By Benjamin Ng'aru
Benjamin Ng'aru is a student at Catholic University of Eastern Africa & Makerere University studying law.
On Monday, February 25th 2014, Uganda’s president Yoweri K. Museveni assented to the Anti Homosexuality Act, 2014 (previously referred to as Kill the Gays Bill”). [1] Interestingly, he thereafter termed Homosexuals as “disgusting and unnatural” persons.[2] The legislation has since received widespread condemnation from human rights organizations and leaders. A petition challenging the constitutionality of the legislation has been filed at Uganda’s Constitutional court.[3]
Whereas Uganda’s Penal Code has always outlawed “carnal knowledge against the order of nature,” the new legislation is much broader and infringes on certain constitutionally protected rights such as human dignity, privacy and equal treatment before and under the law.[4] S. 2(2) of the Act provides for a mandatory life sentence for persons convicted of “homosexual acts”. [5] S. 1 of the Act defines homosexual acts as “the touching of another’s breast, vagina, penis or anus,…however slight….with any part of the body or through anything.” The Act also provides for a mandatory death sentence.
Benjamin Ng'aru is a student at Catholic University of Eastern Africa & Makerere University studying law.
On Monday, February 25th 2014, Uganda’s president Yoweri K. Museveni assented to the Anti Homosexuality Act, 2014 (previously referred to as Kill the Gays Bill”). [1] Interestingly, he thereafter termed Homosexuals as “disgusting and unnatural” persons.[2] The legislation has since received widespread condemnation from human rights organizations and leaders. A petition challenging the constitutionality of the legislation has been filed at Uganda’s Constitutional court.[3]
Whereas Uganda’s Penal Code has always outlawed “carnal knowledge against the order of nature,” the new legislation is much broader and infringes on certain constitutionally protected rights such as human dignity, privacy and equal treatment before and under the law.[4] S. 2(2) of the Act provides for a mandatory life sentence for persons convicted of “homosexual acts”. [5] S. 1 of the Act defines homosexual acts as “the touching of another’s breast, vagina, penis or anus,…however slight….with any part of the body or through anything.” The Act also provides for a mandatory death sentence.
The effects (real or anticipated) of such legislation are far reaching. In 2009, a local tabloid published names of alleged homosexuals. These media reports were later linked to mob attacks on certain persons whose names appeared on the tabloids. A High Court in Uganda [6] held that Uganda’s homosexual persons had equal rights to privacy as other citizens[7] and that these publications were a threat of the Lesbian, Gay, Bisexual, and Transgender (LGBT) persons’ right to human dignity.[8]
Important to note is that most Ugandans are religious and as such view homosexuality as a foreign /western concept against Christian teachings and an Unafrican concept. Historically, homosexuality as an offence was introduced in Uganda (and in East Africa) directly by the laws (The East Africa Order in Council 1897)[9] imported from Britain. Previously, customary African practices included same sex unions of various forms, but these imported laws found the practice to be barbaric and repugnant.[10]
Uganda is and remains a member of the United Nations, the community of civilized nations and as such has ratified a plethora of treaties from the UN Charter to the African (Banjul) Charter that impose certain obligations on it.[11] Any limitation of these rights enjoyed by LGBT persons and obligations imposed on Uganda can only be done to an extent that is strictly permissible in a free and democratic society. The Anti-Homosexuality Act contains limitations that do not seem to fit this criteria.
Whereas the petition is yet to be ruled on, it is certain that the Anti-Homosexuality Act is a violation of General Principles of International law and agreements to which Uganda has bound itself. Article 1 of the UDHR provides that “All human beings are born free and equal in dignity and rights.” Article 21(1) of the Ugandan Constitution provides that “All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.” Article 21(2) reiterates this protection that “without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, color, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.”
Indeed, the Ugandan constitution at Article 20(1) clearly states that “fundamental rights and freedoms of the individual are inherent and not granted by the State. Consequently, the Ugandan legislature cannot be seen to take away the right of 2 adults, in a loving, consensual relationship simply because they belong to the same sex. The African Charter prescribes for similar rights as provided for in the ICCPR & ICESR. This in turn imposes an obligation on Uganda, “to undertake to guarantee the rights enunciated in the treaties.” [12] Indeed, whereas “sexual orientation” has not been expressly provided as a barred ground in Article 21, sub article 1 of Article 21 provides for “equality of all persons”.
