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Could Uganda’s anti-gay law be struck down?

Could Uganda’s anti-gay law be struck down?
  • PublishedMay 8, 2023

The new anti-homosexuality bill passed by Uganda’s parliament has caused alarm in many parts of the world, but neglect of parliamentary process could add strength to legal challenges against it. Epajjar Ojulu reports from Kampala.

Although the new anti-homosexuality bill passed by Uganda’s parliament has caused uproar in many parts of the world by demanding the harshest punishment, including sending convicted offenders to the gallows, legal experts, academics, some MPs and the population in general are not worried. They say that like other laws in Uganda, the new bill, which is waiting to be signed into law by the President at time of writing, will join others in becoming a white elephant. 

“I totally agree with the Bill but my concern is with the psychologically disoriented persons the Bill does not recognise as long as they do not engage in the practice,” Museveni said, adding, “the law should not frighten those who wish to abandon homosexuality.”

According to Transparency International, the Uganda police is the most corrupt government institution in the country and its ability to enforce law and order is severely eroded. “Even if the President were to assent the bill into law, it is unlikely that the police will prosecute any offenders but will instead treat it as a cash cow by extorting money from genuine and imagined suspects,” says a prominent city lawyer, who declined to be identified. 

“Laws against prostitution are in the penal code. No person has ever been charged. Instead the police and other law enforcers are clients of prostitutes who line urban streets every night in the full glare of the police. How will they apprehend a gay couple doing their thing in private?” asked General David Sejusa, a retired army officer and prominent lawyer, on Twitter soon after parliament passed the bill.

General Sejusa’s concerns are echoed by Lumumba Bwire, a Makerere University lecturer, Betty Nambooze, a prominent opposition MP of Mukono Municipality, pro-government legislature lawyer Fox Odoi-Oywelowo, and prominent journalists Andrew Mwenda and Henry Wasswa. They say that although homosexuality is to some people morally deplorable, the anti-homosexuality bill passed by parliament is preposterous. They accuse MPs of using homophobia to divert public attention away from the numerous challenges facing the country that they have failed to tackle. 

“It is diversionary to tout homophobia as an issue worthy of debate in parliament in a country being tormented by corruption, mismanagement and a fast-rising number of the poor,” says Lumumba.

“If the police cannot arrest daytime thieves of iron sheets meant for the people of the impoverished Karamoja region, how can they apprehend two consenting adult homos hiding in bedrooms?” asks Lumumba. 

He was referring to the scandal in which top government and political leaders have been accused of diverting to personal use tens of thousands of galvanised iron sheets that the government bought to resettle the homeless in the country’s poorest region, Karamoja. However, the Minister in charge of the region, Mary Goretti Kitutu Kimono was charged and remanded in prison over Easter. She has pleaded not guilty to receiving the sheets.

Critics say the anti-gay bill was passed without following parliamentary rules and procedures.

Opposition MP Betty Nambooze argues: “The second and third readings, and the plenary debate on the recommendations of the Parliament Special Select Committee were done in a single seven-hour marathon sitting. Normally the House would have gone into recess to allow MPs to consult the population. It seems the promoters of the bill had ulterior motives in wanting the bill passed hurriedly.” 

She says the neglect of the parliamentary process and rules will help opponents of the bill to challenge it in court, as they did in 2013 when parliament passed a similar law without the required quorum. The Constitutional Court nullified the bill. 

Homosexuality not alien to Africa

President Yoweri Museveni says homosexuality is alien to Africa and threatens procreation. Addressing an American Evangelical Church-sponsored conference in Entebbe in April, Museveni vowed to ensure homosexuality does not take root in the country. 

But Professor Tamale, the leading feminist, scholar and legal expert, says homosexuality is not alien to Africa. In an opinion published by Al Jazeera in 2014, Prof. Tamale criticised Museveni for shifting his position on homosexuality. 

“In an interview with the BBC’s Hard Talk programme in 2012, Museveni is quoted as having said ‘homosexuals in small numbers have always existed in Africa…they were never prosecuted, they were ignored but never discriminated against,’ ” says Prof. Tamale. She says Museveni’s comments followed the advice of his team of scientists, who told him “every society has a small number of people with homosexual tendencies”.

Prof. Tamale says the assertion that homosexuality is un-African is a myth because African history is replete with examples of homosexuality. “In Uganda, it is an open secret that the Kabaka (king) Mwanga of Buganda, who ruled up to 1914, was gay.” In addition, the king is referred to by his male subjects as bba ffe or “our husband”. Prof. Tamale says the Baganda have long coined words to mean homosexuality. Okulya Ebisiyaga means same-sex intercourse in Luganda. 

Prof. Tamale says homosexuality has been present in most African societies. She says in Africa, same-sex sexuality was believed to be a source of magical powers for guaranteeing bountiful crop yields, a good hunting catch, good health and to ward off evil spirits. 

In Angola and Namibia, “a caste of male diviners known as zvidanda, chibados, quimbanda, gangas and kibambaa were believed to carry powerful female spirits that they would pass on to men through anal sex”; while among the Basotho in today’s Lesotho, there are socially sanctioned erotic relationships between women, who are often married, with the term motsoalle or ‘special friend’. 

She says in Senegal’s Wolof language, homosexual men are known as gor-digen (man-woman). Homosexuality was also practiced among the Ndebele and Shona in Zimbabwe, the Azande in Congo and Sudan, the Nupe in Nigeria and the Tutsi in Rwanda and Burundi. Prof. Tamale notes that in the cave paintings of the San people near Guruve in Zimbabwe, two men are depicted engaging in some form of ritual sex.

Witch-hunting

Fox Odoi-Oywelowo, who was a member of the parliamentary committee which examined the draft bill, says the law is in bad taste and aims at witch-hunting a section of the population. He said criminalisation of same-sex marriage and other sexual relationships already existed in the penal code and the new law, which hands out disproportionately harsh penalties to alleged offenders, is brutal and unacceptable because it denies homosexuals every known right – the right to be, to associate, to medical treatment, to housing and to education.

In addition, he says, MPs used ‘mob justice’ and commandeered Parliament into a hostile and irregular process that defied its rules and regulations. Odoi-Oywelowo, a lawyer who successfully challenged the anti-homosexuality law before the Constitutional Court in 2013, vows to do the same if the bill is signed into law.

On the ground, homosexuals promise that in spite of the hate campaign orchestrated by the new bill, they will not relent in demanding their human rights. “It is absurd for anyone to suggest that we are a product of a foreign promotion campaign,” says 62-year-old Sam Ganafa, director of Spectrum, a Uganda gay rights group. 

He adds: “I started to have sexual feeling for fellow men at university. At that time I had never heard of homosexuals. I am very sure the over 500,000 homos in this country had the same experience.” He advises Ugandans to appreciate that they too are human.

Ganafa warns that the consequences of implementing the new law will be grave for Uganda. The United Nations and the US government have urged President Museveni not to sign the bill into law, a call he is likely to reject to please the country’s largely conservative Anglican, Catholic and Islamic religious denominations, vehemently opposed to homosexuality. 

The US government, which funds a significant part of the country’s health budget, has warned that it may cut the funding, to the chagrin of the majority of the population without healthcare.

Written By
Epajjar Ojulu

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