Clause by Clause with the Anti-Homosexuality Bill
February 20th, 2012
Uganda’s proposed Anti-Homosexuality Bill has been re-introduced into Parliament and is currently in the hands of the Legal and Parliamentary Affairs Committee. As the Committee considers what to do with the bill, there has been considerable confusion over what would happen if the bill were to become law. Most of the attention has focused on the bill’s death penalty provision, but even if it were removed, the bill’s other seventeen clauses would still represent a barbaric regression for Uganda’s human rights record. In this series, we will examine the original text of bill’s eighteen clauses to uncover exactly what it includes in its present form.
As we’ve seen so far in this series examining Uganda’s proposed Anti-Homosexuality Bill, the dangers that this bill poses extend far, far beyond the gay community itself. It threatens anyone who in any way come in contact (even literally) with gay people. Clause 11 provides yet another danger this bill would pose to just about anyone:
(1) A person who keeps a house, room,set of rooms or place of any kind for the purposes of homosexuality commits an offence and is liable on conviction to imprisonment for seven years.
2) A person being the owner or occupier of premises or having or acting or assisting in the management or control of the premises, induces or knowingly suffers any man or woman to resort to or be upon such premises for the purpose of being unlawfully and carnally known by any man or woman of the same sex whether such carnal knowledge is intended to be with any particular man or woman generally, commits a felony and is liable on conviction to imprisonment for five years.
The title of the clause names brothels, ordinarily understood as houses of ill-repute, places of prostitution. But the subclauses below it suggest nothing of the kind. They don’t mention prostitution, making money from sex, charging money for sex, arranging or accommodating for sex-for-pay, or anything else that one might associate with running a brothel. But among the things this clause does prohibit is renting a home, a room or even lending a spare bed to anyone who is gay. That act would expose them to the danger of being imprisoned for ether five or seven years, depending on how the police and prosecution decide to press charges. Homeowners, landlords, hotel owners, hostel operators, or just someone (even a relative) offering guest accommodations to gay visitors can find themselves in trouble with the law. In the worst possible scenario, this clause could also be used to prosecute those who provide safe houses for gay Ugandans who are in hiding for their own safety.
If the goal of this bill is to drive all LGBT Ugandans out of the country, this clause alone would be one way to do it. After all, if it becomes impossible to find a place to live because the property owner could be jailed if authorities found out you were gay, where could you go? Back home to your family? Think again:
14. Failure to disclose the offence.
A person in authority, who being aware of the commission of any offence under this Act, omits to report the offence to the relevant authorities within twenty-four hours of having first had that knowledge, commits an offence and is liable on conviction to a fine not exceeding two hundred and fifty currency points or imprisonment not exceeding three years.
Clause 1 defines “authority” this way:
“authority” means having power and control over other people because of your knowledge and official position; and shall include a person who exercises religious. political, economic or social authority;
Again, it’s the definition’s broadness which invites trouble. Because of the “social authority” invested by Ugandan society in family ties, relatives fall under the requirement to report their loved ones to police within twenty-four hours of discovering they were gay. As Makarere University Law Professor Sylvia Tamale pointed out during a public debate on the bill in 2009:
The bill requires family members to “spy” on one another. This provision obviously does not strengthen the family unit in the manner that Hon. Bahati claims his bill wants to do, but rather promotes the breaking up of the family. This provision further threatens relationships beyond family members. What do I mean? If a gay person talks to his priest or his doctor in confidence, seeking advice, the bill requires that such person breaches their trust and confidentiality with the gay individual and immediately hands them over to the police within 24 hours. Failure to do so draws the risk of arrest to themselves. Or a mother who is trying to come to terms with her child’s sexual orientation may be dragged to police cells for not turning in her child to the authorities. The same fate would befall teachers, priests, local councilors, counselors, doctors, landlords, elders, employers, MPs, lawyers, etc.
She also points out that this clause opens up family members to potential abuse, blackmail and extortion. Logic would have it that if family members could be blackmailed, then landlords and hotel owners could also fall prey. Pay up, or we’ll report you along with the gay people you’re harboring.
So, you can’t rent a home, you can’t return to your family, what’s next? Go abroad?
16. Extra- Territorial Jurisdiction.
This Act shall apply to offenses committed outside Uganda where –
(a) a person who, while being a citizen of or permanently residing in Uganda, commits an act outside Uganda, which act would constitute an offence under this Act had it been committed in Uganda; or
(b) the offence was committed partly outside and or partly in Uganda.
A person charged with an offence under this Act shall be liable to extradition under the existing extradition laws.
That’s right. Uganda reserves the right to prosecute Ugandans living abroad with crimes under the Anti-Homosexuality Bill. Extradition is normally reserved for the most serious felonies — murder, kidnapping, robbery, extortion, etc. It’s likely that very few nations would extradite a gay Ugandan from their borders. But many nations have deported Ugandans back to their home country after denying them asylum. Gay Ugandans in this scenario, even if they had been squeaky-clean back home, could be charged for anything they had done outside of Uganda.
(The scope of clauses 16 and 17 are so broad that we will return to them again later in this series.)
When the bill went to the Legal and Parliamentary Affairs Committee during the Eighth Parliament, they recommended keeping Clause 11. But they found Clause 14 “will create absurdities and the provision will be too hard to implement.” They recommended deleting Clause 14, along with Clauses 16 and 17, of which they said “the practical enforcement and implementation of the provision will be difficult.” But the Eighth Parliament ended before the committee’s recommendations could be accepted in a floor vote. The original bill, which was reintroduced earlier this month into the Ninth Parliament, is back in the Legal and Parliamentary Affairs Committee for further consideration. And with it, these four clauses are again under scrutiny.
Clause By Clause With Uganda’s Anti-Homosexuality Bill:
Clauses 1 and 2: Anybody Can Be Gay
Clause 3: Anyone Can Be “Liable To Suffer Death”
Clause 4: Anyone Can “Attempt to Commit Homosexuality”
Clauses 5 and 6: Anyone Can Be A Victim (And Get Out Of Jail Free If You Act Fast)
Clauses 7 and 14: Anyone Can “Aid And Abet”
Clauses 8 to 10: A Handy Menu For “Victims” To Choose From
Clauses 11, 14, 16 and 17: Nowhere To Run, Nowhere To Hide
Clause 12: Till Life Imprisonment Do You Part
Clause 13: The Silencing of the Lambs
Clause 14: The Requirement Isn’t Only To Report Gay People To Police. It’s To Report Everyone.
Clauses 15 and 19: The Establishment Clauses For The Ugandan Inquisition
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