This article was first published on verfassungsblog.de on 14/04/2023.[1]
In many countries across Africa, the promotion and protection of the rights of LGBTIQ+ citizens is one of the most contentious topics in human rights debates. The poisoned roots find their origins predominantly in colonial moral and legal impositions that brutally governed and continue to influence all areas of life including an imposed dual understanding of sexuality and gender. This is inter alia reflected in enduring colonial era laws currently criminalising same-sex sexual conduct in 32 African states. Today, homophobia and transphobia often serves political expediency, rendering the fight for equality and equal protection both tenuous and dangerous. At the regional human rights system, too, we currently experience a situation of ambivalence, which is reflected, for example, in the rejection of the African Commission on Human and Peoples’ Rights (African Commission) to grant observer status to some NGOs allegedly focusing on the promotion of rights “contrary to the virtues of African values”[2]. This happens despite the build-up of a soft-law framework of the African Commission over the past twenty years clarifying that the inclusion of SOGIESC (sexual orientation, gender identity, gender expression and sex characteristics) is part of the Commission’s promotional and protection mandate.
Serious setback after landmark decision by Supreme Court in Kenya
If any confirmation was needed that the path towards the realisation of SOGIESC rights was hard, then the reaction to the 24 February 2023 judgement of the Supreme Court of Kenya is an apt case in point. In its decision the Supreme Court upheld the registration of the National Gay and Lesbian Human Rights Commission (NGLHRC) with Kenya’s NGO Coordination Board: a result which rightly has been widely celebrated.[3] The Court determined that “it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants”[4] Beyond the legal landmark decision, the court ruling has revealed two key lessons: First, that the phenomena of strategic counter-attacks regarding SOGIESC advocacy and struggles for protection would likely become the norm; and secondly that human rights defenders need to develop structured and specific management plans for inevitable setbacks.[5]
The short weeks following the court decision have provided a brutal and sobering confirmation of these two lessons. The landmark decision by the Supreme Court of Kenya has caused a tragic setback in Kenyan society which has manifested in hate speech from religious and political personalities and increased instances of violence that threatens the lives of LGBTIQ+ persons.[6] While the court decision ostensibly only decided over the registration of an association with the NGO Coordination Board, the public discourse shifted towards denouncing the claims for protection of LGBTIQ+ citizens and limiting discussion on “homosexuality” based on allegedly African moral, cultural and religious arguments.
Condemnation of the Uganda Anti-Homosexuality Bill
As this wave of homophobic and transphobic hate speech trended in Kenya, not to be outdone neighbouring Uganda has followed suit. On 21 March 2023, the Uganda Parliament passed the Anti-Homosexuality Bill (2023). The discriminatory legislation is not a new assault on the constitutional rights of minoritized Ugandans but rather a modified form of earlier versions of the Bill, all of which aimed to make a section of Ugandan citizens less protected by the Constitution.[7]
In this context, we condemn wholly the Anti-Homosexuality Bill of Uganda in the strongest way possible. In aligning with many human rights organisations, groups and individuals in Africa and all over the world, we urge President Yoweri Museveni to act in accordance with the human rights obligations emerging out of the Ugandan Constitution as well as the African Charter and ensure that these hate provisions do not stain the corpus of Ugandan law. In this regard, we reiterate Art. 2 of the African Charter under which State parties are obliged to protect the rights and freedoms of every individual without distinction of any kind, which necessarily includes the basis of sexual orientation and gender identity, jurisprudence which has been confirmed by the African Commission.[8]
Understanding the context of the Uganda Anti-Homosexuality Bill
Art. 145 “Unnatural Offences” of the Ugandan Penal Code Act, which is an odious and dangerous relic of colonial legal imposition, criminalises same-sex sexual conduct. Processes of passing additional discriminatory legislation against LGBTIQ+ people in Uganda are not a new phenomenon but have become a favoured political football. In 2009, Members of the Uganda Parliament introduced the initial Anti-Homosexuality Bill (2010). This Bill punished inter alia aggravated “homosexuality” with the death penalty and obligated everyone including family members and friends to report acts of “homosexuality” as well as the intention to do the same. It was never passed by the Uganda Parliament.
Starting in 2013, the Uganda Parliament has made another attempt, the Anti-Homosexuality Bill (2014) was passed and President Yoweri Museveni signed it into law. However, this version of the Anti-Homosexuality Bill was struck down by the Constitutional Court for procedural reasons in August 2014.
In 2021, the Sexual Offences Bill was passed by the Ugandan Parliament but vetoed by President Museveni because the offences covered are already covered in the Ugandan Penal Code. The Sexual Offences Bill aimed to criminalise a “wide array of sexual practices as unnatural, particularly between persons of the same-sex, further criminalise sex work and create a sexual offender register with extensive reporting requirements”[9].
The enactment of the latest version of the Anti-Homosexuality Bill (2023) now depends on President Yoweri Museveni, who has 30 days to sign the bill according to Art. 91 (3) of the Constitution of Uganda (Amendment 1995). The Anti-Homosexuality Bill (2023) is to be understood as an expansion and interpretation of what is widely understood to be part of Art. 145 “Unnatural Offences” of the Ugandan Penal Code Act. While the latest modifications to the Bill, especially on the penalties, were made on the evening of the vote, one of its key features is the factual criminalisation of a person and not an act. Beyond that, the promotion of “homosexuality” is punishable by the bill and at the same time, the bill includes an obligation for everyone to report homosexuality which has the potential of dividing communities and alienating, friends and families. The Human Rights Awareness and Promotion Forum (HRAPF) in Uganda has summarized the bill as unconstitutional due to its violation of constitutional rights such as the rights to equality and freedom from discrimination, privacy, dignity and freedom from inhuman and degrading treatment as well as freedom of expression, religion and association.
