KILL THE BILL: A Statement on the Kill the Gays Bill of Uganda
KILL THE BILL: A CALL TO ACTION FOR HUMAN RIGHTS IN UGANDA
For the past three days, human rights have been threatened in Uganda as leaders of an Anti-Gay movement push for the Anti-Homosexuality Bill (AHB), more commonly known as the Kill the Gays Bill -- a legislation seeking to impose the death penalty on specific acts of homosexuality. The bill has been shelved yet again as the parliament's session ended today without it going up for the vote. The proponents of the bill, however, remain steadfast -- the next session begins in only a few days and by then, the bill's passage will be back on the table.
First proposed in 2009, the bill had been shelved after being met with controversy regarding its imposition of the death penalty for 'aggravated homosexuality.' Author of the bill MP Bahati (who has been quoted saying that he wants "to kill every last gay person") has announced that the bill has been revised to remove the capital punishment, among others; he believes that this time, parliament would have no reason to kill the bill. No revised version of the bill, however, has been released. (See the bill in its original form here: http://wthrockmorton.com/wp-content/uploads/2009/10/anti-homosexuality-bill-2009.pdf)
Homosexuality is already punishable under the Penal Code Act of Uganda, Section 145, as 'unnatural offences'. Uganda is one of 77 countries which currently criminalize homosexuality, and, should the AHB be passed, it would be the 8th country to impose a death penalty for it. (The other seven are Iran, Mauritania, Saudi Arabia, Sudan, the United Arab Emirates, and Yemen.)
As a law student and as a decent human being, I would like to express my frustration, disgust, and outrage at this attempt to further institutionalize hatred and discrimination. The AHB disregards the inherent dignity and equality of all human beings, and is violative of the following human rights as enshrined in the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights (of which Uganda is a signatory):
EQUALITY AND FREEDOM FROM DISCRIMINATION
"All human beings are born free and equal in dignity and rights." (Art. 1 UDHR)
"Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality." (Art. 22 UDHR)
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." (Art. 26 ICCPR)
The provisions of the AHB criminalize sexual acts performed by partners having the same sex (the bill uses the term 'gender'). The acts are said to include physical sexual activities, although they may not "necessarily culminate in intercourse"; the offense of homosexuality may be committed by merely touching another "with the intention of committing the act of homosexuality." The law, in effect, creates a distinction between sexual acts as performed by heterosexual partners and those performed by homosexual partners, with only the latter being prohibited. In this, the AHB puts heterosexuals in a privileged position, allowed to perform all acts of physical intimacy without state interference.
The primacy of the heterosexual couple is also evident in other parts of the law. The very principle of the bill, found in its preliminary portions, identifies the 'traditional family' as the entity needing protection. It goes on to say that it seeks to strengthen the nation in dealing with "threats to the traditional heterosexual family," to protect its culture "against the attempts of sexual rights activists seeking to impose their values of sexual promiscuity" on their people, as well as protect the children and youth "made vulnerable to sexual abuse and deviation as a result of cultural changes ... and increasing attempts by homosexuals to raise children in homosexual relationships through adoption, foster care, or otherwise." One of its proposed manners of addressing said threats is by prohibiting and penalizing same sex behavior, including same sex marriages. In this, it is clear that the law neither recognizes nor encourages diversity in the community, choosing only to recognize the heterosexual family as members and perceiving all others as threats. In this, primacy is given again to the heterosexual persons.
Arguably, what is most threatening to the LGBT community in this law is not found in the penal provisions, but in 'the principle' itself. The AHB states: "This legislation further recognizes the fact that same sex attraction is not an innate and immutable characteristic." This, along with the portions quoted above paint a clear picture of what is the proposed perception of the gay community: they threaten family values by being sexually promiscuous, they are child-molesters, and they choose to be so. That these are based on unfounded myths notwithstanding, should the bill be passed, this perception becomes the law. All of these become valid presumptions to be made about all homosexuals, thus institutionalizing ignorance and discrimination, and ultimately robbing them of their inherent dignity.
PRIVACY
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks." (Art. 12 UDHR and Art. 17 ICCPR)
The proposed legislation defines 'sexual acts' as those that "may include the touching of another's breast, vagina, penis or anus; stimulation or penetration of a vagina or mouth or anus or any part of the body of any person, however slight by a sexual organ; and the unlawful use of any object or organ by a person on another person's sexual organ or anus or mouth." Based on this definition, it is apparent that the State intends to interfere in the personal affairs of its people, as such are acts conventionally done in the privacy of one's home, if not simply behind closed doors. How would the State implement the prohibition against these without prying into the residences and private spaces of the individuals?