The Committee on Economic Cultural Rights has, in General Comment No. 20, noted that “other status” includes sexual orientation. A similar determination was made in Toonen by the Human Rights Committee. [13] Had the legislature intended to remove homosexual persons from the ambit of such treaty protections and non-discrimination safeguards, it would have expressly done so under Article 21 or the International instruments. Interestingly Article 45 of Uganda’s Constitution expressly provides that the rights enshrined in the constitution shall not be regarded as excluding others not expressly stated in the Constitution.[14] It therefore seems clear that the LGBT persons in Uganda enjoy the same protections under the constitution as non-LGBT persons.
Consequently, it is argued that the Ugandan legislature, by enacting the Anti-Homosexuality Act, 2014 has created conditions for discrimination and interfered with the rights to privacy, life and equality of Ugandan citizens. Empowering Ugandan police officers to investigate intimate aspects of their sexual lives, chilling the LGBT person’s expression of their sexuality, should not continue.
[1] The Anti Homosexuality Bill, 2014 The Long Title thereof provides that [it is] An Act to prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters.”
[2] http://edition.cnn.com/2014/02/24/world/africa/uganda-homosexuality-interview/ last Accessed on 24th Feb 2014 2100Hrs
[3] Prof. J Oloka Onyango & 9 Others Vs A.G Uganda Petition No. 8 of 2014 . The petition argues that the Anti- Homosexuality Act violates Ugandans’ Constitutionally guaranteed right to: privacy, to be free from discrimination, dignity, to be free from cruel, inhuman and degrading treatment, to the freedoms of expression, thought, assembly and association; to the presumption of innocence, and to the right to civic participation. – Last Accessed from: http://www.hrapf.org/news-events/hrapf-joins-challenge-against-anti-homosexuality-act-2014#sthash.AME0BGSF.dpuf on 27th March 2014 at 1125Hrs
[4] Article 27(2), 23 & 21 of Uganda’s Constitution (, 8th Oct 1995)
[5] S. 2(2) of the Act “A person who commits an offence under this section shall be liable, on conviction, to imprisonment for life.”
[6] Kasha Jacqueline, Pepe Onziema & David Kato Vs. Giles Muhame and The Rolling Stone Publications Ltd
[7] Homosexuals are as entitled to the right to privacy as any other citizens. Against the ‘objective test’, ‘the exposure of the identities of the persons and homes of the applicants for the purposes of fighting gayism and the activities of gays…threaten the rights of the applicants to privacy of the person and their homes.
[8] Inciting people to hang homosexuals is an attack on the right to dignity of those thus threatened: ‘the call to hang gays in dozens tends to tremendously threaten their right to human dignity.’
[9]Contran, The Development and Reform of the Law in Kenya, 27 J. Afr.L 42,42(1983)
[10] R. V. Amkeyo (1917) 7 EALR 14
[11] For an analysis of treaties and conventions signed by Uganda, see http://www.claiminghumanrights.org/uganda.html
[12] The African Charter on Human & People’s Rights , adopted 27 June 1981, O.A.U Doc. CAB/LEG/67/3 rev.5, 21 I.L.M. 58
[13] Toonen V. Australia, Communication No. 488/1992,87, U.N Doc CCPR/C/50/D488/1992(Apr.4,1994)
[14] Article 45, Uganda’s Constitution “The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.”
Photo Credit: Flickr user geatchy (Chris Geatch)
Important to note is that most Ugandans are religious and as such view homosexuality as a foreign /western concept against Christian teachings and an Unafrican concept. Historically, homosexuality as an offence was introduced in Uganda (and in East Africa) directly by the laws (The East Africa Order in Council 1897)[9] imported from Britain. Previously, customary African practices included same sex unions of various forms, but these imported laws found the practice to be barbaric and repugnant.[10]
Uganda is and remains a member of the United Nations, the community of civilized nations and as such has ratified a plethora of treaties from the UN Charter to the African (Banjul) Charter that impose certain obligations on it.[11] Any limitation of these rights enjoyed by LGBT persons and obligations imposed on Uganda can only be done to an extent that is strictly permissible in a free and democratic society. The Anti-Homosexuality Act contains limitations that do not seem to fit this criteria.
