Uganda’s Anti-Homosexuality Bill: We Don’t Need No Stinking Treaties

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

Jim Burroway

November 25th, 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 had been the hands of the Legal and Parliamentary Affairs Committee, which on November 23 announced that they were prepare to send the bill to the full House for debate and a final vote, possibly as early as Tuesday (Nov 27).

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.

In Clauses 16 and 17, we’ve seen how eager those behind the Anti-Homosexuality Bill are to extend the bill’s reach far beyond Uganda’s borders, not just through its extradition clause, but also to criminalize acts committed by Ugandan citizens and legal residents while they are abroad. Which means that if you advocate for LGBT citizens while in the U.S., where the First Amendment guarantees everyone the right to freedom of speech, and you will be slapped with a five to seven year prison sentence upon returning to Uganda for violating Clause 13 even those the “offense” didn’t take place on Ugandan soil. The next section, Clause 18, will only further solidify Uganda’s contempt not just for the laws of other nations, but also for International Law itself:

18. Nullification of inconsistent international treaties, protocols, declarations and conventions.
(1) Any International legal instrument whose provisions are contradictory to the spirit and provisions enshrined in this Act, are null and void to the extent of their inconsistency.

(2) Definitions of “sexual orientation”. “sexual rights”, “sexual minorities”, “gender identity” shall not be used in anyway to legitimize homosexuality, gender identity disorders and related practices in Uganda.

This clause would have the effect of pulling Uganda out of all treaties which it has already become a signatory if it decides that those treaties would infringe, in any way, on the Anti-Homosexuality Bill. But Uganda’s constitution (PDF: 460KB/192 pages) already spells out Uganda’s obligation to observer all treaties that it entered into before it went into effect in 1995 (see Article 287 on page 171):

287. International agreements, treaties and conventions.

Where—

(a) Any treaty, agreement or convention with any country or international organization was made or affirmed by Uganda or the Government on or after the 9th day of October,1962, and was still in force immediately before the coming into force of this constitution; or

(b) Uganda or the government was otherwise a party immediately before the coming into force of this constitution to any such treaty, agreement or convention,

The treaty, agreement or convention shall not be affected by the coming into force of this constitution: and Uganda or the Government, as the case may be, shall continue to be a party to it.

Furthermore, the constitution already spells out the manner in which Uganda enters into a treaty (see Article 123, pages 89-90).

123. Execution of treaties, conventions and agreements.

(1) The President or a person authorised by the President may make treaties, conventions, agreements or other arrangements between Uganda and any other country or between Uganda and any international organisation or body, in respect of any matter.

(2) Parliament shall make laws to govern ratification of treaties, conventions, agreements or other arrangements made under clause (1) of this article.

The Civil Society Coalition on Human Rights and Constitutional Law, a Ugandan human rights group, explained the constitutional problem posed by Clause 18 (PDF: 344KB/17 pages, see page 10):

Parliament cannot legislate or simply wish away these (treaty) obligations just because they are inconsistent with a domestic legislation. Indeed, international law prohibits such a thing. … Parliament has only a procedural role to incorporate treaties into Ugandan law – and that is the full extent of its powers. It cannot purport to proscribe the limit of the President’s treaty making powers. Nor indeed, can Parliament bind its own future action by purporting to exercise in advance its power to scrutinize treaties signed by the President and determine which of them to ratify.

All that Parliament can do is to either ratify or refuse to ratify a treaty after it is signed, and in the latter case such treaty does not become part of Ugandan law. This is the balance of executive power and democratic input achieved by Article 123, and one that clause 18 of the Bill is incompetent to amend.

Recommendations from the Legal and Parliamentary Affairs Committee in May, 2011 (Click to download, PDF: 57KB/6 pages.)

When the Legal and Parliamentary Affairs committee reported back to Parliament in May 2011, it saw the wisdom of the Civil Society Coalition’s argument, but only partly. It struck out the words “nullification of inconsistent” from Clause 18’s title, and recommended changing subclause 1 to read:

“(1) Notwithstanding the provisions of any other law, any international legal instrument subsequent to the coming into force of this Act whose provisions contradict the spirit and provisions enshrined in this Act may be ratified by Parliament”.

Justification

To enable Parliament have a final say on such instruments before they can bind the country.

The committee’s recommendation would have had the effect of retaining the legal effects of treaties to which Uganda was already a signatory, but it would nevertheless seek to place an extra-constitutional restriction on future Parliaments’ ability to comply with future treaties. It would also still violate the constitution by interfering with the President’s constitutional powers to sign future treaties. Why the Legal and Parliamentary Affairs committee believed that their proposed modification was any more in compliance with the constitution than the bill’s original text is mystifying. Regardless, the Eighth Parliament expired before it 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 Clause 18, which is still officially part of the bill.

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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