Law is on the Frontlines: The Weaponization of the Law in Exacerbating Anti-LGBTQ Sentiment in Uganda

12-Nov-2024

Luca Salama

Currently pursuing an Undergraduate Degree in Law and International Relations (LLB) at the University of Edinburgh.

INTRODUCTION

“We must show that the law is there, on the front lines, and that it is capable of protecting all.” When ICC Chief Prosecutor, Karim Khan made these remarks, he was referencing the Gaza conflict, highlighting the apparent absence of the law in intervening against the widespread human rights violations.[1] However, his comments extend beyond conflict zones and can be interpreted in a different context where the war is waged not with guns and tankers but with draconian legislation. This alternate interpretation will focus on the weaponization of the law in exacerbating anti-LGBTQ sentiment in Uganda, where the law represents an instrument of oppression on the frontlines of our battle against homophobia.

To weaponize is to exploit for the purpose of attacking a person or group. It is a cruel word, often associated with acting deceitfully and causing harm. The law, on the other hand, is allied with upholding justice and protecting the rights of the individuals under the jurisdiction. However, in Uganda, we are witnessing a disturbing convergence of these two concepts, as the law itself becomes a tool wielded to perpetuate injustice and discrimination against the LGBTQ+ community. While the struggle for recognition of LGBTQ+ rights in Africa is not new, recent years have seen a troubling surge in homophobic behaviours and an uptick in anti-LGBTQ rhetoric, propelled by political, religious, and societal figures. This escalating hostility, combined with harsher punitive laws, has created a toxic environment of both state-sanctioned and societal discrimination and violence. Through an examination of Anti-Homosexuality Act 2023 and its harmful effects, this legal opinion aims to shine a light on the horrific human rights violations faced by the LGBTQ+ population within an African context.

Mapping the Terrain: Current Legislation and Origins

Firstly, it is necessary to understand the current legislation and the colonial context in which it originates from. The first instance of the enactment of laws prohibiting the same-sex sexual acts was during British Colonial governance of Uganda (1894-1963). These were retained following independence and have since been expanded upon.

Despite the widespread denial that homosexuality existed before colonialism or common consensus that to be gay was to be “un-African,” homosexual relations were acknowledged and tolerated in pre-colonial Ugandan Society.[2] Among the Baganda, the largest ethnic group in Uganda, homosexuality was treated with indifference and the last reigning king of Baganda, Mwanga II, was known to have regular relations with both women and men.[3]  Rather, the anti-LGBTQ rhetoric was an unfortunate inheritance of colonialism. Colonisers viewed indigenous cultures as morally corrupt, including their attitudes towards sexuality. They considered any inclination towards homosexuality as part of this perceived corruption.  Where pre-colonial peoples had been permissive, “sodomy laws would cure them-and defend their new, white masters against moral contagion” - an approach inherently racist reaffirming the notions of white superiority at the time.[4] According to Hoad, to claim otherwise and accept this expression of a supposedly “traditional” aversion to same-sex practices is a graphic illustration of an absolute “refusal to engage Christianity as a colonial legacy” and accept the ideals of the religion as key driving forces behind homophobic attacks.[5]

It must be noted to the reader that religion has played a significant role in maintaining homophobia. Conservative evangelical Christian missionaries have wielded considerable influence in shaping and advocating for anti-LGBTQ legislation in Uganda.[6] Pastor Ssempa, for example, led a rally of thousands at a Kampala airstrip in March this year, to “give thanks” to discriminatory laws passed by the Ugandan government.[7] Moreover, With over 80% of the population identifying as Christian, the political sector has become intrinsically infused by religious leaders and their principles. So much so, that it has now become a political tool where “politicians (in Kenya and Uganda) have tapped into populist homophobia to keep themselves relevant to the masses,” and, in turn, secure votes.[8]

The Penal Code Act 1950[9] was an Act passed in order to establish a code of criminal law based upon and in accordance with the principles and legal interpretation seen in English Criminal Law. The Act remains part of Ugandan law and contains provisions banning homosexual intercourse. As seen from the relevant provisions below, homosexuality is criminalised to the same extent as bestiality. The Penal Code Amendment (Gender References) Act 2000 extended the scope of criminalisation from “any man” to “any person” so that acts between women were also criminalised.

