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AHRC STANDS IN SOLIDARITY with the Ugandan Petitioners Challenging the Anti-Homosexuality Act

Constitutional Challenge to Uganda’s Anti-Homosexuality Act Begins DEC 18, 2023- Substantive and Procedural Rights Will Be Argued



AFRICAN HUMAN RIGHTS COALITION - STANDS IN SOLIDARITY with the Plaintiffs in the challenge against the Anti-Homosexuality Act, as we observe with hope that the Ugandan Court has the ability to render a fair and non-biased ruling.


(Kampala) Having concluded all the required final conferencing of the consolidated petitions challenging the constitutionality of the Anti-Homosexuality Act, Uganda’s Constitutional Court will hear arguments on the substantive questions at issue on Monday, December 18, 2023.


“The Convening For Equality welcomes the expediency of the Judiciary in hearing the challenge. After so much violence and devastation brought about by this wrong-headed law, we are grateful that this day has finally come for the justices to hear the many ways the Anti-Homosexuality Act blatantly violates Uganda’s constitution,” said Frank Mugisha, of Sexual Minorities Uganda, and Convening For Equality (CFE) Co-convener. “It should have no place in Uganda’s law books.”


Arguments in court will center on the ways in which the new law violates substantive rights to equality, dignity, privacy, freedom of speech, association and health as well as freedom from discrimination. Lawyers challenging the law will also argue that the parliamentary process lacked the opportunity for meaningful or adequate public participation as required by the constitution, among other procedural issues.


UNAIDS has been permitted to file an amicus brief, presenting the ways in which the law harms Uganda’s ability to effectively fight HIV with evidence-based, well-established best public health practices. Two civil society groups and four international pharmaceutical corporations also petitioned to file amicus briefs but the Justices denied them that opportunity earlier in the week.


The Court admitted Ugandan pastors Stephen Langa and Martin Ssempa to be respondents. The two have ties to international hate groups. Uganda’s Equal Opportunities Commission tribunal recently found Ssempa to have discriminated against and stigmatized people living with HIV/AIDS and banned him from further statements or social media posts. (See Ssempa Face his Judgement HERE.) 


President Museveni signed Anti-Homosexuality Act into law in May 2023. Since then, activists have documented how real or perceived LGBTQ people in Uganda have been tortured, beaten, arrested, faced physical, sexual and psychological violence, including forced anal exams at the orders ofpolice, as well as evictions and blackmail, loss of employment and health service disruptions.


Today, the Convening For Equality also released Eleven Frequently Asked Questions about Uganda’s Anti-Homosexuality Act, which lays out many aspects of the law, how it has been implemented and how various actors have responded since it came into force.


“The evidence of the discrimination and violence that has been wrought by government employees and private citizens since the law came into force is overwhelming,” said Clare Byarugaba, of Chapter Four Uganda and Convening For Equality (CFE) Co-convener “It cannot and should not beallowed to stand. Nullification of this law is the only way forward.”


Eleven Frequently Asked Questions about Uganda’s Anti-Homosexuality Act1. What does the Anti-Homosexuality Act actually change in Uganda’s laws? The new law duplicates and increases the penalty for same sex consensual adult sexual relations, which Uganda already has codified because of a British-imported Colonial-era anti-sodomy law. The 2023 Anti-Homosexuality Act also creates several new crimes. The law permits the death penalty for the new crime of “aggravated homosexuality,” a clause that codifies stigma of people living with HIV by defining consensual sex with a person with HIV as “aggravated homosexuality.” The penalty for the crime of “attempted homosexuality” is 10 years. The law also creates a new crime of “promoting homosexuality,” criminalizing all advocacy in support of the rights of LGBTIQ+ Ugandans, punishing such legitimate work with a possible 20-year prison sentence.


Under this new provision, public health workers and others – Ugandans or visitors to the country – face long prison sentences and hefty fines for implementing programs or voicing allyship. The law also requires Ugandans that “know or have reasonable suspicion” that a person has committed or intends to commit any offense under the Act to report that person to the police, under threat of a criminal penalty or a fine.


