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The New Ugandan Anti-Homosexuality Bill

On 20th December 2013 the Ugandan Parliament enacted a law titled “The Anti-Homosexuality Bill”. Proposed in late 2009 by MP David Bahati, the original draft provided for life imprisonment for the offense of “homosexuality” and for the death penalty for crime of “aggravated homosexuality”, including execution of “repeat offenders” of homosexuality. Because of the latter provision, the text was immediately dubbed “Kill-the-Gays Bill”.

Due to the pressures of certain Western nations such as the United States, Canada and the United Kingdom, which threatened to retire their financial aids to the country, the Bill was suspended in 2011 and the text was redrafted by taking the death penalty out of it. Nevertheless, almost by surprise, the Bill was eventually passed by the Parliament in 2013. As Parliament Speaker Rebecca Kadaga accidentally stated, it is a “Christmas gift” to Ugandans, who strongly demanded it. Currently, the Bill is awaiting signature by Ugandan President Yoweri Museveni, who in one instance declared not to be substantially interested in the Bill’s final passing.

The Anti-Homosexuality Bill establishes that having homosexual relations of any kind is a crime under Ugandan law.

First, as mentioned above, it provides for life imprisonment for having sex with a person of the same sex. The targeted sexual activities are epitomized quite precisely, almost obsessively indeed, by Article 2. Pursuant to this provision, even simple “touch … with the intention of committing the act of homosexuality” amounts to a crime. Furthermore, Article 3 punishes “aggravated homosexuality”, that occurs, inter alia, when the “victim” of the offense is a minor, when the offender is infected with HIV and when “the offender is a serial offender”. The typical sanction for these conducts is, after the deletion of the death penalty from the draft, life imprisonment. Medical examination for determining the HIV status is compulsory for the individual accused of aggravated homosexuality.

The Bill also punishes with life imprisonment any individual “who purports to contract a marriage with another person of the same sex” (Article 12). As marriage obviously does not imply sexual activities, here the law targets the personal status of being a member of a same-sex relationship. Affectivity, not merely sexuality, is the bull’s eye of the Bill.

Another criminal offense is “promotion of homosexuality” and the sanction thereof is prison from five to seven years. It is a crime under the Bill to “fund or sponsor homosexuality or other related activities” and to use any electronic device, including mobile phones, “for purpose of homosexuality and promoting homosexuality”. This wording is so extensive that, as Adam J. Kretz noted, “the law would [make] Uganda the first nation in the world to codify a multiyear prison term for a straight person who espoused a pro-gay viewpoint”  (J. Kretz, From “Kill the Gays” to “Kill the Gay Rights Movement”: The Future of Homosexuality Legislation in Africa, 11 N.W. J. Int’l Hum. Rgts 207 (2013) .

Finally, and more astonishingly, the Bill states that it applies to offenses committed outside Ugandan territory by Ugandan citizens or residents, to be subject to prosecution in Uganda (Article 16). Extradition, that usually is excluded for murderers, is nevertheless established for homosexuality-related crimes (Article 17). Moreover, all international treaties and instruments inconsistent with the Bill are declared automatically null, void and unenforceable (Article 18), a provision that is quite unusual and could frighten any international lawyer.

The Bill’s origins have been subject to scrutiny by U.S. press, that connected the law to local religious fundamentalism. In this regard the web portal Box Turtle Bulletin has published an articulated chronology that demonstrates how certain members of the U.S. evangelical church and “ex-gays” organizations — institutions devoted to the promotion of change from homosexuality to heterosexuality — strongly influenced the debate in Uganda concerning LGBT people’s fundamental rights. The website reveals how such individuals and entities played a major role in the wave of aggressions against gays and lesbians in Uganda and also in the drafting of the Anti-Homosexuality Bill.

In particular, the head of an evangelical sect Scott Lively and the Speaker of the ex-gays institution Exodus International Don Schmierer met in Kampala in March 2009, speaking at a 3-day “Seminar on Exposing the Homosexual Agenda”. The works of the Parliament were suspended to allow MPs to attend the seminar. Lively, who publicly declared himself an “expert” of homosexuality and of the “gay movement”, held that gays were behind the rise of Nazism and the Rwanda genocide, and that gays and lesbians usually engage in “recruitment” of children in order to abuse them and “spread” homosexuality among Ugandans. With Lively was also Caleb Lee Brundidge, a self-declared “ex-gay” who at the conference witnessed how he had been cured from his homosexuality through the “touch therapy” of Richard Cohen, a notorious expert — yet without license — promising to effectuate gay patients’ “transition to heterosexuality”.

For his despicable action Lively has been sued before Judge Michael A. Ponsor of the U.S. District Court for the District of Massachusetts for violations of fundamental rights of Ugandan gays and lesbians under the Alien Tort Statute. The plaintiffs are Sexual Minorities Uganda (SMUG) and other Ugandan LGBT associations, which accused the defendants of “attempt[ing] to foment, and to a substantial degree … succeeding in fomenting, an atmosphere of harsh and frightening repression against LGBTI people in Uganda”. See Sexual Minorities Uganda v. Lively, 2013 U.S. Dist. LEXIS 114754 (Aug. 14, 2013), at *2.

