
Uganda's Anti-Homosexuality Bill, which includes the death penalty for «aggravated homosexuality», is harshly condemned by the International Bar Association's Human Rights Institute (IBAHRI).
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Uganda: IBAHRI criticises a bill that increases the use of the death penalty against LGBTQI+ people
On March 21, 2023, the Ugandan Parliament passed the Bill by 389 votes to two.
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 2(1)(a)). (Article 8). The full version of the Bill has yet to be officially released, however these are some of the parts that were discussed in Ugandan parliament prior to its passage.
The version updated and accepted during the legislative session on March 21, 2023, contains life imprisonment for consensual same sex activity and the death penalty for the crime of «aggravated homosexuality». According to the draft Bill, «aggravated homosexuality» is committed when the offender has 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 the 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)).
BAHRI 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.’
Adulterous consent should never be criminalised. Uganda is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which promotes, among other things, the prohibition of discrimination (Article 2(1)), the right to privacy (Article 17), equality before the law, and equal protection under the law (Article 18). (Article 26).
While sexual orientation and gender identity are not explicitly 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 on discrimination based on ‘other status’ includes discrimination based on sexual orientation and gender identity.
This is reaffirmed 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 based on sexual orientation or gender identity». Everyone is entitled to equality before the law and equal protection under the law, without regard to whether or not another human right is similarly affected. The legislation shall ban such discrimination and provide equitable and effective protection to all persons against such discrimination.
«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», states Principle 33 of the Yogyakarta Principles (plus 10) on the application of international human rights law in relation to sexual orientation and gender identity.
The incarceration of LGBTQI+ people under laws that criminalise same-sex sexual behaviour in private has been deemed arbitrary by the UN Human Rights Committee and the UN Working Group on Arbitrary incarceration, among others. The UN Special Rapporteur on Torture and the UN Independent Expert on Sexual Orientation and Gender Identity have both urged states to repeal such laws, citing a clear causal link between criminalising LGBTQI+ people and increasing their exposure to violence at the hands of law enforcement, prison staff, and healthcare personnel.
The combination of social prejudice and criminalisation, as underlined by the UN Independent Expert, has the impact of marginalising LGBTQI+ people and barring them from healthcare, education, work, housing, and access to justice. The African Commission on Human and Peoples’ Rights has also stated that laws criminalising homosexuality have the potential to incite violence against people based on their actual or perceived sexual orientation, and has strongly urged states to enact and enforce laws prohibiting and punishing violence against people based on their perceived or actual sexual orientation or gender identity.
Furthermore, the death penalty can only be inflicted for «the most serious crimes», according to Article 6(2) of the ICCPR. The UN Human Rights Committee declared in its General Comment No 36 (2018) that this must be read restrictively and applies exclusively to crimes of severe gravity involving purposeful killing. Furthermore, the death penalty cannot be applied in violation of the ICCPR. According to the Committee, «under no circumstances can the death penalty ever be used as a sanction against conduct the criminalisation of which violates the Covenant», which includes homosexuality. Retaining the death sentence for such offences is a violation of State parties’ duties under Article 6, read alone and in connection with Article 2(2) of the ICCPR, as well as other Covenant articles.
Finally, there is concern that the Bill will chill free speech and freedom of assembly and association, which are protected under Articles 19 and 21 – 22 of the ICCPR and Principles 19 and 20 of the Yogyakarta Principles, because media groups, journalists, publishers, and civil society organisations, among others, could face prosecution and imprisonment for creating and distributing content that could be perceived as promoting sexuality.
The UN Human Rights Committee has ruled that moral restrictions on such rights must be exceptional, “understood in light of the universality of human rights and the principle of non-discrimination,” and cannot be imposed because of opposition to expressions of sexual orientation or gender identity.
IBAHRI Co-Chair Mark Stephens CBEcommented: «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 declared invalid by the Ugandan Constitutional Court because the Ugandan parliament approved it without a quorum. In the months following its enactment in December 2013, there was a significant upsurge in human rights violations against LGBTQI+ people in Uganda.