An Analysis of The Anti Homosexuality Bill

By Human Rights Network-Uganda HURINET-U, October 2009

 Introduction
 
This memorandum provides an analysis of The Anti Homosexuality Bill, 2009 in terms of its compliance with the Constitution of the Republic of Uganda, international human rights standards (especially Uganda’s State Obligation under international human rights instruments), and human rights practice.  
 
HURINET-U’s analysis and comments are made within the framework of human rights standards governing the right to privacy, freedom from discrimination, equality of all human beings, the right to human dignity, freedom of expression and freedom of association with particular reference to Uganda’s obligation under the International Covenant of Civil and Political Rights (ICCPR), The UN Charter, The Universal Declaration of Human Rights and The African Charter on Human and People’s Rights as well as the Ugandan constitution.
HURINRT- U as a civil society organization is against and condemns all forms of predatory sexual acts whether heterosexual or homosexual, that tends to violate the rights of vulnerable sections of the society such as minors and people with disabilities. However, HURINET-U’s concerns over the Bill stem from the fact that the Bill among other things criminalizes homosexual acts between consenting adults, in a manner that is intended to create fear and hatred with the aim at isolating and discriminating sexual minorities. It is this aspect of the Bill and many other aspects highlighted in this analysis, that tend to raise HURINET-U’s concerns over this Bill as a direct violation of human rights.
HURINET-U strongly believes in the core values of human rights being that: human rights are universal; inherent; inalienable; indivisible; interdependent and interrelated. HURINET- U also strongly believes that the enjoyment of human rights is based on non discrimination.
In view of this, HURINET-U feels the Bill attempts to violate human rights of sexual minorities on the basis of discrimination. This is against international standards propounded in various human rights instruments that propagate the equality of all human beings and non discrimination in the enjoyment of human rights.
HURINET-U is aware of the fact that the enjoyment of certain human rights is never absolute. However, where enjoyment of a non absolute right is to be deprived, then certain principles or guidelines have to be followed. However, with this in mind, it can be stated that the criminalization of homosexual acts between consenting adults does not fall within these guidelines or principles but it is simply an attempt to discriminate and violate human rights of homosexual minorities.   
HURINET-U is cognizant of the rise in predatory sexual acts (heterosexual and homosexual) against vulnerable sections of Ugandan society, such as minors and people with disabilities, and the need to protect this vulnerable group. However, HURINET-U is convinced that no attempts must be undertaken to compromise the fundamental and inherent human rights in trying to protect the rights of this vulnerable group.  
HRINET-U therefore seeks to make a constructive contribution for the improvement of the Bill particularly with regard to sections 2, 3, 12,13,14,16 and 18 of the Bill to provide the legislature with additional drafting recommendations to further the Bill’s compliance with International human rights and Constitutional standards. 
 
The memorandum therefore highlights HURINET-U’s concerns on the Bill. It is particularly fretful that if the Bill is passed into law and implemented in its current form, it would infringe on many other human rights and it would conflict various human rights standards and principles as well as many international human rights instruments that Uganda is part to.
 
 Analysis of the Bill and Recommendations
 
In light of the foregoing, HURINET would wish to make specific recommendations for consideration by the legislature in regard to the Bill. These comments are made with the view of bettering the bill to take into account safeguards against possible abuse or unjustified violations of the fundamental human rights.
 
Therefore HURINET-U’s analysis and recommendations are made in the above spirit and cover the following critical areas;
 
§   The offence of homosexuality
§   The offence of aggravated homosexuality
§   Same sex marriages
§   Promotion of homosexuality
§   Failure to disclose the offence of homosexuality
§   Extra – territorial jurisdiction
§   Nullification of inconsistent international Treaties, Protocols, Declarations and Conventions.
 
