Uganda’s Anti-Homosexuality Bill and the Demise of the Rule of Law

"Uganda, London LGBT Pride Parade, 25 June 2016" by chrisjohnbeckett is licensed under CC BY-NC-ND 2.0.

On the 21st of March 2023, the Parliament of Uganda passed the Anti-Homosexuality Bill (AHB).

The Bill’s stated objectives include among others: “the establishment of a comprehensive and enhanced legislation to protect the traditional family by strengthening the nation’s capacity to deal with emerging internal and external threats to the traditional heterosexual family and protecting the cherished culture of the people of Uganda, legal, religious, and traditional family values of Ugandans against the acts of sexual rights activists seeking to impose their values of sexual promiscuity on the people of Uganda.”

The Bill now awaits the assent of the Ugandan President under Article 91 of Uganda’s Constitution, which must be completed within thirty days from the date upon which it was presented to him.

Failure or refusal to assent to the Bill within the thirty days, among other conditions listed in the said Article, is taken to be assent to the Bill by Parliament upon the expiry of the stipulated period.

It should be noted that a court case was filed to quash all parliamentary proceedings and decisions relating to the Bill on account of the bias exhibited by the Speaker of Parliament in favour of its passing, but the case seems to have had no legal effect on the continuation and conclusion of the parliamentary process.

Homophobia and violent discourse in the law-making processes

The unconstitutionality of the AHB has been comprehensively discussed and public discourse around the Bill in Uganda has notably been heavily animated by extremely violent, and intolerant views based on religious dictates, public morality, and cultural narratives.

In particular, Old Testament biblical references mandating the killing of persons engaged in same- sex relations have featured from some religious camps, echoing provisions of the Bill which impose the death penalty for so- called ‘serial offenders’. 

One Member of Parliament even called for the castration of homosexuals while showing her support for the Bill on the floor of parliament, conjuring one of the mass atrocity crimes that were committed by Nazis against gay men during the Holocaust.

The prominence of religious fundamentalisms and the accompanying authoritarian paternalism informing the AHB and emerging laws in the country should be carefully noted given the broader regressive implications this could have for the rule of law, the equal rights of women, and other minority groups.

For instance, the Ugandan Parliament is reportedly soon set to debate a private member’s bill called the Assisted Reproductive Technology Bill (ARTB). A leaked version of the Bill allegedly contains a provision that  would criminalise people who seek to access assisted reproductive health services while unmarried. The ARTB emerged in the same month of March as the AHB was being debated and is sponsored by Sara Opendi, Woman Member of Parliament (MP) for Tororo District, the same MP who called for castration in showing her support for the AHB during public debate.

The Bill has been criticised for being discriminatory against women but as demonstrated by the passing of the AHB, popular morality appears set to usurp human rights in Uganda.

Human rights hollowed out

The AHB and ARTB might appear to be isolated developments but when considered within the broader national context of a breakdown in the rule of law, denialism, and narrative re-framing, they point to a more insidious trend toward the significant hollowing out of human rights norms and the consolidation of authoritarianism in the country.

For instance, in April 2021, while the country’s Minister of Foreign Affairs assured the United Nations Security Council that there were no abductions of political opponents in the country, Uganda was in fact witnessing (and continues to) witness abductions and enforced disappearances of opposition politicians after its 2021 presidential elections.

In more recent narratives, the abductions have been reframed by state officials as simple “arrests” even as the victims’ whereabouts remain unknown.   In another example, following this year’s closure of the United Nations Human Rights Office in Uganda, President Yoweri Museveni justified the closure by claiming that there is no longer a need for the Office as the country has strong national human rights institutions and a vibrant civil society.

However, the state-funded Uganda Human Rights Commission, has been consistently underfunded and some members of the political opposition accuse it of working for the interests of the ruling National Resistance Movement (NRM). Meanwhile, there has been a major clampdown and closure of civil society organisations including the closure of fifty four Non-Governmental Organisations and the suspension of the Democratic Governance Facility in 2021.

This cycle of violation, denial, and deception appears to be a deliberate pattern to shock, exhaust, and subdue both victims and defenders of human rights at both national and international levels, while hiding behind state sovereignty. The egregious provisions in the AHB are consistent with this pattern and the broader context of authoritarian control.

“…the state of affairs in Uganda if ignored, would not only condemn an already stigmatised group to an environment of legal arbitrariness, violence and hate, but would also provide a portal for the expansion of state authoritarianism into other spheres of Ugandans’ lives…”

Militarisation, religious proselytization of the state, and the rule of law

More worrisome perhaps is that the AHB and ARTB come at a time when the very meaning of law —the fundamentals regarding its core principles and sources —are being rewritten through processes of militarisation and proselytization in Uganda.

Uganda has been gradually witnessing a military usurpation of civilian institutions and opportunities as well as a subversion of civilian oversight roles, through Presidential directives or guidelines with no legal anchoring or in contradiction of existing law.

Most recently, the guidance to the Inspector General of Government chose to apply “logic” rather than law and exempt members of Uganda’s military from Asset Declaration Obligations under the Leadership Code Act, on account of security reasons.

This upending of law in Uganda is also occurring through proselytization or specifically the “Christianisation of the state” in both covert and overt ways. Whereas the AHB has itself been linked to funding by the United States Christian Evangelical organisations, parliamentary proceedings on the passing of the Bill saw Ugandan lawmakers relying to a considerable extent, on biblical references as source material, with minimal if any reference to the Constitution or the Constitutional Bill of Rights.

In a robust and very well attended debate hosted by the Makerere University Law School’s Human Rights and Peace Centre, titled: “The Anti Homosexuality Bill 2023: Protecting the public or oppressing minorities?”, the place of religion in national legislative processes featured prominently.

While a strong case was made that religious texts cannot be applied as sources of law in Uganda, as the country is clearly a secular state as is provided under its Constitution (Article 7), a few audience participants, including some in the legal profession and the academy, made persistent and concerning attempts to ascribe a theocratic status to the country on account of its motto: For God and my country.

This debate drew critical attention to how the very foundations of law and its ability to protect minorities in Uganda can be threatened when faced with a wilful inversion of law by a majority, including by dishonest legal scholarship, based on religious or other moral fundamentalisms.

Conclusion: A call to advocacy

The AHB is part of a wider trend in what seems to be a capsizing of human rights and the rule of law as well as a final descent into authoritarianism in Uganda. It remains a heavy but critical obligation for local human rights actors and scholars, with the support of the international community and progressive African governments to continue engaging with the relevant authorities, academics, media, and the judiciary in pushing for the protection of the rights of sexual minorities in the country.

onsidering the broader governance context unfolding there, the state of affairs in Uganda if ignored, would not only condemn an already stigmatised group to an environment of legal arbitrariness, violence and hate, but would also provide a portal for the expansion of state authoritarianism into other spheres of Ugandans’ lives in a continuum of violence that will surely expand outside Uganda.

Indeed, this seems to already be happening while formalising (Clause 12 AHB) once fringe and reprehensible ideas about gay conversion therapy into the mainstream.