Uganda’s Anti-Homosexuality Bill: How To Get Out Of Jail Free

Clause by Clause Through Uganda's Anti-Homosexuality Bill. Part 1 begins here.

Jim Burroway

November 17th, 2012

The proposed Anti-Homosexuality Bill, 2009, as published in the official Uganda Gazette on September 25, 2009.

The proposed Anti-Homosexuality Bill, 2009, as published in the official Uganda Gazette on September 25, 2009. (Click to download, PDF: 847KB/16 pages.)

There is now a renewed push by Uganda’s Parliament Speaker Rebecca Kadaga to pass the proposed Anti-Homosexuality Bill before Parliament breaks for Christmas on December 15. The bill is currently in the hands of the Legal and Parliamentary Affairs Committee, but Kadaga has demanded that the committee report back to the House with its recommendations by November 20.

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 eighteen clauses would still represent a barbaric regression for Uganda’s human rights record. In an update to a series which first appeared last February, we will examine the original text of the bill’s nineteen clauses to uncover exactly what it includes in its present form.

If you’ve been paying attention to the clauses we’ve examined so far, you may have noticed a trend. The proposed Anti-Homosexuality Bill assumes that there always two kinds of gay people in the world: aggressors and victims. The proposed crime of “aggravated homosexuality,” which can bring with it the death penalty (see Clause 3), identifies “offenders” and “victims,” even though some of those so-called victims — people with disabilities, an HIV-negative partner of an HIV-positive person, a person who “serially” loved another person — would very likely have been consensual partners. The following three clauses further delineate the many ways in which someone can become a “victim” of homosexuality:

8. Conspiracy to engage in homosexuality.
A person who conspires with another to induce another person of the same sex by any means of false pretence or other fraudulent means to permit any person of the same sex to have unlawful carnal knowledge of him or her commits an offence and is liable on conviction to imprisonment for seven years.

9. Procuring homosexuality by threats, etc.
(1) A person who–

(a) by threats or intimidation procures or attempts to procure any woman or man to have any unlawful carnal knowledge with any person of the same sex, either in Uganda or elsewhere;

(b) by false pretences or false representations procures any woman or man to have any unlawful carnal connection with any person of the same sex, either in Uganda or elsewhere; or

(2) A person shall not be convicted of an offence under this section upon the evidence of one witness only, unless that witness is corroborated in some material particular by evidence implicating the accused.

10. Detention with intent to commit homosexuality.
A person who detains another person with the intention to commit acts of homosexuality with him or herself or with any other person commits an offence and is liable on conviction for seven years.

You will notice that Clause 9 is incomplete. When the Legal and Parliamentary Affairs Committee considered the bill in May of 2011, they recognized that Clause 9 could have benefited from some proof-reading. The committee recommended the following (PDF: 57KB/6 pages.):

Clause 9 is amended by

a) Deleting the words “…either in Uganda or elsewhere; or” appearing at the end of the sub-clauses (1) (a) and (b).

b) Adding at the end of the provision the words “…commits an offence and is liable on conviction be liable to imprisonment of seven years.

Justification

To complete the provision by creating an offence and imposing a prohibitive penalty.

Clauses 8 through 10, by themselves, don’t actually serve any legal purposes. It’s already to illegal to threaten someone into having sex — that’s called rape — and it’s illegal to detain another person against their will for any purpose — that’s called kidnapping. These clauses merely make illegal those things which are already illegal. But they do serve a propaganda purpose by reinforcing the idea that gay people are inherently predatory. And they also provide a convenient menu from which quick-thinking “victims of homosexuality” can choose when they notice the benefits of being identified as a “victim.” And why would someone want to do that?

5. Protection, assistance and payment of compensation to victims of homosexuality.
(1 ) A victim of homosexuality shall not be penalized for any crime commuted as a direct result of his or her involvement in homosexuality.

(2) A victim of homosexuality shall be assisted to enable his or her views and concerns to be presented and considered at the appropriate stages of the criminal proceedings.

(3) Where a person is convicted of homosexuality or aggravated homosexuality under sections 2 and 3 of this Act, the court may, in addition to any sentence imposed on the offender, order that the victim of the offence be paid compensation by the offender for any physical, sexual or psychological harm caused to the victim by the offence.

(4) The amount of compensation shall be determined by the court and the court shall take into account the extent of harm suffered by the victim of the offence. the degree of force used by the offender and medical and other expenses incurred by the victim as a result of the offence.

6. Confidentiality.
(1) At any stage of the Investigation or trial of an offence under this Act, law enforcement officers, prosecutors, judicial officers and medical practitioners, as well as parties to the case, shall recognize the right to privacy of the victim.

