opinionBy Solome Nakaweesi-Kimbugwe and Frank Mugisha
On 14 October 2009 the Hon. David Bahati (MP, Ndorwa County West, Kabale) tabled a private-members bill before the Ugandan parliament titled the 'Anti-Homosexuality Bill'. When it was tabled, the Minister for Ethics and Integrity Dr James Nsaba Butoro made a strong statement in support of the bill and for the greater sanction of individuals and organisations supporting homosexuality.
The bill is aimed at increasing and expanding penalties for 'homosexual acts' and for all institutions (including NGOs, donors and private companies) who defend the rights of people who engage in sexual relations with people of the same gender. The bill also calls for Uganda to withdraw from all international treaties and conventions which support the rights of lesbians, gays and bisexuals, introduces extradition arrangements for Ugandan citizens who perform 'homosexual acts' abroad, and includes legal penalties for people who fail to report alleged homosexual acts or individuals and institutions that promote homosexuality or same-sex marriage to the authorities. The death penalty is mandated for HIV-positive people who engage in sex with people of the same gender. The tabling of the bill has been accompanied by threats against any Ugandan media organisation that allows LGBT (lesbian, gay, bisexual, and transgender) Ugandans to air their views or publish press statements.
Bahati's bill is an alarmingly retrogressive piece of legislation, aimed at legalising hatred against a section of the Ugandan citizenry, but also importantly at controlling and censoring dissent and open public debate. In legal terms, the bill would set a precedent for state authorities to control rights to freedom of expression, freedom of thought and freedom of association for state and non-state actors. It would also set a precedent for government censorship of internal workplace and other policies of national and international institutions operating in Uganda.
The bill is clearly a diversion from the serious issues facing Uganda's policy-makers today in the lead-up to the 2011 elections especially around livelihoods; poverty and the lack of jobs; electoral reforms; lasting solutions to the northern Uganda peace process; political conflict; ethnic tensions and the unresolved land question; high rates of violence against children and against women (perpetrated largely by heterosexual men); and the ongoing impact of HIV/AIDS. It also poses a serious threat to press and academic freedom, human rights activism overall, and indeed to Uganda's commitment to the values of human rights and democracy upheld by its own constitution and by the regional and international systems to which it belongs.
A common claim put forward by homophobes in Uganda is that Western donors and human rights organisations are encouraging the spread of homosexuality in Uganda. Interestingly, what they never admit to is that fact that their own campaigning and mobilisation against lesbians and gay people is itself funded and supported by actors in the West, more specifically the Christian rightwing in the USA.
There is evidence to suggest that support for Bahati's bill has come from extreme-right Christians in the United States of America who are working through allied churches and parliamentarians in Uganda. In March 2009 the Family Life Network, led by Ugandan Pastor Stephen Langa (affiliated to the Kampala Pentecostal Church), hosted a workshop entitled 'Exposing the truth behind homosexuality and the homosexual agenda'. The workshop trainers included members of three American organisations well-known in US Christian rightwing circles:
- Scott Lively, co-founder of the hate group Watchmen on the Walls and author of The Pink Swastika, a pseudo-history book claiming that militant male homosexuals helped mastermind the Nazi holocaust
- Caleb Lee Brundidge, a 'sexual reorientation' coach for the International Healing Foundation, a Christian organisation that aims to 'free' people from 'unwanted same-sex attraction'
- Don Schmierer, a board member for Exodus International, an umbrella body for Christian groups that seek to 'reform' homosexuals using Christian teachings.
Alongside the workshop, the Americans also met with MPs and influential religious actors. The Family Life Network has mobilised through churches across the country to deliver a petition to parliament calling for the introduction of stronger legislation against homosexuality. Bahati's bill is the result.
It's worth noting that it costs a considerable amount of money, time and processes to table a private-member's bill, which begs the question of how the MP from Kabale District is financing this process? It has also been common practice for the mushrooming pastors and churches to use homophobic attacks on opponents as a way to discredit each other and sway faithfuls.
Content and Implications of Bahati's Bill
The tabled bill aims at increasing the scope of laws established in the British colonial era prohibiting 'carnal knowledge against the order of nature' and acts of gross indecency. These articles of the penal code and are already being used to arrest, detain and prosecute Ugandans allegedly engaging in 'homosexual acts'.
Bahati's bill would establish legal definitions for homosexuality and homosexual acts, include explicit prohibitions for sex between men and between women, reinforce legislation against same-sex marriage, and establish a wider range of penalties for both the performance of homosexual acts and for the support of sexual rights broadly and the rights of homosexuals in particular.
