Clause by Clause Through Uganda's Anti-Homosexuality Bill. Part 1 begins here.

Jim Burroway

There is now a renewed push by Uganda’s Parliament Speaker Rebecca Kadaga to pass the proposed Anti-Homosexuality Bill before Parliament’s Christmas break on December 15. The bill is currently in the hands of the Legal and Parliamentary Affairs Committee, but Kadaga has demanded that the committee report back to the House with its recommendations by November 20.

There has been considerable confusion over what would happen if the bill were to become law. Most of the attention has focused on the bill’s death penalty provision, but even if it were removed, the bill’s other eighteen clauses would still represent a barbaric regression for Uganda’s human rights record. In an update to a series which first appeared last February, we will examine the original text of the bill’s nineteen clauses to uncover exactly what it includes in its present form.

Today we examine the most discussed clause of the bill, Clause 3 which would establish the crime of “aggravated homosexuality”:

3. Aggravated homosexuality.

(1) A person commits the offense of aggravated homosexuality where the (a) person against whom the offence is committed is below the age of 18 years; (b) offender is a person living with HIV; (c) offender is a parent or guardian of the person against whom the offence is committed; (d) offender is a person in authority over the person against whom the offence is committed; (e) victim of the offence is a person with disability; (f) offender is a serial offender, or (g) offender applies, administers or causes to be used by any man or woman any drug, matter or thing with intent to stupefy overpower him or her so as to there by enable any person to have unlawful carnal connection with any person of the same sex, (2) A person who commits the offence of aggravated homosexuality shall be liable on conviction to suffer death. (3) Where a person is charged with the offence under this section, that person shall undergo a medical examination to ascertain his or her HIV status.

This is easily the most contentious clause of the bill, and the clause which the bill’s sponsor, M.P. David Bahati, has exploited to maximum effect. Go back and look at most of the definitions for “aggravated homosexuality” and see if you don’t agree with me that many of them represent some very horrendous crimes. Sex with minors? Check. Incest? Check. Slipping a Mickey? Check. Applying the death penalty to those provisions could be very contentious, but who among us haven’t reacted with the wish to “string them up” a few times in our lives?

But mixed in with those crimes are others which, on second look, demonstrate exactly what the bill’s author and supporters think of gay people. Take the provision where the “offender is a person living with HIV,” and notice that it is followed by a requirement that the suspect undergo an HIV test to ascertain his or her eligibility for the death sentence. In other words, whether the person knew he or she was HIV-positive is irrelevant in the bill. The government will find that out and decide whether the suspect qualifies for the death penalty. Additionally, there is nothing in the bill about whether the person tried to hide his or her HIV status. No matter whatever disclosures the individual may have made, no matter whatever precautions may have been taken, no matter whatever consent the suspect’s partner may have given — and no matter whether sex had actually occurred (See clauses 1 and 2) — an individual merits death according to this law simply for being HIV-positive. No matter what.

Not only that, but suspects will be tested to determine their HIV status and, not incidentally, their eligibility for the death penalty. Which means that people who don’t even know they are HIV-positive will fall under this clause.

Another provision, where the “victim of the offence is a person with disability,” plays on the assumption built into the proposed law that the “offender” is predatory, which necessarily involves a “victim.” (We’ll discuss more on that later when we get to Clauses 5 and 6.) It also assumes that the person with the disability is unable to be an equal partner in a relationship. One couple that I know personally consists of a deaf man and a hearing man. They’ve been together for years, but under the terms of this bill, one would die while the other would go to prison for the rest of his life (unless he took advantage of Clauses 5 and 6).

But the worst part of this clause is where it lays the charge of “aggravated homosexuality” for when the “offender is a serial offender.” This clause alone can entangle almost anyone in the hangman’s noose. It all goes back to Clause 1, where you will find this definition:

“serial offender” means a person who has previous convictions of the offence of homosexuality or related offences; [emphasis mine]

There are a ton of “related offenses” in the proposed bill, including renting a room to a gay person, refusing to report a gay person to police, using the internet to advocate for the rights of gay people, donating to a pro-gay cause — and all of these offenses may be committed by straight people. A prior conviction on one of those clauses and then “touching” someone “with a part of a body” and “through anything” without anything even close to sex taking place (again, see clauses 1 and 2), and you’re headed to the gallows under this bill. Rob Tisinai illustrated how this can happen in this video from 2010.

The other provisions under this clause — those parts outlawing incest, child abuse, drugging someone — are already illegal under Ugandan law. This bill provides nothing new for those cases except for the death penalty. But those provisions are included in this bill for a very important reason: they provide a fig-leaf of an excuse for the bill which Bahati and his supporters have exploited to the fullest extent. For example, he told the BBC in December 2009:

There has been a distortion in the media that we are providing death for gays. That is not true,” he said. “When a homosexual defiles a kid of less than 18 years old, we are providing a penalty for this.”

Two days later, he told The Guardian:

The section of the death penalty relates to defilement by an adult who is homosexual and this is consistent with the law on defilement which was passed in 2007. The whole intention is to prevent the recruitment of under-age children, which is going on in single-sex schools. We must stop the recruitment and secure the future of our children.”

