Tamale’s take on the Anti-Homosexuality Bill clauses

Sunday May 22 2011

Sylvia Tamale

Sylvia Tamale 

The more inflammatory parts of the Anti-Homosexuality Bill have been publicly debated - such as the potential death penalty, and charge of “aggravated homosexuality” - if the accused is HIV positive for instance. But five key clauses have far-reaching legal implications. As identified by Makerere law Professor Sylvia Tamale.

•Clause 1 attempts to define homosexuality and its related activities. How this will be enforced is unclear, and poses considerable risk to freedom of privacy among others.

•Clause 13 which attempts to outlaw the “Promotion of Homosexuality” poses risks to fundamental freedoms such as the rights to free speech, expression, association and assembly. By criminalising the “funding and sponsoring of homosexuality and related activities,” the bill also threatens Uganda’s public health policies and efforts.

Tamale gives the example of the Most At Risk Populations’ Initiative (MARPI) introduced by the Ministry of Health in 2008, which targets specific populations in a comprehensive manner to curb HIV/AIDS rates. If bill as it stands becomes law, health practitioners and fundraisers of the initiative would be liable to imprisonment for seven years.

•Clause 14 introduces the crime of “Failure to Disclose the Offence” of homosexuality. Under this provision, any person in authority is obliged to report a homosexual to the relevant authorities within 24 hours of acquiring such knowledge. As well as this being extremely difficult to enforce, Tamale suggests it would foster violence, blackmail and “witch hunting.”

•Clause 16 relates to extra-territorial jurisdiction, and would allow Ugandan law enforcers to arrest and charge a Ugandan citizen or permanent resident who engages in homosexual activities outside the borders of Uganda. This law enforcement model is normally used in international crimes such as money laundering and terrorism.

•Clause 18 requires Uganda to opt out of any international treaty that we have previously ratified that goes against the spirit of the bill. Article 287 of the Constitution obliges Uganda to fully subscribe to all its international treaties obligations ratified prior to the passing of the 2005 constitution.

Source: A Human Rights Impact Assessment of the Anti-Homosexuality Bill. Sylvia Tamale. Nov. 18, 2009.

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