The politics of anti-homosexuality law

Thirteen years after Uganda enacted and upended a draconian, homophobic law, there is a pent-up appetite to enact one once more, incentivised by the recent media frenzy about same-sex dissipation in the country.     

The Asuman Basalirwa Bill, which was tabled in Parliament on March 9 is a welcome intervention for many homophobes (as we are characterised). Yet, whether the Asuman Bill will succeed where the David Bahati Bill failed in 2014, will not be contingent upon the will of Parliament or the population, but upon where the President stands. 

The Bahati Bill was nixed by the President, who failed to absorb the stress from the homophilic donor community, but did it in a way so clever that he had his tracks safely covered from the eyes of much of the Ugandan public.  

When the Bahati Bill was passed by Parliament in 2013, the President, in his protest letter to the Speaker, whinged about the failure of Parliament (read Speaker) to heed his advice to shelve the Bill. The President also chided the Speaker and Parliament for passing the Bill in breach of the Constitution. 

The breach of the Constitution the President referenced had to do with the lack of quorum in Parliament at the time of the passage. His government, through the prime minister-cum-leader of government business in Parliament, had drawn the attention of the Speaker to the fact that the House lacked the required quorum yet the Speaker put the Bill to the vote anyway. 

It was clear that the President did not support the Bahati Bill, which fits neatly with the supposition that the lack of quorum could not have been accidental or by happenstance. National Resistance Movemnet (NRM) Members of Parliament (MPs) have generally tended to tow the President’s line in Parliament because of his superlative influence on the NRM party. 

Nonetheless, the Bahati Bill was put to a vote by a Speaker who was, perhaps, driven by an eagerness to endear herself to the public.  

The President’s protest letter signalled his hostility to the Bahati Bill, yet he appeared so enthused that he gave his assent to it in the presence of the media, albeit to the chagrin of the donor countries. 

But the President knew or must have known that the law he had enacted was illegal and would be struck down on a judicial review. The public assent to the Bill he was obviously against, therefore, was to assuage the pro-Bill groups in Uganda.  The President had had it both ways. Domestically, he had assented to a very popular Bill and earned praise for it. Externally, the Bill was sure to be invalidated and he would remain in the good books of donors. 

To placate the donor community, the President dispatched his chief diplomat to “explain” the law. Ironically, several countries that had imposed sanctions on Uganda for enacting the law, resumed the aid after the government’s “explanation”. 

While the content of the “explanation” never filtered through to the public domain, it is reasonable to assume that the donors could only resume the aid after assurances that the law would surely be struck down.    

About a month after the law had been enacted, a group of Ugandans mounted a challenge in the constitutional court to have it annulled. Eventually, the law was struck down by the Constitutional Court on account of the lack of quorum in Parliament during its passage.

The manner in which events unfolded that led to the invalidation of the anti-homosexuality law is telling. 

Moreover, when the law was struck down, some MPs attempted to re-introduce it in Parliament to have it legally passed. However, the President summoned NRM MPs over the matter, effectively nipping the effort in the bud. 

Therefore, Basalirwa’s anti-homosexuality Bill will only survive where Bahati’s failed if the President supports it. The will of Parliament will not matter much. Otherwise, Godspeed to Mr Basalirwa.  

Patrick Barasa, Directorate of Postgraduate Studies and Research, Nkumba University.