(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Despite stark worldwide condemnation, the Anti-Homosexuality Bill proposed by MP David Bahati to the Ugandan Parliament in 2009 has resulted in the adoption of the Anti-Homosexuality Act 2014, following its signature by President Yoweri Museveni on 24 February 2014.
A team of 10 petitioners, including academics, journalists, MPs from both governing party and opposition, as well as human rights activists, challenged the 2014 Act before the country’s Constitutional Court. Following a ruling of 1 August 2014, Uganda’s Constitutional Court declared the Anti-Homosexuality Act 2014 null and void. The annulment of the new statute was pronounced on technical grounds, namely on the basis that the bill had been passed in December 2013 without the requisite quorum in Parliament.
The (void) Anti-Homosexuality Act 2014:
Under section 2 of the Act:
(1) A person commits the offence of homosexuality if—
(a) he penetrates the anus or mouth of another person of the same sex with his penis or any other sexual contraption;
(b) he or she uses any object or sexual contraption to penetrate or stimulate sexual organ of a person of the same sex;
(c) he or she touches another person with the intention of committing the act of homosexuality.
(2) A person who commits an offence under this section shall be liable, on conviction, to imprisonment for life.
Under, section 3 of the Act, referring to the offence of ‘aggravated homosexuality’:
(1) A person commits the offence of aggravated homosexuality where the—
(a) person against whom the offence is committed is below the age of eighteen years;
(b) offender is a person living with HIV;
(c) offender is a parent or guardian of the person against whom the offence is committed;
(d) offender is a person in authority over the person against whom the offence is committed;
(e) victim of the offence is a person with disability;
(f) offender is a serial offender; or
(g) offender applies, administers or causes to be used by any man or woman any drug, matter or thing with intent to stupefy or overpower him or her so as to enable any person to have unlawful carnal connection with any person of the same sex.
(2) A person who commits the offence of aggravated homosexuality shall be liable, on conviction, to imprisonment for life.
(3) Where a person is charged with the offence under this section, that person shall undergo a medical examination to ascertain his or her HIV status.
The final Act no longer punished the offence of ‘aggravated homosexuality’ with the death penalty, as was initially proposed by the 2009 bill.
The Anti-Homosexuality Act 2014 laid down a number of other criminal offences, including the ‘promotion of homosexuality’. Under section 13:
(1) A person who—
(a) participates in production, procuring, marketing, broadcasting, disseminating, publishing of pornographic materials for purposes of promoting homosexuality;
(b) funds or sponsors homosexuality or other related activities;
(c) offers premises and other related fixed or movable assets for purposes of homosexuality or promoting homosexuality;
(d) uses electronic devices which include internet, films, mobile phones for purposes of homosexuality or promoting homosexuality; or
(e) who acts as an accomplice or attempts to promote or in any way abets homosexuality and related practices; commits an offence and is liable, on conviction, to a fine of five thousand currency points or imprisonment of a minimum of five years and a maximum of seven years or both fine and imprisonment.
(2) Where the offender is a corporate body or a business or an association or a non-governmental organization, on conviction its certificate of registration shall be cancelled and the director, proprietor or promoter shall be liable, on conviction, to imprisonment for seven years.
Despite the welcome annulment of the 2014 Act, same-sex sexual acts remain illegal in Uganda, given that previous criminal provisions remain in force.
The law currently in force:
Under article 145 of the Penal Code 1950 (under chapter XIV – ‘Offences against morality’):
‘145. Unnatural offences.
Any person who—
(a) has carnal knowledge of any person against the order of nature;
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her
against the order of nature, commits an offence and is liable to imprisonment for life.’
Cases C-199/12, C-200/12 & C-201/12 X, Y & Z v Minister voor Immigratie en Asiel (7 November 2013): the Court of Justice of the EU (CJEU) ruled that a homosexual man fleeing Uganda had a well-founded fear of persecution for reasons of membership of a particular social group under the EU Qualification Directive on grounds of his sexual orientation, given that criminal laws against homosexuality are enforced in the country.
