By Wambi Michael
David Bahati submitting his controversial anti-gay Bill to parliament. / Credit:Wambi Michael/IPS
David Bahati submitting his controversial anti-gay Bill to parliament.
KAMPALA, Nov 9 (IPS) - The Ugandan government will put to death gay citizens repeatedly caught having sex and throw into jail those who touch each other in a "gay" way, if a new proposed Bill becomes law.
A new Bill, the Anti-Homosexuality Bill, seeks to legislate against lesbian, gay, bisexual and transgendered (LGBT) people in Uganda. And it wants to pave the way for its harsh treatment of them by nullifying any international treaties, conventions or declarations believed to be contrary to it.
"The Bill is so inhumane ... It violates every aspect of a human being. I mean you cannot tell me you will kill me because I’m gay," says Gerald Sentogo, the gay administrator for the organisation Sexual Minorities Uganda.
The death penalty is listed as punishment under an offence called aggravated homosexuality. This part of the Bill states that "repeat offenders" of homosexuality are liable to get the death penalty. The death penalty is also applied in a homosexual relationship if a partner is under 18, or has a disability, or is HIV positive. People accused under the aggravated homosexuality clause will be forced to undergo an HIV test.
The Anti-Homosexuality Bill's section on Aggravated homosexuality
A person commits the offence of aggravated homosexuality where the
(a) Person against whom the offence is committed is below the age of 18 years;
(b) Offender is a person living with HIV;
(c) Offender is a parent or guardian of the person against whom the offence is committed;
(d) Offender is a person in authority over the person against whom the offence is committed;
(e) Victim of the offence is a person with disability;
(f) Offender is a serial offender; or
(g) Offender applies, administers or cause to be used by any man or woman any drug, matter or thing with intent to stupefy or overpower him or her so as to thereby enable any person to have unlawful carnal connection with any person of the same sex.
A person who commits the offence of aggravated homosexuality shall be liable on conviction to suffer death.
Where a person is charged with the offence under this section, that person shall undergo a medical examination to ascertain his or her HIV status.
Source: Anti-Homosexuality Bill 2009
Local and international civil society groups operating in the country fear that the Bill, once enacted, would curtail most of the civil rights guaranteed in the Ugandan constitution, and international human rights instruments and protocols.
But Uganda’s ethics and integrity minister sees the uproar surrounding the Bill as a positive sign that Uganda is "providing leadership" to the world. The minister, James Nsaba Buturo, tells IPS he is happy the Bill is causing a lot of debate globally.
"It is with joy we see that everyone is interested in what Uganda is doing, and it is an opportunity for Uganda to provide leadership where it matters most. So we are here to see a piece of legislation that will not only define what the country stands for, but actually provide leadership around the world," he says.
David Bahati, Ndorwa County West minister of parliament, tabled the Bill saying Uganda needed comprehensive legislation to prohibit any form of sexual relations between people of the same sex.
The Bill, according to Bahati, seeks to plug gaps in the Ugandan constitution, and stipulate that marriage is between a man and a woman only. Other unions will not be recognised. And if same sex couples are married abroad, they face life imprisonment.
Practising homosexuality has been illegal in Uganda and is listed in the penal code, though police say it is hard to investigate this crime because "homosexuals operate under cover".
But the new Bill now forces people in authority to report offences to the police within 24 hours, or they themselves will face fines or up to three years in prison.
Anyone found guilty of committing homosexuality, or advocating homosexuality to a group or assembly, will face a prison sentence. The penalties are up to 10 years in prison or a fine not exceeding $5,500 or both.
The Bill also seeks extra territorial jurisdiction and will apply to any Ugandan involved in a LGBT relationship outside of the country. The Bill also seeks to extradite any Ugandan guilty of the offences it lists.
Sentogo says he fears that the Bill will erode the human rights culture in Uganda. He said the part of the Bill that required people to report LGBT will create widespread distrust.
"How will somebody know about my sexuality unless he comes to my bedroom? And that is dividing everybody. You will trust nobody because everyone will become a spy over the other. Imagine people fighting over other issues and somebody will say you are a homosexual to get rid of you and then you are arrested and you spend seven years in jail or life imprisonment."
Valentine Kalende, spokesperson of the Coalition on Human Rights and Constitutional Law (CHRCL), tells IPS the Bill in its current form is an attack on the Ugandan constitution, and its key human rights protections.
The CHRCL, comprised of 25 national and international non-governmental organisations, says the Bill incorrectly groups together predatory sexual acts with acts between consenting adults.
"As civil society we condemn all predatory sexual acts (hetero or homosexual) that violate the rights of vulnerable sections of our society, such as minors. However, the Bill lumps "aggravated homosexuality" together with sexual acts between consenting adults, in order to whip up sentiments of fear and hatred.
