15 Aug 2014

Pan-African bodies wash their hands of Uganda's anti-gay law

Written by  Paul Mulindwa

No. 307: Pan-African bodies wash their hands of Uganda's anti-gay law / Paul Mulindwa / Mail and Guardian
15-21 August 2014

The Ugandan Constitutional Court's decision to nullify the country's recently enacted Anti-Homosexuality Act gave Uganda President Yoweri Museveni some breathing space at the United States-Africa summit last week.

He had been under pressure from the West to repeal it — and now it is moot. It could, however, soon return to Uganda's Parliament.

Museveni invoked both national sovereignty and religion in support of his decision to sign the harsh Act into law in February. He criticised Western liberals who seek to impose their views of gay "rights" on Uganda, almost linking them to predatory foreigners who offer money to engage in "abnormal" sexual practices with Ugandan men.

The president was fêted by Christian and Muslim leaders for his stand against this alleged social evil. Yet the anti-gay bandwagon has created some serious political problems for his government, besides the suffering that it is causing gay people.

The new law, a populist measure, contradicts basic tenets of the Ugandan Constitution and undermines the rule of law in the country.

The Constitutional Court nullified it on the grounds that the Parliament passed the Bill without a proper quorum. Parliament reportedly plans to appeal this ruling and may pass the law again.

In any case, the Act is unnecessary because sanctions against homosexuality are already included in section 145 of Uganda's penal code. In this light, the timing of the law's adoption indicates a political agenda at work.

In Uganda, the concentration of power in the presidency has silenced dissent within government on the issue. Having called for a commission of inquiry into homosexuality and its causes, Museveni prejudged the body's findings with his own outspoken views on the issue.

He labelled gay people as abnormal, suffering a "terrible sickness". The commission subsequently rubber-stamped Museveni's decision to sign the Bill into law.

The Act encourages direct and indirect discrimination against gay people. Homophobia has become a prevalent discourse in Uganda, permeating political rhetoric.

Ambitious politicians adopt anti-gay stances. Opposing the anti-homosexuality law is regarded as "political suicide".

Prejudice is becoming endemic in government, and the safeguards embodied in the Ugandan Constitution that protect the rights of ordinary citizens are being ignored.

The ungainly populism of the anti-homosexual position undermines adherence to the rule of law.

Although it is widely argued that criminalising it constitutes a violation of human rights, Uganda is not an outlier on this issue in Africa. Thirty-six countries on the continent have criminalised homosexuality. Mauritania, Somalia, Sudan and northern Nigeria have laws that prescribe the death sentence for gays. In Gambia, President Yahya Jammeh has said that he will fight homosexuals in the same way that he fights malaria-bearing mosquitoes.

At the continental level, the African Union does not generally seek to change the national policies of member states on policies concerning individual rights.

The Pan-African Parliament also refrains from becoming involved in such issues, conscious that it lacks the binding authority to intervene.

The African Court on Human and Peoples' Rights is limited in its powers to engage in reforming national human rights norms because article 27 (2) of the African Charter on Human and Peoples' Rights construes issues of sexuality as ethical rather than legal matters, and thus outside the court's remit.

Paul Mulindwa is a senior project officer at the Centre for Conflict Resolution in Cape Town

© 2016 Centre for Conflict Resolution 

Centre for Conflict Resolution, Coornhoop, 2 Dixton Road, Observatory 7925, Cape Town, South Africa

 Tel: +27 (0)21 689 1005 | Fax: +27 (0)21 689 1003