The CJEU also affirmed that an applicant is not required to live discreetly in the country of origin to avoid persecution.
Note that the ruling was handed before the stricter criminal penalties under the Anti-Homosexuality Act 2014 were approved.
Re X (2013) CanLII 91131: the Canadian Immigration and Refugee Board granted refugee status to a Ugandan bisexual man on the basis of his sexual orientation.
Two gay men who received death threats and were victims of beatings in Uganda for being homosexual fled to Sweden where they were reunited and married in 2011. One of the men – Jimmy Sserwadda had been granted asylum in 2008. Lawrence Kaala, his long-term partner in Uganda initially was not. The asylum decision was appealed and Mr Kaala was also granted asylum in March 2013.
A 27 year old Ugandan women, whose family was murdered because she was a lesbian, was granted asylum in South Korea in 2013.
Previous Case Law
Further relevant rulings from the US, UK, Australian and Canadian jurisdictions can be found in the October 2014 ORAM report.
PUBLIC ATTITUDES AND/OR STATES’ CAPACITY TO PROTECT
The enactment of the Anti-Homosexuality Act 2014 caused public uproar across the international community. A number of aid donor states such as Sweden, Denmark, Norway and the Netherlands have suspended aid to Uganda, while the World Bank has postponed foreseen loans to the country, in response to its newly introduced legislation. However, President Museveni shunned sharp international criticism and backed the new Act on the ground that, according to scientific evidence, no one is born homosexual.
The annulment of the Anti-Homosexuality Act 2014 by the country’s Constitutional Court is certainly an encouraging development. Ultimately, however, the Ugandan government is likely to appeal against the ruling before the Supreme Court or even submit a new bill in Parliament in the near future, according to Human Rights Watch. Recently, the Herald has reported that legislative work on anti-homosexuality restarted in September 2014, with two MPs granted leave to prepare a new Bill. The same report estimates support from 254 out of 276 MPs, thereby exceeding the requisite one-third quorum and majority vote in Parliament (for want of which the 2014 Act was declared unconstitutional in August 2014).
According to November 2014 reports, a new Anti-Homosexuality Bill is currently being drawn up, with a view to being presented before the Parliament by the end of the year. The new proposed Act outlaws the ‘promotion of homosexuality’ and imposes a sentence of imprisonment of up to 7 years. Activists are have expressed deep concerns as to the repressiveness and far-reaching scope of this new prohibition on the ‘promotion’ of homosexuality.
The Ugandan President has referred to gay people as ‘deviants’ and his wife has insinuated that homosexuality is being brought about by Western influence: ‘You (Westerners) have imposed on us enough of your bad practices, right from guns, and we shall not allow homosexuality in Uganda because the Bible forbids it’. Upon signing the 2014 Act, President Museveni sought to ‘demonstrate Uganda’s independence in the face of Western pressure and provocation’ according to BBC.
However, many commentators draw attention to the influence of the American evangelical Christian movement on the development of the Anti-Homosexuality Act. Pepe Onziema, transgender activist and programme director of SMUG (see below) in fact filed a law suit against American evangelist Scott Lively in the U.S. due to his perceived role in inciting persecution against homosexuals in Uganda.
The UK Border Agency Operational Guidance Note Uganda (March 2013) notes that LGBTI persons in Uganda face ‘societal harassment, discrimination, intimidation, and threats to their well-being’ and that ‘the Ugandan authorities do not provide gay men, lesbians and bisexuals or those perceived as such with effective protection’. (3.11.13). The UK Home Office Country Information and Guidance (August 2014) reiterates that homosexual persons face persecution for reasons of their sexual orientation in the country. According to an October 2014 Amnesty International report, mob attacks and harassment have intensified in the country 2014, thereby leaving LGBTI persons exposed to high risks of violence by both state and non-state actors. The same report found that the Anti-Homosexuality Act, along with similarly repressive legislative instruments such as the Public Order Management Act 2013 and the Anti-Pornography Act 2013, has led to human rights abuses and greater targeting of LGBTI populations by non-state actors.