As a matter of fact, the consequences of the Bill on Ugandan LGBT people and activists were, and are, disastrous. On October 2010, the popular Ugandan magazine Rolling Stone — nothing to do with the American one — headlined “100 Top Homos”, a list of allegedly homosexual Ugandan citizens, and urged to “Hang them”. Together with others, the activist David Kato sued the magazine accordingly, and on 30th December 2010 the High Court of Kampala granted his application, concluding that the plaintiffs’ rights to privacy and to human dignity had been infringed. Three weeks after the ruling, a man entered Kato’s apartment and brutally assaulted him to death with a hammer. Questioned about the plausible link between the High Court ruling and the murder, the Ministry of the Integrity and Ethics of the time, James Nsaba Buturo, declared: “Homosexuals can forget about human rights”.

The Bill’s entry into force clearly exacerbated the situation in the country. As the international press describes, gays and lesbians in Uganda, both citizens and foreigners, are subject to harassment, physical and verbal attacks, undue intrusion in their private spaces, and ultimately persecution.

Soon after its filing in 2009, many Western countries contended that the law would deprive LGBT Ugandans of their rights under international human rights law. In particular, during the Commonwealth Heads of Government Meeting in Port of Spain, Trinidad and Tobago, in November 2009, the UK and Canada Prime Ministers expressed concern about the Bill, holding it as “a significant step backwards for the protection of human rights in Uganda”. US President Barack Obama defined the measure “[a] move against the tide of history” and opposed it.  Also the European Parliament issued a resolution against the Bill, calling on “the Ugandan authorities not to approve the bill and to review their laws so as to decriminalize homosexuality,” eventually reminding them the State’s obligations under international law. Some governments threatened to cut the financial aids to Uganda, that currently amount to half of the government’s budget.

Yet all these protests seem to have resulted only in eliminating the death penalty, while the rest of the Bill survived until its approval in 2013. However, the fact remains beyond any political or religiously-inspired discussion, that the entire Bill is contrary to international human rights law, in particular to the International Covenant on Civil and Political Rights of 19th December 1966 (ICCPR), whose Article 17 protects all individuals from “arbitrary or unlawful interference with [their] privacy”. In the 1994 communication in Toonen v. Australia, the UN Human Rights Committee established that, “inasmuch as Article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy’” (para. 8.2) and that no “public health or moral grounds” can justify laws punishing such activity (para 8.4 ff.).

Furthermore, in its memorandum titled “Born Free and Equal. Sexual Orientation and Gender Identity in International Human Rights Law”, published in 2012, the UN High Commissioner for Human Rights Navi Pillay invited all States not only to repeal all laws criminalizing consensual same-sex sexual activity, but also to protect gays and lesbians from torture, cruel and degrading treatment, including targeted killings and persecution. According to the High Commissioner, “[t]he criminalization of private, consensual sex between adults of the same sex breaches a State’s obligation to protect individual privacy and to guarantee non-discrimination” (ibid., p. 30). Finally, the document also reminded States that gays and lesbians enjoy fundamental rights such as freedom of expression and the right not to be discriminated in employment, health, and education pursuant to several human rights norms.

Given all these smooth statements, it sounds at least facetious what Scott Lively claimed before the Judge Ponsor. He argued that “because LGBT people suffer discrimination in many countries, acts of persecution committed … against this community cannot be viewed as violating international law”. This argument is subtle. In most occasions, in fact, African countries vigorously opposed the affirmation of human rights of LGBT people, like in Geneva in 2011, when they refused to adhere to the UN Human Rights Council’s declaration on human rights violations based on sexual orientation and gender identity. This picture seems confirmed by ILGA (International Lesbian Gay Bisexual Trans and Intersex Association), according to which Africa “[i]s the continent with the worst laws on the books when it comes to homosexuality and other sexual minorities.”

Lively’s argument, however, is groundless. As Judge Ponsor rebutted, as noted supra even “the highest court in Uganda has itself recognized the entitlement of gay and lesbian people to a fair and equal treatment under the law, including protection of their basic rights to free expression, life, liberty and property”. In sum, “the fact that a group continues to be vulnerable to widespread, systematic persecution in some parts of the world simply cannot shield one who commits a crime against humanity from liability” (SMUG v. Lively, supra, at *27).

In light of the above, the pressures and threats opposed by Western countries to the Bill are justified and well-grounded in international law. Therefore, Hillary Clinton’s statement that “LGBT rights are human rights” is not the expression of a purely Western attitude to homosexuality, but the translation in simple language of the existing human rights law standard, applicable to all States including Uganda.

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Matteo Winkler

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