 

Section 145. Unnatural offences. Any person who—

(a) has carnal knowledge of any person against the order of nature; [or]

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence and is liable to imprisonment for life.

 

Section 146. Attempt to commit unnatural offences. Any person who attempts to commit any of the offences specified in section 145 commits a felony and is liable to imprisonment for seven years.

 

In October 2009, the Anti-Homosexuality Act was introduced by David Bahati, a member of the Ugandan Parliament, aimed at broadening the criminalisation of same sex relationships in the country. The bill was passed in December of 2014 and came into force two months later. However, after US sanctions were imposed as result of the new legislation, Uganda's Constitutional Court annulled this law on the basis it had been passed without the required quorum.[10]

However, in March 2023, the Anti-Homosexuality Bill was reintroduced by Asuman Basalirwa, and was passed later that month to applause in Parliament with a sobering 387 out of 389 MPs voting in favour.[11] President Museveni signed the Bill into law on 26 May 2023, now referred to as the Anti-Homosexuality Act 2023.[12] AHA 2023 stands as the current law and defines the offence of homosexuality as to include various forms of gay sex, “touch[ing] another person with the intention of committing the act of homosexuality”, and “hold[ing] out as a lesbian, gay, transgender, a queer, or any other sexual or gender identity that is contrary to the binary categories of male and female.” The maximum penalties prescribed under Section 2 of the Act are as follows:

 

(1) Life imprisonment for homosexual acts, and imprisonment for 10 years for attempted homosexual acts.

(2) Death penalty for “aggravated homosexuality,” and imprisonment for 14 years for attempted “aggravated homosexuality.”

 

The Act defines “aggravated homosexuality” as individuals who:

 

engage in homosexual intercourse with a person older than 75, engage in homosexual rape, engage in homosexual intercourse with children, engage in homosexual intercourse with a disabled or mentally ill person, leave another person disabled or mentally ill as a result of homosexual intercourse they had with that person, or have been convicted of homosexuality more than once.

 

For the other penalties included under the Act, see Appendix 1.

 

Disturbingly, should you falsely accuse another person of homosexuality, the maximum punishment is imprisonment for one year. Having said that, perhaps what is most shocking, rape and sexual abuse of children or other vulnerable people are included in the definition of “aggravated homosexuality.” This, by extension, conflates these barbaric behaviours to homosexuality - placing them on the same unbalanced pedestal.

 

In August of 2023, it was reported that a 20 year old man (known henceforth as X) was arrested alongside a 41 year old man after the police found the two men together “half naked.”[13] X became the first person prosecuted for "aggravated homosexuality" under AHA 2023 for which he faces the death penalty as the prosecution claimed the 41 year old man to be disabled and thus a victim to the crime. The first victim to the weaponised law.

 

ASSESSING THE IMPACT

The law, akin to air strikes and missiles used in Gaza, can be employed as a tool of mass destruction in order to deliberately target specific individuals, causing devastating impacts on the ground. This next section will focus on assessing the consequences of AHA 2023 through three different trenches: the increase in physical violence towards the LGBTQ+ community, stigmatised discrimination and repression of freedoms, and repercussions on the health of affected individuals and the health system as a whole.

During the period preceding the enactment of AHA 2023, there was a significant rise in hostile rhetoric directed at the LGBTQ+ community in Uganda by various figures including government officials, politicians, church leaders, and senior law enforcement officers. This escalation reached its peak when President Museveni personally characterised homosexuals as social “deviants” within Ugandan society.[14] Unfortunately, in numerous instances, the government either failed to promptly address violence and discrimination against LGBTQ+ individuals or contributed to it by allowing impunity for attacks and making stigmatising remarks, thus fostering an environment conducive to violence against the LGBTQ+ community and its supporters.

A study conducted by the Human Rights Awareness and Promotion Forum (HRAPF) focused on ‘violence and violations on the basis of real or presumed sexual orientation and/ or gender identity in the three months after the enactment of the AHA 2023 came to a series of damning conclusions.[15] In the following two months alone after the legislation was enacted - June and July 2023 - a total of 220 cases of violence against LGBTQ+ persons were reported.[16] The methodology employed in the report categorises violence into two subcategories: forced evictions and instances of actual or threatened violence.