The Centre for Human Rights, Faculty of Law, University of Pretoria together with the Centre for Sexualities, AIDS, and Gender, University of Pretoria have rightly stated that the Bill will “further endanger the lives, safety and dignity of an already vulnerable and targeted group”.[10]
Interchanging dynamics and blueprint for Africa?
Uganda is not the only country that has discussed, introduced and passed discriminatory legislation which traces its lineage to the well-known “Unnatural Offences” Acts in the Penal Codes of former British colonies. For example, in 2021 the similarly-intentioned Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill was introduced to the Ghanaian Parliament.[11] After the Kenyan court decision, Member of Parliament George Peter Kaluma also threatened to introduce such legislation.[12] And if the history of political-point scoring on the backs of SOGIESC communities is anything to go by, this is no idle threat.
The homophobic and transphobic legislation in the different places need to be realised as a “political tool […] to promote self-serving agendas”[13]. In that light, the Uganda Anti-Homosexuality Bill (2023) can easily serve as a blueprint for politicians and parliaments in other countries. This could further fuel the current dilemma of the promotion and protection of SOGIESC rights in the African human rights system and therewith lead to respectively reinforce a homophobe regression over the continent.
Whilst the Uganda Anti-Homosexuality Bill is unconstitutional and should not be recognized by the national courts, the initiation of such a bill already catalyses tremendous consequences for the community. Further, considering the historical context of this Bill and realising the political expediency that drives the promotion bills like this[14] this will certainly not be the end of developments in Uganda (and beyond).
This is why it is critical that human rights defenders across the continent anticipate these setbacks and plan for contingencies. This could include preparing ready-to-go court interventions that can be instituted as soon as these setbacks are pushed through constitutional processes. More importantly, it includes collaborating across borders and utilizing the African human rights system so that all its protection procedures can be brought to bear on what is evidently an intractable problem of human rights. All Africans deserve the best protection of their rights.
[1] Kaime, Thoko; Zundel, Isabelle: (No) News from East Africa: How Human Rights Defenders Should Address Homophobic and Transphobic Politicking, VerfBlog, 2023/4/14, https://verfassungsblog.de/no-news-from-east-africa/.
[2] African Commission on Human and Peoples’ Rights, ‘Final Communiqué of the 73rd Ordinary Session of the African Commission on Human and Peoples’ Rights’ Banjul, The Gambia 20 October-09 November 2022.
[3] Thoko Kaime and Isabelle Zundel, ‘Observations around the decision of the Supreme Court of Kenya allowing the registration of the National Gay and Lesbian Human Rights Commission’, African Legal Studies Blog.
[4] Ferdinand Omondi and Alex Binley, ‘Kenya wrong to ban LGBT rights groups from registering – Supreme Court‘ (BBC, 24 February 2023) https://www.bbc.com/news/world-africa-64491276 accessed 12 April 2023.
[5] Kaime and Zundel (n 3).
[6] The Guardian, ‘Kenya’s LGBTQ community wins bittersweet victory in battle for rights’ The Guardian (3 March 2023) <https://www.theguardian.com/global-development/2023/mar/03/kenyas-lgbtq-community-wins-bittersweet-victory-in-battle-for-rights> accessed 3 April 2023.
[7] Centre for Human Rights, Faculty of law, University of Pretoria (CHR) and the Centre for Sexualities, AIDS, and Gender, University of Pretoria (CSA&G), ‘Press Statement: Centre for Human Rights and Centre for Sexualities, AIDS and Gender condemn the passing of Uganda’s Anti-Homosexuality Bill’ (28 March 2023).
[8] See for example, Resolution 275 on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity (ACHPR/Res.275(LV)2014).
[9] Human Rights Awareness and Promotion Forum, ‘A legal and human rights analysis of the Anti-Homosexuality Bill, 2023 as enacted by Parliament’ (29 March 2023).
[10] Centre for Human Rights, Faculty of law, University of Pretoria (CHR) and the Centre for Sexualities, AIDS, and Gender, University of Pretoria (CSA&G) (n 5); The Guardian (n 4).
[11] Ohotuowo Ogbeche, ‘Ghana’s anti-LGBTQ bill sparks spike in “legally sanctioned” extortion’ African Arguments (29 November 2022) <https://africanarguments.org/2022/11/ghana-anti-lgbtq-bill-sparks-spike-extortion/> accessed 2 April 2023.
[12] Osoro Jnr, ‘MP Kaluma informs Speaker Wetangula of his intention to table anti-gay law’ (People Daily, 24 February 2023) https://www.pd.co.ke/news/mp-kaluma-informs-speaker-wetangula-of-his-intention-to-table-anti-gay-law-170739/ accessed 28 February 2023.
[13] Sylvia Tamale, ‘Confronting the Politics of Nonconforming Sexualities in Africa’ (2013) 56(2) African Studies Review 31 <http://www.jstor.org/stable/43904926>.
[14] Stella Nyanzi and Andrew Karamagi, ‘The social-political dynamics of the anti-homosexuality legislation in Uganda’ (2015) 29(1 (103)) Agenda: Empowering Women for Gender Equity 24 <http://www.jstor.org/stable/43825974>.
