“No need” for new homosexuality law, activists argue

The panel code criminalizes homosexuality, but court battles have exposed loopholes within the law, prompting the anti – gay crusaders to come up with ways of plugging these gaps.

However Serial litigant Hassan Male Mabirizi has sued the Speaker, Attorney General, the Deputy Speaker and Bugiri Municipality MP Asuman Basalirwa, the sponsor of the Anti-Homosexuality Bill 2023,  in an attempt to stop Parliament from processing the Bill contending, among others, that the Penal Code is enough.

Homosexuality in Uganda is illegal under Section 145 of the Penal Code.

The section stipulates accordingly: “Any person who— has carnal knowledge of any person against the order of nature; 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.” With that in mind, activists have opposed the Anti- Homosexuality Bill on grounds that section 145 is sufficient.

“…the Bill as is, unless a totally new one was written, (was) premised on lies and driven by populism, opportunism and hypocrisy, and accepted by the masses because of ignorance. There are better laws on the Penal Code if only they can be enforced; it breaches the Constitution and is a trap intended to culminate into the legalisation of homosexuality,” However,Pastor Solomon Male!who is famous for his anti-homosexuality stance, said  in his dossier to the Ugandan Parliament copied to  the Speaker of Parliament Anita Among;  Mathias Mpuuga, the  Leader of Opposition, and  Bugiri  Municipality MP  Asuman Basalirwa  who drafted the bill.

Yet in the preamble of the Bill, the drafters says that legislation is designed to address the gaps in the provisions of other laws, citing the Penal Code Act.  They say the Penal Code Act, chapter   120 has no comprehensive provision catering for anti-homosexuality.

Rather, they say, it focuses on unnatural offences under section 145 and lacks provisions for penalising the procurement, promoting, disseminating literature and other materials concerning the offences of homosexuality.

“There is need for a legislation to enhance offences relating to homosexuality and clear provisions for charging, investigating, prosecuting, convicting and sentencing of offenders,” the promoters of the Bill  say, adding that this  legislation seeks to supplement the provisions of the Constitution and the Penal Code Act, chapter 120 by criminalizing same-sex sexual acts and related acts.

The Bill further seeks  to prohibit marriage between persons of the same sex; penalise homosexual behaviour; prohibit the promotion of homosexuality; protect victims of homosexuality and ensure their compensation .

The effort  to widen  the scope of the homosexuality law seem  to have been a result of precedent in which pro- homosexuality  groups tried to take advantage of loopholes within the law.

For instance, in 2012, pro homosexuality personalities:  Jacqueline Kasha Nabagesera, Julian Pepe Onziema and Geoffrey Ogwaro organised a workshop in Entebbe.

According  to the organisers, the workshop  which was organised under the auspices of Freedom and Roam Uganda (FARUG) , a non- governmental organisation,  was to  train and equip participants with project planning, advocacy, human rights, leadership and business skills.

These plans were upended when Fr Simon Lokodo, then the minister of Ethics and Integrity, ordered the police to disperse the gathering, saying it was an illegal gathering of homosexuals. The organisers decided to sue the Attorney General saying the closure of the workshop was unjustified and constituted an infringement of their fundamental rights and freedoms.

The legal team of the pro- homosexuality campaigners contended that section 148 of the Penal Code Act only prohibits homosexual sex acts. That there are no related offences which are committed by aspersion, suggestion, innuendo or apparent association.  They argued that Lokodo’s affidavit doesn’t show that the workshop participants committed any criminal offence as described under Section 145 of the Penal Code Act.

They  said since the participants were not found engaging in homosexual acts nor did they show intent to commit the acts, there was no crime committed.

under Section 145 of the Penal Code Act and therefore the closure of the workshop could not be construed as a legitimate attempt to prevent the commission of a criminal offence.

In the name of protecting moral values. The Attorney General’s defence was that Lokodo, had been established that the workshop aimed to encourage participants to practice and promote homosexuality.

In the end, Justice Steven Musota, agreed with the Attorney General, saying Lokodo acted in public interest. The applicant’s lawyers had asked Justice Musota  to adopt  the approach taken by the European Court on Human Rights as  analogous, saying it is a compelling basis for interpreting Article 29 of the Ugandan Constitution but the judge  didn’t agree.

The Europeans Court on Human Rights approach, Justice Musota said, should be viewed in the context that there is no member country of the European community that prohibits homosexual acts.

“Uganda and Europe have different laws and moral values and accordingly define their public interests differently. As rightly put by learned counsel for the respondents, Uganda is not signatory to the European Convention on Human Rights,” Justice Musota said, adding that such precedents are not binding but must be read in a manner consistent with Ugandan laws and norms.

Seeking tougher law

Despite that victory, anti- homosexuality campaigners advocated for a law that would specifically punish the promotion of homosexuality and that would include criminally penalizing them for organising workshops and press conferences.  The 2008 Bill that provided provisions that prohibit the promotion of homosexuality was struck down by the Constitutional Court on grounds that Parliament passed it without quorum.

The current Bill if passed into law, will still target the promotion of homosexuality since it breaks down  the promotion as  person who—participates in production, procuring, marketing, broadcasting, disseminating, publishing of pornographic materials for purposes of promoting homosexuality; funds or sponsors homosexuality or other related activities; offers premises and other related fixed or movable assets for purposes of homosexuality or promoting homosexuality; uses electronic devices which include Internet, films, mobile phones for purposes of homosexuality or promoting homosexuality; or  who acts as an accomplice or attempts to promote or  any way abets homosexuality and related practices.

People who promote homosexuality are liable, on conviction, to a fine not exceeding five thousand currency points or imprisonment for a term not exceeding five years, or both. The Bill  also targets organisations  when it  stipulates – where the offender is a corporate body, a business, an association or an NGO –  the director, proprietor or promoter shall serve the five years or fine if not  both. The court, the Bill says, shall on conviction of the offender, order the cancellation of the certificate of the registration of the said organisations.

A victory for homosexuality in court

In 2010 the pro-gay activists  had a victory in court over defunct tabloid Rolling Stone  which had published a story under the headline “ Hang them; they are after our kids. The applicants  argued that Rolling Stone’s move to call for  the hanging of homosexuals or people perceived  to be homosexuals  coupled with a threat of violence amounted to a threat of death. The applicants also accused Rolling Stone of  intruding  into  their privacy. The defence  by Rolling Stone was that the applicants who included Nabagesera, Onziema and David Kisuule  were not entitled  to any remedies since the tabloid  published the story in an effort  to fight homosexuality which is forbidden  by the Penal Code.

Justice  Vincent Musoke Kibuuka ruled that exposure of identities of persons and homes of the applicants for purposes of fighting homosexuality  threaten  their right to privacy. Justice Musoke Kibuuka observed  that the case wasn’t about homosexuality per se,  rather  fundamental human rights. Despite Rolling  Stone’s contention that section 145 of the Penal Code criminalizes every gay person, Justice Musoke Kibuuka,  said that is not the cases.

“The scope of section 145 is narrower than gayism generally. One has to commit an act prohibited under Section 145  in order to be regarded as criminal,” Justice Musoke- Kibuuka ruled before  concluding  that the tabloid had violated the rights of the applicants.

The judge issued a restraining order against the tabloid.

With such a judgement,  the anti-homosexuality campaigners  have been eager  to  expand  the law that criminalizes homosexuality.