"A much better title for this Bill would have been the Anti- Civil Society Bill, the Anti-Public Health Bill or the Anti-Constitution Bill. Perhaps more simply it should be called the Anti-Human Rights Bill."
Dr. Sylvia Tamale, a law lecturer at Makerere University tells IPS that the clause to withdraw from international treaties and conventions and other human protocols "is absurd because parliament has no such powers under the Ugandan constitution".
The CHRCL adds: "In reality this would involve Uganda withdrawing from the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and its protocols, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the African Charter on Human and People’s Rights." The Bill has also been condemned by international activists like Human Rights Watch, Amnesty International and pro-LGBT groups in the region.
Buturo accused civil society in Uganda of using the pro-homosexual campaign to solicit support from some of the country’s donors.
"We are not going to give in to any influence or pressure, whatever the quarter may be. Our view is that integrity as a nation is much more to be cherished than anything else. Not even the funding received from friends will sway our determination to do what is right. And what is right in our view is that anal sex is not something that anybody should mention as deserving creditable mention," he says.
"Many of these crimes are being committed in the name of the defence of human rights. Government rejects the blanket use of one’s rights to include protection of practices which are inimical to standards we aspire to, as well as our way of life," says Buturo.
The Bill has the support of various religious groups in Uganda, who have been battling the gay movements. Some of the leaders in the Pentecostal churches in Uganda have been accused of practising homosexuality.
Religious leaders from the Orthodox Church, Pentecostal Church and Islam, in appearing before the Parliamentary and Presidential Affairs Committee, say the law against homosexuality was timely, but they were opposed to the death penalty.
Reverend Canon Aaron Mwesigye Kafundizeki, the Church of Uganda provincial secretary, tells IPS: "It is an important law, but the provision related to the death penalty may prevent this law from being passed, because death should not be accepted as a punishment. Therefore propose another form of punishment instead of death."
Kafundizeki said pushing for extra territorial jurisdiction would be counter-productive.
"The Church of Uganda is saying we need to limit ourselves to the Ugandan territory, instead of extra territorial jurisdiction, because the Ugandan constitution is very clear on protocols and ratifications. Going beyond the borders will be counter-productive," he says.
Livingston Okello Okello, Member of Parliament in Chua County in Northern Uganda, says much as homosexuality was not allowed within his culture, he would not support the death penalty against lesbians and homosexuals.
"In Luo culture the death penalty has never been part of our practice. Because what is the intended purpose of the death penalty, apart from causing suffering to the relatives of the victim?" he asks.
Several other parliamentarians in interviews with IPS said they would support the Bill at its second reading, because the practice of homosexuality had never been accepted in most of the communities and constituencies they represented.
The death penalty for aggravated homosexuality will be imposed especially when the offender is HIV positive. This has raised concerns among HIV/AIDS-prevention activists like the Uganda Network on Law, Ethics and HIV/AIDS (UGANET).
UGANET legal adviser Dorothy Kikyonkyo, in an interview with IPS, says the laws on prostitution and homosexuals had not been a barrier to HIV/AIDS prevention among such risky groups.
"We are concerned that the punitive measures may force risky groups like homosexuals living with HIV into hiding, and this will worsen the situation, because many will not reach the needed services for treatment and prevention," she says.
A Ugandan homosexual and activist with the International Gay and Lesbian Human Rights Commission (who asked for anonymity) claimed that Bahati, mover of the Bill, was being funded by conservatives in the West to spread what he called hate against homosexuals in Uganda.
But Bahati denies this.
"I moved a private Member’s Bill not because I’m involved in a hate campaign, but because there are enormous threats to the traditional family values as we know them in Uganda. We don’t believe in our country that for a man to sleep with a man, and for a woman to have sexual intercourse with another woman, is a human right.
"We know that homosexuals are getting money from abroad. They are using that to influence our young people into this behaviour, and we cannot sit back and see this happen," he says.
A lesbian woman who wanted to be referred to as Santa told IPS that Bahati’s argument for family values was ludicrous. "The allegation by Bahati that they are protecting family values is just a scapegoat. I have a partner. I do not cheat. But what do heterosexuals do? Isn’t the reason we have an HIV prevention campaign now targeting married heterosexual couples in Uganda? Let them start with their own families before they interfere into other peoples issues."
Activists have asked Bahati to withdraw the Bill, saying it infringes on the freedom of expression and media freedom.
"I didn’t choose to be gay. I was brought to this world by straight parents heterosexual, who didn’t know about my fate. And now you are prosecuting me because of my sexuality that I have no control over. It is very absurd. For heaven’s sake as long as I’m not stepping on somebody’s toes how does my sexuality affect you?" Sentogo asks.