The study found that landlords’ fear of being prosecuted under Section 9 of AHA 2023, which criminalizes knowingly renting premises for homosexual acts, has significantly contributed to the evictions observed. This provision carries a penalty of up to ten years' imprisonment. Such legislation not only incites violence but also leads to situations where landlords evict tenants based on mere rumours or associations with individuals engaging in homosexual behaviour.

In the case of instances of actual or threatened violence, documented cases have shown beating and physical assault to be the leading form of violence. However, crimes of cyber harassment and extortion were also registered. However, most of the cases documented to HRAPF were not reported to the police for fear of arrest or harm as soon as the victims’ sexual orientation and/or gender identity were revealed.[17] This demonstrates the detrimental impact of AHA 2023 on undermining the integrity of the justice system.

Delving into specific cases where individuals were arrested, the alarming scale of human rights violations becomes apparent. In the case of X aforementioned, the two men were subject to forced anal examinations.[18] In accordance, a separate report from Convening for Equality (CFE), a prominent LGBTQ+ coalition addressing AHA and violations against LGBTQ+ individuals, documented 18 cases where the police conducted forced anal examinations on individuals in custody, purportedly to gather “evidence” of homosexuality.[19] The disturbing practice perpetuates discrimination against LGBTQ+ persons, as it is based on harmful stereotypes and assumptions and can lead to grave forms of psychological trauma.

However, the most troubling example of the legislation inciting physical violence is a case that occurred in August on the outskirts of Kampala, where a female individual, identifying as a lesbian, faced repeated threats from her uncle, who claimed he was aware of her sexual orientation and threatened to physically harm her, including organising men to “show her the right way.”[20] She was forced to flee her home to avoid the implied threat of corrective rape.

 

The law has exacerbated a troubling animosity, as evidenced by interviews conducted by Amnesty International with 19 individuals living in rural Uganda. These individuals shared harrowing experiences of “encountering numerous instances of witch hunts, violence, and mob-facilitated arrests.” These actions were perpetrated “by individuals recognized within their communities” and “in the guise of enforcing the AHA 2023 legislation.”[21]

Having said this, it's not only physical violence that the LGBTQ+ community faces in Uganda; discrimination and repression persist across all walks of life. Beginning with the legislation itself, AHA 2023 Section 11 makes the promotion of homosexuality an offence punishable by imprisonment for up to 20 years. Consequently, this hinders the LGBTQ+ community from organising events like pride celebrations, which allow individuals to openly embrace and celebrate aspects of their identity that they may otherwise conceal. As a further consequence, the law sets off a vicious cycle: in order to push for decriminalisation, the LGBTQ+ community must organise, but without the assurance of safety in assembly, progress towards decriminalisation remains elusive.[22]

Furthermore, the Act explicitly states that the Courts have the authority to suspend or revoke the licence of organisations that promote homosexuality, and they will exercise this power if necessary. The government’s willingness to crackdown on LGBTQ+ groups even before the legislation was enacted was evident, such as the forced closure of Sexual Minorities Uganda (SMUG) - Uganda’s main LGBTQ+ rights organisation - in August 2022 and listing of 30 NGOs operating in Uganda suspected of promoting homosexuality in February 2023. This represents another way the AHA 2023 is being utilised as a weapon of oppression to suppress freedoms of the marginalised population to the extent to which they no longer have ‘safe havens.’

This discrimination transcends into the education sector where violent homophobic attacks and discrimination are ‘commonplace.’ According to various sources, students who are suspected of being homosexual are punished and can even be expelled. This is largely in part to the major influence of the Church, with over three-quarters of schools in Uganda religiously founded.[23] In fact, just a month prior to the formation of AHA 2023, the Ugandan Parliament ordered an investigation into the alleged promotion of homosexuality and “contamination of study materials” in schools.[24] Furthermore, Museveni even admitted to appointing a group of scientists in Uganda to determine if homosexuality was a “learned orientation,” leading to widespread criticism from the scientific community.[25] Even such, the effect of his policies are far-reaching and only enforce dangerous misconceptions within Ugandan society.

