The Ugandan Anti-Homosexuality Act 2014 has grown in notoriety from its tabling in Parliament to its passing this year. But only a few weeks ago the bill was declared null and void by the Ugandan Constitutional Court who cited procedural problems in the passing of the law. The original bill first became infamous for including the death penalty as punishment for some homosexual acts. Although the bill has inflamed an already heated international debate on Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) rights it has also opened up a variety of related issues including the rule of law, access to health, corruption and international relations.
When was the anti-homosexuality bill introduced?
The Anti-Homosexuality Bill was originally introduced in October 2009 by MP David Bahati. Homosexual acts were already considered illegal in Uganda under the 1930s Penal Code introduced by the British colonial administration. The 2009 bill sought to increase the punishments including death for serial offenders, HIV-positive people who engage in sexual activity with people of the same-sex, and persons who engage in same sex sexual acts with people under 18 years of age. New versions of the bill were brought in 2011 when the death penalty and certain other provisions were removed.
How did the anti-homosexuality bill become law?
The private members bill was passed by Parliament in December 2013. Although failing to deliver the “Christmas gift” in 2012 the Speaker of Parliament was involved in the passing of the bill in 2013. However, at the time of the passing the Ugandan Prime Minister, Amama Mbabazi, opposed the bill due to a lack of quorum (a minimum number of delegates needed to pass laws). The bill that was passed did not include the death penalty but did include life imprisonment for various homosexual acts. Once the bill was passed by MPs it then needed signing by President Yoweri Museveni. The President originally stalled on the signing of the bill but eventually signed on the 14th February this year. In his speech the President cited studies that purportedly showed that homosexuality was a result of nurture rather than nature as well as the idea that people were engaged in homosexual acts for ‘mercenary’ reasons. The President also cited, what he believed were, arrogant threats of Western nations to cut aid if the bill was passed, as a reason for signing.
Null and Void
Although the Anti-Homosexuality Act was signed into law in February the issue of not having quorum meant that the legislative battle for the Act was not over. On the 30th July a group of journalists, lawyers and activists launched a legal challenge to the act in the Ugandan Constitutional Court. A key issue was the fact that the law was passed without quorum despite the warning of the country’s Prime Minister. The group also challenged the act over violation of the constitutional right to privacy and dignity, as well as the right to be free from discrimination, and cruel, inhumane and degrading treatment. On the 1st August the Court ruled the Act null and void. They did not rule on the Constitutionality of the provisions of the law but the lack of quorum. The case was won on a technicality rather than a matter of substance but for now the law has been overturned.
Beyond LGBTI rights
While the headline issue of this bill has obviously been the struggle over LGBTI rights, the story of the Anti-Homosexuality Bill/Act has raised numerous other issues which are relevant to Uganda and the Commonwealth more broadly. One of the crucial issues surrounding LGBTI rights has been access to health in the fight against HIV/AIDS. Uganda has been described as a “success story of the AIDS response in Africa” by representatives of the United Nations. However, local activists have echoed international evidence that criminalisation of gay relationships can significantly undermine anti-HIV/AIDS programming. Other key issues which have arisen around the Act have concerned constitutionality and the rule of law. The passing of the act without quorum has obviously been its undoing as it has been found to violate the Ugandan Constitution. While the flip side of this is that Uganda has proven that is has “a strong, independent and progressive judiciary” as influential Ugandan journalist and one of those who challenged the bill, Andrew Mwenda puts it. Beyond the court struggle, the bill has however exposed a much darker issue concerning the rule of law. Ugandan and international reports have indicated that there has been a recent increase in violent attacks against LGBTI people. Despite calls for non-violence from some Ugandan religious leaders including Gulu Archbishop, John Baptist Odama, these attacks represent a significant undermining of the rule of law and a dangerous precedent whatever one’s view on LGBTI rights.
Perhaps the most contentious issue has been the debate over the influence of the West in promoting homosexuality/homophobia depending on your point of view. The original Penal Code introduced legislative homophobia from Britain during the colonial era. There is much anecdotal information that a variety of relationships which we might describe under the LGBTI umbrella existed in pre-colonial Africa. In recent times proponents of LGBTI rights in Uganda point to the huge influence of American evangelicals in increasing homophobia and intolerance while supporters of the Anti-Homosexuality Act have accused the West of fuelling the promotion of open and promiscuous sexuality. Recently Ugandan organisation, Sexual Minorities Uganda, have taken the fight to US evangelicals by suing the American, Scott Lively for persecution. In regard to foreign influence Andrew Mwenda makes a good point in arguing that in the constant debate over which side the Western influence is on, “Africa is just written off”, “the efforts and courage of progressive intellectuals, journalists, lawyers, judges and gay activists amounted to nothing in the struggle for gay rights in Uganda”. Mwenda’s argument is definitely important but it throws down the eternal challenge of international relations: in an increasingly interconnected world what role does the international actor play in the politics of independent states? How (and even should) international actors play a role in promoting the voices of local activists, journalists, lawyers and others? And can this be done without drowning them out? With so many other Commonwealth countries criminalising LGBTI relationships this challenge is one that the Commonwealth must keep at the forefront of its thinking.