The mixed reaction that welcomed the signing of the Anti-Homosexuality Bill into law is still prevalent, never mind that it is more than a week since the President assented to it.
A section of Ugandans is bewildered that the “father” of the nation could turn a blind eye to the likely violation of the rights of a minority group – the homosexuals. The rest are on cloud nine, thrilled that the President finally offered the much awaited respite from the Western world imposing their abhorrent culture on them.
In the ensuing debate by both groups, a lot of issues, but the contents of the Anti – Homosexuality Act (AHA), have been discussed. We sought to try and explain sections of the Act by engaging legal experts in a discussion about the significance of some pertinent provisions of the law.
What exactly is it?
Robert Kirunda, a lawyer with Kirunda & Wasige Advocates, says the AHA is a law which prohibits any form of sexual relations between persons of the same sex and the promotion or recognition of such relations.
In a nutshell, the spirit of the law is to forbid homosexuality and any efforts to encourage it. Ladislaus Rwakafuzi, also an advocate, with Rwakafuzi & Co Advocates, says Section 2 defines the offence of homosexuality to include a person penetrating the anus or mouth of another person of the same sex; with his penis or any other sexual contraption.
According to Section 2, the offence of homosexuality also includes one touching another person with the intention of committing the act of homosexuality.
“So touching a person of the same sex with a motive of having sex with them is an offence. This is broad because it does not matter which part of the body one is touching. The intention of the touch is subjective. It is the mind of the DPP (Director of Public Prosecution) to determine whether the suspect had the intention of engaging in the act of homosexuality or not,” Rwakafuzi says. “This is dangerous. It implies anyone can be accused of homosexuality and it may be hard to defend oneself. Even when one manages to successfully defend themselves, they’ll have been embarrassed.”
Kirunda concurs with Rwakafuuzi. He argues that the provision which provides for the offence to involve touching can be used by persons with ill motives, out to accomplish blackmail projects.
He further offers that going by the description of homosexuality in the AHA, it will be difficult to gather evidence to pin the offenders without the implementing authorities violating the constitutional provision on the right to privacy.
“In our society, we do not expect to see the homosexuals engaging in the act in public. They do so in private. The only gays we know are those who come out and say that they are so. If the authorities have to establish who is a homosexual and who is not, it implies that people’s right to privacy will have to be violated say for example breaking into people’s homes to verify whom they are having sex with.”
Kirunda says that Sections 12 of the AHA, sticks out as a sore thumb, for it is different from the spirit of the law as fed to the public by President Museveni. Section 12 stipulates that it is an offence for any person or institution to conduct a marriage ceremony between persons of the same sex.
“The institutions referred to could be a church, mosque or a Hindu temple. This provision takes the debate away from the Act to a different institution; the marriage institution. That is taking away the argument that the law is to protect the children because marriage is not conducted between children but rather adults. Under this section, the State appears to be regulating what the church and other religious institutions can do and what they cannot.”
Mind what you post
In his speech explaining why he enacted the AHA, president Museveni said his decision was premised on the argument that homosexuality is a learnt behaviour. Ugandans who thought otherwise shot back by writing commentaries in newspapers articulating their divergent opinions. Others made use of social media making posts to the effect that homosexuality is natural and not nurtured. Rwakafuuzi says under the new law, such debates are criminal. Section 13 stipulates that it is an offence for any person to use electronic devices which include the internet, films, mobile phones for purposes of homosexuality or promoting it.
“If one pens an article explaining that homosexuality is not a work of the devil as claimed by the masses but rather a sexual orientation that some people are born with; according to section 13, it could be interpreted that the author of the article is promoting same sex relations and should thus be prosecuted. In other words, this law criminalises debate. But debate has been around for academic freedom and it has to continue,” Rwakafuzi says.
Kirunda adds that if it is a newspaper carrying the article or articles that are interpreted as being in support of homosexuality, the penalty upon conviction is cancellation of the certificate of registration. “Cancellation of the certificate of registration implies that the newspaper ceases to exist. It has become unlawful,” he states. Kirunda says even a post on one’s Facebook wall if construed to be in support of homosexuality is an offence.
The good part
Section 9 of the law tackles procuring homosexuality by threats. It provides that it is an offence for any woman or man to use intimidation as well as false pretences to have unlawful carnal knowledge with a person of the same sex. Both lawyers agree that this is a good law.
“In as far as President Museveni’s claim that this law is to protect the children of Uganda from homosexuality, I think this section was enough to address that concern. This section criminalises forcing someone against their will into homosexuality because that is bad,” Kirunda says.
“What makes the provision complete is that one making an allegation that they were coerced into homosexuality, has to back their assertions with evidence. This could be bruises registered while fighting off the accused from using force. Thus there are no probable cases of folk cooking stories.”
Will the law bite?
Both advocates believe that the law was an unnecessary one. Kirunda argues that the existing laws under the Penal Code Act were enough to achieve the goal of the AHA. “If they were unable to utilise the laws in the Penal Code to stamp out homosexuality how can they say that they will successfully enforce this one?” he wonders.