By Melanie Nathan, June 05, 2023.
HRAPF has always been that reliable true Human Rights Organization consisting of allies to the LGBTQI+ community in terms of their willingness to take on cases - where no one else dare go. But now, even though they can continue in the courts, they have to limit their operations as their mere professional relationships and discussions could land them as individuals with 20 years behind bars. This is criminalization and human rights abuse at the very worst. It truly illustrates the unconstitutional nature of the law. This is absolutely tragic.
POSITION ON HRAPF’S WORK INVOLVING LGBTI ISSUES IN LIGHT OF THE ANTI-HOMOSEXUALITY ACT, 2023
Today, 30th May 2023, following the signing into law of the Anti-Homosexuality Act 2023 by the President, the Board of Directors of Human Rights Awareness and Promotion Forum – Uganda (HRAPF) sat and resolved as follows:
1. That the Board of Directors re-affirms HRAPF’s commitment to equality for all human beings in all their diversities.
2. That the Board reiterates its decision for HRAPF to be part of the legal challenge to the Constitutionality of the Anti-Homosexuality Act, 2023 (AHA).
3. That HRAPF is incorporated as a company limited by guarantee, and registered as a Non Governmental Organisation with a valid permit issued by the National Bureau for Non Governmental organisations (NGO Bureau).
HRAPF does its work under the laws of Uganda and its work is protected under article 29(1)(e) which provides for the right to freedom of association and article 38(2) which provides for the right of every Ugandan ‘to participate in peaceful activities to influence the policies of government through civic organisations.’
4. That following the coming into force of the AHA, HRAPF as a law abiding organisation, has to continue operating within the parameters of all the laws of Uganda, including the AHA.
5. That we are of the firmly held view that all the work that HRAPF does is legal.
6. That despite this firm belief, the AHA has several vague and wides weeping provisions that may be interpreted as rendering some of the work that HRAPF does on LGBTI issues illegal, particularly under section 11 which criminalises ‘promotion of homosexuality.’ ‘Promotion of homosexuality’ attracts 20 years imprisonment for individuals concerned including those who run organisations said to be promoting homosexuality, and a fine of one billion shillings and suspension or termination of an organisation’s licence. The Board has therefore decided that as HRAPF seeks interpretation of these provisions from the Constitutional Court, it will stop work that the Government has formally or informally indicated may be illegal under the new law and other work that we suspect may be interpreted as promotion of homosexuality under section 11. 2
7. That the only work HRAPF does that has been formally commented about by the Government is that concerning working with local governments to pass byelaws enabling equal access to HIV services by all persons, including LGBTI persons. On 25th January 2023, the Deputy Speaker of Parliament directed on the floor of Parliament that the role of HRAPF in supporting the passing of a bye law on provision of HIV services to key populations by Kasese Municipal Council should be investigated by the Ministry of Internal Affairs. Although this work was being done under the ‘Leave No One Behind: A National Plan for Achieving Equality in Access to HIV, TB and Malaria Services in Uganda 2020-2024’ (Equity Plan)’ developed by a broad and inclusive process during 2019 and subsequently endorsed by the Minister of Health, we have decided to suspend it until there is more clarity under the new law.
8. That in January 2023, in a leaked report that was later acknowledged by the NGO Bureau, HRAPF was listed among organisations being investigated by the NGO Bureau for 'promotion of homosexuality' despite that not being an offence at the time. No details were given as to why HRAPF was being investigated, and this leaves us in the dark as to why we were being investigated. Therefore, to err on the side of caution, as we seek clarity from the Constitutional Court, with effect from 30th May 2023 activities that involve LGBTI issues will be indefinitely suspended. However, provision of legal services and challenging laws in courts of law will continue including educating clients on the implications of the laws, advising them on the remedies that exist under the law in case of violations, bringing their cases before courts of law and quasi-judicial bodies, representing them before courts of law and other bodies, and research and documentation of human rights violations against them. This work shall continue because access to legal representation is part of the fundamental right to a fair hearing that is protected under Article 28 of the Constitution and is non derogable under Article 44(c) of the Constitution. All persons, including LGBTI persons, are entitled to this right.
9. That however, we are mindful of the requirement to report all persons that one knows or suspects to be engaged in ‘homosexuality’ under section 14 of the Anti-Homosexuality Act which directly affects our work as legal aid service providers. Although Advocates are excluded from the obligations to report, our other staff, including lawyers who are not advocates, paralegals, and administrative staff are not excluded. The law provides rewards for those who report, including shielding them from punishment and protecting them as whistleblowers. We do not want our staff to undertake the big burden as to whether to report or not, and as such only Advocates will be allowed to receive, handle, document and represent LGBTI clients from now until the position is clarified.
10. That from 30th May 2023, HRAPF’s offices will temporarily close to enable internal discussions and adjustments as to how work is to be re-organised in light of these changes. The offices will reopen on Monday 12th June 2023 to only undertake the activities mentioned in paragraph 8 above as regards LGBTI issues as well as to continue serving the other target groups that are not affected by the AHA. During the period when the HRAPF offices shall be closed, HRAPF’s Advocates shall remain available to provide urgent legal response to all target groups – including LGBTI persons as per the mandate in paragraphs 8 and 9 above. HRAPF's legal staff's usual mobile phones will remain operational, but the office lines with the exception of the toll free line will not be responded to. 3 For those who need emergency legal services during this period, kindly use the usual staff lines - and for those who do not have them, call the Director Access to Justice on 0706536303 or the HRAPF toll free line on 0800130683.
11. That HRAPF remains committed to its stated vision of ‘A society where the human rights of all persons including marginalised persons and key populations are valued and respected.’ Taking Human Rights to all
Signed Dr. Adrian Jjuuko