Unlawful Sanctions of Homophobia in Uganda
By: Sarah Godwin
Homophobia in Ugandan Law
Homophobia has been prohibited in Ugandan law since colonial rule. The country’s 1950 penal code outlines a maximum sentence of life imprisonment for participation in sexual acts that are “against the order of nature,” which is intended to encompass homosexual sexual acts. However, historically, these laws were often not enforced. In the past, Ugandan communities often overlooked homosexual conduct because homophobia laws were not politicized, and homophobic sentiments did not pervade the community – aside from roots in the colonial tradition of anti-sodomy laws.
Increased waves of homophobia began after an American Evangelical pastor, Scott Lively, traveled to Uganda in 2009. While there, he spoke publicly about the threat that the homosexual community’s supposed recruiting of children to join the homosexual “agenda” posed to the traditional family, marriage, and reproduction. Shortly after this visit, the Ugandan parliament received a first draft of the country’s Anti-Homosexuality Act (The Act). The Act called for the death penalty for repeat offenders of aggravated homosexuality (including homosexual sexual acts with a minor or while HIV-positive), prison time for anyone who fails to report a known or suspected homosexual, and prison time for anyone who promotes homosexuality, engages in a public discussion involving homosexuality, or counsels homosexual individuals. Although parliament did not pass the 2009 version of the Act, in December 2013, the country enacted another version, which replaced the death penalty with life imprisonment and removed penalties for failing to report homosexuals. A few months after the Act was approved, Uganda’s Constitutional Court rendered the bill void because it was passed without the required parliamentary quorum.
Repercussions of the Anti-Homosexuality Act
Despite the fact that the Ugandan parliament never passed the original, 2009 version of the Anti-Homosexuality Act, homophobic sentiment increased after its introduction and continued to rise, even after the more moderate enacted version was later struck down. In the aftermath of the introduction of the failed 2009 Act, the government harassed and intimidated LGBTI human rights activists by arbitrarily raiding their workshops and unlawfully detaining them. In October 2010, Rolling Stone, a Ugandan tabloid, published the names, addresses, and photographs of over 100 alleged homosexuals with the title “Hang Them.” David Kato, a prominent Ugandan LGBTI activist, was bludgeoned to death a few weeks after a Ugandan high court official granted an injunction that prevented the magazine from further outings of homosexual individuals, a case in which he was a complainant.
After parliament passed the 2013 Anti-Homosexuality Act, there was an increase in suicide attempts by homosexual individuals who feared that their sexual orientation would be discovered and that they would be hunted down; for example, in February 2014, Gay Star News documented eight suicide attempts by homosexual individuals in only a two week period. Homosexuals who were arrested following the passing of the Act, such as LGBTI activist Joseph Saidi, were often threatened and tortured while in police custody. Sexual Minorities Uganda (SMUG), an LGBTI human rights organization, published a report detailing this increased torment LGBTI persons encountered during the six months that followed the passing of the 2013 Act. The report examines 162 incidences of violence against LGBTI persons in Uganda between December 2013 and May 2014. However, many cases of violence against homosexuals were likely not reported because of the fear of rape, imprisonment, humiliation and brutal attacks that would come with outing oneself by reporting incidents to the police.
The report also details physical attacks, including beatings and destruction of property, as well as a small number of cases in which homosexual men were kidnapped and tortured because of their sexual orientation. In addition to physical threats and violence, the report comments on the intimidation of the LGBTI community and its activists through several means, including arrests, blackmail, and raids on LGBTI organizations. The arrests often involve degrading medical tests to examine whether the arrested person has been sodomized. Police use raids to intimidate LGBTI activists and individuals – for example, the SMUG report details the raid of a nonprofit AIDS organization in April 2014, which lead to the organization’s shutdown and deprived LGBTI clients of their medication. The report also details how public outings in the press, such as the Rolling Stone article, lead to other forms of persecution including loss of job, family abandonment, eviction, and being forced to leave home due to threats and fear of violence.
Violations of International Legal Standards
The United Nations Human Rights Committee has found that The International Covenant on Civil and Political Rights (ICCPR), which Uganda has ratified, bars discrimination based on sexual orientation. The Human Rights Committee has also determined that laws criminalizing homosexual conduct breach international human rights law by violating an individual’s right to privacy. Moreover, Article 7 of the ICCPR states that no one should be subject to “torture or to cruel, inhuman or degrading treatment or punishment,” and Article 9 states that no one shall be “subject to arbitrary arrest or detention.”
Despite these binding standards, the Ugandan government has supported the persecution of homosexuals by introducing and passing multiple versions of the Anti-Homosexuality Act, and through public comments by high ranking officials such as Simon Lokodo, the country’s Minister of Ethics, who has publicly expressed disdain for homosexuals and supported the Act. President Museveni has also publicly stated that he thinks homosexuals are “disgusting.” The Ugandan government is violating the legal standards of treaties that it has chosen to ratify, such as the ICCPR, by enacting laws that criminalize homosexuality, thereby discriminating against homosexual people and violating their right to privacy.
The Ugandan government is also violating its binding obligations by arresting LGBTI people and activists, because the arrests are considered arbitrary under the interpretation of the United Nations Working Group on Arbitrary Detention – which has found that arrests for participating in consensual, homosexual sexual conduct are human rights violations. Moreover, the government is allowing its citizens and police force to intimidate, threaten, and brutally attack LGBTI individuals without interference; this is a violation of ICCPR Article 2, which requires that state parties ensure that individuals in its jurisdiction have access to the rights outlined in the covenant, including Article 7’s decree that no one should be subject to torture or degrading treatment. And, by interfering with activist organizations that support LGBTI rights, the government is violating ICCPR Article 19, which stipulates that everyone has the right to freedom of expression.
Violations of Domestic Law
Furthermore, the Ugandan government, by exacerbating homophobia in the region and failing to protect its LGBTI citizens, is violating its own constitution – which states that “all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect.” Instead of adhering to this constitutional provision, the Ugandan government officially condoned homophobia by introducing the Anti-Homosexuality Act, publicly endorses homophobia through prominent government officials, and fails to protect LGBTI citizens and activists – all of which violate Uganda’s constitution and international standards set out in the ICCPR.
Sarah Godwin is a J.D. candidate at Berkeley Law. She is a student contributor for Travaux.