The State's interference would even go beyond the bounds of its territorial jurisdiction -- the AHB includes a provision that makes punishable any act committed by a Ugandan citizen (or anyone permanently residing in Uganda) outside Uganda, "which act would constitute an offence under this Act had it been committed in Uganda; or the offence was committed partly outside and or partly in Uganda." Thus, any Ugandan citizen, although he or she may have left the country, still risks lifetime imprisonment or the death penalty upon entering a gay relationship.
The AHB also criminalizes 'failure to disclose the offence': any person "in authority" having knowledge of the commission of any in violation of the AHB must report such within 24 hours; those who fail to do so may be made to pay a fine or suffer imprisonment of up to three years. This puts at risk all forms of privileged communication; lawyers, doctors, even religious leaders must break their vows of confidentiality or else, they shall also face conviction. Indeed, the proposed bill targets all forms of communication: in the latter portions of the legislation, a ban on all forms of 'promotion of homosexuality' includes the use of "electronic devices which include internet, films, mobile phones." This means that the State shall be allowed to monitor each blog, text, video, image, whathaveyou of and from each Ugandan citizen or each person in Uganda.
The AHB, therefore, in effect violates not only the physical privacy of each individual, but also the privacy of their thoughts, as their output is monitored through the avenues of digital communication.
EXPRESSION
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers [either orally, in writing or in print, in the form of art, or through any other media of his choice]." (Art. 19 UDHR and ICCPR)
The AHB prohibits all forms of 'promotion of homosexuality.' The bill does not provide a definition for the term 'promote' although it does list specific ways in which this offense may be committed, among them being: funding or sponsoring homosexuality, using electronic devices (as mentioned above) for purposes of or promoting homosexuality, and acting as an accomplice or attempting to promote or in any way abetting homosexuality and related practices. Should a private individual commit these, he or she would be liable to pay a fine and/or be imprisoned for five to seven years; should a corporate body or business or association, or a non-governmental organization commit these, "its certification of registration shall be cancelled and the director or proprietor or promoter shall be liable" to be imprisoned for seven years. This would undoubtedly lead to a chilling effect in all forms of media and communication. Indeed, the danger lies not only in the prohibition but also in the fact that no clear standards can be set as to how one can qualify a statement or act as 'promotion.'
This makes the work not only of LGBT rights advocates but the work of all human rights advocates and medical missions in Uganda difficult -- would offering aid to people who happen to be homosexuals be construed as 'promotion'? (In addition to this, the proposed bill also criminalizes the giving of aid and/or abetting and counselling homosexuals.) All information dissemination campaigns shall be subject to the approval of the government and its unclear standards as to what promotes homosexuality.
It must also be noted that HIV and AIDS are concepts closely linked to sexuality, as well as homosexuality. The AHB provides that if the person committing homosexuality is found to be living with HIV, the crime is immediately elevated to 'aggravated homosexuality' for which the punishment is death. This echoes the prevailing misconception regarding the correlation of homosexuality and HIV and strengthens the stigma against both. The implications, then, are that it is possible that effective information dissemination campaigns about HIV may be met with resistance due to the stigma, and that those who are HIV-positive and wish to seek help would not, for fear of being accused of being homosexuals.
The AHB thus not only deprives the people of the freedom of expression, it also hinders the work of different relief organizations, arguably depriving a number of its people their very lives.
Without a doubt, the AHB runs contrary to the principles of international humanitarian law, and is inconsistent with the UDHR and ICCPR in these respects. What is the most insidious provision in the AHB, however, is provided at the very end of the law, under 'Miscellaneous': "Nullification of inconsistent international treaties, protocols, declarations and conventions. (1) Any International legal instrument whose provisions are contradictory to the spirit and provisions enshrined in this Act, are null and void to the extent of their inconsistency."
The Anti-Homosexuality Bill, or Kill the Gays Bill, in effect nullifies all provisions of the UDHR and ICCPR mentioned above within (and beyond) the territory of Uganda insofar as this bill is concerned -- people, not limited to the members of the LGBT community, lose the right to fundamental equality and freedom from discrimination, the right to privacy, and freedom of expression (among others).
It is in this light that I’m asking you to take a stand with me and fight so that this bill may not be passed. I urge you to sign the online petitions provided below, so that your voice may be part of the worldwide outcry against the violations on human rights.
http://www.allout.org/
http://www.avaaz.org/en/uganda_stop_homophobia_petition/?vl
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