The Parliament of the Republic of Uganda has rushed through, and approved, a Bill entitled The Anti-Homosexuality Bill 2023 which aims to:
“…establish a comprehensive and enhanced legislation to protect the traditional family by –
Prohibiting any form of sexual relations between persons of the same sex and the promotion or recognition of sexual relations between persons of the same sex.
Strengthening the nation’s capacity to deal with emerging internal and external threats to the traditional, heterosexual family. This legislation further recognizes the fact that same sex attraction is not an innate and immutable characteristic.
Protecting the cherished culture of the people of Uganda, legal, religious, and traditional family values of Ugandans against the acts of sexual rights activists seeking to impose their values of sexual promiscuity on the people of Uganda.
Protecting children and youth who are made vulnerable to sexual abuse through homosexuality and related acts.”
The Act seeks to supplement existing provisions of the Constitution of the Republic of Uganda and the Penal Code Act, Cap. 120 by prohibiting marriage between same-sex persons, prohibiting and penalising homosexual behaviours and related practices, prohibiting the promotion of homosexuality, and preventing those convicted of homosexuality from holding positions of employment involving children or vulnerable adults.
The Act, following substantial amendments recommended by a Parliamentary Committee, sets out that any person “…who commits an offence [of homosexuality] is liable, on conviction, to imprisonment for life”.
The Act also creates an offence of Aggravated Homosexuality, which covers such acts as homosexual acts with persons under 18 years of age or above 75, serial homosexual offenders, homosexual acts by persons with HIV or who pass a terminal illness to the other person, homosexual acts by persons in positions of authority over the other person, homosexual acts which cause the other person to develop a physical or mental illness or disability, and acts against persons who are unconscious or under the influence of drugs or alcohol. The death penalty is prescribed for such offences.
The Act prescribes the offence of attempting to commit homosexual acts and states that such an attempt will render the accused liable upon conviction to imprisonment for 7 years.
The Act also prescribes a sentence of 3 years imprisonment for anyone under the age of 18 who commits a homosexual act or an aggravated homosexual act.
The Act removes any right to consent to a homosexual act. Furthermore, under Ugandan law, in any case where the court sees fit, it may order that the trial be held in camera. Worryingly, this means that the door is shut on judicial transparency in such instances and the Act also provides for a fine of “two hundred and fifty currency points” for any journalist, editor, publisher, etc., who reveals the name of a so-called victim.
Section 15 of the Act allows the court to order the Minister to facilitate the “rehabilitation of [the offender]in the length of the period of the sentence.” The court is also granted the power to make a protection order, and any other subsequent order as it deems necessary thereafter, where it is satisfied that a child is likely to engage in acts of homosexuality.
Same Sex Marriage
Section 13 of the Act states that a person who purports to contract a marriage with another person of the same sex commits the offence of homosexuality and is liable upon conviction to imprisonment for ten years. A maximum ten-year imprisonment sentence is also applicable to anyone who conducts or officiates such a ceremony, or anyone who attends one.
Promotion of Homosexuality
Section 14 provides for the offence of promoting homosexuality. This includes any act wherein a person (or director/shareholder of an organisation) advertises, publishes, prints, broadcasts, distributes or causes the advertisement, publication, printing, broadcasting, or distribution by any means, including the use of a computer or information system or the internet, of any material promoting or encouraging homosexuality. For gay rights organisations such as ‘Sexual Minorities Uganda’ or SMUG, this particular provision will make their work even more precarious than ever before.
Prohibition on Employment
The Act prescribes that any person convicted of homosexuality or aggravated homosexuality is disqualified from holding any position of employment in a child care facility or any role where they are in a position of authority over children or vulnerable persons. This disqualification shall continue until such time as a social worker or probation officer determines that the person is rehabilitated and no longer poses a danger to children or vulnerable adults any more.
Homosexuality in Uganda Generally
In Uganda, homosexuality is not recognised as a right and is currently treated as a crime under various sections of the Penal Code Act, Cap. 120, specifically under sections 145, 146 and 129. The Constitution of the Republic of Uganda, 1995 recognises that men and women of the age of eighteen years and above have the right to marry, to create a family, and are entitled to equal rights in marriage, during marriage, and at its dissolution. The Constitution recognises that only men and women may have relations in Uganda and by extension recognises that sexual intercourse or sexual relationships can only be legally performed between persons of the opposite gender, who are of the age of majority, and with their free and voluntary consent.
Where any sexual act is performed in circumstances other than as referred to above, it is treated as an unnatural act punished in sections 145 and 146, rape under section 123 or defilement under section 129 of the Penal Code Act respectively.
Dr Adrian Jjuujo made representations to the Parliamentary Committee objecting to the Bill on behalf of the Human Rights Awareness and Promotion Forum and the Civil Society Coalition on Human Rights and Constitutional Law. Dr Jjuuko’s arguments were, inter alia, that the majority of the provisions of the Bill are unconstitutional, and that once these are removed, the remainder are redundant given that such offences are already widely present in the existing Penal Code Act. Similar issues were highlighted by Dr Kabumba Busingye, Senior Lecturer, School of Law, Makerere University, Dr Sylvia Tamale, retired Professor of Law, and Bukirwa Maria of Women Pro Bono Initiative. The office of the DPP also objected to the Bill, but only on the grounds that the proposals should be introduced in the existing Penal Code Act, rather than via a new Act.
The Report of the Sectoral Committee on Legal and Parliamentary Affairs on the Anti-Homosexuality Bill, 2023 states that Committee members were of the opinion, inter alia, that “homosexuality is mainly an acquired and learnt sexual practice, with little or no influence from nature, save for some rare biological cases where a few people are born with cases affecting the genes that code for unusual expressions of physical phenotypic expression associated with genital organs.” This opinion was reached following input from bodies such as the Uganda Medical Association and Christian Lawyers.
Given the patently clear Constitutional issues contained in it, it is likely that this Act will be challenged in court, and it remains to be seen whether Ugandan President Yoweri Musevani will veto the new law in any way, however unlikely this may be. The Act has been condemned by the United States, the UK, Canada, Germany, and the European Union. There are also likely to be knock on issues for Uganda in areas such as international trade or commerce with pro-LGBT states following this short-sighted legislation. Uganda has signed and ratified numerous United Nations Treaties over the years and has accepted many UN recommendations aimed at improving the state of human rights there. However, as reported by Amnesty International in 2022, little has been actioned in this regard and this latest piece of legislation makes it painfully clear that LGBT persons in Uganda should not expect things to change any time soon.