Future historians will reference the developments around Uganda’s anti-homosexuality law as a textbook example of a proxy battle fought within the ongoing cultural wars of our time: a legal and political confrontation, in a remote African theatre, between local actors connected, through charts of socio-political reflexology, to global stakeholders.
It was an interim victory for equal rights when, on 1 August 2014, the Constitutional Court of Uganda struck down the Anti-Homosexuality Act 2014 as void on the procedural ground that the Parliament had violated quorum rules during its passage. But the Ugandan battle is far from over.
Having begun in 2009, five years later the story of the Ugandan anti-homosexuality law has epitomised the ideological clash between the West and the Rest. External actors have been supporting the key players inside Uganda. Through seemingly confusing moves on the surface, such as the negative reaction from many local and international LGBT activists to outspoken support from mainstream Western liberals, one can distinguish two sides militating against each other over global cultural values. On one side, LGBT rights activists and human rights groups around the world, aligned with liberal and humanist movements. On the other, American evangelicals and other conservative religionists, homophobic populists, assorted politicians from the global South, and China and Russia lurking behind the dust.
The infamous Bill envisaged the death penalty for “aggravated homosexuality” and severe punishments for broadly-defined activism in favour of sexual diversity. The global campaign against the Bill reached a volume that few local human rights scandals have achieved in the last decade: one more reminder that the ground shifts where law meets politics.
On the legal side, the Bill of course violated the Constitution of Uganda, as did the slightly milder law that entered into force in February 2014. As the Equal Rights Trust argued in a detailed legal brief in December 2009, it breached, inter alia, Articles 21 and 43 of the Ugandan Constitution, plus numerous provisions of international treaties binding on Uganda.
However, what mattered more was the dynamics of protest. Along with Ugandan campaigners, groups from around the world condemned the Bill, politicians and celebrities raised concerns, UN bodies put pressure on Uganda to change course, global leaders threatened aid conditionalities and sanctions, and US rights activists filed a law suit against the evangelical missionary Scott Lively of Abiding Truth Ministries under the Alien Torts Act. While this did not stop the new law, it may have impressed the Constitutional Court judges in Kampala.
But the political impact on the judiciary is deniable, as the honourable judges did not address the substance of the legislation and its compatibility with the Constitution. They just did their job as impartial jurists: striking down a law voted in violation of legislative procedure. We still have an occasion to raise a glass: procedure is important in a constitutional democracy, and so we celebrate a victory for the rule of law, with its side effect of reducing the risk for gay persons in Uganda exercising basic rights, for the moment.
But there are two dark clouds on the horizon. First, homosexuality remains illegal in Uganda, under Article 145 of the Penal Code, and this continues to have immediate consequences, On 23 June 2014, the High Court delivered a ruling in Jacqueline Kasha Nabagesera and others v. The Attorney General and Hon. Rev. Fr Simon Lokodo, in which the applicants, an LGBT group, lost on all grounds. They had tried to hold a training workshop on human rights, but the authorities ordered it cancelled. The applicants complained that this was a breach of a number of constitutional rights, but the High Court dismissed their complaint, apparently on the basis that the workshop would encourage people to engage in gay sex – an offence under Article 145 of the Penal code.
Second, there is a danger that the government will try to re-adopt the Anti-Homosexuality law, while in the meantime LGBT persons in Uganda continue to suffer profound discrimination and gross inequality. Uganda does not have an established legal framework protecting people from discrimination on any ground, including sexual orientation. Without such a framework, progress toward equality is not sustainable.
Even if these two clouds drift away from the Ugandan sky, the forecast for the global ideological climate remains unsettling for human rights, at least in the mid-term. In the cultural wars between the West and the Rest, the lack of clear-cut geo-political combatants cannot conceal the ground being gained by homophobic, anti-liberal, conservative religious movements.