(2) For the purpose of subsection (1), in cases involving children and other cases where the court considers it appropriate. proceedings of the court shall be conducted in camera, outside the presence of the media.

(3) Any editor or publisher, reporter or columnist in case of printed materials. announcer or producer in case of television and radio, producer or director of a film to case of the movie industry, or any person utilizing trimedia facilities or information technology who publishes or causes the publicity of the names and personal circumstances or any other information tending to establish the victim’s identity without authority of court commits an offence and is liable on conviction to a fine not exceeding two hundred and fifty currency points.

A currency point is is defined in the Anti-Homosexuality Bill as 20,000 Ugandan shillings, or about US$7.65, making the maximum fine about US$1,900. Uganda’s per capita income is only about $450.

The very first statement of clause 5 represents a huge get-out-of-jail free card for anyone who is caught in a same-sex relationship (or, as we have pointed out before, perhaps simply in the act of “touching” “any part of of the body” “with anything else”  “through anything” in an act that “does not necessarily culminate in intercourse”). Say, for example, if police should burst into your bedroom while you are there with another person of the same sex and you are caught red-handed being handled “through anything” in an act that “does not necessarily culminate in intercourse,” all you have to do tell them that you’re the victim. Tell them your partner made you do it; tell them your partner kept you there against your will; tell them your partner trickedyou into doing it — don’t worry, no one will bother wondering how he might have tricked you into it — and you will be free from prosecution.

But the benefits don’t end there. You won’t just escape a lifetime in prison or the hangman’s noose, you’ll even get paid to tell the judge how terribly you were victimized.

These clauses practically beg you to rat out your partner. And it’s the perfect escape hatch for the quick-witted or the well-connected: no one even needs to know that you were involved because the confidentially clause will ensure that your name stays out of the papers and television.

L-R: Pasters Solomon Male (in the blue shirt), Michael Kyazze and Martin Ssempa in court recently. (Photo via Daily Monitor)

Based on very recent experience, these clauses are guaranteed to open the floodgates to massive anti-gay witch hunts for anyone with an axe to grind against an enemy. This bill will  become a potent weapon in all sorts of religious,  political, or business rivalries, let alone the day-to-day disputes that arise among family members, co-workers, students, and neighbors. Imagine what would have happened to Pastor Robert Kayanja of the Rubaga Miracle Center Cathedral, who was accused of homosexuality by rival anti-gay pastors Martin Ssempa, Michael Kyazze and Solomon Male in 2009. Ssempa, Kyazze and Male were convicted last month after it was demonstrated that their charges against Kayanja were false. But if this law had been in place, the result could have been very different, simply because of the strong incentive it would have provided for someone to come forward to claim to be Kayanja’s “victim.” And instead of Ssempa and others being sentenced to perform community service, it could have been  Kayanja who would be rotting away in a Ugandan prison for seven years, the rest of his life, or worse.

Clause By Clause With Uganda’s Anti-Homosexuality Bill:
Clauses 1 and 2: Anybody Can Be Gay Under the Law. The definition of what constitutes “homosexual act” is so broad that just about anyone can be convicted.
Clause 3: Anyone Can Be “Liable To Suffer Death”. And you don’t even have to be gay to be sent to the gallows.
Clause 4: Anyone Can “Attempt to Commit Homosexuality”. All you have to do is “attempt” to “touch” “any part of of the body” “with anything else” “through anything” in an act that does “not necessarily culminate in intercourse.”
Clauses 5, 6, 8, 9, and 10: How To Get Out Of Jail Free. The bill is written to openly encourage — and even pay — one partner to turn state’s evidence against another.
Clauses 7, 11, and 14: Straight People In The Crosshairs. Did you think they only wanted to jail gay people? They’re also targeting family members, doctors, lawyers, and even landlords.
Clause 12: Till Life Imprisonment Do You Part. And if you officiate a same-sex wedding, you’ll be imprisoned for up to three years. So much for religious freedom.
Clause 13: The Silencing of the Lambs. All advocacy — including suggesting that the law might be repealed — will land you in jail. With this clause, there will be no one left to defend anyone.
Clause 14: The Requirement Isn’t To Report Just Gay People To Police. It’s To Report Everyone. Look closely: the requirement is to report anyone who has violated any the bill’s clauses.
Clauses 16 and 17: The Extra-Territorially Long Arm of Ugandan Law. Think you’re safe if you leave the country? Think again.
Clause 18: We Don’t Need No Stinking Treaties. The bill not only violates several international treaties, it also turns the Ugandan constitution on its head.
Clauses 15 and 19: The Establishment Clauses For The Ugandan Inquisition. These clauses empower the Ethics and Integrity Minister to enforce all of the bill’s provisions. He’s already gotten a head start.

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