 
The offence of homosexuality – Section 2
The Bill in section 2 creates the offence of homosexuality. This is so in that the bill criminalizes any homosexual acts even between consenting adults.
By criminalizing homosexuality between consenting adults, HURINET- U feels that this is a violation of rights of the sexual minorities. This violation is based on discrimination based on sexual orientation. This is against international human rights principles and values expounded in various international instruments such as the UN Charter, the Universal Declaration of Human Rights, The International Covenant on Civil and political Rights, The African Charter on Human and People’s  Rights, as well as the Ugandan Constitution itself. All these legal instruments expound for equality of all human beings and prohibit discrimination on whatever basis.
 
The Bill under this section, also makes an offence of touching another person with intent to committing the act of homosexuality, and prescribes a punishment of life imprisonment for this.
 
RECOMMENDATION
The criminalization of homosexuality between consenting adults is a violation of human rights and also causes discrimination against sexual minorities.
HURINET-U’s view is that the Bill should not have criminalized homosexuality acts between consenting adults who conduct homosexuality acts within their private conveniences. However HURINET-U has nothing against criminalizing predatory sexual (hetero or homo) sexual that violate the rights of vulnerable sections of the society such as minors and people with disabilities.
 
HURINET-U is of the view that the punishment of life imprisonment is too harsh and severe for an offence of touching with intention to commit homosexuality. Life imprisonment as punishment for mere touching is too harsh and severe, and hence the need to revise the punishment.
In addition, it would in practice be almost impossible to establish such intention, and this could make the application of this part of the Bill arbitrary and subject to abuse.
 
HURINET-U is further of the view that the introduction of this Bill is simply a duplication of the law in that the penal code in section 145(a) already criminalizes carnal knowledge of any person against the order of nature. The Bill therefore simply restates existing law and because of this, it is redundant and contradicts the principle that laws should only be adopted to address a nuisance that has previously not been legislated upon.
Therefore HURINET- U feels the Bill should be withdrawn.
 
The offence of aggravated homosexuality- Section 3
 
The Bill under this section creates an offence of aggravated homosexuality punishable with death. Among the categories under which aggravated homosexuality is deemed include circumstances where the offender is HIV positive and also circumstances where the offender is a serial offender. The Bill further requires an offender under this section to undergo mandatory HIV testing.
 
RECOMMENDATIONS
 
HURINET-U is of the view that the death penalty is too harsh and severe a punishment for this offence, as consenting homosexual adults who have repeated sexual intercourse will have to pay for their actions with their life.
This is not only a violation of the rights of sexual minorities but also a threat to the very existence of sexual minorities in Uganda. HURINET-U is of the view that this provision be revised so as not to implicate consenting homosexual adults who conduct their acts in their private conveniences.
 
HURINET-U is of the view that the provision that makes HIV status to be an aggravating factor should be revised to make HIV status an aggravating factor only when the offender had been aware of his or her status at the time of committing the offence and the victim is a minor or a person with disability or any vulnerable person. The provision should not apply to consenting adults who are fully aware of their HIV status.
 
HURINET-U is further of the view that the fact that HIV status is an aggravating factor under the Bill, leading to a punishment of death penalty, will have a impact of retarding the prevention of HIV/AIDS among  homosexuals, as many will be unwilling to test and get vital information, for fear of the capital punishment. This will be a huge step backwards for HIV prevention, treatment and care initiatives in Uganda.
HURINET-U on this aspect is of the view that the Bill be revised as not to make HIV/AIDS status an aggravating factor when the parties are consenting adults who are aware of their status, but that HIV/AIDS status should only be an aggravating factor where the victim is a minor or person with disabilities or any vulnerable person.
 
 
 
Same Sex marriages – Section 12
 
The Bill under this section creates an offence for any one who purports to contract a same sex marriage and sets life imprisonment as the punishment.
 
RECOMMEDATION
 
HURINET-U is of the view that the punishment prescribed for this offence is too harsh and severe in relation to the offence. It is HURINET-U’s view that this section be revised. In fact there is no need for this section since same sex marriages are not allowed in Uganda as per constitution provision.
 
