Argument

Is It Now Legal to Be Gay in Uganda?

Is It Now Legal to Be Gay in Uganda?

When Uganda’s Constitutional Court declared the notorious Anti-Homosexuality Act "null and void" on August 1, the country’s lesbian, gay, bisexual, transgender, and intersex (LGBTI) community and human rights activists breathed a collective sigh of relief. Since President Yoweri Museveni promulgated the law in February, it had cast a long shadow. But the real fight is not over — not in Uganda, nor in many other countries that have been passing anti-LGBTI measures into law.

After Uganda’s parliament passed the law seven months ago, one of Africa‘s most vibrant and outspoken LGBTI communities experienced a notable increase in arbitrary arrests, police extortion, loss of employment, evictions, and homelessness. Health providers were forced to reduce essential services for LGBTI people, who sometimes were harassed or even arrested when seeking care. Scores sought asylum outside the country, trading the risk of arrest or harassment in Uganda for the difficulties of asylum procedures overseas or even in northern Kenya’s barren Kakuma refugee camp. Others ended up on the run in Uganda, particularly those "outed" by unscrupulous tabloid newspapers in photo montages of "Uganda’s Top Homos." They moved from neighborhood to neighborhood, house to house, to avoid vigilantes, extortion, or arrest. 

Even before the president signed the bill into law, however, lawyers and activists had begun drafting a constitutional challenge — one that any independent court would have had a hard time rejecting. The petition raised concerns of procedure and substance.

It pointed out the myriad ways the Anti-Homosexuality Act violated well-enshrined rights to freedom of expression, assembly, and association, as well as privacy. The act criminalized the undefined "promotion of homosexuality." Its ambiguous phrasing and seven-year criminal sentence could be used to silence speech in support of rights or health services for LGBTI people. The law also banned "aiding and abetting homosexuality" and keeping any home, room, or place "for the purposes of homosexuality," provisions which led some Ugandan landlords to evict their LGBTI tenants.

The petition also noted that parliament passed the bill without a quorum. The parliamentary rules of procedure require at least one-third of all members to be present to pass a bill. During the vote on the Anti-Homosexuality Act, Rebecca Kadaga, the parliament speaker and one of the bill’s biggest cheerleaders, flagrantly ignored objections from the prime minister and another legislator that there was no quorum. A violation of parliamentary rules, according to the constitution, renders a law null and void.

It was on these narrow procedural grounds that the Constitutional Court struck down the law last Friday.

While it was unfortunate that the court did not address the substantive concerns at stake, the ruling was remarkable. In Uganda many petitioners wait years for a hearing on a constitutional matter. In January 2009, activists filed a challenge to discriminatory aspects of the law establishing the Equal Opportunities Commission — but the case did not have a hearing until October 2011, and the court still hasn’t ruled in it. In short, that the court struck down the Anti-Homosexuality Act on the quorum issue was a victory in itself for the rule of law: Parliamentary procedure is frequently flouted, and lawmakers rarely see any consequences.

Understandably, human rights advocates applauded the ruling. "I am officially legal," gay activist Frank Mugisha, one of the petitioners in the court case, proclaimed on Twitter shortly after the ruling.

But in reality, this isn’t entirely true. The Anti-Homosexuality Act did not make it illegal to be gay, but rather created a series of new "crimes" such as the ambiguous "promotion" of homosexuality. While those crimes are no longer enforceable, the law’s nullification does not protect LGBTI people from ongoing discrimination, arrest, and prosecution, despite misleading international headlines to the contrary. In fact, penalties for same-sex conduct remain very much enshrined in Uganda’s existing penal code. 

Article 145 of the code, on the books since British colonial days, criminalizes "carnal knowledge against the order of nature." That crime, too, can lead to a sentence of life in prison — meaning Uganda retains one of the most severe penalties in the world for homosexual conduct. This provision has been rarely enforced, but there have been cases: An LGBTI activist, Sam Ganafa, is fighting charges filed in November under Article 145. Jackson M. and Kim M., two young people arrested on January 27 after they fled from a threatening mob, also face charges, as does a well-known sports figure, Chris Mubiru.

