Given the various views that have accompanied the release of the ‘Bahati Bill’ on homosexuality, it is necessary to soberly assess what the Bill is really about. It is questionable how many of those that support the Bill have actually examined it beyond the words “anti-homosexuality.” In many respects we are like wood cutters standing at the edge of the woods, only seeing individual trees and not the forest (the bigger picture). But even those of us that vehemently oppose homosexuality should be asking ourselves a number of questions: Why bring a new law when homosexuality is already criminalised under existing ones? How will the Bill affect me personally?
The fact is that out of the 18 clauses that make up this Bill, only six introduce new legal provisions, two of which are minor. The other 12 simply repeat what already exists on the law books. Most significant is the fact that the provisions of the other four substantive new clauses blatantly violate Uganda’s Constitution and many other regional and international instruments. And for those who think that the Bill is only directed against ‘the homosexuals,’ they should look again.
Homosexuality is already an offence under the Penal Code of Uganda as is same-sex marriage, which is prohibited by the Constitution. The Bill expands the meaning of the Penal Code offence of having “carnal knowledge against the order of nature” and defines the term “homosexuality” in such a broad fashion as to include “touching another person with the intention of committing the act of homosexuality.” This is a provision highly prone to abuse and puts all citizens at great risk. Such a provision would make it very easy for a person to bring false accusations against their enemies simply to “destroy” their reputations. Just ask Pastor Kayanja!
The offence of “aggravated homosexuality” is a duplication of the Penal Code provision on “aggravated defilement.” It is therefore superfluous and redundant in the ‘Bahati Bill’. Additionally, the provisions on attempt to commit, aiding and abetting, conspiracy to commit, using threats, detention with intent to commit, and keeping brothels, are all detailed in the current Penal Code. Many of us say, “Those homosexuals should be dealt with in the harshest terms possible.” Others ask the question: “Why should I lift a finger about this Bill that does not concern me?” Actually it concerns us all.
The Bill introduces several new substantive provisions. First is “Promotion of Homosexuality.” That clause introduces widespread censorship and undermines fundamental freedoms such as the rights to free speech, expression, association and assembly. Under this provision an unscrupulous person aspiring to unseat an MP can easily send the incumbent MP unsolicited material via e-mail or text messaging, implicating the latter as one “promoting homosexuality.” After being framed in that way, it will be very difficult for the victim to shake free of the “stigma.”
Secondly, by criminalising the “funding and sponsoring of homosexuality and related activities,” the Bill deals a major blow to Uganda’s public health policies and efforts. Take for example, the Most At Risk Populations’ Initiative introduced by the Ministry of Health in 2008, which targets specific populations to curb the HIV/Aids scourge. If this Bill becomes law, health practitioners as well as those that have put money into this exemplary initiative will automatically be liable to imprisonment for seven years!
The third concept the Bill introduces is the “Failure to Disclose the Offence.” Under this provision any person in authority (including parents) is obliged to report a homosexual to the relevant authorities within 24 hours of acquiring such knowledge. So a mother who is trying to come to terms with her child’s sexual orientation may be dragged to police cells for not turning in her child to the authorities.
Another new provision relates to extra-territorial jurisdiction, which basically confers authority on Ugandan law enforcers to arrest and charge a Ugandan citizen or permanent resident who engages in homosexual activities outside the borders of Uganda. The Penal Code already provides for crimes that call for extra-territoriality. These are limited to treason, terrorism and war mongering.
It is important to note that serious offences such as murder, rape or grievous bodily harm do not invoke extra-territorial jurisdiction in our laws.
Are the drafters of this Bill suggesting that sex between consenting adults is worse than murder? And how exactly will they enforce this provision? Is the government going to storm the bedrooms of consenting adults, or deploy spies to follow them when they travel abroad in order to establish who they have slept with and how they did it? What about our constitutional right to privacy? This Bill carries hidden venom that is bound to spread beyond persons that engage in homosexuality.
Hence the term “homosexuality” in the title of the Bill should not blind our eyes to its wider implications. Those sitting back and thinking, “Get them Bahati!” may be shocked one day when it is them that this law throws in jail.
Perhaps the most shocking aspect of this Bill is the one requiring Uganda to opt out of any international treaty that we have previously ratified which goes against the spirit of the Bill. The drafters of the Bill should know that under international law, Uganda cannot unilaterally negate or declare a withdrawal from its international treaty obligations. Moreover, it is completely unconstitutional and illegal for Parliament to usurp the powers of the President regarding the ratification of international treaties.
Politicians find that homosexuals are a great scapegoat or red herring to divert attention to more pressing issues that affect the ordinary Ugandan such as unemployment, corruption, poor health facilities, reform of electoral laws and so forth. If we are to be absolutely honest with ourselves, we should ask whether there are not more pressing issues of moral violation in other areas such as domestic violence, torture and corruption. None of these areas have specific laws outlawing their practice. That is where the likes of Hon. Bahati should expend their energies.
Ms Tamale is a Makerere University Law don