PRESS STATEMENT FROM THE CENTRE FOR HUMAN RIGHTS, FACULTY OF LAW, UNIVERSITY OF
PRETORIA
For immediate release
22 October 2009

UGANDAN ANTI HOMOSEXUALITY BILL SHOULD NOT BE ADOPTED
The Centre for Human Rights, University of Pretoria, has taken note of the
introduction into the Ugandan Parliament of the Anti Homosexuality Bill, 2009.
We are of the very strong view that this Bill should not be adopted. It not
only violates the Ugandan Constitution and Ugandas international human rights
obligations, but also stifles debate, undermines civil society and demeans the
common citizenship of all Ugandans.

THE OFFENCE OF HOMOSEXUALITY
The Bill criminalises certain acts as offences of homosexuality, and allows for
the imposition of life imprisonment (clause 2). The fact is: Uganda's Penal
Code, in article 145(a) already criminalizes carnal knowledge of any person
against the order of nature - a charge used to prosecute, persecute and
blackmail LGBT people with the threat of life imprisonment. In so far as the
Bill merely restates the existing law, it is redundant and contradicts the
principle that laws should only be adopted to address a nuisance that has
previously not been legislated upon.

The Bill however goes further than the existing law by criminalising, with a
potential life imprisonment, touch[ing] another person with the intention of
committing the act of homosexuality. The punishment of life imprisonment is
clearly disproportionate with such an offence. In any event, it would be almost
impossible to establish such an intention, making the application of this part
of then Bill arbitrary and open to abuse. The existing law has already been
employed in an arbitrary way, and the Bill will just exacerbate that effect.
Over the recent months increased campaigns of violence have continued
uncontrolled. The violence directed at homosexual Ugandans has resulted in the
unwarranted arrests of many people; there are eight ongoing cases in various
courts all over Uganda of which four accused persons are unable to meet the
harsh bail conditions set against them. These acts of violence have now
resulted in the deaths of several homosexual people, such as Brian Pande at
Mbale Hospital as he awaited trial. The conclusion one arrives at in respect of
this aspect of the Bill is that its only purpose is to further stigmatise and
demonise activities that are already criminalised under Ugandan law.

THE OFFENCE OF AGGRAVATED HOMOSEXUALITY
The Bill goes further than existing law by making punishable with death
aggravated homosexuality, including activity by serial offenders or those who
are HIV positive (clause 3). The death penalty is a disproportionate sentence
for an offence that is essentially only directed at upholding the moral
sentiments of part of the population. Only a very small number of states
world-wide, such as Iran and Saoudi Arabia, make such offences punishable with
death.

The Bill also requires compulsory HIV testing for a person charged under the
relevant section. The aggravated offence relates to a person who is living with
HIV. In order for HIV status to be an aggravating factor, it is contended, the
person should have been aware of his or her status at the time the offence was
committed. The fact that HIV status is determined after the fact does not seem
to constitute a rational requirement, related to the moral blameworthiness of
the accused person. In this respect, the Bill will undermine efforts at HIV
prevention, as it will serve to inhibit testing for HIV. In fact, the whole
design of the Bill will have a negative impact on HIV prevention among Men who
have Sex with men (MSM). This proposed legislation is a huge step backwards for
HIV prevention, treatment and care initiatives in Uganda. By significantly
expanding criminal sanctions against lesbian, gay, bisexual and transgender
(LGBT) people - with penalties going as far as the death sentence in some cases
- this bill drives sexual minorities underground and away from vital
information and services, further fuelling HIV transmission in the Uganda.

CRIMINALISATION OF PURPORTING TO CONTRACT SAME SEX MARRIAGE
The Bill makes it an offence for anyone to purport to contract a same-sex
marriage, and sets life imprisonment as the sentence (clause 12). This is
essentially an unnecessary provision, given that same sex marriages are
illegal, as already stated in the Ugandan Constitution. The punishment is yet
again a disproportionate sentence for an act that does not have legal
consequences.

THE OFFENCE OF PROMOTING HOMOSEXUALITY
The Bill further criminalizes "promotion of homosexuality" in the form of
funding and sponsoring LGBT organizations and broadcasting, publishing, or
marketing materials on homosexuality and punishes these acts with a steep fine,
5-7 years of imprisonment, or both (clause 13). The Bill effectively bans any
kind of community or political organizing around non-heteronormative sexuality.
This part of the Bill is a clear violation of the right to freedoms of speech,
expression, association, and assembly (Article 29) of the Ugandan Constitution,
and which is also contained in a number of international treaties ratified by
Uganda (such as the International Covenant on Civil and Political Rights
(ICCPR) and the African charter on Human and Peoples Rights (African Charter).
The fact that this offence would set a fixed minimum sentence of five years
imprisonment is also outrageously disproportionate to the offence, given
particularly the broad ambit and scope of the offence.

THE OFFENCE OF FAILURE TO REPORT HOMOSEXUALITY
The Bill also sets up a system of civilian surveillance, compelling citizens to
report each others conduct (clause 14). According to the Bill, any person in
authority who fails to report known violations of the law within 24 hours will
also be subject to a significant fine and up to 3 years in prison - even when
this means turning in their colleagues, family, or friends. More shocking, the
Bill claims jurisdiction over Ugandans who violate its provisions while outside
of the country. This aspect of the Bill is overbroad and makes potential
criminals of all Ugandans. By intruding into the private sphere, the Bill
violates the right to privacy.

NULLIFICATION OF INTERNATIONAL LAW AGREEMENTS
In one sweep, the Bill further proposes to expunge the effect of international
law obligations already undertaken by Uganda. In the Bill, clause 18 stipulates
that any international agreement contrary to the Act will be null and void.
This is a step unprecedented in international law, and flies in the face of the
principles of the Vienna Convention on the Law of Treaties. The Bill's
revocation of international law commitments would also seriously undermine the
country's reputation and credibility in the international arena.

CONCLUSION
The Anti Homosexuality Bill is ill-conceived and in many ways redundant. It is
not clear how it will achieve its stated aim, namely to protect the traditional
family (Preamble). There is no evidence that the institution of marriage in
Uganda is so fragile that its survival depends on the draconian measures
proposed in the Bill. The Bill does little more than to entrench stigma and
prejudice, which will polarise the Ugandan society further and undermine public
health efforts to combat the spread of HIV. It places a total ban on public
discussion of an issue whose existence cannot be wished away. The Bill is an
unprecedented attempt to drive a wedge between members of sexual minorities and
their friends and family. It exemplifies the approach of a totalitarian regime
in its broad scope and disproportionate prescribed punishment, including the
death penalty. It is an example of ostrich politics, in that it aims to
legislate way part of social reality. If the Bill is adopted, it will make
Uganda a pariah in the international community.We therefore urge the Ugandan
Parliament to reject this Bill in its entirety.