Criminalising the practice of homosexuality
The bill criminalises homosexual acts, with penalties ranging from up to 10 years imprisonment for single acts of homosexual sex to life imprisonment and the death penalty for a category of crime labelled 'aggravated homosexuality'. The latter includes an HIV-positive person having sex with a person of the same gender, and same-gender sexual relations with people with disabilities and with legal minors. The offence of homosexuality includes any person who 'touches another person with the intention of committing homosexuality' (Article 2.c.), an alarmingly broad provision which is open for wide interpretation and malicious use given that the burden of proof is vague.
In criminalising sexual acts between consenting adults, the bill's provisions directly violate the right to privacy, to equality and concepts of bodily integrity and autonomy.
Bahati's proposed bill also supports stigma and discrimination against HIV-positive people, and would undermine years of efforts to tackle the epidemic. Uganda has been considered as a 'best practice' leader in the fight against HIV and AIDS, and has received significant amounts of international support for its HIV and AIDS programming from donors such as the Global Fund for HIV and Malaria. If passed, this leadership status would be put in serious question and has potential to down-roll the stewardship and achievements achieved thus far.
The social implications of the bill are equally problematic. The active persecution of LGBT people would lead to tremendous suffering and violence against people who are, after all, our own family members, colleagues, business partners, political and religious representatives, and friends.
Criminalising the 'promotion' of LGBT rights
Article 13 of the bill calls for up to seven years imprisonment or a monetary fine for any person or institution believed to be promoting homosexuality. Business and NGOs convicted of promoting homosexuality are liable to be de-registered. Article 14 also penalises anyone who fails to report an offence under the act, with up to three years imprisonment or a monetary fine.
The term 'promotion' includes providing office space, broadcasting and otherwise disseminating information and funding any activities deemed to support 'homosexuality and related activities'. Such a broad definition could well be used to close down institutions that the government wants to silence, especially in the run-up to the 2011 elections. For many networks, alliances and coalitions, this bill poses a threat to organising and engaging in general given that it would allow the de-registration of an entire network even if only one member has been found at fault. This is of critical concern as it would enable the censorship of national lobby groups and networks such as the national NGO forums and women's national forums, who as of now are still battling with the repressive NGO Amendment Act. This bill in essence tightens the areas of engagement that were left within the NGO act.
Under the rubric of 'promotion', the bill would legalise the censorship of broadcast and print media and the shutting-down of media houses that support discussion on the issue of homosexuality and equal rights. It would criminalise organisations providing health information for men who have sex with men. It would also require employees and managers in institutions who are aware of the sexual practices of their colleagues to report them to the authorities. Promotion could also be interpreted to include the presence of equality policies that cover LGBT staff. This has implications for any bilateral and multilateral agency in Uganda, as well as the many multinational corporations who have a legal duty to support equal opportunities for all staff. Put simply, if the bill is passed, there is a legal precedent to shut down the operations of Uganda's bilateral donors, and of foreign corporations from Europe, North America, Brazil and other countries whose own national laws require that they support equality.
By penalising citizens for the failing to report 'suspected homosexuals' to the authorities, the bill calls for the creation of a fascist-style society where family members, service providers and colleagues are made to spy on each other. This is not the kind of Ugandan society that we want.
Articles 16 and 17 of the bill provide for the prosecution of Ugandan citizens who commit homosexual acts, as defined by the bill, in other countries. It even goes so far as to include extradition arrangements, which would require its African neighbours and other countries to send Ugandans home to face prison or even execution for voicing support for LGBT people, or for engaging in consensual sexual acts with another adult. Such extradition powers are aimed at silencing and threatening the bulk of political opponents and dissidents that have hitherto provided alternative voices and engaged on the state of governance in Uganda.
Withdrawing from international legal and policy instruments
In addition to changing national legislation, Article 18 of the bill would oblige Uganda to withdraw from any international legal or policy instrument that contradicts with 'the spirit and provisions enshrined in the Act' (Article 18.1). This would mean withdrawing from any international or African Union instrument that supports equality (which is, of course, at the foundation of all human rights law and most contemporary policy on development). This had major implications for Uganda's membership in and commitment to international and Africa regional governance and human rights systems. It would also call into question Uganda's eligibility for funding support for initiatives such as the Millennium Development Goals which advance the 'spirit' of equality. Also, by withdrawing, the bill's provisions would push Uganda into the category of a pariah state, with implications on the human rights of all Ugandans regardless of sexual orientation.
Myths and Lies
The justification for Bahati's bill is built on unscientific, unverified arguments around the fact the homosexuals in Uganda 'recruit' people, including children, into changing their sexual orientation. There is no factual basis for the claim about recruiting, which has itself led to scare mongering, hate speech and arrests in Uganda.
