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.
The Centre for Human Rights, University of Pretoria, has taken note of the introduction into the Ugandan Parliament of the Anti Homosexuality Bill, 2009. We are of the very strong view that this Bill should not be adopted. It not only violates the Ugandan Constitution and Ugandas international human rights obligations, but also stifles debate, undermines civil society and demeans the common citizenship of all Ugandans.
THE OFFENCE OF HOMOSEXUALITY
The Bill criminalises certain acts as offences of homosexuality, and allows for the imposition of life imprisonment (clause 2). The fact is: Uganda’s Penal Code, in article 145(a) already criminalizes carnal knowledge of any person against the order of nature – a charge used to prosecute, persecute and blackmail LGBT people with the threat of life imprisonment. In so far as the Bill merely restates the existing law, it is redundant and contradicts the principle that laws should only be adopted to address a nuisance that has previously not been legislated upon.
The Bill however goes further than the existing law by criminalising, with a potential life imprisonment, touch[ing] another person with the intention of committing the act of homosexuality. The punishment of life imprisonment is clearly disproportionate with such an offence. In any event, it would be almost impossible to establish such an intention, making the application of this part of then Bill arbitrary and open to abuse. The existing law has already been employed in an arbitrary way, and the Bill will just exacerbate that effect. Over the recent months increased campaigns of violence have continued uncontrolled. The violence directed at homosexual Ugandans has resulted in the unwarranted arrests of many people; there are eight ongoing cases in various courts all over Uganda of which four accused persons are unable to meet the harsh bail conditions set against them. These acts of violence have now resulted in the deaths of several homosexual people, such as Brian Pande at Mbale Hospital as he awaited trial. The conclusion one arrives at in respect of this aspect of the Bill is that its only purpose is to further stigmatise and
demonise activities that are already criminalised under Ugandan law.
THE OFFENCE OF AGGRAVATED HOMOSEXUALITY
The Bill goes further than existing law by making punishable with death aggravated homosexuality, including activity by serial offenders or those who are HIV positive (clause 3). The death penalty is a disproportionate sentence for an offence that is essentially only directed at upholding the moral sentiments of part of the population. Only a very small number of states world-wide, such as Iran and Saoudi Arabia, make such offences punishable with death.
The Bill also requires compulsory HIV testing for a person charged under the relevant section. The aggravated offence relates to a person who is living with HIV. In order for HIV status to be an aggravating factor, it is contended, the person should have been aware of his or her status at the time the offence was committed. The fact that HIV status is determined after the fact does not seem to constitute a rational requirement, related to the moral blameworthiness of the accused person. In this respect, the Bill will undermine efforts at HIV prevention, as it will serve to inhibit testing for HIV. In fact, the whole design of the Bill will have a negative impact on HIV prevention among Men who have Sex with men (MSM). This proposed legislation is a huge step backwards for HIV prevention, treatment and care initiatives in Uganda. By significantly expanding criminal sanctions against lesbian, gay, bisexual and transgender (LGBT) people – with penalties going as far as the death sentence in some cases
– this bill drives sexual minorities underground and away from vital information and services, further fuelling HIV transmission in the Uganda.
CRIMINALISATION OF PURPORTING TO CONTRACT SAME SEX MARRIAGE
The Bill makes it an offence for anyone to purport to contract a same-sex marriage, and sets life imprisonment as the sentence (clause 12). This is essentially an unnecessary provision, given that same sex marriages are illegal, as already stated in the Ugandan Constitution. The punishment is yet again a disproportionate sentence for an act that does not have legal consequences.
THE OFFENCE OF PROMOTING HOMOSEXUALITY
The Bill further criminalizes “promotion of homosexuality” in the form of funding and sponsoring LGBT organizations and broadcasting, publishing, or marketing materials on homosexuality and punishes these acts with a steep fine, 5-7 years of imprisonment, or both (clause 13). The Bill effectively bans any kind of community or political organizing around non-heteronormative sexuality. This part of the Bill is a clear violation of the right to freedoms of speech, expression, association, and assembly (Article 29) of the Ugandan Constitution, and which is also contained in a number of international treaties ratified by Uganda (such as the International Covenant on Civil and Political Rights (ICCPR) and the African charter on Human and Peoples Rights (African Charter). The fact that this offence would set a fixed minimum sentence of five years imprisonment is also outrageously disproportionate to the offence, given particularly the broad ambit and scope of the offence.
THE OFFENCE OF FAILURE TO REPORT HOMOSEXUALITY
The Bill also sets up a system of civilian surveillance, compelling citizens to report each others conduct (clause 14). According to the Bill, any person in authority who fails to report known violations of the law within 24 hours will also be subject to a significant fine and up to 3 years in prison – even when this means turning in their colleagues, family, or friends. More shocking, the Bill claims jurisdiction over Ugandans who violate its provisions while outside of the country. This aspect of the Bill is overbroad and makes potential criminals of all Ugandans. By intruding into the private sphere, the Bill violates the right to privacy.
NULLIFICATION OF INTERNATIONAL LAW AGREEMENTS
In one sweep, the Bill further proposes to expunge the effect of international law obligations already undertaken by Uganda. In the Bill, clause 18 stipulates that any international agreement contrary to the Act will be null and void. This is a step unprecedented in international law, and flies in the face of the principles of the Vienna Convention on the Law of Treaties. The Bill’s revocation of international law commitments would also seriously undermine the country’s reputation and credibility in the international arena.
The Anti Homosexuality Bill is ill-conceived and in many ways redundant. It is not clear how it will achieve its stated aim, namely to protect the traditional family (Preamble). There is no evidence that the institution of marriage in Uganda is so fragile that its survival depends on the draconian measures proposed in the Bill. The Bill does little more than to entrench stigma and prejudice, which will polarise the Ugandan society further and undermine public health efforts to combat the spread of HIV. It places a total ban on public discussion of an issue whose existence cannot be wished away. The Bill is an unprecedented attempt to drive a wedge between members of sexual minorities and their friends and family. It exemplifies the approach of a totalitarian regime in its broad scope and disproportionate prescribed punishment, including the death penalty. It is an example of ostrich politics, in that it aims to legislate way part of social reality. If the Bill is adopted, it will make Uganda a pariah in the international community.We therefore urge the Ugandan Parliament to reject this Bill in its entirety.
To read the statement online, click here: http://www.chr.up.ac.za/press%20releases/Uganda-statement_1.pdf
To read the Bill, click here: http://www.chr.up.ac.za/press%20releases/Bill%20No%2018%20Anti%20Homosexuality%20Bill%202009.pdf