As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
NB! If you wish to sign this petition please inform Gavin Silber of the Social Justice Coalition at firstname.lastname@example.org forthwith.
22 January 2010
Att: President Yoweri Museveni
National Resistance Movement
c/o Ugandan High Commissioner Kweronda Ruhemba
Trafalgar, Apartment 35 B 634 Park Street , Arcadia 0083
Tel: +27 012 344 4100
Fax: +27 343 2809 email@example.com
Dear President Museveni and leaders of the National Resistance Movement
THE UGANDAN ANTI-HOMOSEXUALITY BILL VIOLATES HUMAN RIGHTS
We, the undersigned, are a group of organisations and individuals from South Africa deeply concerned about the “Anti-Homosexuality Bill” (2009) currently tabled before the Ugandan parliament, as well as sections 145, 146 and 148 of the Penal Code of Uganda that criminalises homosexual relations. For instance, section 145 of the existing Penal Code Act (1950) imposes a life sentence for consensual sex between adults of the same sex.. The proposed Bill goes much further and includes the death penalty for similar offences. The original Penal Code was introduced by the British Colonial Administration.
This letter is written as an appeal to you in your capacity as leaders of the National Resistance Movement (NRM), the majority party in the Ugandan parliament. We urge that the NRM campaigns for the proposed Bill to be withdrawn and that consensual same-sex relations be decriminalised in the Republic of Uganda. These laws deliberately persecute individuals on the basis of their sexual orientation.
As organisations and individuals we do not presume to instruct the Ugandan Parliament but we wish to point out that these laws are human rights violations and they affect every person on the African continent and around the world.
SOCIAL COHESION: UGANDA AND BEYOND
The Anti-Homosexuality Bill purports to defend Ugandan family life, culture and society against the threats of homosexuality. Persecution of homosexuals and other sexual minorities will not achieve this aim. We support efforts by the Ugandan government to promote social cohesion including strengthening family bonds and parental care. These objectives are not incompatible with the right of lesbian, gay, bisexual, transgender and inter-sex people to equality before the law. Every country on our continent faces potential social instability based on the mass unemployment of young people and poverty which has caused social conflict and displacement across the region. We believe this is the real force tearing at the social fabric. This is true for Uganda as much as for South Africa. Family life and social cohesion in Sub-Saharan Africa has also been weakened through the HIV epidemic with the passing of many adults leaving our children destitute and many the heads of their households. Violence against children and women is not only a violation of their rights but further undermines family life across the continent. We experienced this in South Africa in the despair of youth and poor people which fuelled the xenophobic violence of 2008, leaving many refugees and migrants from other African countries dead and hundreds of thousands displaced. Such intolerance directed at groups of people indicates a dangerous lack of social cohesion. Globally unfair trade and labour practices further undermines the dignity of our working people in Africa, limiting their job opportunities and restricting internal government revenues. Each of us on the African continent must help our governments and peoples to overcome these social inequalities and human rights violations. Cruel persecution of lesbian, gay bisexual, transgender and inter-sex people may be a useful diversion but it sets a pattern for lawless behaviour that is undermining legality as well as the freedoms and rights of all people.
UNJUST LAWS, THE CONSTITUTION OF UGANDA AND INTERNATIONAL LAW
We all have a basic human right to personal security and psychological integrity and freedom and this includes the right to form loving relationships irrespective of sexual orientation. The proposed Bill and existing Penal Code promotes and sponsors hate crimes against lesbian, gay, bisexual, transgender and inter-sex persons. Homophobia is no different from racism, tribalism, xenophobia or sexism as an irrational prejudice which encourages hatred and violence.
The equation of homosexuality with bestiality or paedophilia is misguided and an unjust stereotype. These practices are committed by a minority of people of all sexual orientations. We support the prosecution of rapists and paedophiles irrespective of their sexual orientation or social status.
The proposed Bill and Penal Code are also irreconcilable with universal and African values of dignity, equality and freedom. The existing Penal Code punishes homosexuals with possible life imprisonment and to this the new Bill would add the death penalty for amongst others the most basic and private expression of their sexual identity. People living with HIV/AIDS who are homosexual would also face the death penalty for engaging in sexual relations. It is not simply the death penalty that is unacceptable in this case but the very fact of criminalising the identity of lesbian, gay bisexual, transgender and inter-sex people on the basis of their sexuality.
Professor Sylvia Tamale (Dean of Law at the University of Makerere) argues that the Bill is in conflict with the Constitution of Uganda and international instruments such as the African Charter of Human and Peoples’ Rights and the Universal Declaration of Human Rights. We agree with her analysis. The Bill places Uganda outside of international law and therefore undermines confidence in its entire system of foreign relations. However, the flagrant abuse of lesbian, gay, bisexual, transgender and inter-sex human rights and the deliberate incitement of hate would place Uganda among legal systems with no justice. This could not be the objective of the national Resistance Movement or any other political party in Uganda.
Professor Tamale holds that the proposed death penalty, life sentences and potential for blackmail of lesbian, gay, bisexual, transgender and inter-sex people undermines individual rights and family life. She argues that the Bill goes much further than the unjust colonial Penal Code. Privacy, trust and confidentiality are destroyed as those who know a homosexual would be liable for imprisonment for up to three years if they do not report that person to the police. This places counsellors, priests, doctors or teachers who are sworn to uphold confidentiality in an impossible position. In addition, the Bill would punish all those involved in research or advocacy of issues pertaining to sexual orientation for up to 7 years in prison.
South Africa has seen the devastating and inhumane effects of state-sponsored discrimination and hate crimes. The family life of African people was criminalised through the pass laws. People in South Africa remember with deep regret and sadness that barely 20 years ago inter-racial sexual relations were decriminalised as they too were once seen as a threat to society and the family unit. As we move away from this shameful past and learn that a person’s sexuality goes to the core of their dignity, privacy, identity and freedom, we ask you not to entrench the colonial laws against private, adult same-sex relationships.
The Uganda Constitution protects freedom, equality and dignity for all and we urge you to respect this. We ask your Parliament to withdraw this Bill and to amend the Penal Code to respect the dignity, equality and privacy of lesbian, gay, bisexual, transgender and inter-sex people. Chapter 4 section 36 of the Ugandan Constitution calls for the protection of the rights of minorities. Homosexuals must be protected because they are vulnerable, endure hate, stigma, prejudice and state-sponsored discrimination.
Uganda has been through civil wars and dictatorship. Today, it has created a stable democracy. The Anti-Homosexual Bill (2009) will take Ugandan society and all of Africa back in the direction of hate, tribalism, regionalism, xenophobia, sexism and war. Our tasks are to overcome the real deprivations caused by hunger, ill-health, unemployment, unequal education, violence, unfair trade and labour practices. These are the real factors tearing at our social fabric, not the existence of homosexuals who have formed part of all societies at all times. These are the tasks for which all our governments including the government of Uganda must provide leadership – not the persecution of lesbian, gay, bisexual and transgender people.
We look forward to working with your government and to a speedy resolution of this painful interlude in the struggle for the dignity of every person in Africa.
The AIDS Law Project
Community Media Trust
The Lesbian and Gay Equality Project
Lesbigay University of Stellenbosch
Social Justice Coalition
Rainbow University of Cape Town
Treatment Action CampaignBACK TO TOP