COMMENT | Theophilus Oladipo | On the 4th of May 2021, the sexual offences bill passed the third reading stage at the Ugandan Parliament. Since 2019, the bill has been a source of debate and worry. Apart from the fact that it needlessly confirms what has mostly been criminalized, it raises core issues around sexual freedom, human rights law, and anti-rape legislation.
The bill has some good points. But it presents more significant problems than solutions.
One of its fundamental problems is its stance on the withdrawal of consent during sex. There is no record of calls for expert presentations on the subject before excluding such sensitive provision. The exclusion discloses to a large extent the lack of working knowledge of the intricacies of consent in sexual relations by the parliamentarians.
The potential implications of this may be broader than imagined on the floor of the house. For instance, women who agree to sex based on the use of protection may no longer claim to have been raped if they find their sexual partner unprotected.
The second fundamental problem is the crackdown on sex work. In Uganda, where 83.5% of the jobs available are informal jobs and a 10% higher probability for women to be engaged in those jobs, the legislation defies logic. It also impinges on the internationally guaranteed right to work, freedom from discrimination, among other rights.
The criminalisation of sex work also has potential implications for the health and safety of individuals who engage in it. Research has shown that laws of this nature mostly undermine the rights of sex workers to access justice and exposes them to rape and harassment by law enforcement officials. The criminalisation is surely counter-intuitive to the purpose the bill serves.
Also significant is the further marginalisation of LGBTQ+ groups, in the official release on the Parliament’s website, Hon. Jacob Oboth was quoted to have said that “any Christian or Muslim would be happy that there is something taken from the Bible and legislated upon”. This statement partly explains the contested religious leaning that fuelled the inclusion of the anti-LGBT+ provisions in the bill. It further reveals breaches of the neutrality of the legislature and its duty to protect minority interests.
The law now recognises spousal rape. The recognition is laudable, but the punishment is far too lenient. A maximum of one-year imprisonment may not do enough to deter deterrents, and the sentence is far removed from the reality of the offence it seeks to curb.
The last is the bill’s discriminatory undertone for people living with HIV/AIDS. There is an unmistakable tone of derogation and discrimination against people living with HIV/AIDS in the bill. Clause 3 specifically provides that evidence of HIV/AIDS should be considered as an aggravating factor for rape offences. While this may be motivated by good intentions, it tacitly endorses the stigmatisation of infected persons.
Moreso, the Parliament can adopt other legislative mechanisms to ensure that deliberate infections are punished under the law. Offenders may be charged separately for such and graver punishments may be attached, but to add the fact of STD as an aggravating factor may be discriminatory.
There is still time to revisit the bill. This review is not conclusive. Other analysts may pick other issues from it. The legislature should ensure that it does not sacrifice the human rights of individuals and marginalised groups at the altar of public safety in its quest to protect the citizens.
Theophilus Oladipo is a writing fellow at African Liberty, where he writes on Governance and Business. He can be reached on Twitter @Theoladipo.
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