Promotion of homosexuality- Section 13
 
The Bill under this section creates an offence of what it terms as “promotion of homosexuality” and prescribes as punishment, a fixed minimum sentence of five years imprisonment.
 
RECOMMENDATION
 
The scope of what could be termed as “promotion of homosexuality is too wide and broad and HURINET-U is of the view that the scope of what could be termed as “promotion of homosexuality” should be narrowed. Therefore this part of the Bill should be revised to narrow the scope of what could be termed as “promotion of homosexuality.”
 
HURINET-U is further of the view that the punishment of a minimum of five years, as well as revocation of license, (where the offender is a body corporate) is outrageously disproportionate to the offence, given the wide and broad scope of what can be deemed to be “promotion of homosexuality.” Therefore HURINET-U calls for the narrowing of the scope of what could be deemed to be “promotion of homosexuality.”
 
The offence of failure to disclose the offence of homosexuality – Section 3
 
The bill under this section creates an offence of failure to disclose the offence of homosexuality. The Bill provides for punishment of any person in authority who fails to report the offence of homosexuality within 24 hours. It prescribes a steep fine and up to 3 years imprisonment.
 
RECOMMENDATION
 
The offence of failure to disclose the offence of homosexuality is given a wide and broad scope. The circumstances that can be deemed to amount to one being liable of this offence are too wide and broad.
 
HURINET-U is of the view that this part of the Bill should be revised by narrowing the scope. HURINET-U is also of the view that this over broadness of the Bill on this part tends to create a system of civilian surveillance, as it tends to compel citizens to report each other’s conduct. This part of the Bill tends to make all Ugandans potential criminals. Further, this part of the Bill also tends to intrude into the private sphere of citizens, thereby violating citizens’ right to privacy.
Therefore, this part of the Bill should be revised so as to remove this over broadness and intrusion into the private lives of citizens.
 
Extra- territorial jurisdiction- Section 16
 
The Bill under this section asserts extra- territorial jurisdiction, in that it tends to apply to acts of homosexuality that are committed by Ugandan citizens outside Uganda. It even goes further to apply to acts of homosexuality committed outside of Uganda by permanent residents of Uganda.
 
RECOMMENDATION
 
It is HURINET-U’s view that asserting extra-territorial jurisdiction by the Bill over homosexual acts committed outside Uganda is an outrageous and by all means out of proportion given the gravity of the act. The act of homosexuality does not warrant making the offence subject to extra-territorial jurisdiction.
HURINET-U therefore recommends the revision of this part of the Bill.
 
Nullification of inconsistent international Treaties, Protocols, Declarations and Conventions –Section 18
 
The Bill under this section proposes to nullify any international treaties, protocols, declarations and conventions that are contradictory to the spirit and provisions of the Bill.
 
RECOMMENDATION
 
This part of the Bill is inconsistent with international law standards and principles such as The Vienna Convention on the Law of Treaties, which prescribes mechanisms by which state parties to treaties can withdraw from any international treaty, protocol, declaration or convention.
Moreover, even if there were no such prescribed mechanisms at international law such as the Vienna Convention on the Law of Treaties, enforcement of this part of the Bill would entail Uganda withdrawing its commitments at international level such as: The UN Charter; The Universal Declaration of Human Rights; The International Covenant on Civil and Political Rights; The International Covenant on Economic, Social and Cultural Rights; The African Charter on Human and People’s Rights; and many others.
 
The proposed revocation of international law commitments will seriously undermine Uganda’s reputation and credibility in the international arena. It can be said that Uganda cannot wish away core human rights principles of dignity, equality and non- discrimination for the sack of an anti homosexuality law.
Moreover, if the Bill is passed into law in its current form, then all Ugandans will pay heavily as they would loose away their hard earned rights and freedoms as well as their rights to challenge the state and hold it accountable for the protection of these rights.