Uganda's Outrageous New Sex Law

A Ugandan Parliamentarian wants to outlaw homosexuality and prescribe the death penalty for having sex while HIV positive. (The worse news is, he might actually get what he wants.)
BY MICHAEL WILKERSON | OCTOBER 28, 2009


Ugandans can't stop talking about the very thing many argue should be taboo: homosexuality. On Oct. 14, Ugandan Parliamentarian David Bahati introduced the Anti-Homosexuality Bill of 2009, an effort, he says, to protect Ugandan families from what he terms the "creeping evil" of homosexuality. It's not the first attempt by an African country to outlaw homosexuality, but it may well be the most extreme. Included in the draft text are not only condemnations of same-sex relations, but a new crime that carries the death penalty, and a criminal sentence for having sex while HIV positive. Human rights advocates say it's illegal, not to mention an outrage. Gay activists say they will live in fear even more than they do now. But the vast majority of Ugandans, sadly, may agree with the law; a 2007 poll found that 95 percent of those surveyed strongly opposed legalizing same-sex relations, period.

Why homosexuality has become such an explosive issue in Uganda has to do, in part, with the complex set of social issues wrapped up in it. These include the erosion of the nuclear family, the influx of global culture, and an epidemic of a HIV/AIDS, whose treatment forces individuals and families to break every social taboo. Most importantly, Ugandans are extremely religious, with more than 94 percent saying religion was important in their lives in a 2008 survey by Afro barometer. And from the country's varied branches of Christianity to its sizable Muslim community, no one preaches tolerance of gay rights.
"This bill is really a summation of an aspiration of Ugandans who believe the traditional family needs to be protected from foreign and internal threats," Bahati, a jovial former accountant who looks much younger than his 35 years, told me. In an interview last week in his small office inside the Ugandan parliamentary complex, Bahati explained that he was not trying to cause controversy by introducing the new bill, though he has received dozens of phone calls from journalists and donors, and even a few threats. "We have our own values as much as we respect the values of others, and we think that homosexuality is not a right."

Homosexuality has always been illegal in Uganda. The Penal Code, drawn heavily from British colonial laws, bans "carnal knowledge of any person against the order of nature," with a possible penalty of life imprisonment. Still, the issue has rarely been a high priority of enforcement for police or the government. Arrests are uncommon, and prosecutions almost nonexistent, in large part because the standard of proof requires authorities to catch offenders in the act.

Bahati's bill would make such arrests and prosecutions easier, something critics warn could be used to falsely accuse rivals or enemies, but proponents say is necessary to give the current ban teeth. In addition to outlawing "any form of sexual relations between persons of the same sex" with penalties up to life imprisonment, the proposed bill criminalizes attempted homosexuality, the aiding and abetting of homosexuality, and promotion of homosexuality -- each carrying a possible prison sentence of seven years.

Failure to disclose an offense is also punishable by a fine and three years in prison. And anyone with knowledge of crimes committed is obligated to report them to the authorities within 24 hours. The legislation also creates a new category of offense, "aggravated homosexuality," which is punishable with death. The latter crime would include having homosexual sex with a minor or someone with a disability or having homosexual sex while HIV positive (the bill makes no distinction about whether offenders must be knowingly infected to qualify.)

If homosexuality were legalized, Bahati says, "Our moral fiber will just be torn down. Society will just be in chaos. You'll see men marrying men, which is contrary to what we believe in."

