Daniel Englander, Protecting the Human Rights of Lgbt People in Uganda in the Wake of Uganda?s ?anti Homosexuality Bill, 2009?

• Publication year: 2010
• Citation: Vol. 25 No. 3

PROTECTING THE HUMAN RIGHTS OF LGBT PEOPLE IN UGANDA IN THE WAKE OF UGANDA’S

“ANTI HOMOSEXUALITY BILL, 2009”

“The [Anti-homosexuality Bill] is a bullet, and whether or not it’s made law, it’s already been fired.”1

INTRODUCTION

A bill pending before the Ugandan Parliament from October 2009 to May 2011 sought to punish anyone who engages in “homosexuality” with life imprisonment and prescribed the death penalty for a variety of activities deemed “aggravated homosexuality.”2 Many commentators saw the “Anti

Homosexuality Bill, 2009” (“Bill” or “Anti-homosexuality Bill”) as the most pernicious legislative proposal aimed at gays and lesbians anywhere in the world3 and feared the death penalty provision could signal a “looming gay genocide” in Uganda.4 The Bill was popular among voters in Uganda5 and had “near-unanimous support in Parliament,”6 though the Bill expired when it did

not come to a vote before the close of the Eighth Parliament in 2011.7 Ugandan

1. Jeff Sharlet, Dangerous Liaisons, ADVOCATE, Sept. 2010, at 36 [hereinafter Sharlet, Dangerous Liaisons]; see also Jeff Sharlet, Straight Man’s Burden: The American Roots of Uganda’s Anti-gay Persecutions, HARPER’S, Sept. 2010, at 36 [hereinafter Sharlet, Straight Man’s Burden].

2. A Bill for an Act Entitled the Anti Homosexuality Act, 2009, Bill Supp. No. 13, CII Uganda Gazette

   No. 47 (Sept. 25, 2009) §§ 2(2), 3(2) [hereinafter Anti-homosexuality Bill].

3. See INT’L LESBIAN, GAY, BISEXUAL, TRANS & INTERSEX ASS’N, STATE-SPONSORED HOMOPHOBIA: A WORLD SURVEY OF LAWS PROHIBITING SAME SEX ACTIVITY BETWEEN CONSENTING ADULTS 7 (Daniel

   Ottosson ed., 2010) [hereinafter STATE-SPONSORED HOMOPHOBIA (2010)], available at http://old.ilga.org/ Statehomophobia/ILGA_State_Sponsored_Homophobia_2010.pdf; David W. Austin, Paul E. Johnson & Mark E. Wojcik, Sexual Orientation and Gender Identity, 44 INT’L LAW. 547, 553 (2010).

4. Because “aggravated homosexuality” is triggered when a person commits “homosexuality” more than

   once—as well as in certain other circumstances—allowing for the death penalty is tantamount to genocide because gay people, by definition, are likely to be “serial offenders” under Section 3(f) of the Bill and could thus be executed if the Bill becomes law. See Anti-homosexuality Bill § 3(f). For use of the term “looming gay genocide,” see Rick Warren and Uganda’s Looming Gay Genocide, ATLANTIC: DAILY DISH (Dec. 7, 2009, 8:29 AM), http://andrewsullivan.theatlantic.com/the_daily_dish/2009/12/rick-warren-and-ugandas-looming- gay-genocide.html.

5. Sharlet, Straight Man’s Burden, supra note 1, at 40.

6. Id. at 36.

7. Lucas Grindley, “Kill the Gays” Bill Is Back and Moving Faster than Before, ADVOCATE, (July 29, 2011, 2:05 PM), http://www.advocate.com/News/Daily_News/2011/07/29/Kill_The_Gays_Bill_Is_Back_ And_Moving_Faster_Than_Before.

   legislators have vowed to reintroduce the Bill, or a similar version of it, in the Ninth Parliament.8

   
   

   Though tabled, the effects of the Bill’s introduction still linger. In seeking to imprison or execute the half-million lesbian, gay, bisexual, and transgendered (“LGBT”) people in Uganda,9 the Bill sparked a nationwide flare of homophobia,10 where citizens, politicians, and the media have branded

   homosexuals as “un-African,” as threats to children, and as less than human.11 Since David Bahati introduced the Bill on October 14, 2009, violence against

   LGBT people has escalated, including “beatings, disappearances, ‘corrective’ rapes of lesbians, . . . vigilante squads and church crusades, [and] preachers calling out ‘homos’ in their own pews.”12 Furthermore, media in Uganda have published lists, including names and addresses, of suspected homosexuals.13

   These people have been attacked, humiliated, and forced into hiding.14 In January 2011, David Kato, a prominent LGBT activist who had been outed as

   homosexual in a Ugandan tabloid, was bludgeoned to death in his own home— an incident that sparked international outrage.15 Many LGBT people, and those suspected of being LGBT, are trying to emigrate from “this deadly place.”16

   
   

8. Id.

9. Adriaan Nel, Enacting the Ugandan Anti-homosexuality Bill: Implications for the HIV & AIDS Crisis, CONSULTANCY AFR. INTELLIGENCE, http://www.consultancyafrica.com/index.php?option=com_content& view=article&id=356&Itemid=193 (last visited Oct. 7, 2011).