On December 27, he went on Ugandan television to say:

The pro-gay community picked on the death, the word death, in the bill, and just turned it around to attract sympathy in their country. We are not providing for death penalty for two adults, we are providing for death penalty to be consistent with the Defilement Act that we passed in 2007, er where an adult, engages, rapes, a minor of 18 years and below… (Ssempa: a girl) and when that adult has HIV/AIDS, or you are a guardian, you are a parent, you want to rape the kid that you are looking after, this is what we are proposing.

Others have picked up Bahati’s line on the bill’s death penalty, including Americans Tony Perkins, Molotov Mitchell, Cliff Kincaid, Andrew Wommack, Las Vegas megachurch pastor Mitch Harrison, and Karen Schuberg, among many others, who claimed that the proposed death penalty is limited to just three things: intentionally spreading HIV, child molestation, and coercion. And they claim this despite the very clear language of the bill. Funny how none of them will actually include the text of the bill itself whenever they make these claims.

Has the Death Penalty Been Dropped?

On a final note, it’s important to address the persistent false reports in the media that the death penalty has been removed from the bill. Those false reports have been reported as though they were fact since December, 2009. Part of the confusion has stemmed from the Ugandan governments’ pronouncements over the years that the bill has been “rejected”. In April 2010, that so-called “rejection” was followed by a government recommendation that the bill’s provisions be passed under the radar in other, less controversial bills. Additional reports of the government “shelving” the bill emerged in March 2011, only to be followed again a few weeks later with suggestions that the bill be carved up and passed unnoticed in other bills.

Finally in May of 2011, the Legal and Parliamentary Affairs Committee, which had been charged with the task of coming up with recommendations for the bill, issued their final report. They recommended removing some clauses of the bill, while also recommending the addition of a new clause criminalizing the conduct of same-sex marriages. As for the death penalty provision, the committee implied that the death penalty was unsatisfactory because it “does not make the offender feel the punishment for his actions.”

Sounds like they’re ready to get rid of it, right? Well here was their recommendation for Clause 3: (PDF: 57KB/6 pages.)

1. Clause 3 (2) is amended by substituting for the words “…suffer death” with words “…the penalty provided for aggravated defilement under Section 129 of the Penal Code Act”. Justification To harmonise the provision with the penalty under the Penal Code Act

Well guess what. Section 129 of the Penal Code Act reads that anyone who “commits a felony called aggravated defilement [i.e. child sexual abuse] and is, on conviction by the High Court, liable to suffer death.” Which means that the Legal and Parliamentary Affairs Committee recommended that the death penalty be retained through stealth. Bahati then went on to claim that the death penalty was removed even though it was still a part of the bill. The Eighth Parliament ended before it could act on the committee’s recommendation.

On February 7, 2012, the original version of the bill, unchanged from when it was first introduced in 2009, was reintroduced into the Ninth Parliament. The bill was again sent to the Legal and Parliamentary Affairs Committee. Despite reports to the contrary, the original language specifying the death penalty is still in the bill, and will remain there unless the committee recommends its removal and Parliament adopts that recommendation in a floor vote.

Clause By Clause With Uganda’s Anti-Homosexuality Bill (Revised):

Clauses 1 and 2: Anybody Can Be Gay Under the Law. The definition of what constitutes “homosexual act” is so broad that just about anyone can be convicted.

Clause 3: Anyone Can Be “Liable To Suffer Death”. And you don’t even have to be gay to be sent to the gallows.

Clause 4: Anyone Can “Attempt to Commit Homosexuality”. All you have to do is “attempt” to “touch” “any part of of the body” “with anything else” “through anything” in an act that does “not necessarily culminate in intercourse.”

Clauses 5, 6, 8, 9, and 10: How To Get Out Of Jail Free. The bill is written to openly encourage — and even pay — one partner to turn state’s evidence against another.

Clauses 7, 11, and 14: Straight People In The Crosshairs. Did you think they only wanted to jail gay people? They’re also targeting family members, doctors, lawyers, and even landlords.

Clause 12: Till Life Imprisonment Do You Part. And if you officiate a same-sex wedding, you’ll be imprisoned for up to three years. So much for religious freedom.

Clause 13: The Silencing of the Lambs. All advocacy — including suggesting that the law might be repealed — will land you in jail. With this clause, there will be no one left to defend anyone.

Clause 14: The Requirement Isn’t To Report Just Gay People To Police. It’s To Report Everyone. Look closely: the requirement is to report anyone who has violated any the bill’s clauses.

Clauses 16 and 17: The Extra-Territorially Long Arm of Ugandan Law. Think you’re safe if you leave the country? Think again.

Clause 18: We Don’t Need No Stinking Treaties. The bill not only violates several international treaties, it also turns the Ugandan constitution on its head.

Clauses 15 and 19: The Establishment Clauses For The Ugandan Inquisition. These clauses empower the Ethics and Integrity Minister to enforce all of the bill’s provisions. He’s already gotten a head start.