Thinking Beyond the Anti-Homosexuality Bill: The Many Challenges to LGBT Rights in Uganda

Uganda has recently attracted international media attention for its Anti-Homosexuality Bill, which is currently awaiting a second reading in the Ugandan Parliament. If passed, the bill will severely punish those who engage in homosexual intercourse, as well as any individuals or organizations that “pro- mote homosexuality,” such as LGBT activists and NGOs that are supportive of gay rights.

Despite this government action, civil society organizations in Uganda, such as the Human Rights Awareness and Promotion Forum (HRAPF), which I interned with this summer, have made considerable progress in obtaining legal recognition of basic human rights for LGBT people through strategic litigation before the courts. For instance, the Civil Society Coalition on Human Rights and Constitu- tional Law, of which HRAPF is a member, and Sexual Minorities Uganda (SMUG) launched two cases resulting in landmark rulings on LGBT rights in Uganda. In Victor Mukasa v Attorney General, the High Court held that homosexuals have the same constitutional rights as other Ugandans. The court also ruled in Kasha Jacqueline et al v Giles Muhame and The Rolling Stone Publications Ltd that homosexual intercourse is criminalized under the “unnatural offences” provision in the Penal Code, not homosexual identity. This ruling makes it clear that it is not a crime to identify as homosexual in Uganda. However, the ultimate benefit of such a ruling for LGBT persons is still of concern, as it left in place provisions criminalizing homosexual acts itself.

The difficulty faced by civil society organizations like HRAPF, however, is that police and prosecutors in Uganda frequently ignore these judicial rul- ings and arrest individuals on the mere suspicion of homosexuality, based on their physical appearance and behaviour. In the last six months, the legal aid clinic at HRAPF recorded five cases where LGBT people were charged with the offence of “homosexuality,” despite the fact that homosexuality, in the absence of evidence of homosexual intercourse, is not an offence under the Penal Code.

In addition, it is likely that many arrests remain undocumented, given that LGBT people routinely bribe police or prosecutors to evade charges and secure release from custody. In fact, both the International Gay and Lesbian Human Rights Commission and SMUG reported that “extortion is the single most common abuse facing gay men and lesbians in Uganda... [T]he police themselves often act as the blackmailer, and when they are not, they are still often complicit in the crime.” Despite the widespread occurrence of arrests of LGBT people on the basis of presumed homosexuality, there have been no recorded convictions of adult consensual same-sex conduct under the “unnatural offences” provision in the Penal Code during the past five years. This absence of successful prosecutions is likely due to the fact that the legal elements of the offence require evidence of homosexual sexual activity, which is very difficult if not impossible to prove, rather than merely a suspicion of homosexuality.