By Andrew M. Mwenda
Why the anti homosexuality law is most likely going to be used for political rather than moral reasons
Finally President Yoweri Museveni has “yielded” to the advice of “our scientists” to sign the anti homosexual bill. Most Ugandan elites who were cheering him on social media missed the entire purpose of the circus in Kyankwazi. The NRM MPs, in exchange for Museveni’s acceptance to sign the bill, “urged” him to stand for yet another term – unopposed. This is the kind of bargaining that democratic politics is made of. However, the supporters of this law, who are the vast majority of Ugandans, do not appreciate the danger they are courting giving the state such powers.
Although the law is written to prosecute homosexuals, its actual application is most likely going to be persecution of political opponents. Sex is a very private activity – normally not done in public view.
The sexual activity that this law is meant to curb – sex among consenting adults – is one the prosecution cannot prove. This is because proving a crime requires evidence, often supported by an eyewitness. So one party must be willing to “spill the beans” for the prosecution to prove “beyond a reasonable doubt” that a sex act happened. Since such witnesses will be nonexistent, prosecutors will have to rely on “circumstance and opportunity” to prove the guilt of the offender.
I know there are websites of Ugandan youth in homosexual acts – so here police will have evidence. However, such acts have already been criminalised under the Anti-pornography law – another of those laws that shows that our politicians, having failed to serve the interests of the citizen are now relying on cultural bigotry to bolster their political fortunes. However, beyond this small circle of victims, it is almost impossible to enforce this law.
Hence the only cases where this law can actually work “as intended” is for defilement and rape. Yet such cases do not actually require a law specifically made for homosexuals – they cover heterosexuals as well. Consenting sexual partners have a double coincidence of benefit (both enjoy the act) and have equally a double coincidence of criminality (both are liable to life imprisonment). So none of them has an incentive to reveal the other.
Those who support homosexual rights have missed the real point of this law. They have spread alarm and fear that police will be visiting people’s bedrooms and opening their bed sheets to see which person is indulging in a homosexual act. Yet, as Ugandans, we know that our police does chase after criminals who harm others by stealing their property, assaulting them etc. Our traffic police officers watch indifferently as boda boda riders run through red lights causing accidents. And of course the state looks on as public officials loot pubic funds with reckless abandon. Therefore, I do not see the Uganda police enthusiastically running after people whose acts generally harm no one.
It seems to me the anti homosexual law was passed in order to serve our public’s prejudices or help our MPs score political points. The real danger is not the law per se but the opportunities it opens up for the state.
Once in place, the law will likely be used by the state to persecute and humiliate its critics – whether they are gay or straight.
Given the stigma very many Ugandans attach on homosexuals, it will become increasingly attractive for NRM handlers to accuse their enemies of being homosexual.
There has been unanimity of opinion among a broad cross section of Ugandan elites in favour of a law against homosexuals. They denounce gays for indulging in unchristian (or unislamic or ungodly), unnatural, unAfrican and immoral acts.
Yet these same Ugandan elites indulge in all manner of sin on a daily basis like fornication, adultery, lies, envy and greed. Should the state legislate life sentences for all these sins? Is Uganda a theocracy that should have a state, armed with a religious police as happens in Saudi Arabia, enforcing God’s will on earth?
Incidentally, those who argue that homosexuality is unAfrican do not produce any evidence from our traditions and culture that prohibited it and the punishment society meted out to offenders. Those who argue that homosexuality is unnatural claim this is because it does not lead to procreation. Yet men can sleep with men for pleasure and sleep with women to rear babies. Besides, even a stupid scientist knows that nature is not purposeful. Whatever physical and psychological functions we possess evolved randomly. So the idea that same gender sex is unnatural is scientifically a very stupid argument.
The most important argument against homosexuality is neither religious (should we subject non believers to religious views they do not subscribe to) nor scientific (as I have argued above) nor the defense of tradition. It is the issue of morality. One can legitimately criticize Western countries for trying to enforce a harmony of sexual morality. Our societies find homosexuality immoral, and morality is arbitrary like nature; many of its tenets cannot survive if subjected to the test of reason. However, it is not the role of the state to legislate morality. If homosexuality is immoral, it should be left to families, churches, mosques and the clans to handle.
Surprisingly, church and mosque leaders in Uganda want to use the repressive machinery of the state to enforce God’s will. Even if, just for argument’s sake, I accepted the “homosexuality-as-immoral” argument, it would still mean that our religious leaders and moral guardians of our clans have failed in their duty to promote good moral standing. In any case, many morals in our society have crumbled. Therefore, picking, choosing, and criminalising one while ignoring others is absurd.
The most important point however is that state has little interest in morality. And in the specific case of Uganda, our state has even much less interest in enforcing morality – even policing crime generally. The state in Uganda is most vigilant when the political fortunes of the NRM and Museveni are at risk.
One has only to witness how enthusiastically the police keep opposition activist Kizza Besigye under watch as criminals elsewhere go scot-free to see what I am talking about.
Therefore, the only role the anti homosexual law will serve is not as an instrument of enforcing morality but of persecuting critics.