Contrary to some propaganda, this law does nothing to protect Ugandan children. Uganda has adequate laws to punish anyone who rapes or defiles a child and those laws are not adequately enforced. The new law appears to outlaw comprehensive sexuality education which is a key tool in educating young people about sexual and reproductive health, further jeopardizing children’s health and rights.


2. Didn’t Uganda already pass an Anti-Homosexuality Law before?Yes. The 2023 bill is largely a regurgitation of a February 2014 law, which Uganda’s constitutional court annulled in August of that year on the technical grounds that there was a lack of quorum in parliament during the vote. The 2014 court ruling was a convenient way out for the judges. It left open the possibility that such hateful and discriminatory measures were worthy of further substantive consideration.


After the court annulled the bill in 2014, President Museveni advised his ruling party caucus not to rush back to vote on the bill. He expressed his displeasure with the position of foreign governments condemning the law at the time, but he argued that such a law was not a priority for Uganda’s development. He publicly and privately pressured the then-parliamentary speaker at the time, an outspoken proponent of the bill, not to retable it for a vote. For almost a decade, the bill wasshelved. But it came back earlier this year and was passed by a large margin.


Given the clear parliamentary quorum this time around, the fight for the explicit protection of the fundamentalrights of LGBTIQ+ individuals in Uganda are now at stake.


3. Has anyone actually been criminally charged under the 2023 Anti-Homosexuality Act sinceit was enacted?Since the Law was enacted, CFE partners have documented and responded to 41 cases of arrests involving 58 persons. 5 cases were formally charged before court. (2 individuals are charged with ‘acts of homosexuality’, 1 individual was charged with ‘promotion of homosexuality’ and 2 individuals charged with ‘aggravated homosexuality’ under the Anti homosexuality Act 2023).


Police officers allegedly investigating cases of “homosexuality” have ordered medical doctors to perform forced anal exams, this is the case for all arrests involving gay men and transgender persons (transwomen) who are forced to undergo anal examinations to prove homosexuality.


This year, 21 forced anal examinations have been documented. While this inhuman & degrading treatment has been a practice in Uganda over the years for those suspected and arrested for homosexuality related crimes under the Penal Code Act, the passage of the Anti-Homosexuality Act2023 has escalated this practice.


Forced anal examinations against suspects is cruel, inhuman and degrading treatment that tantamount to torture. Such acts contravene the Convention against Torture, the International Covenant on Civil and Political Rights, and the African Convention on Human and Peoples' Rights and the Constitution of the Republic of Uganda and related laws and as the UN Committee against Torture has emphasized, they have no medical justification.


In some instances, the survivors of these exams were ultimately charged with crimes including Uganda’s Colonial era anti-sodomy provisions of the penal code. While Uganda has routinely subjected men and transgender women accused of consensual same sex relations to anal exams over the years, since the passage of the Anti-Homosexuality Act in May 2023, the practice of forced anal exams has increased.

In September, Uganda’s Director of Public Prosecutions (DPP) ordered that any criminal files with charges brought under the Anti-Homosexuality Act first be submitted to DPP Headquarters with a written legal opinion for further guidance before a decision to charge is made.


While this directive has reduced the cases that have gone to the prosecution level, it has led to prolonged delays and suspects staying longer in police custody. While in police custody, suspects face other forms of violations and abuses such as extortion and bribery by corrupt police officers and further ridicule by fellow suspects.


In some cases, the lawyers have had to apply for unconditional release orders from court for suspects to be released. In 5 cases of arrest, the police officers mentioned that they have ‘special orders’ when handling cases of homosexuality.


4. What have international partners of the Ugandan government said or done since the lawwas passed in May 2023?


International partners to Uganda have taken a range of actions to condemn the law and restructuretheir programming and financing in the wake of the law. Some programmatic and funding changes have been made public and some have not. The United States, a key partner to Uganda in health, security and refugee services, announced an expanded visa restriction policy, targeted sanctions under Global Magnitsky on the head of Uganda’s prison service and the suspension of Uganda from preferential trade status under the African Growth and Opportunity Act, among other actions. The Netherlands reduced its cooperation with Uganda in the wake of the law, specifically ending support for law enforcement programs valued at more than 25 million euros.