Whereas the petition is yet to be ruled on, it is certain that the Anti-Homosexuality Act is a violation of General Principles of International law and agreements to which Uganda has bound itself. Article 1 of the UDHR provides that “All human beings are born free and equal in dignity and rights.” Article 21(1) of the Ugandan Constitution provides that “All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.” Article 21(2) reiterates this protection that “without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, color, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.”
Indeed, the Ugandan constitution at Article 20(1) clearly states that “fundamental rights and freedoms of the individual are inherent and not granted by the State. Consequently, the Ugandan legislature cannot be seen to take away the right of 2 adults, in a loving, consensual relationship simply because they belong to the same sex. The African Charter prescribes for similar rights as provided for in the ICCPR & ICESR. This in turn imposes an obligation on Uganda, “to undertake to guarantee the rights enunciated in the treaties.” [12] Indeed, whereas “sexual orientation” has not been expressly provided as a barred ground in Article 21, sub article 1 of Article 21 provides for “equality of all persons”.
The Committee on Economic Cultural Rights has, in General Comment No. 20, noted that “other status” includes sexual orientation. A similar determination was made in Toonen by the Human Rights Committee. [13] Had the legislature intended to remove homosexual persons from the ambit of such treaty protections and non-discrimination safeguards, it would have expressly done so under Article 21 or the International instruments. Interestingly Article 45 of Uganda’s Constitution expressly provides that the rights enshrined in the constitution shall not be regarded as excluding others not expressly stated in the Constitution.[14] It therefore seems clear that the LGBT persons in Uganda enjoy the same protections under the constitution as non-LGBT persons.
Consequently, it is argued that the Ugandan legislature, by enacting the Anti-Homosexuality Act, 2014 has created conditions for discrimination and interfered with the rights to privacy, life and equality of Ugandan citizens. Empowering Ugandan police officers to investigate intimate aspects of their sexual lives, chilling the LGBT person’s expression of their sexuality, should not continue.
[1] The Anti Homosexuality Bill, 2014 The Long Title thereof provides that [it is] An Act to prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters.”
[2] http://edition.cnn.com/2014/02/24/world/africa/uganda-homosexuality-interview/ last Accessed on 24th Feb 2014 2100Hrs
[3] Prof. J Oloka Onyango & 9 Others Vs A.G Uganda Petition No. 8 of 2014 . The petition argues that the Anti- Homosexuality Act violates Ugandans’ Constitutionally guaranteed right to: privacy, to be free from discrimination, dignity, to be free from cruel, inhuman and degrading treatment, to the freedoms of expression, thought, assembly and association; to the presumption of innocence, and to the right to civic participation. – Last Accessed from: http://www.hrapf.org/news-events/hrapf-joins-challenge-against-anti-homosexuality-act-2014#sthash.AME0BGSF.dpuf on 27th March 2014 at 1125Hrs
[4] Article 27(2), 23 & 21 of Uganda’s Constitution (, 8th Oct 1995)
[5] S. 2(2) of the Act “A person who commits an offence under this section shall be liable, on conviction, to imprisonment for life.”
[6] Kasha Jacqueline, Pepe Onziema & David Kato Vs. Giles Muhame and The Rolling Stone Publications Ltd
[7] Homosexuals are as entitled to the right to privacy as any other citizens. Against the ‘objective test’, ‘the exposure of the identities of the persons and homes of the applicants for the purposes of fighting gayism and the activities of gays…threaten the rights of the applicants to privacy of the person and their homes.
[8] Inciting people to hang homosexuals is an attack on the right to dignity of those thus threatened: ‘the call to hang gays in dozens tends to tremendously threaten their right to human dignity.’
[9]Contran, The Development and Reform of the Law in Kenya, 27 J. Afr.L 42,42(1983)
[10] R. V. Amkeyo (1917) 7 EALR 14
[11] For an analysis of treaties and conventions signed by Uganda, see http://www.claiminghumanrights.org/uganda.html
[12] The African Charter on Human & People’s Rights , adopted 27 June 1981, O.A.U Doc. CAB/LEG/67/3 rev.5, 21 I.L.M. 58
[13] Toonen V. Australia, Communication No. 488/1992,87, U.N Doc CCPR/C/50/D488/1992(Apr.4,1994)
[14] Article 45, Uganda’s Constitution “The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.”
Photo Credit: Flickr user geatchy (Chris Geatch)
