CIVICUS speaks with Noa Muhoozi Kainerugaba, team leader at Trans Refugee Initiative, about Uganda’s Constitutional Court’s recent ruling upholding the 2023 Anti-Homosexuality Act.
The Trans Refugee Initiative is a rights advocacy initiative that works for peace and justice for the most vulnerable refugees, migrants and internally displaced people in Uganda.
What were your hopes for the Constitutional Court’s review of the Anti-Homosexuality Act?
The roots of the 2023 Anti-Homosexuality Act (AHA) date back to 2013, when the Ugandan Parliament passed the ‘Kill the Gays’ bill, which punished homosexual acts with life imprisonment or the death penalty. The bill was signed into law and became effective in February 2014, only to be annulled by the Constitutional Court in August, following immense advocacy efforts by human rights activists and organisations. I thought that this time round we’d get a similar outcome: the Constitutional Court would nullify the bill in its entirety. But unfortunately, that didn’t happen.
The AHA, one of the harshest anti-LGBTQI+ laws in the world, became effective on 30 May 2023. Same-sex relations were already illegal, but the new law imposes harsher penalties, likely exacerbating the human rights violations faced by LGBTQI+ people and activists from state and non-state sources.
The president signed it into law on the grounds that the state needs to fight ‘people who engage in homosexual acts’, not homosexuals, without clearly explaining the difference. Lawmakers said they were protecting Uganda’s values. As they promoted the bill, high government officials spread harmful narratives. For instance, they accused LGBTQI+ people of being vectors of HIV/AIDS contagion. Under the AHA, having same-sex relations with an HIV-positive person can result in a death sentence.
A group of 22 petitioners, including prominent rights activists such as Richard Smith Lusimbo, Frank Mugisha and Pepe Onziema, filed a petition urging the state to provide equal protection of human rights for all Ugandans, as stated in the constitution and international human rights instruments Uganda has ratified, including the African Charter on Human and Peoples’ Rights and the United Nations’ Convention Against Torture. They argued the AHA violated fundamental freedoms such as the right to non-discrimination and the right to privacy.
But the Constitutional Court’s verdict, delivered on 3 April, was mixed. It struck down only four of the law’s 17 sections as contravening the Ugandan Constitution. Everything else remains in place.
What were the arguments of the Constitutional Court?
The sections the Court struck down criminalised LGBTQI+ identity and advocacy in many ways. For instance, they criminalised the renting of premises for ‘homosexual purposes’, failing to report homosexual acts to the police and engaging in homosexual acts that result in terminal illness. Under the law’s original version, people found guilty of the vaguely defined crime of ‘aggravated homosexuality’ could be sentenced to death and those ‘promoting’ homosexuality to 20-years in prison.
Despite the repeal of these sections, the remaining 13 anti-rights sections of the AHA still pose significant threats to the rights and safety of LGBTQI+ people, and it’s unclear why the Court would consider them aligned with the constitution.
The AHA perpetuates discrimination and violence against LGBTQI+ people. By refusing to fully repeal it, the Constitutional Court left LGBTQI+ people vulnerable to all forms of human rights violations, including poverty, homelessness, physical and mental health complications and unlawful arrest and detention, to mention but a few.
Do you see this as part of a regressive regional trend?
Yes, the tightening of colonial-era anti-homosexuality laws is a worrying regressive regional trend. While anti-homosexuality laws aren’t a new development in the region, they are a rising trend that’s based on the belief that homosexuality is ‘un-African’. This idea is supported by influential political, traditional and religious leaders who create and support systems that deliberately exclude sexual and gender minorities.
For over a decade, evangelical organisations have funded governments and influenced the development of laws and policies against sexual and reproductive rights, directly affecting LGBTQI+ people and their organisations. Framing it as a means to preserve traditional cultural values, politicians have fuelled the anti-LGBTQI+ movement to strengthen their support base, achieve their own political goals and ultimately perpetuate their power.
Negative public discourse by key political figures has exacerbated discrimination against and exclusion of LGBTQI+ people, forcing them to live in fear. The increased visibility and resources of anti-LGBTQI+ movements across the region have led to an increase in human rights violations against sexual minorities from state and non-state sources.
How are Ugandan LGBTQI+ organisations working to change this?
Ugandan LGBTQI+ organisations and human rights activists are actively working to challenge discriminatory laws and promote equality and justice for LGBTQI+ people through joint initiatives such as Convening for Equality. Despite facing significant restrictions, we are resilient in our efforts to advance human rights. We form networks of civil society groups that work together to combat anti-gay sentiment and prove that the LGBTQI+ community is an integral part of our society.
We advocate for the total repeal of the AHA, which violates fundamental rights guaranteed by the constitution and international human rights instruments ratified by the state. We are actively campaigning to bring our national and international allies on board and collectively advocate for equal rights for all people in Uganda.
To address immediate human rights violations, we continue to develop and launch emergency crisis response initiatives. Among these, we support the provision of urgent legal representation to LGBTQI+ people facing persecution because of their sexual orientation and gender identity.
Ugandan LGBTQI+ groups face challenges in doing this work, one of which is lack of proper documentation, due to increased interference by state bodies with human rights-related work, as they allege this promotes immorality. For instance, a Ugandan registration body has refused to register LGBTQI+ groups such as Sexual Minorities Uganda on the grounds that they aim to promote ‘immoral agendas’.
The Constitutional Court’s decision not to fully nullify the AHA continues to give both state and non-state anti-rights groups and individuals grounds on which they can subject sexual minorities and their organisations to human rights violations. Threats to cut off access to international partners and funders further undermine our efforts. In the long term, this hampers our ability to address human rights violations and achieve broader public interests such as development goals and universal access to healthcare.
How can international partners help?
Ugandan civil society has campaigned internationally for the repeal of the AHA. We have documented and highlighted its inhumane consequences for LGBTQI+ people. We have sought to protect the dignity and rights of all Ugandans by invoking key human rights instruments the Ugandan state has ratified.
But we need additional international support, particularly when it comes to funding. We urge international development agencies such as the World Bank to get involved in our strategic planning and fund our initiatives directly.
Our organisations need to be involved in national decision-making. This will ensure a more equitable distribution of resources and mitigate the state’s negative and belittling assumptions about LGBTQI+ people. It would also increase accountability and ultimately limit the influence of anti-rights movements in Uganda.
Civic space in Uganda is rated ‘repressed’ by the CIVICUS Monitor.
Get in touch with Noa through his Facebook page and follow @transrefuge on Twitter.
