Fahamu (Oxford)

1 May 2014

Uganda: Understanding the Genesis and Impact of Recent Legislation in Uganda

Photo: riekhavoc
Anti-gay law protest (file photo).

Most commentary on Uganda's Anti-homosexuality Act has been narrowly focused on its unjust implications for sexual minorities in the country. In order to fully understand what the act means for Uganda, it needs to be analysed alongside two other new pieces of legislation and read with relation to the volatile political context.

INTRODUCTION

Most recent commentary on Uganda has focused on the passing of the Anti-homosexuality Act (AHA) - a piece of legislation that drew a barrage of criticism from many countries in the West, but marshalled popular support and acclaim at home. Western reaction focused mainly on the human rights implications of the piece of legislation, once dubbed the 'Kill-the-gays' bill, which represents a significant step backward in the protection of sexual minorities on the continent. However, the nearly-exclusive focus on the rights of LGBTI individuals fails to take account of the broader political context within which the AHA was enacted. It also does not consider the passage of the law against the backdrop of the enactment of two other pieces of legislation which have significant implications for politics and the democratic struggle in Uganda. The first of these is the Public Order and Management Act (POMA), which came into force on 2 October 2013, while the second is the Anti-pornography Act (APA), which was signed into law on 6 February 2014, barely two weeks before President Museveni's dramatic and public signing of the anti-gay law.

On the face of it, the three laws apply to different categories of people. The POMA ostensibly applies to dissidents, protestors and what the Ugandan inspector general of police (IGP) has described as 'hooligans'. The APA targets porn-dealers, newspapers like the notorious tabloid Red Pepper and people who - according to the Minister of Ethics and Integrity, (former) Reverend Father Simon Lokodo - publicly expose their 'private bodily parts' for 'primary sexual excitement'. For its part, the AHA focuses on homosexuals who Ugandan society prefers to view as 'deviants' and 'perverts'. Two out of three of the laws refer to issues of morality and social order, which Lokodo declared to have reached a stage of complete disintegration.

Although more directly political, the POMA is intricately linked to the other two. Indeed, each of the laws affects all Ugandans, regardless of political opinion or status, sexual preference or position. It affects Ugandans whether they wear shorts or trousers, burkas or saris, busutis or mushanana. And they apply to Ugandans whether or not they have ever watched a pornographic movie. Finally, they are of concern whether or not one believes in human rights. This essay demonstrates why.

THE PUBLIC ORDER AND MANAGEMENT ACT

The short title to the POMA stipulates that it was designed to 'provide for the regulation of public meetings; to provide for the duties and responsibilities of police, organisers and participants in relation to public meetings; [and] to prescribe measures for safeguarding public order'. A short trip back in history will show that the POMA was designed in the heat of the Walk-to-Work (W2W) protests led by opposition leader Colonel Kizza Besigye. Besigye has thrice stood against President Museveni, with the latest controversial poll on 18 February 2011 being won by the incumbent. [1] In a broad sense, the POMA can therefore be referred to as the 'Anti-Besigye Act' or the 'ABA', as it was clearly designed to tighten the grip of the Police and security forces in the wake of the protests which rocked the country in the aftermath of the election. In its earlier manifestation - with provisions that barred three people from holding a meeting without police permission - it reflected a government in an extreme state of panic as the winds from the 'Arab Spring' in North Africa blew further south.

Despite its professed noble intentions with regard to the maintenance of law and order, the ABA/POMA is a fatally flawed piece of legislation for several reasons. In the first instance, the act reverses the basic premise on which the right to freedom of peaceful assembly is based. This is done by making people who wish to demonstrate or protest against the government seek permission from the police in order to stage such actions. In other words, the ABA/POMA forces those who oppose the government of the day and want to translate such opposition into protest to justify why they should not be stopped from protesting. In diverse countries around the world, this colonial mode of policing has long since been changed. Instead, the act should be compelling the police to give sound reasons for refusing to let a protest to take place. Objective rather than subjective factors should be the key factor in giving expression to this basic democratic right.

Secondly, the ABA/POMA places an inordinate degree of discretionary power in the police, and specifically in the inspector general. This is obviously problematic because it makes the IGP prosecutor and judge in his own case, violating basic principles of natural justice. Thirdly, the law gives lower-ranking police officers the perfect excuse not to take action which supports human rights. Rather, they are encouraged to curtail them. Hence, the first words out of the mouths of officers charged with breaking up an opposition demonstration are: 'I'm (simply) acting on orders from above'.

