Clause by Clause Through Uganda's Anti-Homosexuality Bill. Part 1 begins here.
November 18th, 2012
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.
The clauses that we’ve examined so far in this series ostensibly target gay people, but already it is clear that the (possibly) unintended consequences of the bill’s breathtaking scope would also make heterosexuals vulnerable through false accusations of homosexual behavior, particularly in a country where corruption is endemic and there are scores to settle. Now we turn our attention to the clauses which target heterosexuals directly. Take Clause 11, for instance:
(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.
This clause’s title claims to target brothels, ordinarily understood as houses of ill-repute, places of prostitution. But look more closely at the subclauses: they suggest nothing of the kind. If the clause was intended to target prostitution, you’d think it would actually mention at least a few of the key characteristics of the profession: 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.
Look at the subclauses again: anyone who allows anyone to conduct an act of “carnal knowledge” on their premises is in danger of being imprisoned for ether five or seven years, depending on how the police and prosecution decide to press charges. That’s it. It doesn’t matter whether you’re running a sexually-oriented business or not. Homeowners, landlords, hotel owners, hostel operators, or just someone 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:
7. Aiding and abating (sic) homosexuality
A person who aids, abets, counsels or procures another to engage in acts of homosexuality commits an offence and is liable on conviction to imprisonment for seven years.
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.
(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 key to understanding Clause 14 is to notice that it invokes the phrase “a person of authority” in describing who has the legal requirement to report gay people to police. Clause 1 provides the definition of authority to be used in interpreting Clause 14. That definition is:
“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 all of those groups to potential abuse, blackmail and extortion if they fail to report gay people to police. 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.
The Civil Society Coalition on Human Rights and Constitutional Law, a Ugandan human rights group, also explained that this clause, in particular, would violate internationally-accepted practices of many professions which operate under the doctrine of Confidentiality (PDF: 344KB/17 pages, see page 8):
Professional practice in all professions is guided by professional ethics and codes of conduct clearly specified and that have gone sway for times immemorial the world over. One of the basic tenets of professional practice is the doctrine of Confidentiality by which a professional is bound not to divulge information acquired from a client by virtue of their professional relationship. Clause 14 of Anti-Homosexuality Bill roundly enjoins all professionals to report to police information on commission of homosexuality, acquired in the course of their professional dealings and relationships with their clients, in breach of their professional duty of confidentiality to their clients. This removes the basis of trust, which is the foundation of the professional – client relationship and thereby violates the right to practice a profession. The provision clearly undermines the right to engage in lawful occupations, trade or business that may directly or indirectly have a link with client’s sexuality. Medical doctors and personnel, lawyers, Counselors, religious leaders, traders of sex products, social workers, human rights activists and many other professional are affected by Clause 14 of the Bill. This is unfortunate in a liberalized market economy, supported very much by the private sector that is grounded on the right to practice one’s profession and carry on any lawful occupation, trade or business.
The British medical journal The Lancet reported that the bill’s targeting of professionals may be intentional. In a December 2009 talk that M.P. David Bahati, the bill’s sponsor, delivered to a cheering audience at Makerere University in Kampala (subscription required):
Before ceding the podium, Bahati had one last point to make. “This is not a Ugandan thing”, he said, his chest swelling with indignation. “Homosexuals are using foreign aid organisations to promote this. If an organisation is found to be promoting homosexuality, then their licence should be revoked.”
Shoulder to shoulder with Bahati’s supporters a half dozen or so Ugandans listened quietly. Several were doctors who had spent much of their careers toiling against a disease that has taken the lives of more than a million Ugandans. Their faces were stoic as they contemplated the implications of Bahati’s bill for the fight against HIV/AIDS not just among gay men but also among the wives and children of men who also have sex with men. They considered the long, lean years that had been spent quietly setting up networks to disburse information on HIV/AIDS to lesbian, gay, bisexual, transgender, and intersex Ugandans.
“As a doctor, the law infuriates me”, said one general practitioner, who is much sought after by sexual minorities for his willingness to treat them, and who asked that his name not be used for fear that he would be arrested for working with sexual minorities. “We are only now getting to a point where people understand there is a problem. This law is going to erase all of that.”
It will erase all that for two reasons. Doctors who are found providing accurate safe-sex information to people who they know are gay can be held liable for “aiding and abetting” homosexuality. And gay people, understanding that Clause 14 would require doctors to report known gay people to police, would be driven underground. This is critical in the fight against AIDS. As The Lancet’s Zoe Alsop reported, in much of Africa, where AIDS is predominantly a heterosexual disease, many people, including doctors, believe that it’s impossible for gay people to become infected with HIV. This is a very different understanding than in the west.
While Clause 14 has gotten a lot of attention, we must not loose sight of what Clause 7 might do. Ordinary people who come in contact with LGBT people — whether they be friends, parents, siblings, co-workers, employers or neighbors — through ordinary kindnesses, accommodations, mutual aid and support, can be seen as “aiding and abetting” homosexuality. And they, too, could face imprisonment if they fail to report their gay friends, sons or daughters, brothers or sisters, co-workers, employees, or neighbors to police within twenty-four hours of finding out about that person’s sexuality.
When the Legal and Parliamentary Affairs committee reported back to Parliament in May 2011, it recommended that Clause 7 against “aiding and abetting homosexuality” be deleted because, the committee said, it was covered by Clause 13 prohibiting the “promotion of homosexuality.” (We will examine that clause later.) It made no recommendation for Clause 11 against “brothels,” leaving it intact as written. As for Clause 14 requiring everyone to report gay people to police within twenty-four hours, the committee recommended its deletion, saying “The offence will create absurdities and the provision will be too hard to implement.”
But the Eighth Parliament expired before the legislature could act on the committee’s recommendation. When the bill was re-introduced in the Ninth Parliament, it was brought back with the original October 2009 language intact, including Clauses 7 and 14 with all its absurdities. And that is exactly where things stand today.
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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