However, by far the most significant effects of AHA 2023 are to the health of affected individuals and the health system as a whole. The law, which requires the reporting of anybody suspecting to be involved in homosexual activity, makes no exceptions for health care providers tending to patients. By extension, the legislation poses a threat to  the “exemplary” progress Uganda has made against HIV; where between 1990 to 2019, the country’s death rate due to HIV remarkably decreased by nearly 90 percent.[26]  However, with citizens being denied or too afraid to seek medical care, this progress is at risk of being drastically undone.[27] According to a study published in the Lancet, high prevalence of sexually transmitted diseases such as HIV/AIDS are at-least in part linked to homophobic laws.[28] Gay and bisexual men living in countries that enforce laws criminalising homosexuality are 12 times as likely to be living with H.I.V. as those in the rest of the world. In Uganda, it is estimated that 13% of men who are homosexual have HIV but the number could be greater, who now have little to no access to crucial care.[29]

Alongside evicting and arresting health workers from their homes, law enforcement officers have targeted workers seeking to educate the public on safe sex practices. Mulindwa Benda, 24, a transgender man, was arrested in Busia for promoting homosexuality after he led a workshop on sexual and reproductive health, after which he was subject to ridicule for “dressing like a man.”[30] Outreach workers in Lugazi, Mbarara, and various other towns have been detained for distributing lubricants and condoms, which officers frequently link to same-sex activities. Asia Russell, executive director of advocacy group Health Gap, highlighted that such actions contribute to a broader environment of persecution and violence - instilling fear not only in health workers but also in gay and bisexual men and trans women who require stigma-free HIV services and support.[31]

Issues of discrimination are exacerbated by the spread of disinformation, aided by its keen ally, the media (and social media). France 24 reported that anti-LGBTQ disinformation has “surged online” in East Africa following the introduction of discriminatory legislation in both Uganda and Kenya.[32] Additionally, according to Rita Nketiah, an LGBTQ+ activist and researcher who works on the continent, media outlets often spread false information about LGBTQ+ people, often due to reporters’ own biases or political pressure in their operations.. In August 2014, just days after AHA 2014, the Uganda tabloid paper Red Pepper released a list containing the first names, workplaces, and other identifying details of the “top 200” purported gay men (Guardian, 2017).[33] This illustrates the media’s stance towards the “terrible vice known as sodomy eating up society.”[34] Low literacy rates across the continent make rural populations susceptible to this spread of disinformation, often making it harder for people to seek accurate and reliable information.

The breakdown of societal norms and the rule of law that we encounter on the “frontlines of war" like Gaza are now occurring in Uganda. 

THE DISARMAMENT OF INTERNATIONAL LAW

The weaponization of domestic legislation by the Ugandan Government through AHA 2023 highlights a critical flaw in international law's ability to protect against deliberate targeting of specific subgroups or the ‘weaponization’ of domestic law. While international legal frameworks are designed to safeguard individual rights, they have proven ineffective in this regard. The African Charter of Human Rights, established in 1981 and ratified by all countries in the region except Sudan, serves as a primary mechanism for protecting human rights. It explicitly prohibits discrimination based on sex, gender, and sexual orientation, along with other international protocols like the Maputo Protocol and African Youth Charter. Despite these protections, there is a significant gap in enforcing these rights, as evidenced by the ongoing violations against LGBTQ+ individuals in Uganda. Here lies another ‘frontline’ where international protection mechanisms lack the capability or structure to address discriminatory domestic legislation, creating a notable gap between the opposing fronts. This failure has led to calls for action from the international community, including economic and political sanctions from entities like the United States, underscoring the urgent need for sturdier measures to protect vulnerable populations in such contexts.

CONCLUSION

In conclusion, Uganda, represents an example of a wider “distressing trend of legal mechanisms being used as instruments of oppression” occurring across Africa.[35] The weaponization of the law in the form of AHA 2023 has fuelled societal rifts and human rights abuse towards the LGBTQ+ community. To “weaponize” is to transform or convert something into an instrument of attack and the implication is that something is deployed in a manner not normally expected. So accustomed to viewing the law as the foremost tool of justice that we become astonished when it is used to pursue blatantly political and personal objectives. It is imperative that we continue to challenge these injustices on all fronts: through international sanctions, effective and enforceable regional treaties, and widespread awareness to foster a world where diversity is embraced. However, for durable change to occur, it must start at the basic level of education including an informed curriculum and institutional mechanisms such as designated clinics to complement any legal progress. The law, for better or for worse, occupies a central position on the frontline fight for LGBTQ+ rights. One merely hopes it begins to be used, not as a weapon of oppression, but rather as a shield safeguarding the rights and dignity of all individuals.

