ANALYSIS Adrian Jjuuko (LLD) 17 June 2022
As Pride Month 2022 continues, the Ministry of Health in Uganda has raised alarm on the rising number of new COVID-19 infections.[1] Although the Ministry has not mentioned considering lockdowns at the moment, there is cause for worry for LGBT persons and organisations working on LGBT issues. The worry is less about the risk of LGBT persons catching COVID-19 (which is also undoubtedly high due to existing vulnerabilities) but rather the chances of them being arrested or harassed in the process of enforcing COVID-19 measures, particularly lockdowns.
The major fear lies around the use of lockdown measures as a way of further criminalising same-sex relations through resurrecting the use of vague provisions in the Penal Code such as doing ‘a negligent act likely to spread infection of disease’ and ‘disobedience of lawful orders’ under sections 171 and 117 of the Penal Code, respectively, which were used in 2020 and 2021 to devastating effect for a variety of marginalised persons, including LGBT persons.
During the lockdowns in 2020 and 2021, LGBT persons were targeted for arrests based on their sexual orientation, with COVID-19 measures serving as the perfect excuse for several arbitrary arrests and gross human rights violations. Two cases stood out, one involving the arrest and detention of 20 LGBT youths from a crisis shelter in Wakiso district on 29th March 2020, and one involving the arrest and detention of 44 people at a ‘gay wedding’ at a crisis shelter in Nansana also in Wakiso district, just outside of Kampala on 31st May 2021. The similarities of the two incidents are too many to ignore – they both happened when lockdowns had been declared due to COVID-19 and involved the following: raids on LGBT crisis shelters; marching the arrested persons to the police station; allowing the public to watch what was going on; beatings and berating of the persons arrested for their ‘homosexuality’; leaking of videos of the arrested persons to the public; and finally the same charge – doing a negligent act likely to spread infection of disease. Also striking is that in both situations, the Uganda Police Force came out and declared that the persons were not arrested because of their sexual orientation and/or gender identity, but rather for contravening the regulations put in place to combat COVID-19.[2]
This was not the first time that LGBT shelters/gathering places had been raided; it has become quite a common occurrence. On 20th October 2019, police officers from Kyengera Police station, who were called to rescue LGBT persons from a mob led by local council officials, arrested the 16 men found at the premises, detained them for 2 days and conducted anal examinations on them amidst physical assaults and insults by the police officers.[3] On 11th November 2019, 125 people were violently arrested from a gay friendly bar in Kampala, and they were charged with being a common nuisance.[4] Finally, on 7th May 2022, a crisis shelter for Lesbian, Bisexual and Transgender women run by Rella Women’s Foundation in Kisaasi, Kampala was raided by local authorities and the police and six persons arrested.[5] The difference is the charge – never before had the charge of ‘doing a negligent act likely to spread infection of disease’ been used against LGBT persons. Indeed, the Rella Foundation raid in May 2022 shows that since there is no COVID-19 lockdown, it is no longer a preferred charge.
Expanded criminalisation is the process of building on existing laws to further criminalise same-sex conduct by adding to or reinterpreting them.[6] In this case, existing Penal Code provisions on spreading of disease are interpreted by the police to apply to LGBT persons doing what is allowed for everyone else to do. What is really behind the police’s insistence that the persons were not arrested because of their sexual orientation/gender identity is the desire to avoid the criticism that has been leveled against the police for arresting LGBT persons based on their sexual orientation and gender identity. There is no better way to deflect this accusation than by not charging suspected LGBT people under the specific provisions criminalising consensual same-sex relations.
An argument can be raised that what happened to the LGBT persons in these and many other cases is not unique, as regulations on COVID-19 applied to all persons. Whereas it is true that COVID-19 restrictions were applicable to every person, the reality on the ground was different for LGBT persons. For example, the raid in March 2020 was clearly due to the sexual orientation/gender identity of those arrested, and this was one of the reasons why the charges were withdrawn by the Director of Public Prosecutions (DPP) soon after video evidence of the circumstances surrounding the arrest was shown to the DPP by the accused persons’ lawyers.[7] At that time, there was no restriction on the number of persons who were allowed to stay in one house. On the contrary, the President had specifically required people to stay home; and the shelter was the home that those arrested had. No other homes hosting 20 people and above were raided. For the second case, the COVID-19 Regulations had been revised to allow social events of up to 200 persons, and therefore 40 or so people at a shelter was not exceptional, and indeed no other such events hosting 50 or so people were raided. This clearly indicates that the arrests were based on the sexual orientation and gender identity of those arrested, and the charge was simply an excuse. Indeed, the second case also ended with the magistrates dismissing the case for want of prosecution, after the prosecution failed to provide any evidence of how the COVID-19 regulations were being violated by the accused persons.
Without a COVID-19 induced lockdown, the police do not have much to act on when attacking shelters as they can no longer use the ‘doing a negligent act to spread infection of disease’ excuse, and yet charging people found at a shelter with ‘having carnal knowledge against the order of nature’ would be too farfetched, and would subject the state to a lot of criticism.
There is thus a legitimate fear that another COVID-19 lockdown would once again open up the avenues for the police authorities to enforce the infamous provision on ‘doing a negligent act likely to spread infection of disease’ against LGBT persons, thereby once more expanding the criminalisation of consensual same-sex relations.
Adrian Jjuuko (LLD) is a Ugandan human rights lawyer, researcher and activist, with over 13 years experience. He is the Executive Director of Human Rights Awareness and Promotion Forum (HRAPF), an organisation that operates the only specialised legal aid clinic for LGBTI persons in Uganda, and advocates for legal change in favour of criminalized minorities.
[1] ‘Minister Aceng warns of resurgence of COVID-19 cases’ The Independent, 6 June 2022, https://www.independent.co.ug/minister-aceng-warns-of-resurgence-of-covid-19-cases/ (accessed 15 June 2022).
[2] ‘Ugandan police accused of abusing lockdown laws after LGBT arrests’ Human Rights Watch, 1 April 2020, https://www.theguardian.com/world/2020/apr/01/ugandan-police-accused-of-abusing-lockdown-laws-after-lgbt-arrests (accessed 15th June 2022); Also see ‘44 arrested for organizing, attending same sex wedding’ Nile Post, 1 June 2021 https://nilepost.co.ug/2021/06/01/44-arrested-for-organizing-attending-same-sex-wedding/ (accessed 15th June 2022).
[3] Human Rights Watch ‘Uganda: Stop Police Harassment of LGBT People’ 17 November 2019, https://www.hrw.org/news/2019/11/17/uganda-stop-police-harassment-lgbt-people (accessed 15 June 2022).
[4] Above.
[5] Rella Women’s Foundation’ ‘Rella Women’s Foundation statement on the raid at the rellatopia / rella offices on the 7th May 2022’ 9 May 2022 https://www.kuchutimes.com/2022/05/rella-womens-foundation-statement-on-the-raid-at-the-rellatopia-rella-offices-on-the-7th-may-2022-rellatopia-raided/ (accessed 15 May 2022)
[6] See A Jjuuko & M Tabengwa ‘Expanded criminalisation of consensual same sex relations in Africa: Contextualizing the recent developments’ in N Nicol et al (eds) ‘Envisioning global LGBT human rights: (Neo)colonialism, neoliberalism, resistance and hope’ 2018, 63, 64.
[7] Letter by Human Rights Awareness and Promotion Forum (HRAPF) to the Director of Public Prosecutions, 8th May 2021 (on file with HRAPF).