10. Godfrey Olukya & Jason Straziuso, Gays in Uganda Say They’re Living in Fear, MSNBC.COM (last updated Oct. 19, 2010, 1:23 PM), http://www.msnbc.msn.com/id/39742685/ns/world_news-africa/ (“More

    than 20 homosexuals have been attacked over the last year in Uganda, and an additional 17 have been arrested and are in prison, said Frank Mugisha, the chairman of Sexual Minorities Uganda. Those numbers are up from the same period two years ago, when about 10 homosexuals were attacked, he said.”).

11. Dana Hughes, Africa’s Culture War: The Fight over Uganda’s Anti-gay Bill, ABC NEWS (Dec. 14,

    2009, 4:34 PM), http://blogs.abcnews.com/theworldnewser/2009/12/africas-culture-war-the-fight-over- ugandas-antigay-bill.html; see also Attacks Reported on Ugandans Newspaper ‘Outed’ as Gay, BBC NEWS (Oct. 22, 2010, 11:48 PM), http://www.bbc.co.uk/news/world-africa-11608241 [hereinafter BBC NEWS]; Xan Rice, Uganda Considers Death Sentence for Gay Sex in Bill Before Parliament, GUARDIAN (Nov. 29, 2009), http://www.guardian.co.uk/world/2009/nov/29/uganda-death-sentence-gay-sex (quoting James Nsaba Buturo, Uganda’s minister for ethics and integrity, as saying, “We are talking about anal sex. Not even animals do that. . . . We believe there are limits to human rights.”).

12. Sharlet, Straight Man’s Burden, supra note 1, at 36.

13. BBC NEWS, supra note 11.

14. Id.

15. Jeffrey Gettleman, Ugandan Who Spoke Up for Gays Is Beaten to Death, N.Y. TIMES, Jan. 27, 2011, at

    A4.

    
    

16. Jody May-Chang, Gays Attacked in Uganda After Mag Publishes Info: American Evangelicals

    Complicit in the Anti-gay Atmosphere, RELIGION DISPATCHES (Nov. 21, 2010), http://www.religiondispatches. org/archive/sexandgender/3748/gays_attacked_in_uganda_after_mag_publishes_info. Adding insult to injury regarding LGBT Ugandans’ wishes to leave Uganda, the Bill would also criminalize homosexual acts of Ugandan citizens outside of Ugandan borders and provides for extradition of such people to face charges in

    Under the permissive international legal system, no binding norms explicitly forbid criminalizing homosexuality—even to the extent imagined by the Bill. Indeed, international law has permitted Uganda to criminalize homosexuality for decades.17 Though this Comment argues the current

    Ugandan law and the proposed regime violate international instruments that authoritative bodies have interpreted as protecting the rights of sexual minorities,18 Uganda has rejected such post-ratification interpretations and cannot be bound by them.19 Further, protests by Uganda and other nations have successfully stalled the formation of a global custom decriminalizing homosexuality.20 And finally, even if there were binding international law prohibiting such a statute, no binding international law prohibits the proposal of such legislation.21 Therefore, the sovereign state of Uganda has broad leeway to propose such discriminatory legislation and keep its current laws without being subject to formal punishments from the international community under binding international law.

    
    

    This Comment seeks to begin the conversation on legal solutions to vindicate the rights of LGBT people in Uganda in the wake of the Anti- homosexuality Bill. Part I explains the provisions of the current Ugandan law

    
    

    Uganda. Anti-homosexuality Bill §§ 16, 17. The extradition problem is discussed further in Parts III and IV,

    infra.

17. See Penal Code Act of 1950 (Uganda), ch. 120, §§ 145, 148 [hereinafter Ugandan Penal Code],

    available at http://www.ulii.org/ug/legis/consol_act/pca195087.

18. E.g. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, 999

    U.N.T.S. 171 (entered into force Mar. 23, 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976). For further discussion of those treaties, see Part II.C, infra. Others have argued that the Bill violates other instruments, like the United Nations (“UN”) Declaration on Human Rights and the African Charter, but authoritative bodies have not found any nondiscrimination provisions in those conventions that explicitly apply to sexual or gender minorities. This argument may be moot, however; if the Bill were to pass, it requires that Uganda revoke its treaty obligations that conflict with the goals of the Bill. Anti-homosexuality Bill § 18(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.”).

19. See Vienna Convention on the Law of Treaties art. 31, opened for signature May 23, 1969, 1155

    U.N.T.S. 331 (entered into force Jan. 27, 1980); UN Declaration on Sexual Orientation and Gender Identity: Response to SOGI Human Rights Statement, Read by Syria to the UN General Assembly, U.N. Doc. A/60/PV.73 (2008) [hereinafter Response to SOGI Human Rights Statement].

20. Michael O’Flaherty & John Fisher, Sexual Orientation, Gender Identity and International Human

    Rights Law: Contextualizing the Yogyakarta Principles, 8 HUM. RTS. L. REV. 207, 227–28 (2008) (“Notwithstanding the extent to which applicable legal standards have been clarified and articulated, the response of States and intergovernmental organizations to human rights violations based on sexual orientation or gender identity has been equivocal and inconsistent.”).

21. Creating formal mechanisms in international law for removing legislative proposals would raise

    serious freedom of speech and political autonomy questions.

    and the Bill itself. Part I also situates the Anti-homosexuality Bill in the context of recent developments in international and foreign human rights norms and laws regarding discrimination based on sexual orientation...