An October 2014 country of origin report by the Organization for Refuge, Asylum and Migration (ORAM) also provides evidence of persecution of LGBTI populations through widespread harassment and discrimination by state and non-state actors.
In October 2010 ‘Rolling Stone’ a Ugandan newspaper published the name, addresses and photos of 100 homosexuals under a yellow banner reading ‘hang them’. David Kato, a high profile campaigner for the rights of the LGBTI community successfully sued the newspaper. However, in January 2011, soon after his court win, David Kato was found murdered. The European Parliament issued this resolution regarding Kato’s murder in February 2011.
David Kato’s story, along with those of others who face persecution in Uganda due to the sexual orientation and gender identity, has been made into a film ‘Call Me Kuchu’ reviewed here. The film highlights the role of the Evangelical movement in strengthening the homophobic attitudes within the country.
Despite the above court ruling which prohibited the publication of names and photos of people claimed to be homosexual, a Ugandan newspaper publicly named the country’s ‘200 top homosexuals’ a day after the President signed the Anti-Homosexuality Act.
The Civil Society Coalition on Human Rights and Constitutional Law Uganda were active against the Anti-Homosexuality Act and there is a wealth of information available on their website including a press release from SMUG calling for the Ugandan government to be more stringent in monitoring the press as private details of homosexuals, that can put them in grave danger, are still being published. In May 2011 the Civil Society submitted a statement to the Legal and Parliamentary Affairs Committee of Uganda’s parliament on 9th May 2011 condemning the Anti-Homosexuality Bill of 2009 as unconstitutional. The statement includes a list of organisations that make up the Coalition in the introduction to the statement and details of how the Bill violates the constitutionally protected rights to: freedom of speech, religion and conscience, assembly and association. A compilation by the Civil Society is available here in full with details of the Bill and responses to it.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
NGOs supporting LGBTI populations face increasing pressure from the government for ‘promoting homosexuality’.
Human Rights Awareness and Promotion Forum - Uganda (HRAPF)
+256 (0)414 530683
Plot 390, Professor Apolo Nsibambi Road,20 metres off Balintuma Road
P.O. Box 25603 Kampala, 0256 Uganda
African Men for Sexual Health and Rights (AMSHeR)
Tel: +27 11 482 4630
Email: infoamsher [dot] net
This organization keeps a list of lawyers in various African countries who are available to assist LGBTI people on a confidential basis. For such assistance, write to Kene Essoom (kene [dot] esomgmail [dot] com).
Civil Society Coalition on Human Rights and Constitutional Law
Sexual Minorities Uganda
COUNTRY OF ORIGIN SPECIALISTS (COIs)
kene [dot] esomgmail [dot] com
Kenechukwa Esom is a practising lawyer and a member of the Nigerian Bar. He has an LLM in Human Rights and Democratisation in Africa from the Centre for Human Rights, University of Pretoria. He was involved with refugee rights issues in Uganda since 2006, first as a researcher on the rights of refugee children, and then as a Coordinator of the Child Rights/Protection Programme and Community Interpretation Programme at the Refugee Law Project. Kene is currently working with the African Men for Sexual Health and Rights (AMSHeR).
Melissa Minor Peters
Melissa Minor Peters recently completed a PhD in Anthropology and a Masters in Public Health at Northwestern University. Her dissertation is the first in-depth study of lesbian, gay, bisexual, and transgender (LGBT) people in Uganda. Dr. Minor Peters’ research took place as Parliament drafted, debated, and passed Uganda’s Anti-Homosexuality Act. She focuses particularly on the daily lives of transgender people in Kampala, analyzing the everyday practices through which they balance visibility and risk.
Researched by: Minos Mouzourakis
Email: minosmouzourakisgmail [dot] com