 

 

 

 

Appendix 1: AHA 2023

  • Section 4: Three years imprisonment for minors convicted of homosexuality
  • Section 6: Reiterates that consent to homosexuality is not a defence.
  • Section 9: Ten years imprisonment for knowingly renting premises to people who wish to engage in homosexual acts on such a premise
  • Section 10: For "purporting to contract a same-sex marriage", as well as for knowingly attending a purported same-sex marriage ceremony: imprisonment for ten years.
  • Section 11: Twenty years imprisonment for promoting homosexuality
  • Section 12: Prevents people with a conviction of homosexuality from working in childcare institutions.
  • Section 14: Failing to report a witnessed homosexual act: imprisonment for five years.
  • Section 16: Grants courts the power to order social services to “rehabilitate” a convicted homosexual

Notes:

[1] Khan K, ‘Statement of ICC Prosecutor Karim A. A. Khan KC from Ramallah on the situation in the State of Palestine and Israel’ (ICC 6 December 2023) <https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-khan-kc-ramallah-situation-state-palestine-and-israel> accessed 19 April 2024.

[2] Frossard Y, ‘“We Are Not Gays”: Regime Preservation and the Politicization of Identity in Mugabe’s Zimbabwe’ (2022) 65, African Studies Review 591.

[3] Rao R, ‘Remembering Mwanga: Same-Sex Intimacy, Memory and Belonging in Postcolonial Uganda’ (2014) 9 Journal of Eastern African Studies.

[4] Gupta A, ‘This Alien Legacy’ (Human Rights Watch17 December 2008) https://www.hrw.org/report/2008/12/17/alien-legacy/origins-sodomy-laws-british-colonialism.

[5] Hoad N, African Intimacies : Race, Homosexuality, and Globalization (University Of Minnesota Press, Cop 2007).

[6] Han E and O’Mahoney J, ‘British Colonialism and the Criminalization of Homosexuality: Queens, Crime and Empire’ (Routledge & CRC Press18 December 2019) <https://www.routledge.com/British-Colonialism-and-the-Criminalization-of-Homosexuality-Queens-Crime-and-Empire/Han-OMahoney/p/book/9780367892517> accessed 22 March 2024.

[7] Amnesty International, ‘Africa: We Are Facing Extinction: Escalating Anti-LGBTI Sentiment, the Weaponization of Law and Their Human Rights Implications in Select African Countries’ (Amnesty International, 9 January 2024) https://www.amnesty.org/en/documents/afr01/7533/2024/en/.

[8] Unnamed Author, ‘Anti-LGBTQ Disinformation Surges Online in East Africa’ (France 2431 May 2023) <https://www.france24.com/en/live-news/20230531-anti-lgbtq-disinformation-surges-online-in-east-africa> accessed 19 April 2024.

[9] The Penal Code Act 1950.  https://www.wipo.int/edocs/lexdocs/laws/en/ug/ug008en.pdf.

[10] Harding A, ‘Uganda Court Annuls Anti-Homosexuality Law’ BBC News (1 August 2014) <https://www.bbc.com/news/world-africa-28605400>.

[11] Madowo L and Nicholls C, ‘Uganda Parliament Passes Bill Criminalizing Identifying as LGBTQ, Imposes Death Penalty for Some Offenses’ (CNN21 March 2023) https://edition.cnn.com/2023/03/21/africa/uganda-lgbtq-law-passes-intl/index.html.

[12] Anti-Homosexuality Act 2023. https://www.jurist.org/news/wp-content/uploads/sites/4/2023/03/Anti-Homosexuality-Bill-2023.pdf.

