March 08, 2023.
UPDATED NEW AMENDED BILL - March 21, 2023
This Analysis is prior to above amendments, still relevant.
HRAPF has prepared a legal and human rights analysis of the Anti-Homosexuality Bill, 2013. This follows the publishing of the Bill in the Uganda Gazette on 3rd March 2023. The Bill came up for the First Reading yesterday but it was not read as the mover was yet to receive a certificate of financial implications from the Ministry of Finance as required.
As HRAPF, we believe this is the right time for partners, both here and outside Uganda including other governments and UN agencies to speak out against the Bill - privately or otherwise. I know there are fears that this may be regarded as evidence of western hegemony etc. but in our opinion, partners should be able to stand up for what they believe in, and there is no better time than now, when we can still debate these issues. Melanie Nathan of African Human Rights Coalition: " As HRAPF notes, the BILL reflects many pointers noting it is UNCONSTITUTIONAL, REDUNDANT, AND REGRESSIVE all indicative of how ridiculous the new proposed law is - and this makes it even more clear that the entire process is a waste of time and money - a smokescreen and scapegoat antic to redirect people's focus from the real harms and ills currently plaguing Uganda. In Uganda, President Museveni’s dictatorial and oppressive government, a 33 year reign, with a stranglehold that prevented free and fair elections, clamped down on rights of assembly, denied freedom of press, abducted and tortured political opponents still seems to to need a popular binding issue that would make the case for ensuring his continued power or maybe that of his wife Janet, who has taken up the anti-homosexuality cause with much vigor. Politicians and Evangelicals have been partners in the campaign to get rid of the gays who would they lyingly tout as the greatest threat to Ugandan society. THE PERFECT SCAPEGOATS and a great way to bind Ugandans as M7 sought to distract from the real oppression and problems." ..... "I further note - that if the Ugandan Government and Parliamentarians only knew the stories of those seeking asylum in the United States, where I represent with expert testimony as a country conditions expert, they would hang their heads in shame, as all it reflects is a country that is anything but Christian in its treatment of its citizens."
Follow this link for the analysis - https://hrapf.org/?mdocs-file=11231
Essentially HRAPF's position can be summarized as follows:
The Anti-Homosexuality Bill, 2023 is:
1. Unconstitutional because its provisions criminalizing consensual same-sex relations among adults, introducing the ‘homosexual panic’ defense, and those seeking to criminalize ‘aiding and abetting’ as well as ‘promotion of homosexuality’ and the overall spirit of the Bill contravene the constitutional protections of the rights to: equality and freedom from discrimination; privacy; dignity and freedom from inhuman and degrading treatment; right to a fair hearing, freedom of expression, religion, conscience and association, liberty, and health.
The state in enacting such a law would be in contravention of its obligations to respect, fulfill and protect human rights under the Constitution and under international law.
These rights as they relate to sexual minorities have already been established by Uganda’s High Court in the cases of Victor Mukasa & Another vs. Attorney General (2008), and Kasha Jacqueline, Pepe Onziema & David Kato v. Giles Muhame and The Rolling Stone Publications Ltd (2011).
2. Redundant because it replicates existing provisions. Most importantly:
- Homosexuality is already criminalized under the ‘unnatural offences’ provisions of Section 145 of the Penal Code Act of Uganda Cap 120.
- Sex with children under the age of 18, whether girls or boys, is already criminalized under the 2007 amendment to the Penal Code Act and punishable with a higher punishment than that proposed in the Bill.
- Aggravated homosexuality has the same punishment as homosexuality, and attempted aggravated homosexuality has the same punishment as aggravated homosexuality.
- All the other provisions essentially exist under the Penal Code and other laws.
3. Retrogressive because it provides for lesser punishments for non-consensual same-sex relations compared to those in existing laws. For example, 'defilement' of children is punishable by death and yet the Bill proposes ten years imprisonment for ‘aggravated homosexuality’ which includes sex with persons below 18 years. It will also worsen the HIV situation in Uganda as it would deny LGBTIQ+ persons who are key populations access to HIV services as it criminalizes ‘promotion of homosexuality.’
In terms of timelines, the Speaker seems to be determined to pass the Bill as soon as possible. I have attached the official Parliamentary guidance on the process, but ideally after the motion to table the bill, the Bill is gazetted (which was done very quickly), and then tabled for the First Reading. It then goes to a committee and the committee is supposed to make public consultations. After that the Committee tables its report, then the Bill is read for the second time - and each provision discussed and agreed upon. Then the Bill is read for the third time and it becomes an Act of Parliament. It is then sent to the President, who has 30 days within which to sign or send it back to Parliament for review. Eventually, if the Bill goes to the President for the third time and they do not sign it, Parliament can pass the Bill with a two thirds majority. The process usually does not take less than two months. As such, if the procedure is expedited as the Speaker seems to indicate, it could be an Act of Parliament by the end of April or mid May 2023 or even earlier, depending on the parties involved, and how much they prioritise this.
Also attached is the analysis, and the Bill as gazetted.
UPDATED BY HRAPF: March 09, 2023. The Anti-Homosexuality Bill, 2023 has today been read for the first time. This came after the Ministry of Finance issued a certificate of financial implications for the Bill. The Committee has been referred to the Committee on Legal and Parliamentary Affairs which will review the Bill, hear from stakeholders and report back to Parliament
