AG, ministers clash over anti-gay Bill

Attorney General Kiryowa Kiwanuka. PHOTO | DAVID LUBOWA

What you need to know:

  • During his latest address to Parliament on March 16, President Museveni said he would require a scientific opinion to establish if the practice was natural, or learned. Mr Museveni advanced the same argument in the now annulled Anti-Homosexuality Act, 2014. He later assented to the Bill, saying he had been convinced by scientists that persons who practise homosexuality were nurtured into it.

Government officials yesterday read from different scripts regarding the contentious Anti-Homosexuality Bill, 2023. 

While the Attorney General (AG), Mr Kiryowa Kiwanuka, labelled the Bill redundant due to multiple repetitions of offences in already existing legislation, the Minister of State for Disability Affairs, Ms Grace Hellen Asamo, and the Minister of State for Ethics and Integrity, Ms Rose Akello,  said the new law is necessary to ensure more punitive penalties. 

The Office of the Directorate of Public Prosecutions, which is mandated to institute criminal proceedings against any person or authority also says there is no need for a new law. 

The officials made the diverging positions while appearing before the Legal and Parliamentary Affairs Committee, that is processing the Bill. 

The AG, as the principal government legal advisor, plays a critical role in the legislation process, including helping private members draft Bills, and ensuring conformity of all laws.  

“I wish to bring your attention that some of the clauses in the Anti-Homosexuality Bill, 2023 are similar to provisional in other enactments …where the law has adequately provided for an offence, it is right and proper to avoid duplication for purposes of easy implementation,” he said, quoting Section 39 of the Interpretation Act that bars punishment under more than one law for the same offence.

Mr Kiwanuka’s opinion signals a departure from the government’s previous position when the Ministry of Finance issued a certificate of financial implication, showing government’s support of the new legislation. 

In his submission, the offence of homosexuality under Clause Two of the Bill is provided for under the Penal Code Act Cap 120, as natural offences. Clause four on attempt to commit homosexuality is covered under Section 146 of Cap 120 under the Penal Code Act. Other duplications cited, include clause eight that penalises aiding and abetting homosexuality, clause nine on conspiracy to engage in homosexuality, Clause 11 on detention  with intent to commit homosexuality.

The offence of same-sex marriage created under Clause 13, is already covered by the Marriage Act that defines marriage to be between man and woman. Article 31 (2) of the Constitution also prohibits same-sex marriage.

The AG was silent on the promotion of homosexuality, one of the key loopholes cited by proponents of the Bill in existing law

Mr Fox Odoi, (West Budama North East MP) yesterday said the problem is lack of implementation and not absence of the law.

Mr Asuman Basalirwa, the sponsor,  of the new Bill, said it  is necessary to cure inadequacies in the Penal Code Act that provides for unnatural sex, but “lacks provisions on procurement, promoting, disseminating literature and other ponographic  materials concerning the offences of homosexuality”. 

The Office of the Director of Public Prosecutions, whose staff also appeared before the Committee yesterday, proposed an amendment of the Penal Code Act to plug said loopholes.

“This doesn’t justify a completely new law. This can be achieved by simply amending the penal provision,” Mr James Odumbi  Owere, the Deputy Director of Public Prosecutions, said.

Mr Odumbi also argued that the new law proposes lesser punishment, as compared to the Penal Code Act, which will make implementation difficult. 

Unnatural offences under the Penal Code Act are punishable by life imprisonment while the new Bill proposes a 10-year sentence for the offence of homosexuality. 

Tougher penalties

Ms Asamo yesterday appealed to the legislators to tighten the punishments.

“Homosexuality is a physiological disorientation which does not easily get out of someone’s mind within a short time. There is, therefore, need to safeguard society from being affected by the reoccurrence of the homosexual practices by putting in place reasonable deterrent penalties,” she said.

The Gender ministry submitted that for  offences prescribed a two-year sentence, it should be increased to five, those at five years to attract 10 years and above, while the proposed 10-year sentence should be  increased to 20 years or above.

The ministry also proposes a three-year custodial sentence of any child who engages in homosexuality.  And introduces a provision to ensure that those convicted of homosexuality be kept in isolation in all prisons “to prevent them from continuing with the practice and to protect the other inmates from falling victims of the homosexual offences.”

Mr Paul Kwizera, the Kisoro Municipality MP, however, questioned why psychological disorientation would be addressed through punitive penalties. 

Ms Akello, asked legislators to consider including the provisions that address foreign missions in the country, which she claimed are abetting acts of homosexuality. 

“Foreign missions in Uganda have become hubs for harbouring people claiming to be homosexuals and those promoting the vice. Provision should be made to prevent them from being conduits of this crime in Uganda,” she said.

This, however, attracted disagreement from the legislators who said this would contravene the Vienna Convention on Diplomatic Relations, to which Uganda is a signatory.

Mr Odoi also tasked the ministry to avail a list of missions, and organisations that are promoting the practice.

“Can we have evidence to back this up…and not one or two videos? Legislation must be evidence-based,” he said

Sources close to parliamentary proceedings said the Bill will most likely be taken back to the House next week, for second reading and possible passing. Ms Anita Among, the House Speaker, has previously said the law would be passed expeditiously at “whatever cost.”

The Bill was first tabled on March 9.