The EU condemned the law but has yet to announce any specific steps to alter its large assistance package to Uganda. Canada, the UK, Germany and Norway also criticized the law and highlighted how it violated Uganda’s international human rights commitments.


5. What is the World Bank doing in response to the Anti-Homosexuality Act?Over 170 civil society organisations around the world urged the World Bank to stop current and future lending to Uganda and to publicly state what range of possible actions it would take in the face of such a deeply discriminatory law that plainly violates the World Bank’s own safeguard policies.


In response to activists’ demands, In August 2023, the World Bank announced that due to Uganda’s passage of the 2023 Anti-Homosexuality Act, there would be no new financing to Uganda. The decision highlighted how fundamental non-discrimination is to economic development. In its announcement, the World Bank stated that the ban on new financing would be in place pending the “efficacy of the additional measures has been tested.” This referred to the fact that since thelaw was passed, and under pressure from donors, Government institutions such as the Uganda’sMinistry of Health has attempted to mitigate negative international condemnation by issuing statements urging health workers not to deny anyone care or discriminate in the provisions of health services. This is despite the fact that the Anti-Homosexuality Act specifically and plainly mandates exactly such discrimination. Since then, the World Bank has started considering mitigation measures but has not returned to financing projects in Uganda; civil society groups have further communicated to the World Bank that only nullification of the law will have the effect of mitigating its harms.


6. What have international businesses said about the impact of the law on their operationsin Uganda?


Since the law came into force, companies seeking to do business in Uganda have questioned their ability to do so in light of the law and the United States issued a business advisory, flagging its concerns for the law for American companies. In condemning the Ugandan law, a coalition of global companies, including Meta, Google, American Express, Deutsche Bank, AT&T, Mastercard, and Microsoft highlighted that discrimination against LGBTQ+ people has a detrimental effect onemployees and runs counter to the interests of businesses and economic growth in Uganda. They drew attention to evidence which “shows that policies designed to exclude minorities such as the LGBTIQ+ community have a real cost – not only on people, but on business performance as well as national economic competitiveness.”


They further argued that the law contravenes international standards of corporate responsibility and best business practices.


Furthermore, ViiV Healthcare, MSD, GlaxoSmithKline, and Gilead, multinational pharmaceutical companies, sought to be permitted to file an amicus brief before the Constitutional Court, arguing that the law would undermine their efforts to fight against HIV, criminalize their efforts to promote an inclusive workplace that attracts a skilled and motivated workforce, and would criminalize certain business transactions but were ultimately not permitted to do so.


7. What have world religious leaders said about the criminalization of same sex conduct or Uganda’s AHA?

The Pope issued statements earlier this year criticizing laws that criminalize homosexuality and labeling them “unjust.” The Archbishop of Canterbury urged the Anglican Church of Uganda to reject the Anti-Homosexuality Act, saying its support for the legislation was a “fundamental departure” from the global Anglican movement’s commitment to protect the dignity of all people.


In 2014, South Africa’s Archbishop Desmond Tutu condemned Uganda’s then similar Anti-Homosexuality Act saying there is no scientific or moral basis ever for prejudice and discrimination


8. What is the impact of the Anti-Homosexuality Act on Uganda’s HIV response?


The law undermines Uganda’s national commitment to defeat HIV as a public health threat by 2030. Criminalization of adult same-sex sexual activity is associated with an HIV prevalence of 24.8 percent higher among men who have sex with men compared with 7.2 times higher than countries without criminalization. The criminalization, persecution, violence, and stigmatisation from Uganda’s law drives people who are at the highest risk of HIV infection from the essentialprevention and treatment services they require. Furthermore, the law compels health workers and other front line social service providers to report people to police, violating their professional ethics and their commitment to protecting patient confidentiality. The law’s criminalization of “promotion” of homosexuality criminalizes clearly established best practices in the fight against HIV, by hindering health service providers from providing HIV treatment and prevention services in a welcoming, confidential and stigma-free manner.