[13] Unnamed Author, ‘Uganda’s Anti-LGBT Laws: Man Faces Death Penalty for “Aggravated Homosexuality”’ BBC News (29 August 2023) <https://www.bbc.co.uk/news/world-africa-66645740#:~:text=A%20man%20in%20Uganda%20faces> accessed 19 April 2024

[14] Madowo L and Nicholls C, ‘Uganda Parliament Passes Bill Criminalizing Identifying as LGBTQ, Imposes Death Penalty for Some Offenses’ (CNN, 21 March 2023) https://edition.cnn.com/2023/03/21/africa/uganda-lgbtq-law-passes-intl/index.html.

[15] HRAPF, ‘Two Months After: Report on violence and violations on the basis of real or presumed sexual orientation and/ or gender identity two months after the Anti-Homosexuality Act came into force’ (9 August 2023).

[16] Human Rights and Protection Forum, 2023.

[17] ibid.

[18] Amnesty International, ‘Africa: We Are Facing Extinction: Escalating Anti-LGBTI Sentiment, the Weaponization of Law and Their Human Rights Implications in Select African Countries’ (Amnesty International, 9 January 2024) https://www.amnesty.org/en/documents/afr01/7533/2024/en/.

[19] ibid.

[20] Human Rights and Protection Forum, 2023.

[21] Amnesty International, ‘Africa: We Are Facing Extinction: Escalating Anti-LGBTI Sentiment, the Weaponization of Law and Their Human Rights Implications in Select African Countries’ (Amnesty International, 9 January 2024) https://www.amnesty.org/en/documents/afr01/7533/2024/en/.

[22] Awondo P, Geschiere P and Reid G, ‘Homophobic Africa? Toward a More Nuanced View’ (2012) 55 African Studies Review 145 <https://www.jstor.org/stable/43904852?seq=19> accessed 22 March 2024

[23] Wepukhulu KS, ‘LGBTIQ Students Kicked out of School in East Africa Are Fighting Back’ (openDemocracy11 February 2022) https://www.opendemocracy.net/en/5050/lgbtiq-students-kicked-out-of-school-in-east-africa-are-fighting-back/.

[24] Amnesty International, ‘Africa: We Are Facing Extinction: Escalating Anti-LGBTI Sentiment, the Weaponization of Law and Their Human Rights Implications in Select African Countries’ (Amnesty International, 9 January 2024) https://www.amnesty.org/en/documents/afr01/7533/2024/en/.

[25] Madowo L and Nicholls C, ‘Uganda Parliament Passes Bill Criminalizing Identifying as LGBTQ, Imposes Death Penalty for Some Offenses’ (CNN21 March 2023) https://edition.cnn.com/2023/03/21/africa/uganda-lgbtq-law-passes-intl/index.html.

[26] Institute for Health Metrics and Evaluation, 2019.

[27] Mandavilli A, ‘With Harsh Anti-L.G.B.T.Q. Law, Uganda Risks a Health Crisis’ New York Times (19 January 2024) https://www.nytimes.com/2024/01/19/health/uganda-lgbtq-hiv.html.

[28] Bigna JJ and Nansseu JR, ‘Laws and Policies against MSM and HIV Control in Africa’ (2023) The Lancet HIV.

[29] Mandavilli (n 20).

[30] ibid.

[31] ibid.

[32] ‘Anti-LGBTQ Disinformation Surges Online in East Africa’ (France 2431 May 2023) <https://www.france24.com/en/live-news/20230531-anti-lgbtq-disinformation-surges-online-in-east-africa> accessed 19 April 2024.

[33] Associated Press in Kampala, ‘Ugandan Tabloid Prints List of “Top 200 Homosexuals”’ (the Guardian, 25 February 2014) <https://www.theguardian.com/world/2014/feb/25/ugandan-tabloid-prints-list-top-200-homosexuals> accessed 22 March 2024.

[34] Unnamed Author, ‘Uganda: Press Homophobia Raises Fears of Crackdown | Human Rights Watch’ (Human Rights Watch, 8 September 2006) <https://www.hrw.org/news/2006/09/08/uganda-press-homophobia-raises-fears-crackdown> accessed 22 March 2024.

 

[35] Amnesty International, ‘Africa: We Are Facing Extinction: Escalating Anti-LGBTI Sentiment, the Weaponization of Law and Their Human Rights Implications in Select African Countries’ (Amnesty International, 9 January 2024) https://www.amnesty.org/en/documents/afr01/7533/2024/en/.