Museveni declines to assent to anti-gay Bill

President Museveni yesterday returned the Anti-Homosexuality Bill, 2023,  illuminating a string of issues he wants tweaked. Key among the proposals is to criminalise same-sex activities and not people who either identify or are labelled homosexual.

If adopted, the President’s proposals could let landlords and those in charge of premises that may be used for acts of homosexuality off the hook. A provision in the current Bill recommends a one-year jail sentence. Mr Museveni said this is “unnecessary” since another clause rests the burden on the actual person responsible for the premises.

Mr Museveni argued that while it is clear that society does not accept homosexual conduct or actions, homosexuals who have not engaged in homosexuality should not be punished.

“The Bill should include a provision that clearly states that for avoidance of doubt, a person who is believed or alleged or suspected to be a homosexual who has not committed a sexual act with another person of the same sex does not commit an offence,” the President told Speaker of Parliament Anita Among in an April 25 letter, adding, “This distinction must be clearly articulated.”

Legislators defined homosexuality as the offence where a person performs a sexual act on another person of the same sex or allows a person of the same sex to perform a sexual act on him or her. The offence is punishable by a 20-year prison sentence. Clause 2 that creates the offence also red flags anyone who holds out as a lesbian, gay, transgender, a queer, or another sexual or gender identity that is contrary to the binary categories.

“The debate has always been whether the sexuality of these individuals is deviant conduct or otherwise,” Mr Museveni opined in the letter, adding, “Therefore, the proposed law should be clear so that what is sought to be criminalised is not the state of one having a deviant proclivity but rather the actions of one acting on the deviance or promoting the same in whatever way.”

‘Ambiguous’ clause

Article 91 of the Constitution allows the President to, within 30 days after a Bill is presented to him or her assent, return it to Parliament for reconsideration or notify the Speaker in writing that he or she refuses to assent to the Bill.

Mr Museveni returned the Bill after back-to-back meetings with legislators to iron out disagreements, and reach a harmonised position.  This is expected to ease the passing of the proposals.

Mr Museveni also disagreed with the provision that mandated any individual to report any acts of homosexuality.

According to the President, this should be deleted or reviewed to apply to the protection of children. The provision criminalised failure to report, prescribing a fine of 5,000 currency points (Shs100m) or imprisonment for six months.

Speaking to this clause last Friday, Mr Jackson Kafuuzi, the Deputy Attorney General, said it was too ambiguous and would offer a window for the law to be challenged in court, a repeat government is working to avoid. A similar law was, in 2014, struck down by the Constitutional Court on a technicality.

President Museveni also proposed that the law caters to the rehabilitation of individuals unwillingly recruited and engaged in acts of homosexuality that were not aggravated. He added that this set should not be punished.

This proposal was first raised by the First Lady, Ms Janet Museveni, during the National Resistance Movement (NRM) Caucus meeting last Thursday.

Ms Museveni reasoned that those who want to stop practicing homosexuality should be supported.  She said the law in its current form leans more to prevention and less on correction of those who are already practicing homosexuality.

In its current form, it is at the discretion of the court to order the provision of social services for purposes of rehabilitation upon conviction.

Mr Museveni proposed that certain health facilities or other entities should be set apart to rehabilitate the individuals.

He said the government will consider the possible cost this may impose on the Consolidated Fund. 

Deputy Speaker of Parliament Thomas Tayebwa, who chaired yesterday’s sitting, referred the Bill to the Legal and Parliamentary Affairs Committee.  Mr Tayebwa asked the Committee to expeditiously process the amendments on account that “Ugandans are highly waiting for this Bill.”

Two strikes

Mr Museveni returned the Bill a day after a meeting with MPs on the Committee on Legal and Parliamentary Affairs that processed the Bill. He had earlier met all NRM legislators where a decision was reached for him to return the Bill.

On Monday, Mr Hamson Dennis Obua, the Government Chief Whip, told this publication that the President’s meeting with the Committee was to generate a consensus, adding that the Bill would be supported across party lines as was the case on March 21 when it was passed by a full House.

“The reinforcement of the Bill is to strengthen it further and it is in the best interest of the people and the citizens of Uganda,”  he said.

Mr Obua has also spoken to the President’s commitment to sign the Bill once his proposed changes are effected. But, according to the legislative processes, legislators could pass or reject the President’s proposals.

Technicality

If President Museveni fails to assent to the Bill on second enactment, it will regardless gain the force of law.  In the event that the Bill is signed into law with only the changes proposed by the President, persons convicted of aggravated homosexuality will face death.  Elsewhere, those who engage in acts of homosexuality face up to 20 years in prison.

Children found guilty of engaging in homosexuality face three years in jail, with provisions for rehabilitation, in line with the Children’s Act.  A person found culpable of promoting homosexuality faces 20 years imprisonment.

There are also punishments for journalists and editors, film directors, and corporate entities/organisations, whose work is interpreted to promote homosexuality. Child grooming attracts a 20-year imprisonment.

Since its passing, the Bill has attracted condemnation from rights activists and major donors and development partners, who have called on the President to veto “regressive” legislation.

Mr Museveni and Parliament have, however, vowed not to be cowed by the West.

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