Article 145 has had far-reaching implications. It leaves Uganda’s LGBTI people without access to effective remedies to abuse in the face of homophobic mobs and corrupt officials preying on vulnerability and fear. It was also the justification for the recent, deeply problematic High Court ruling in what became known as the "Lokodo" case. Activists filed a civil suit against Ethics and Integrity Minister Simon Lokodo after he and police forcibly dispersed a human rights and advocacy workshop in February 2012, organized by Freedom and Roam Uganda (FARUG), a lesbian, bisexual, and transgender women’s organization.

The judge ruled that Lokodo had the right to shut down the workshop, alleging that participants, simply by talking about human rights for gay people, were "promoting" or "inciting" same-sex acts that were prohibited by Article 145. The judge even suggested that condom distribution to gay people could be unlawful — a decision that is especially inflammatory given Uganda’s high HIV rates and failure in recent years to make progress in tackling the spread of the virus. The Lokodo ruling set a dangerous precedent not only for LGBTI advocacy but for all human rights and governance advocacy; under the court’s odd logic, educating people about any law would incite them to commit crimes, and thus be illegal.

Ultimately, the Ugandan government could appeal the ruling against the Anti-Homosexuality Act to the country’s Supreme Court. And certainly, the law could return as a new bill in parliament at any time. Given the controversy surrounding the law, the widespread international condemnation, and the cuts and diversions of aid money that resulted from its passage, it is unlikely to come back too quickly, but some parliamentarians are pushing for its rapid return. Clearly, anything is possible in the current climate, and activists will need to remain prepared and vigilant to fight the fight on the substantive grounds.

Thus, Ugandan LGBTI people still face a highly polarized and dangerous social and political environment. Speculations that the court decision was tailored to appease donors from the Global North — in particular, U.S. President Barack Obama, whom Museveni is meeting at the U.S.-Africa Leaders Summit this week — hardly help the cause of LGBTI Ugandans, given that the law’s proponents scurrilously cast homosexuality as a "Western imposition." World leaders who condemned the Anti-Homosexuality Act, and in some cases withheld or redirected aid while assessing the law’s impact, did the right thing — but in failing to condemn other serious human rights abuses by Museveni’s regime, such as torture by the police and military, the killings of unarmed protestors in 2009 and 2011, and ongoing threats to civil society, they leave the impression of prioritizing the rights of LGBTI people over other concerns. This inconsistent approach to rights violations ultimately leaves all Ugandans more vulnerable.

Sadly, LGBTI people in Uganda are not alone. A 2011 BBC documentary sensationally labeled Uganda "the world’s worst place to be gay," but many LGBTI Ugandans reject that depiction as oversimplifying a complex local context in which activists have managed to hold hard-earned ground in the face of hostility. Certainly, there are plenty of other contenders for the moniker: Nigeria, despite having passed an equally egregious anti-gay law that criminalizes acts such as "the public show of same-sex amorous relationship directly or indirectly" has received only a fraction of the international condemnation directed at Uganda. In Cameroon, meanwhile, LGBTI people are frequently sentenced to prison on allegations of consensual sex, often after being subjected to forced anal exams that purport to "prove" homosexuality.

In Egypt — the largest recipient of U.S. foreign assistance in Africa — more and more reports have emerged of gay men being arrested on "debauchery" charges since the military’s July 2013 ousting of Mohamed Morsi, without a peep of public objection from the United States. In Russia, too, gays must contend with brutality from vigilante groups while fighting legislation that prohibits making positive statements about homosexuality — legislation that is spilling over into nearby countries, such as Kyrgyzstan, which has proposed even harsher laws against so-called gay "propaganda."

Successfully challenging homophobia and transphobia, in Uganda and beyond, requires an enduring commitment to working with local civil society activists to challenge myriad anti-LGBTI policies — not simply fleeting attention to a one-off cause célèbre such as defeating Uganda’s Anti-Homosexuality Act.