KAMPALA – The International Bar Association’s Human Rights Institute (IBAHRI) strongly condemns Uganda’s Anti-Homosexuality Bill, which includes the death penalty for ‘aggravated homosexuality’. The Ugandan Parliament passed the Bill overwhelmingly, with 389 votes to two, on 21 March 2023.
Described as ‘probably among the worst of its kind in the world’ by United Nations High Commissioner for Human Rights, Volker Türk, the draft Bill as proposed on 1 March 2023 included provisions criminalising identifying as lesbian, gay, bisexual, transgender, queer or questioning, intersex, or any other sexual or gender identity beyond male and female (LGBTQI+) (Article 2(1)(d)); same-sex sexual acts (Article 2(1)(a)-(c)); and aiding and abetting homosexuality (Article 8). The final version of the Bill is yet to be officially published but these were some of the elements discussed in the Ugandan parliament ahead of it being passed.
The version amended and adopted during the parliamentary session on 21 March 2023 includes life imprisonment for consensual same sex activities and the death penalty for the crime of ‘aggravated homosexuality’. According to the draft Bill, the crime of ‘aggravated homosexuality’ is committed where the offender is living with HIV; is a parent, guardian, or has authority or control over the person against whom the offence is committed; is a serial offender; applies, administers, or causes any drug, matter or thing to be used with intent to stupefy or overpower the person against whom the offence is committed; or if the victim is under the age of 18 or has a disability (Article 3(1)).
IBAHRI Co-Chair, and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, stated: ‘The IBAHRI commends the courage and good conscience of MPs Fox Odoi-Oywelowo and Paul Kwizera Bucyana for voting against the Bill in the face of overwhelming opposition. We call on President Yoweri Museveni not to sign this Bill into law. The criminalisation of consensual same-sex sexual activities and the very act of identifying as lesbian, gay, bisexual, transgender, queer or questioning, intersex and any other category, as well as the imposition of the death penalty for “aggravated homosexuality”, violates Uganda’s international law obligations. Members of the LGBTQI+ communities in Uganda have already been blackmailed and lured into mob attacks. This Bill, if signed into law, will further entrench discrimination and prejudice against an already vulnerable community.’
Consensual adult relations should never be criminalised. Uganda is a State party to the International Covenant on Civil and Political Rights (ICCPR), which upholds, inter alia, the prohibition of discrimination (Article 2(1)), the right to privacy (Article 17), and equality before the law and equal protection of the law (Article 26).
While sexual orientation and gender identity are not expressly listed as prohibited grounds for discrimination, jurisprudence and authoritative interpretations by UN treaty bodies to which Uganda is a State party have established that the prohibition of discrimination on the grounds of ‘other status’ includes discrimination based on sexual orientation and gender identity.
This is reiterated in Principle 2 of the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, which states: ‘Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination.’
Principle 33 of the Yogyakarta Principles (plus 10) on the application of international human rights law in relation to sexual orientation and gender identity states: ‘Everyone has the right to be free from criminalisation and any form of sanction arising directly or indirectly from that person’s actual or perceived sexual orientation, gender identity, gender expression or sex characteristics.’ The detention of LGBTQI+ persons on the basis of laws that criminalise same-sex sexual activity in private has been found to constitute a form of arbitrary detention by, inter alia, the UN Human Rights Committee and the UN Working Group on Arbitrary Detention. The UN Special Rapporteur on Torture and the UN Independent Expert on Sexual Orientation and Gender Identity have urged States to repeal such laws considering the clear causal link between the criminalisation of LGBTQI+ persons and their increased exposure to violence at the hands of law enforcement, prison staff and healthcare personnel.
As highlighted by the UN Independent Expert, the combination of social prejudice and criminalisation has the effect of marginalising LGBTQI+ persons and excluding them from healthcare, education, employment, housing and access to justice. The African Commission on Human and Peoples’ Rights has also noted that laws that criminalise homosexuality have the potential to engender violence against persons on grounds of their actual or imputed sexual orientation and has strongly urged states to enact and apply appropriate laws prohibiting and punishing violence targeting persons on the basis of their imputed or real sexual orientation or gender identity.
Furthermore, under Article 6(2) of the ICCPR, the death penalty can only be imposed for ‘the most serious crimes’. In its General Comment No 36 (2018), the UN Human Rights Committee stated that this must be read restrictively and appertain only to crimes of extreme gravity involving intentional killing. Furthermore, the death penalty cannot be imposed contrary to the provisions of the ICCPR. As highlighted by the Committee, ‘under no circumstances can the death penalty ever be applied as a sanction against conduct the very criminalization of which violates the Covenant’, including homosexuality. Retaining the death penalty for such offences violates State parties’ obligations under Article 6, read alone and in conjunction with Article 2(2) of the ICCPR, as well as of other provisions of the Covenant.
Finally, there is concern that the Bill will have a chilling effect on free speech and freedom of assembly and association, protected under Articles 19 and 21 – 22 of the ICCPR and Principles 19 and 20 of the Yogyakarta Principles, as, inter alia, media groups, journalists, publishers, and civil society organisations could face prosecution and imprisonment for the creation and distribution of any content that could be perceived as promoting sexuality.
The UN Human Rights Committee has held that limitations to such rights on the basis of morals must be exceptional, ‘understood in the light of universality of human rights and the principle of non-discrimination’ and cannot be imposed because of opposition to expressions of sexual orientation or gender identify.
IBAHRI Co-Chair Mark Stephens CBE commented: ‘This Bill is an affront to the fundamental human rights of Ugandan LGBTQI+ persons and their communities. It leaves them vulnerable to blackmail and intimidation, and seriously impacts their ability to engage with civil society or seek medical attention. The Bill comes at a time when LGBTQI+ people in Uganda are already facing arrest, sexual violence, public stripping, and evictions on the basis of their sexuality. This is contrasted against the positive progress towards abolition in many other African States over the last couple of years, including Zambia, the Central African Republic, Sierra Leone, and Chad.’
The 2023 Bill is based on the Anti-Homosexuality Act (2014), which was nullified by the Constitutional Court of Uganda because the Ugandan parliament passed it without the necessary quorum. In the months after its passage in December 2013, there was a notable increase in human rights abuses against LGBTQI+ persons in Uganda.
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