In defence of these “disgusting and unnatural”

Author: Benjamin Ng’aru
Legal Assistant, Local Authorities Pensions Trust; Volunteer Programmes Assistant, Legal Exchange Centre, Nairobi, Kenya

On Monday 25 February 2014, Uganda’s long serving president Yoweri Museveni signed the Anti-Homosexuality Act of 2014 (previously referred to as Kill the Gays Bill”). The Long Title thereof provides that this “Act [is intended] to prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters.” Museveni has also, on record, called homosexuals “disgusting and unnatural” persons. The legislation has since received widespread condemnation from human rights organisations and leaders across the globe.

Whereas homosexuality was, since the colonial era, outlawed with the introduction of the British colonial rule and justice system, the new legislation is an all time low. Section 2(2) of the Act provides for a mandatory life sentence for persons convicted of “homosexual acts”. Section 1 of the Act has a wide margin of what constitutes “homosexual acts” such as “the touching of another’s breast, vagina, penis or anus, … however slight …. with any part of the body or through anything”.

The effects (real or anticipated) of such legislation are far reaching. In 2009, a local tabloid published names of alleged homosexuals. These media reports were later linked to mob attacks on certain persons, whose names were published, in the process, violating their right to privacy, right to dignity and freedom from inhumane treatment.
Most commentators argue that “homosexuality is a foreign /western concept against Christian teachings and is un-African”. The Ugandan legislature argues that the legislation is intended “to protect the African Traditional Family and Christian values”. Ironically, Christianity was introduced by the colonial masters as a western religion. In fact, according to Tamale Sylvia, homosexuality was only introduced as an offence in Uganda directly by the laws (The East Africa Order in Council 1897) imported from Britain, whose import considered African Customary practices –some of whom had practiced same sex unions of diverse forms – as barbaric and repugnant to morality and good conscience.

Whether barbaric; disgusting; unnatural; un-African or not, and despite one’s moral inclinations; religious subscriptions; or personal opinions, gays, lesbians or transgender persons in Uganda have rights too- inherent rights that cannot be taken for granted or taken away at the executive’s whims. Uganda is and remains a member of the United Nations (UN), the community of civilized nations, and as such has ratified a plethora of treaties from the UN Charter to the African (Banjul) Charter that impose certain obligations on it. This Act is a manifest violation of these international and regional human rights instruments to which Uganda has bound itself. Article 1 of the Universal Declaration for Human Rights provides for that “[a]ll human beings are born free and equal in dignity and rights”. Article 21(1) of the Ugandan Constitution provides that “[a]ll persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law”. It is submitted that “all persons” as envisaged in the Constitution should be interpreted to mean all persons, irrespective of their sexual preference or orientation. Article 21(2) of the Constitution reiterates this interpretation and states that “a person shall not be discriminated against on the ground of sex, race, color, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability”.

Indeed, the Ugandan constitution at Art. 20(1) clearly states that “Fundamental rights and freedoms of the individual are inherent and not granted by the State. Consequently, the Ugandan legislature cannot be seen to take away the right of 2 adults, in a loving, consensual relationship simply because they belong to the same sex. The African Charter prescribes for similar rights as provided for in the International Covenant for Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. This in turn imposes an obligation on Uganda, “to undertake to guarantee the rights enunciated in the treaties”. Indeed, whereas “sexual orientation” has not been expressly provided as a barred ground in Article 21, Article 21(1) provides for “equality of all persons”.

The Committee on Economic Cultural Rights has, in General Comment No. 20, noted that “other status” includes “sexual orientation”. A similar determination was made in Toonen v Australia by the Human Rights Committee. Had the legislature intended to remove homosexual persons from the ambit of such treaty protections and non-discrimination safeguards, it would have expressly done so under Article 21.

Consequently, it is argued that the Ugandan legislature, by enacting the Anti-Homosexuality Act, is in contravention of the right not to be discriminated, read with the right to privacy, of Ugandan citizens by empowering police officers to investigate intimate aspects of their sexual lives. Put differently, the legislature has created conditions for stigmatisation, violence and discrimination.

About the Author:
Benjamin Ng’aru is a Legal Assistant at the Local Authorities Pensions Trust and is also a Volunteer Programmes Assistant at the Legal Exchange Centre in Nairobi, Kenya. He completed his Bachelors of Laws (LLB) at the Catholic University of Eastern Africa (Kenya). His research interests are international law and human rights.