Aside from the contents of the act, there is another dimension that is often lost in the discussion. A recent Constitutional Court case challenged the excessive powers of the police, especially those in Section 32 of the Police Act, which allows the General of Police to prohibit the convening of an assembly "on reasonable grounds." Agreeing that this provision was unconstitutional, Justice Mpagi Bahegeine stated that,

"where individuals assemble, if the police entertain a "reasonable belief" that some disturbances might occur during the assembly, all that can be done is to provide security and supervision in anticipation of disturbances. It is the paramount duty of the police to-maintain law and order but not to curtail people's enshrined freedoms and liberties on mere anticipatory grounds which might turn out to be false. Lawful assemblies should not be dispersed under any circumstances. Most importantly in such cases the conveners of the assemblies can be required to give an undertaking for good behaviour and in default face the law." [2]

In complete defiance of the court judgment, Section 3 of the ABA/POMA gives the IGP (or an authorised officer) the power to regulate the conduct of all public meetings in accordance with the law, effectively reintroducing the repealed Section 32. The reintroduction of this provision of the law is in direct violation of Article 92 of the 1995 Constitution of Uganda, which provides that 'Parliament shall not pass any law to alter the decision or judgment of any court'. To make matters worse, the definition of a 'places of assembly' and the types of prohibited meetings covered in the act are so broad as to embrace any kind of gathering and subject them wholly to the subjective interpretations of the police, free from any objective standard of oversight. The ABA/POMA thus introduces a slippery slope of growing infractions, and is a perfect representation of a downward slide in the protections of fundamental human rights in the country.

THE ANTI-PORNOGRAPHY ACT

Although largely ignored outside Uganda, the APA produced the most immediate and vocal reaction from the domestic public, particularly from women human rights activists. [3] The provisions in the act most responsible for this response are the definition of the term 'pornography' and section 13 of the same act, which stipulates the penalty for the offence. The passing of the act was met by vigilante acts of undressing women by street mobs, by Police officers stopping women in the street and ordering them to return home and change their clothes, and even resulted in a judicial officer summarily sentencing two women in her courtroom to a three-hour imprisonment for wearing miniskirts! [4] It is this upsurge in sexual harassment and the imposition of a de facto dress code on women that is most problematic from a legal and human rights point of view.

Although the government was at pains to claim that the law doesn't impose a dress code and isn't specifically addressed to women, the above actions point to the opposite being true. Indeed, the language of the act opens it up to 'unrestrained interpretation'. [5] Such freedom of interpretation is available to anybody regardless of whether or not they are a government official, and also allows all kinds of actions that such a person deems fit in the circumstances. Government assertions that the act was gender neutral and had only been 'misunderstood' by the public obviously raise the question as to why it was only women and not men targeted by the mobs. Secondly, few other laws in Uganda's recent history have caused as much confusion in terms of interpretation and enforcement as did the APA, engulfing both the police and the judiciary into the general public confusion. What is even more surprising is how such a discriminatory law escaped the attention of not only the attorney general but also of the many women representatives in Parliament.

After all is said and done, there can be little doubt that the law is in fact inherently discriminatory and amounts to an attack on women's personal autonomy and expression. But worse, according to Stella Mukasa,

"The Anti-Pornography Act clearly set the stage for a rollback of women's personhood and autonomy as upheld by our constitutional guarantees on equality before and under the law, including laws that protect women from sexual and gender-based violence, intimate partner violence, and Female Genital Mutilation, to mention a few."

It is nevertheless naïve to view the passing of the APA in isolation. Rather, its enactment must be married to the broader attack on the rights of women and the failure of the state in Uganda to effectively ensure that women's security, autonomy and well-being are better protected. It is part and parcel of the traditional attempts of the patriarchal state to regulate and control women's sexuality and reproductive capacities. Hence, the National Resistance Movement (NRM) government has still failed to enact a progressive law on marriage and divorce, and has instead reverted to passing laws which undermine, marginalise and directly discriminate against women. The government's condemnation of the reported unlawful acts by the public were too little, too late, and only a smokescreen to protect a regime that has abandoned the cause of the protection of women's rights. Ironically - and to underscore the interconnectedness between the laws under discussion - the Police invoked the ABA/POMA in order to prevent women human rights activists from protesting the APA. [6]

