By Ariel Rubin
While section 140 of the colonial-era Penal Code Act already criminalises “carnal knowledge against the order of nature”, this new legislation will attempt to give teeth to that dictum
Being gay in Uganda has never been easy, but a new draft bill tabled in Parliament on October 14th by Ndorwa West MP David Bahati (NRM) is seeking to make it a whole lot harder. The “Anti-Homosexuality Bill 2009′ is attempting to further criminalise homosexuality and those who “aid and abet” its practice.
While section 140 of the colonial-era Penal Code already criminalises “carnal knowledge against the order of nature”, this new legislation will attempt to give teeth to that dictum. The bill targets not only homosexuals but any person who promotes, funds, or sponsors any homosexual practice or activities.
It also makes the “failure to disclose” a homosexual within 24 hours by a knowing “authority” an offense punishable by up to Shs 500,000 and/or three years imprisonment.
Furthermore, the broad category of “attempted” homosexuality will now be a felony punishable by a prison sentence of up to seven years. The proposed law also creates a new crime known as “aggravated homosexuality” whereby anyone found engaging in a homosexual act with a person less than 18 years of age or who has a disability, or if the offender is an authority figure, parent or guardian, or HIV positive, the said offender will be liable for the death penalty upon conviction. Finally, there is an extrajudicial clause which states that any Ugandan citizen or permanent resident can be prosecuted for these crimes regardless of location.
If the law passes there could indeed be far-reaching implications for more than just Uganda’s gay and lesbian population. As Spectrum Uganda activist Sam Ganafa declared, “The new bill will instill fear because it touches almost everybody. Even a journalist now asking me about this, after it passes will not be able to do it. You will be discussing a subject that must not be discussed at all. Your family will be compelled by law to turn you in.” Furthermore, human rights advocates and lawyers have already asserted the purported illegality of the bill saying it attempts to circumvent and thus nullify the numerous international treaties and covenants already ratified by the country.
On a recent radio debate, Christine Butegwa, regional coordinator for Akina Mama wa Afrika, one of the 23 organizations partnering in opposition to the bill, asserted that “the bill has nothing new to offer. It is indeed a waste of tax payers’ money because the majority of the provisions in the bill are actually provided for in other laws already in existence in Uganda.” Furthermore, as Makerere law lecturer Dr Sylvia Tamale noted, it is clear the author of this bill was no lawyer because it is in direct violation of numerous tenants of the 1995 constitution and legally Parliament has neither the power to nullify treaties or constitutional provisions.
Indeed, one of the key consultants of the bill is not a lawyer at all, but prominent “pro-family” pastor, Martin Ssempa. On the same radio broadcast last week, Ssempa repeatedly touched upon the overarching threats he believes this bill is attempting to remedy: the assault upon African culture and the erosion of family values alongside fears of increased incidences of homosexual recruitment and defilement and their seeming lack of legal consequences. Ssempa argued that, contrary to criticism that the bill unfairly targets homosexuals, it would in effect bring about equal protection under the law for both boys and girls, who are the prime targets for molestation and defilement.
In a recent interview, Ssempa went much further, “I think it is important to understand what sodomy is. It is inherently unhealthy, a sexual lifestyle that involves unmentionable acts.” He went on to note that “by and large many boys and men have been infected and had permanent damage from homosexual behavior. And homosexual men have a higher risk for disease.”
For gay activists in Uganda, there is a mixture of anxiety and disappointment. K, who claims to be an avowed supporter of Musevini and the NRM, seemed most disappointed by the religious fervor underlying the new bill and the subsequent consequences it would have on him and his friends. He noted that he was never recruited to be gay nor was it a conscious choice; rather it was something he implicitly knew from a very young age. It wasn’t until he was in his early 20’s and he moved to Kampala that he met people like him and realised that he was not alone.
“When I came to Kampala, I found so many people, even some small organisations. I feel at home here, only now this bill is really making it worse on me. Really I was so happy and I am happy.”
K appeared worried yet defiant, “I think Ssempa has big people with guns and everything, and the way they are threatening us, some of us I think we are ready to die because there’s no way I’m going to go. And I cannot change. They want to preach and they want to educate. Me, I am not going to change.” Regarding Ssempa, K a self-proclaimed god-fearing man, remarked sadly “I don’t think he’s God’s messenger because he is fighting God. If you are fighting one who was created by God, then you are fighting God… To me he is not a pastor because a pastor preaches the word of God. And that is the word of love not hate. Pastor Ssempa is preaching hate.”
Another young gay Ugandan noted that he had been for many years in a committed relationship. “Do some people know? Yes. Do some people suspect? Yes. Can they prove it in court? No. The new bill changes that.”
In a recent interview with Foreign Policy magazine, MP David Bahati did not mince words, “We are asking ourselves; is homosexuality good or bad? We are suggesting that it is bad. It is a behaviour that should not be tolerated. There is no evidence that someone can be born a homosexual.” He went on to note that gay men were three times more likely to transmit the HIV virus.
But according to K, this new law will not eliminate homosexuality, it will merely drive it further underground and accordingly, make it more dangerous, by targeting medical professionals (among others) who treat homosexuals. For him, “this bill is like killing people.”
The new bill’s provision to enforce full disclosure of any known homosexuals by an “authority” is also bringing forth anxiety that this could easily devolve into a witch hunt for “secret” homosexuals, as well as a tool that anyone can use to frame or extort someone for their own personal means. Dr Tamale noted that this idea of the promotion of homosexuality simply requires one to send someone an “unsolicited email or sms which has some homosexual or pornographic and voila, they will be guilty. Or at least they’ll have to go to court to defend themselves. It is very dangerous. People need to see the forest beyond the trees.”
The bill has been nothing if not controversial with vociferous critics and supporters on both sides. On a recent radio call-in program, nearly every caller vehemently supported the bill and many were eager to denounce those opposing it as homosexuals themselves (and in one case, as “agents of Satan”).
Ultimately, the fear for many human rights defenders is the erosion of a human rights culture in Uganda and the broad ways in which this bill can be used to target many more than just the small gay population. As Val Kalende, a journalist and activist for SMUG (Sexual Minorities Uganda) noted, “This is not all about sex. We are talking about the right for people to be employed, the right to access services equally, the right to justice and the right to freedom of speech and expression.”
Pastor Ssempa and MP Bahati however think otherwise, both deeply worried about the undue influence by perceived attitudes of Western decadence and permissiveness seen as decimating African culture and tearing apart the moral fabric of society. As Ssempa explained, “On the issue of homosexuality, the African finds that what does not benefit the community must be done away with.” But as K countered with conviction, “Even if they call me today, I am not going to leave. If the condition is bad for me I would run [to another country] but if the condition is still allowing me here then no, I love my country.”