9. What have scientists said about research ethics and Uganda’s Anti-Homosexuality Act?The Uganda National Council for Science and Technology (UNCST) shocked researchers with a recent directive regarding the Anti-Homosexuality Act, instructing researchers that they have an obligation to report to the police any research participant known to or suspected of committing o intending to commit any offense under the Act, under threat of criminal or financial penalty.


This directive violates scientists’ obligations to protect the rights of study subjects, including the right toconfidentiality, life, health, dignity, integrity, self-determination, privacy, and confidentiality. In response, 280 scientific researchers from more than 30 countries issued a letter to the UNCST clearly stating that the position of the UNCST violates medical ethics. They argue that in the context of research in human subjects meant to advance science, researchers are bound to internationally agreed upon obligations to uphold the rights of study participants to life, health, dignity, integrity, self-determination, privacy, and confidentiality.


These obligations, defined by the WMA Declaration of Helsinki – Ethical Principles for Medical Research Involving Human Subjects, state that “nonational or international ethical, legal or regulatory requirement should reduce or eliminate any of the protections for research subjects set forth in this Declaration.” In particular, international standards, such as the 2016 International Ethical Guidelines for Health-Related Research Involving Humans - CIOMS, obligate researchers to uphold the rights of vulnerable persons, including LGBTIQ+ people.


10. Don’t many countries criminalize same sex conduct? How is Uganda any different?Over the last generation, many countries have repealed or nullified laws that criminalize same sex sexual relations. In Africa, Angola, Botswana, Mauritius, Mozambique, Lesotho and Seychelles have recently decriminalized same-sex relationships. There are at least 64 countries that have laws that still criminalise homosexuality.

Uganda’s 2023 Anti Homosexuality Act differs from many other countries’ laws because it not only criminalizes sexual conduct but allyship, human rights work, andpublic health work and it includes the death penalty for some consensual same sex conduct, making it among the most broad and harsh laws directed at LGBTI people in the world.


11. How does this law relate to human rights protections in Uganda overall?


Uganda’s human rights situation has blatantly deteriorated over the last decade with more abuses and more attacks on civic activism. Corruption also remains unaddressed and takes a massive toll on citizens while the government’s many anti-corruption agencies do little to meaningfully rein in ongoing misappropriation of funds. Elections have been more violent each time around—the police and the military have cracked down with increasing brutality on protests led by those critical ofMuseveni’s long stay in power. During the 2021 presidential campaign, opposition candidates bounced between prison and house arrest. The government refused to accredit election observers and prevented scrutiny of the electoral process in virtually every way. Security officials arrested hundreds of opposition members and held them unlawfully without trial. Many were beaten and some were killed. Some remain behind bars to this day, with others’ whereabouts unknown.


AFRICAN HUMAN RIGHTS COALITION - STANDS IN SOLIDARITY with the Plaintiffs in the challenge against the Anti-Homosexuality Act, as we observe with hope that the Ugandan Court has the ability to render a fair and non-biased ruling.


For more information contact CFE -

 

For more Information, contact CFE Co-Conveners;

Frank Mugisha, Sexual Minorities Uganda, in Kampala at +256772616062

Clare Byarugaba, Chapter Four Uganda, in Kampala at +256774068663

Richard Lusimbo, Uganda Key Populations Consortium, in Kampala at +256782612972 To Contact AHRC- Melanie Nathan - nathan@AfricanHRC.org Currently AHRC is engaged in assistaing Ugandans to relocate, country conditions asylum case expert witness reporting and providing humanitarian and advocacy services as well as referrals.


PIC: Martin Ssempa, the notorious and viciously anti-LGBTI Pastor gets his due in HIV stigmatization case, and here files as a Respondent in his attempt to uphold the KILL THE GAYS BILL.





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