THE ANTI-HOMOSEXUALITY ACT

Few laws passed recently by the Parliament of Uganda have caused as much controversy as the AHA, both domestically and at the international level. Together with several other activists, I have challenged the constitutionality of the law on grounds relating, inter alia, to the supremacy of the constitution, the violation of the principles of equality and freedom from discrimination, and the right to privacy. The act goes so far as to criminalise touching between people of the same sex and creates offences that are overly broad. Questions are also raised about the criminalisation of consensual same sex/gender sexual activity among adults in which one is a person living with HIV or in which one is a person with a disability - for example, the constitutionality of imposing a compulsory HIV test. Finally, by criminalising so-called aiding, abetting, counselling, procuring and promotion of homosexuality, the AHA creates offences that can capture virtually anybody. It also penalises legitimate debate and professional counsel, in direct contravention of the principle of legality; the freedoms of expression, thought, assembly and association; academic freedom and the right to civic participation. The act goes over the top in classifying houses or rooms as brothels merely on the basis of occupation by homosexuals, thereby collapsing the distinction between sex for love or pleasure with sex for sale. It basically creates victimless crimes against people who are otherwise law-abiding citizens of society.

But the AHA is more problematic at a broader level in that it institutionalises homophobia and thereby promotes a culture of hatred against LGBTI individuals. Like the ABA/POMA and the APA, the AHA is motivated by hatred, discriminatory impulses and by the over-arching desire to suppress and dominate political and civil society. It is in this respect that we have to turn from looking exclusively at the law towards a critical examination of the politics that led to the passing of the act, especially given that so much of the story that has been told is from the perspective of Western critics.

LAW, SEX AND POLITICS: UNVEILING THE OTHER SIDE OF THE STORY

When the Anti-homosexuality Bill first made an appearance in 2009, the government distanced itself from the action by claiming that it was a private member's bill. Subsequently, and following increased pressure from Western governments, President Museveni met his party's members of parliament and advised them that the matter had become a foreign policy issue which should be left to him to resolve. For some unknown reason, however, the President did not take concrete steps to stop the process of moving the bill through the various stages of legislative action. Thus, he was caught off guard when the Speaker of Parliament, Rebecca Kadaga - considered a potential rival for the office of president in the 2016 elections - promised to give Ugandans the law as a 'Christmas gift', and indeed passed the law in a hastily convened session of the House on 20 December 2013. President Museveni was livid and chastised the Speaker for passing a law without the necessary quorum, [7] but was now backed into a corner as Ugandan law states that all legislation must be assented to by the President. The question became to sign or not?

In trying to balance what had become a domestically hot political potato with the growing external pressure from the West, Museveni sought recourse in what he called 'science' over 'emotion' by setting up a panel of Ugandan scientists to advise whether homosexuality was genetic or behavioural. [8] The presentation of the panel's report coincided with the retreat of ruling party MPs when it became apparent that a second rival to the presidential throne had emerged: Prime Minister Amama Mbabazi, who was greeted on arrival at the meeting with chants of 'Our Man!'

Returning for the time being to the panel, what did the scientists commissioned by the President say? In a twelve-page report, the following were the main conclusions of the study:

a) There is no definitive gene responsible for homosexuality;

b) Homosexuality is not a disease;

c) Homosexuality is not an abnormality;

d) In every society, there is a small number of people with homosexual tendencies;

e) Homosexuality can be influenced by environmental factors (e.g. culture, religion, information, peer pressure);

f) The practise needs regulation like any other human behaviour, especially to protect the vulnerable;

g) There is a need for studies to address sexualities in the African context.

Following the presentation of the report, the President declared, 'the scientists have spoken: I will sign the bill', to rapturous applause from his partisan audience. Interestingly, the presidential statement relaying his decision to the Ugandan public stated: 'Homosexuality is not a disease but merely an abnormal behaviour which may be learned through experiences in life'.

What does this mean? First of all, the president deliberately distorted the message which the scientists had given him. [9] Secondly, the president clearly abandoned the key message being sent by the scientists, both about the multiplicity of explanations for homosexuality and about the need to treat the issue with a sober rather than legal/punitive approach. He instead substituted it with a political/populist message that would earn him political points against his two main rivals for the presidency, Speaker Kadaga and Prime Minister Amama Mbabazi.

