By Adrian Jjuuko
On 24 February 2014, President Yoweri Museveni of Uganda signed the controversial Anti-Homosexuality Act 2014 into law. The law came into force on 10 March 2014. The law further criminalises same-sex relations among adults, classifies houses occupied by LGBTI people as brothels, and criminalises ‘promotion of homosexuality’, which is so vaguely defined as to include almost any association with homosexuals. The law, in effect, criminalises the entire existence of LGBTI persons since they cannot access the same services as everyone and cannot enjoy the same rights as everyone else.
The aftermath of the signing saw European governments announcing aid cuts to Uganda, and other countries beginning to review their relationship with Uganda. At the UN level, the Secretary-General condemned the development and the Office of the High Commissioner for Human Rights issued a statement raising concerns with the law. By contrast, the UN Human Rights Council, treaty bodies and Special Procedures have remained largely silent. This article opines that the hopes of the Ugandan LGBTI community to have this law reversed lie with the UN. It calls upon the UN to act more actively though respectfully in order to compel the Ugandan government to change its position on this law.
The situation of LGBTI persons in Uganda at the moment
Right now, the situation of LGBTI persons is quite alarming. The passing of the law has forced many individuals and organisations to go ‘underground’ for fear of being arrested or their organisations closed. Since it is not clear what is meant in the law by ‘promotion’, many activities were postponed and many materials that discuss the rights of LGBTI persons were destroyed. The law has thus had an immediate chilling effect on the work and lives of LGBTI persons.
The law is already being enforced with over 16 cases of arrests recorded since 24 February. One organisation was stopped from working in particular areas, and the offices of a university research project - the Makerere University Walter Reed Research Project - were raided. The latter incident was especially worrying as this is a US-funded project, sending signals that even such projects are not safe. Since it was an HIV research project, the Government also broke its promise not to interfere with health service provision.
Private individuals are taking the law into their own hands. HRAPF has documented two cases of mob justice involving four victims who were beaten by private citizens. More than ten persons have been unlawfully evicted from their rented premises and over ten cases of threatening violence have been recorded.
Efforts to challenge the law in Uganda and in the region
Domestic efforts to challenge the law have already begun. On 11 March 2014, Constitutional Petition No. 008 of 2014, Prof. J Oloka Onyango & 9 Others v Attorney General of Uganda, was filed under the auspices of the Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL).
The case challenges the constitutionality of the Act on two major grounds: that the process through which it was passed violates the Constitution, because the requisite procedure for determining quorum was not followed; and that the substantive provisions of the Act are inconsistent with the Bill of Rights, which protects rights to equality and non-discrimination, freedom from inhuman and degrading punishment, and the right to privacy.
The petition calls upon the Constitutional Court to declare the law unconstitutional, and to issue a permanent injunction against its enforcement.
The CSCHRCL is also pursuing a case at the East African Court of Justice, and undertaking advocacy and engagement with the Government and Parliament in order to have the law reviewed.
However these efforts need the support of the international community if they are to succeed.
How the UN can help to protect LGBTI rights in Uganda
Uganda is a member of the UN, and has ratified almost all the main international human rights instruments. As such it is bound to fulfil, protect and respect the rights enshrined in these instruments. The treaty bodies, which monitor the implementation of these instruments, need to strongly condemn Uganda’s actions in passing this law and remind it of its obligations under international law. This will force the State to attempt to justify the law in the context of its international obligations and will increase the pressure on it.
The High Commissioner's Office should closely monitor and report on the situation of LGBTI persons in Uganda, and the UN Human Rights Council's Special Procedures should issue urgent action appeals to the Government and continue to make public statements.
The specialised UN agencies also have a role to play. They need to make clear their position on this law, and its implications for the rights of LGBTI persons. UNAIDS in particular could stress the impact of criminalisation of same-sex relations on the fight against HIV/AIDS, in which Uganda was seen as a role model just a few years ago. The other agencies could show the interlinkages between human rights, non-discrimination and development.
The challenge to the law in the courts is not the end of the struggle, but the beginning of a new and acute phase. As the situation of LGBTI persons in Uganda continues to worsen, with arrest becoming commonplace and violations by non-State actors increasing, the international community’s support and, more especially, that of the UN is needed now more than ever. The different UN bodies, organs and agencies have the power and capacity to engage the government of Uganda and to hold it accountable to its obligations under international instruments.
Adrian Jjuuko is a Ugandan lawyer and human rights defender. He is Executive Director, Human Rights Awareness and Promotion Forum (HRAPF) and Chairperson of the Legal Committee of the Civil Society Coalition on Human Rights and Constitutional Law. Follow him on Twitter at @jjuukoa.