One common view of homosexuality here, espoused by Bahati and many others is that foreign influence is promoting and funding homosexuality in Uganda. Pastor Martin Ssempa, a prominent anti-gay religious leader, suggested on a talk show last week on Uganda's KFM radio that "civil society organizations must be investigated to see if they received this homosexual money." He later accused guests on the show of being bribed by homosexual activists abroad.
In a separate phone interview before the radio show -- Ssempa declined multiple requests to meet in person -- he said that homosexuality was bad for the community. "It is inherently unhealthy" Ssempa said, and to make his point, he went on to explain in extremely explicit detail a variety of sexual acts he associates with homosexuals.
Speaking with a dozen men and one woman in Uganda's homosexual community tells a different story. Sam Ganafa, 48, a security manager at a telecom company, says he struggled to come to terms with his homosexuality long before being exposed to any outside influence. When he began to realize he was gay, Ganafa said, "I'd not known anything about the Internet, I'd not even met a mzungu, a white person, nothing." Robert, a gay entrepreneur who asked to be identified only by his first name for safety, said that it was only after secondary school did he even learn that he was not the only homosexual in Uganda or in the world. "I was something like 22," Robert said. "It was a relief, because I met people who were like me and I was so happy."
Life as a homosexual in Uganda is difficult enough, Ganafa said, with challenges ranging from being outed by the tabloids and getting beaten or losing your job if discovered. The new bill could make it much, much worse. "The new bill will instill fear because it touches almost everybody. Even you a journalist asking me about this, after it passes, you will not be able to do it. You will be discussing a subject that must not be discussed at all."
In addition to Uganda's homosexual communities, broader opposition is emerging. A civil-society coalition, composed of 23 local organizations, ranging from the few brave gay activist groups to women's rights and constitutional law organizations, has taken out newspaper advertisements to protest the bill. They plan to challenge it on legal grounds as it is debated in Parliament. "Obviously whoever wrote this law isn't a lawyer," said Sylvia Tamale, a professor of law at Makerere University and member of the Association of Uganda Women Lawyers, one of the most high profile organizations opposing the bill. "If you are a lawyer you can't write such nonsense."
For one, Tamale believes that the disclosure requirement would severely violate other laws and traditions of privacy, even if it is intended to protect children, as the bill's proponents argue. "This bill goes beyond [protection]," she said. "If you know anyone who is homosexual you have to report them." Even Ugandans living abroad would not be safe. The bill establishes "extra-territorial jurisdiction" so that known homosexual citizens abroad may be extradited and prosecuted in Uganda.
Tamale and other activists also worry that the promotion clause could prohibit organizations from working, for example, on HIV issues with the gay community in Uganda. In part because admitting to homosexuality is risky in and of itself, few in the gay community get regularly tested. And while struggling with their own identity in the face of immense social backlash, planned safe sex is often a luxury. Even before the new bill was introduced, three gay activists were arrested at a conference on HIV prevention in Kampala in 2008 for trying to attend and distribute materials. A government official explained that the government did not have money to treat HIV among homosexuals.
Robert, the gay entrepreneur I spoke with, has had the same partner for nearly nine years, and introduced him alternately as his husband, partner, and boyfriend at a Ugandan bar known as a safe gathering place. "This is the only gay bar in Kampala," the partner said, declining to be named at all to protect his job. "Why are you so surprised? This is the country that wants to kill and imprison us."
Robert wears a large golden crucifix and said that he like most Ugandans he is still extremely religious, a position shared by Val Kalende, a self-described "LGBT activist" who was one of three arrested in 2008. "I'm a born-again Christian and I'm not ashamed to say that," Kalende said in an interview in a secluded hotel on the outskirts of town. "Actually I'm a minister in my local church. My pastor I think doesn't know, but for me nothing can ever separate me from [religion]."
Gay Ugandans and activists hope that the international community will condemn the bill strongly enough that either Parliament or Uganda's executive branch will back down. Approximately 40 percent of the country's government budget comes from international donors, with most funding from the United States and Europe.
Helping the cause of the bill's opponents is a provision in the draft text that would require the Ugandan Parliament to review all international treaties it as signed and nullify those that conflict with "the spirit and the provisions" of the new bill. Presumably, this would include key conventions such as the U.N.'s Universal Declaration of Human Rights -- perhaps enough to spark an international outcry.
In a written statement, a spokesperson for the U.S. Embassy in Uganda said the U.S. mission is "in the process of raising this issue with Ugandan government authorities." If passed, the U.S. statement said, the bill "would constitute a significant step backwards for the protection of human rights in Uganda."
Because the law was introduced by Bahati as a private member of Parliament (most bills are introduced by the executive branch), President Yoweri Musevni has yet to take an official position -- a possible hedging strategy if international uproar becomes too great.
Still, others, like Emmanuel Gyzeaho, a reporter who covers parliament for Uganda's Daily Monitor, think that the provision is sure to pass. "When external pressure is exerted by the donors and they say ‘you guys are pushing some obnoxious legislation so we're going to close the taps on money to you,' then perhaps they will have a sudden change of heart," Gyzeaho said. "[But] given the conservative religious and cultural nature of the ideal Member of Parliament, this bill is definitely going to sail through." Since the vast majority of Ugandans fervently abhor homosexuality, he added, opposing the bill would be political suicide.
Says Bahati: "We are working hard [to pass the bill] and we want your support and prayers."
This Story was written by MICHAEL WILKERSON and Posted on www.foreignpolicy.com/articles/2009