The recruitment claims also misrepresent the situation. Homosexuals are not predators. However, homophobic members of society and the state have themselves certainly been systematically marginalising and harassing people named or identifying as 'homosexual'.
The bill states that its primary target is to 'protect the traditional family' (Article 1.1). Here again, the focus of concern is curiously placed on homosexuals and supporters of their rights, rather than on the actual threats faced by Ugandan families day to day, such as the inability of many parents to feed their children and to provide resources for them through all stages of their education. It makes no steps forward in affirming women's rights in marriage, including comprehensive protections against domestic violence.
The bill states that its primary target is to 'protect the traditional family' (Article 1.1). Here again, the focus of concern is curiously placed on homosexuals and supporters of their rights, rather than on the actual threats faced by Ugandan families day to day, including the unacceptably high rates of domestic violence, child abuse, sexual violence, land and resource-based tensions, breakdown of traditional support and safety nets, the inability of many parents to feed their children and to resource them through all stages of education. It makes no steps forward in affirming women's rights in marriage including comprehensive protections against domestic violence. Also, the bill in essence can't justifiably claim to strengthen families given that since the 1995 constitution, women and marginalised groups have continued to demand the implementation of existing laws and the expansion of protections against gender-based violence (including domestic violence and female genital mutilation (FGM)). The greatest irony is that for 49 years now the Ugandan Parliament has failed to enact the infamous Domestic Relations Bill (family code) that would protect families!
The bill is, its supporters claim, tabled in the interests of the health and security of Uganda's children, adults and people with disabilities who apparently are at the mercy of predatory homosexuals. Interestingly, neither Bahati nor one of its most ardent supporters, Minister James Nsaba Butoro, have taken major steps to ensure that the many girl children and adult women sexually abused and raped in educational establishments, at home and in the streets - almost exclusively by heterosexual men - have either access to justice or health and other services to support them. If sexual abuse is their concern, why are they not lobbying for increased funding of women's crisis centres and legal aid for victims of sexual violence? Why is the Sexual Offences Law still not in place, or indeed a national sexual harassment policy? If the protection of people with disabilities is their concern, why have they not been pushing for the Ugandan government to tackle the broad range of challenges faced by people living with disabilities? How far has Uganda gone beyond enactment of the Disability Act and affirmative action in politics for people with disabilities?
Diverting Attention from the Real Issues
All of these questions point to the fact that Bahati's bill serves as a diversionary tactic. In the run-up to the 2011 elections, many Ugandans are pushing for electoral reforms, the creation of greater space for multiparty political engagement and alternative voices. Part of the diversion tactics are thus to engage the parliament and citizenry in highly emotive 'moral debates', rather than on the real governance issues facing Uganda. The bill is one of a range of such moral debates, all targeting gender and sexuality (including issues such as homosexuality and sex-work) which will predominate parliamentary discussions and leave little or no space for the discussion of electoral law reforms. This bill, if passed, would also be an easy tool to use in the run-up to the 2011 elections to fight political opponents even within Bahati's own ruling political party as a way to 'weed' out dissent in the face of a failure of political parties to regulate their elected members in parliament. The likely targets for this are the young politicians and those who are unmarried or divorced and thus do not fall into the limited, moralistic 'approval list' of Bahati, Butoro and their allies.
We Need an African Response
Supporters of Bahati's bill are trying to draw on the notion that calling for the imprisonment and death of people who engage in consensual sexual acts with people of the same gender is supported by 'African traditional values'. As Africans we are clear in saying that hatred is not, and has never been, a traditional African value. Our African cultures, in all their diversity, have always embraced people who are different. Our African cultures are also not relics from the past, but are changing and adapting with time. We reject the use of our African identity to support and legislate the persecution of LGBT Ugandans, their allies and anyone willing to consider the right to equality for all. Bahati's bill is giving Africans a bad name.
As Ugandans we urge our elected representatives to vote against Bahati's bill as a piece of legislation that would lead to the persecution, suffering and even death of our fellow Ugandans, and a move that could threaten possibilities for continued foreign investment and aid to help develop our nation. As Africans we call on our sisters and brothers to join us in voicing their support for the full equality of all Africans, and for our own national representatives to vote against a bill that supports hatred, social control and violence. This is not just a Ugandan concern. It is an African concern. Join us in calling for a vote against Bahati's bill.
Solome Nakaweesi-Kimbugwe is a human rights defender and the executive director of the pan-African women's rights organisation Akina Mama wa Afrika, headquartered in Uganda. Frank Mugisha is a human rights defender and the co-chairperson of Sexual Minorities Uganda (SMUG).