LGBTQIA+ Rights under siege: Uganda’s Anti-Homosexuality Act 2023

by | Oct 31, 2023

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About Anoksha M Shetty

Anoksha M Shetty is a fourth-year law student at Jindal Global Law School, India. Her primary research interests lie in the fields of public international law, environmental law, and human rights law.

On May 26 2023, Ugandan President Yoweri Museveni signed into law one of the globe’s harshest anti-LGBTQ bills, criminalising same-sex activities, including the possibility of the death penalty for those convicted under the new legal regime. The Anti-Homosexuality Act 2023 (the Act) violates multiple constitutional freedoms guaranteed under the Ugandan Constitution and international human rights agreements to which Uganda is signatory.

History shows that Uganda has repeatedly taken a strong anti-LGBTQ stance. The provisions of the Penal Code of 1950, a relic of British colonial rule, have been retained by Uganda to criminalise same-sex activities, making it a criminal offence for people to engage consensually in acts of “carnal knowledge against the order of nature” (Section 145) and “gross indecency” (Section 148). The penalty imposed by the code for the commission of these acts extends to life imprisonment, and any attempt to commit these acts is subject to seven years’ imprisonment.

The introduction of the Anti-Homosexuality Act 2023 further strengthened anti-LGBTQ sentiment within Uganda by introducing the death penalty for persons who are convicted for committing the offence of “aggravated homosexuality” (Section 3 of the Act).  Experts have condemned the imposition of the death penalty as a breach of Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to life. The enacting of the bill has already led to human rights abuses in the form of arbitrary arrests, loss of employment and housing due to discriminatory treatment, police abuse, and forced examinations, amounting to inhumane treatment.

Violations of the ICCPR

Uganda is a signatory to the ICCPR and the adoption of the Anti-Homosexuality Act directly contravenes Articles 2(1) and 17 of the ICCPR, which set out the principle of non-discrimination and the right to privacy, respectively. Even though the ICCPR does not directly reference sexual orientation, the UN Human Rights Committee, in its decision in Toonen v Australia, held that the reference to sex in Article 2(1) includes sexual orientation. In its second periodic report to the UNHRC, Uganda justified the Anti-Homosexuality Act by saying that it was enacted in furtherance of its responsibility to the covenant to protect children from abuse, as a deliberate campaign to promote homosexuality amongst children in schools had been allegedly discovered. Additionally, the report stated that the Act did not discriminate on grounds of sexual orientation or identity, but only criminalised acts of homosexuality.

The Act was questioned by Committee experts for being in flagrant violation of the ICCPR, with provisions punishing people for even thinking about engaging in homosexuality, and extending punishment for acts of homosexuality from ten years to the death sentence. The Anti-Homosexuality Act 2023 also prohibits the use of consent as a legal defense, effectively criminalising consensual sexual acts among LGBTQ individuals. Additionally, disclosure requirements under the Act violate the right to privacy enshrined in the ICCPR.

The Act will continue to criminalise sexual and gender-diverse minorities across the country, including the media, NGOs, and artists, leading to an increase in hate crime and violent offences against the LGBTQ community. By enacting the Anti-Homosexuality Act 2023, the Ugandan government violates fundamental human rights to expression, association, and non-discrimination, all of which rights are guaranteed under the ICCPR.

International Backlash and Challenges

The passing of the Anti-Homosexuality Act 2023 has been met with criticism from organisations and governments across the world for its excessive crackdown on LGBTQIA+ individuals and the violation of their human rights. The Secretary General of the UN, Antonio Guterres, has called upon the government of Uganda to respect its international Human Rights obligations of non-discrimination and personal privacy. The US president, Joe Biden, has backed this stance, and termed the act “a tragic violation of universal human rights”, threatening to impose sanctions and restrictions on the persons involved in serious human rights abuses. Due to the numerous cases of torture, evictions and intimidations against the LGBTQ community in Uganda, human rights activists and civil society organisations have also filed a petition before the Ugandan Constitutional Court to contest the draconian Act. With the recent commencement of the hearing on the petition, it is hoped that States, activists, and local and international organisations will continue condemning the law and advocating for the rights of Uganda’s LGBTQ community.

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