analysis of the interests of politicians who propose and advocate for these laws. Apart from being a direct blow to the human rights of the minority population, this legislation is a ploy to distract citizens from contentious political issues. And a clever one at that.