Thus, although the debate about the APA and the AHA has been mainly about sex, in my view that is not the real issue at stake. [10] Rather, the focus on sex served as a major point of distraction from more important issues of governance and democracy. Focusing on sex - especially when it is represented as 'deviant' or 'abnormal', as the President did - helped to find a scapegoat for the larger problems of governance and democratic failing that are rife in contemporary Uganda. As Sylvia Tamale points out:

"intensive scrutiny, regulation and control of non-conforming sexualities and gender identities reflect both a deep historical connection to colonial structures of governance and marginalization, and to more contemporary attempts to control the body. In this way, sexuality is deployed as a tool for perpetuating patriarchy, inequality, and injustice and to consolidate the process of othering." [11]

Focusing on sex also provides an escape route for a president who, after 28 years in power, is finding himself increasingly backed into a corner by rivals within his own party who are asking the question: 'Why not me?' Finally, the AHA fits precisely into what has been described as the 'Anwar Ibrahim Syndrome',[12] i.e. the use of sexual-oriented legislation to penalise legitimate forms of political opposition. It is only a short step away for those who oppose President Museveni - male or female - to be charged with aggravated homosexual rape. In sum, the AHA can be added to the arsenal of punitive laws used to curtail the expression of democratic opposition to the government of the day.

CONCLUSION

Although the preceding analysis has largely looked at the individual aspects of each of these laws, there is a larger picture. In other words, by focusing in on the individuals acts we could fail to see the forest for the trees. Taken together, the enactment of these laws reveals a definite and clear pattern of employing desperate measures in desperate times. It is not surprising that such desperation has culminated in proposals for a new law to instill 'patriotism' among Ugandans - which will simply add to the arsenal of legislation deployable against political opponents. Nor is it surprising that talk is making the rounds that the next constitutional amendment will target the age limit of 75 years old - which President Museveni will cross during his next tenure in office. At the same time, the NRM government is strenuously resisting any serious discussion about reforming the skewed rules governing the electoral process. In the final analysis, the spate of legislative action by the NRM government is not accidental; it simply represents the final stage of total dictatorship.

J. Oloka-Onyango is a Professor of Law at the Human Rights & Peace Centre (HURIPEC), School of Law, Makerere University, and has variously taught at Harvard, Oxford, Cape Town, NYU and the United Nations University in Tokyo, Japan. He has been a member and former chair of several local, regional and international human rights organizations, and was the Special Rapporteur on Globalization and Human Rights of the United Nations (UN) Sub-Commission on the Promotion and Protection of Human Rights from 1998 to 2002.

END NOTES

[1] See J. Oloka-Onyango, 'Uganda Elections: 'An Exercise in Shame-faced Endorsement,' in Firoze Manji & Sokari Ekine (eds.), AFRICAN AWAKENINGS: THE EMERGING REVOLUTIONS, Pambazuka Press, Oxford, at 111-115.

[2] See Muwanga Kivumbi v. AG, [Constitutional Petition No.9 of 2005], accessed at: http://tinyurl.com/pzwyjt6

[3] See Stella Mukasa, 'Anti-Pornography Act a setback for gains made in women's rights,' http://tinyurl.com/o6tdapn

[4] See Malik Jingo, 'Women get three-hour jail term for wearing miniskirts' Daily Monitor, March 7, 2014

[5] Jimmy Senteza, 'Language in the Law Against Pornography is Vague, Biased,' New Vision, March 4, 2014 at 12.

[6] Kashmira Gander, 'Uganda mini-skirt ban: Protests after women are assaulted and forced to undress in public,' accessed at: http://tinyurl.com/nu5elen

[7] See letter from the President of Uganda to the Speaker and members of Parliament, dated December 28, 2013, http://tinyurl.com/ocf33y8 at p.3: 'How can you "pass" law without the quorum of Parliament after it has been pointed out? What sort of Parliament is this? How can Parliament be the one to break the Constitution and the Law repeatedly?'

[8] cf. Sulaiman Kakire (interview), 'Fox Odoi: Why the Antigay Law is Illegal,' The Observer, March 24-25, 2014, at 23-24.

[9] Michael Balter, 'Science Misused to Justify Ugandan Antigay Law,' in Science (www.sciencemag.org), Vol.343, February 28, 2014, at p.956.

[10] Godwin Murunga, 'The Issue is Not Sex but the Social Consequences of Homosexual Acts,' Saturday Nation, March 1, 2014 at 14.

[11] Sylvia Tamale, 'Standing, Sitting and Sleeping: Unveiling the Politics of Sexuality and Gender Identity in Africa,' Nelson Mandela Lecture on Human Rights presented at the Pennsylvania State University, USA, November 2, 2011, at 1-2.

[12] Ibrahim was Deputy Prime Minister to Malaysian dictator Mahatir bin Mohamed and was charged with sodomy when he criticised the latter over his dictatorial methods of governance.

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