16 alarming facts about the Uganda Anti-Homosexuality Act, 2023.
By Michael Kioko
On 21st March, 2023, Uganda voted into law the Anti-Homosexuality Act, 2023 barely two weeks after a Bill was introduced on 9th March, 2023. The Act is awaiting presidential assent to become operational.
A similar Act of 2014, was nullified by the Constitutional Court on 1st August, 2014 for having lacked the necessary quorum of voting-lawmakers at the time it was passed into law.
Although same sex sexual relations are already criminalised under Section 145 of the Uganda Penal Code, the new law, providing for prison terms of up to 10 years under vague sweeping provisions, is designed give authorities more power to repress and persecute LGBTQ+ individuals and their allies in Uganda, creating a dangerous environment for that community.
Criminalisation of HIV status, introduction of conversion therapy and gay panic defence are some of the alarming provisions:-
- Oral Sex: According to Section 2(a) of the Act, the offence of “homosexuality” includes penetration of the mouth of a person of the same sex.
- Sex toys: Under Section 2(a) and (b) any person who uses any object or sexual contraption to penetrate the mouth or stimulate the sexual of a person of the same sex commits the offence of “homosexuality”.
- Accidental bodily contact or non-sexual bodily contact: Under Section 1(c) any person who touches another person “with the intention of committing the act of homosexuality” commits an act of homosexuality. Touching under Section 1 is defined to include touching “with any part of the body”, or “with anything else” or “through anything”. Touching thus is not confined to sexual organs or particular parts of the body and includes any physical contact between two people even when fully dressed. Even the accidental bump on the street or the ubiquitous fist bump, hug or handshake could be criminal. All a person or the authorities need to do is to allege “intention” in the contact and one’s fate is sealed.
- Identity other than male or female: The Act under Section 1(d) restricts sexual and gender identities to male and female and specifically criminalises sexual and gender identities of the “lesbian, gay, transgender, a queer or any other sexual or gender identity that is contrary to the binary categories of male and female”.
- Expressing or identifying oneself as lesbian, gay, bisexual, transgender, Intersex, queer etc: In addition to criminalising overt acts, the Act seeks to regulate reasoning and makes it an offence for one to identify or express oneself as anything other than as a “male” or “female.” Expressing or identifying oneself as LGBTIQ+ is criminal.
- Living with HIV is criminal: Under Section 3(1)(b), if one is living with HIV and “commits” the offence of homosexuality, on conviction, they will be guilty of the offence of “aggravated homosexuality”.
- Consenting adult can turn to a victim: Under section 5, the Act introduces the concept of protecting, assisting and compensating victims of homosexuality. “Victim” under Section 1 is vaguely defined as “a person who is involved in homosexual activities against his or her will”, and could be applied especially if the sexual partner had “control and authority” over them because of their superior “knowledge, social or economic status”. “Will” is defined in the Blacks Law Dictionary as wish, desire or choice. The implication is that any consenting adult in same sex sexual relations (homosexual offences) can after the fact, either to save themselves from prosecution or to implicate their partner and save themselves, deny willingness on the basis that the other person had authority and control over them because of superior knowledge, social or economic status. Under Section 3(1)(d), that other person will then be guilty of aggravated homosexuality.
- Mandatory HIV testing: The Act at Section. 3(3) provides for mandatory HIV testing for anyone charged with aggravated homosexuality regardless of whether sexual contact is alleged.
- Gay panic defence and vigilante justice made legal: Under Section 5(1) a victim of homosexuality shall not be penalised for ANY CRIME committed as a direct result of their involvement in homosexuality. This section grants “victims of homosexuality” advance immunity to commit crimes against the LGBTQ community without any fear of repercussion. This is disturbing when one looks at the vague definition of a victim under the Act. One need only allege that they were influenced by say money, social status or superior “knowledge” to gain victim status and go scot free, not only of the crime of homosexuality, but also of any other crime they may have committed against the sexual partner.
This becomes more disturbing when one looks at the definition of the crime of homosexuality. Touching someone “with the intention of committing an act of homosexuality” is homosexuality as is identifying or expressing oneself as LGTIQ+. Who then is the victim? Any person touched and alleging intention becomes a victim as is any person who is in a group or association that identifies or expresses itself as LGBTQ+ and who later alleges that they were in that group against their will because they were influenced or controlled by superior knowledge or status to be in that group. That person gains victim status and is free to commit any crime against the person who touched them or any person of that LGBTQ+ group or the entire group without any legal consequence.
10. Acquaintance with or providing support to LGBTIQ+: Section 8 criminalises “aiding and abetting homosexuality” which is a vague provision designed to coerce family, friends, acquaintances and persons providing services to the LGBTQ (Eg. Lawyers, doctors, nurses, counsellors, hotel managers, landlords etc) to denounce LGBTQ+ members and associations to the authorities.
11. Owners, managers of houses, hotels, guest rooms, Airbnbs and householders targeted: Under Section 12(b) any person being the owner or occupier, or managing or controlling premises and who allows same sex sexual relations upon the premises commits an offence and is liable to one year in prison on conviction.
12. Commitment ceremonies: Under Section 13 a person who purports to contract a marriage with another person of the same sex, together with the conductor of that marriage commit an offence.
13. Donors, funders, promoters, NGOs, hotels, landlords, persons providing services to LGBTQ etc, targeted: Section 14 criminalises “promotion of homosexuality” and targets any person who funds or sponsors homosexuality or related activities, offers premises and related fixed or moveable assets for purposes of homosexuality or promoting homosexuality, or acts as an accomplice or attempts to promote or abet homosexuality and related activities.
14. Directors, proprietors, promoters of LGBTQ NGOs and associations and their businesses and organisations targeted: Under Section 14 where the offender is a corporate body, business, association or NGO, the director, proprietor or promoter shall be liable for the offence of promotion of homosexuality and upon conviction, the registration of their business, NGO or association shall be cancelled.
15. Introduces Conversion therapy– Section 15 gives power to court to order the Minister to facilitate the rehabilitation of a person convicted of an offence under the Act.
16. Extradition from any part of the world back to Uganda to face charges: Under Section 16 a person charged with an offence under this Act is liable to extradition back to Uganda to face charges.
The effect of the operation of this Act, if assented to, will be to gravely curtail the rights and freedoms of the LGBTQ+ and their allies in Uganda, in particular their freedom of conscience and opinion, freedom of expression, association, movement, residence, right to equality and freedom from discrimination, the right to human dignity, privacy, economic rights, access to justice among others.
The writer is an advocate of the High Court of Kenya and a social justice activist.