The decision to sign the Anti-Homosexuality Bill into law in Uganda by President Yoweri Museveni is another development in the worrying practice of penalising homosexual conduct, a legacy of colonial-era law. The time has arrived to press for urgent reforms
It was on the day meant to celebrate romantic love worldwide that Ugandan President Yoweri Museveni announced to members of his party that he would sign the controversial Anti-Homosexuality Bill into law. The Valentine’s Day announcement by the President might have increased his popularity at home but the law itself is patently unconstitutional. The law is in clear violation of Section 29 of Uganda’s Constitution protecting freedom of expression, conscience and belief. It states that only marriages between a man and a woman would be recognised and homosexual behaviour and related practices would be prohibited and penalised. The law also prohibits ratification of any international treaties, conventions, protocols, agreements and declarations which are contrary or inconsistent with the provisions of the Act and prohibits the licensing of organisations that ‘promote’ homosexuality.
Only last month, in Nigeria President Goodluck Jonathan approved the Same Sex Marriage (Prohibition) Bill 2013, effectively banning gay marriage, same-sex partnerships and participation in gay rights groups. In Nigeria, same-sex sexual acts, including touching in public, merit a life sentence in prison under the new law, as does not reporting homosexual people to the authorities. United Nations High Commissioner for Human Rights, Navi Pillay, condemned the Nigerian law saying, ‘Rarely have I seen a piece of legislation that in so few paragraphs directly violates so many basic, universal human rights.’
What we are witnessing now is a wave of new legislation reinforcing prejudices imbibed from colonial- era laws that criminalise same-sex sexual relations. Uganda and Nigeria already had laws that criminalised homosexuality; these new laws go a step further by enhancing existing penalties. In fact, of the 19 African countries that are part of the Commonwealth, 17 have laws which criminalise homosexuality. Rwanda and South Africa are the only two African Commonwealth countries which do not have such legislation. This is not surprising given that 80 per cent of Commonwealth member states have laws criminalising private consensual same-sex sexual relations.
In Uganda, Nigeria and other countries in Africa, a number of cases of arrests and attacks on Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) people have been reported in the past several months. Frank Mugisha, Executive Director, Sexual Minorities Uganda, stated that in the interim period that the Anti-Homosexuality Bill was kept pending, violence against the LGBT community and those working for their rights escalated. In Nigeria, it has been reported that the police arrested 38 allegedly gay men in Bauchi state. Mob violence against allegedly gay people has also been reported in Abuja.
It has been reported that, because of the increasing harassment, LGBT people from African Commonwealth countries have been compelled to flee to other countries. However, safety in another country is not assured for them. Asylum seekers have reportedly been attacked and threatened in the Kakuma refugee camp in Kenya. Asylum seekers also face harassment at the hands of immigration officials. Recently, South African immigration officials arrested and threatened Ugandan doctor Paul Nsubuga Semugoma with deportation. Semugoma is said to be on a “wanted list” in Uganda for his activism around LGBT rights issues. Similarly, though the European Union has welcomed sexuality-based asylum claims, a number of appeals have reportedly been refused in the UK.
Reforms needed urgently
What these cases of arrests, attacks and flagrant violation of human rights of LGBT people demonstrate is the urgent need for legal reforms in countries with anti-LGBT laws. As members of the Commonwealth of Nations, states have a duty to uphold values that the association is founded on - democracy, human rights and rule of law.
In a January 30 statement calling for respect on sexual orientation and gender identity, the Commonwealth Secretary-General Kamalesh Sharma reminded that the Commonwealth Charter signed by the Queen of England, Head of the Commonwealth, in March 2013 emphasised that ‘the protection of the dignity of all human beings is critical to promoting equitable, peaceful and prosperous societies in which we all wish to live.’ Unfortunately, on the ground, the principles laid out in the Charter – particularly that of commitment to equality and human rights – are not being adhered to by the members.
Mechanisms mandated with upholding values of the Commonwealth have been unable to hold member states to account for violations. After well reasoned reports and impressive sounding changes were put in place in 2011, the association is still to show real commitment to core values. To fill this gap, CHRI has long demanded that the Commonwealth must have an independent Commissioner to address human rights violations in Commonwealth member countries. In its 2013 report to the Commonwealth Heads of Government Meeting, ‘The Missing Link: A Commonwealth Commissioner for Human Rights’, CHRI recommended that an independent Commonwealth Commissioner for Human Rights be appointed to monitor adherence to Commonwealth values and principles and improve accountability. The Eminent Persons Group, an expert panel set up after 2009 to consider the reform of the association, had recommended establishing a Commissioner for Human Rights, Law and Democracy in it 2011 report. Unfortunately, while various EPG recommendations were approved the recommendation relating to the creation of a Commissioner was dropped since no consensus could be reached. No further discussions took place on the matter at the November 2013 Commonwealth Heads of Government Meeting.
However, it should be emphasised that there are also some positive developments occurring in the Commonwealth. The newly formed ‘Commonwealth LGBTI Association’, which presently has 30 member organisations, including 11 African organisations, aims to promote cooperation and understanding between LGBTI organisations throughout the Commonwealth; to support appropriate organisations within the Commonwealth to defend the rights of LGBTI citizens in members states without hindrance or fear of harassment from the authorities or any other source; to influence the programmes, activities and relevant ministerial meetings implemented by the Commonwealth Secretariat and other institutions in furtherance of progress towards decriminalization; and an end to the persecution of LGBTI citizens by states, their agents and non-state actors. Peer support and experience sharing with civil society organisations working in the area in different geographical and societal contexts, may also hold the key to generating public debate and building pressure on policy makers for reform.
AIM FOR THE GAMES?
In July, the 53 countries of the Commonwealth will be sending their athletes to participate in the Commonwealth Games in Glasgow. As a sporting event of international significance, it would serve as a useful strategy to demand participating countries to initiate legal reforms to address discrimination against the LGBT community. The Commonwealth Games provides an opportunity to highlight discrimination against LGBT people with a renewed call for equal rights for the LGBT community. Likewise, it also presents an opportunity for the Commonwealth to reassess its own internal mechanisms to strengthen accountability of member states to its values and Charter. At the Games the Commonwealth must aim to demonstrate that they are united by common values including respect for human rights.
It is hoped that at least next year Valentine’s Day would be a day to rejoice and celebrate for LGBTI people across the Commonwealth, including from countries in Africa where new laws seek to enhance punishments for choosing to love people from the same sex.
* Vidya Venkat is Media and Communications Officer at Commonwealth Human Rights Initiative (CHRI). CHRI works for the practical realisation of human rights in the countries of the Commonwealth.
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