The Anti-Homosexuality Act, 2023 is an act of the Parliament of Uganda that restricts freedom of speech on LGBTQ topics and introduces harsher penalties for certain types of homosexual acts. On 21 March 2023, the bill was read a third time, and was then sent to President Yoweri Museveni for assent. On 21 April 2023, Museveni returned it to Parliament, which passed it again with minor amendments on 2 May. On 26 May, Museveni signed it into law.
The act prescribes life imprisonment for sex between two people of the same biological sex and the death penalty for "aggravated homosexuality". The latter offence includes "serial offenders", same-sex rape, sex in a position of authority or procured by intimidation, sex with persons older than seventy-five, sex with the disabled and mentally ill, and homosexual acts committed by a person with a previous conviction of homosexuality. Further, under its provisions, the promotion (including normalisation) of homosexuality is punishable by imprisonment for up to 20 years and fines.The Anti-Homosexuality Act 2023
The United States, United Kingdom, Canada, Germany, and the European Union, and several local and international NGOs have condemned it.
Background Anti-Homosexuality Act of 2014
In December 2013, the Parliament of Uganda passed an act prohibiting sexual relations between persons of the same sex. The act was previously called the "Kill the Gays bill" in the western mainstream media due to death penalty clauses proposed in the original version,Malone, Barry (13 May 2011). Uganda's "kill the gays" bill shelved again Reuters. Retrieved 2 September 2011Thockmorton, Warren (23 July 2011). Pastor decries "misrepresentation" of "kill the gays" bill, Salon.com. Retrieved 2 September 2011.Pearson, Christopher (16 January 2011.) Don't blame preachers for anti-gay bill, The Australian. Retrieved 2 September 2011. but the penalty was later amended to life imprisonment. The bill was signed into law by the President of Uganda Yoweri Museveni on 24 February 2014. On 1 August 2014, however, the Constitutional Court of Uganda ruled the act invalid on procedural grounds.
Sexual Offences Bill of 2021
In May 2021, the Parliament of Uganda passed a bill that consolidated a number of previous laws regarding sexual offences, introduced some provisions toward addressing sexual violence, and criminalised same-sex relationships. The bill was vetoed by President Museveni on 18 August 2021, who suggested much of its content is already covered by existing legislation.
Provisions and passage Bill as introduced On 28 February 2023, parliament granted Asuman Basalirwa leave to introduce the Anti-Homosexuality Bill. (February28_2023.pdf) The memorandum to the bill stated that its object was to 'establish a comprehensive and enhanced legislation to protect the traditional family' by prohibition of same-sex sexual relations and their 'promotion or recognition', strengthening measures to 'deal with emerging...threats to the traditional, heterosexual family', 'protecting [Ugandan culture from] sexual rights activists seeking to impose their values of sexual promiscuity', and 'protecting children and youth who are made vulnerable to sexual abuse through homosexuality and related acts'.
The memorandum further said that the bill sought to address 'gaps' in existing legislation, which did not clearly provide for 'charging, investigating, prosecuting, convicting and sentencing' of offenders under then existing prohibitions of homosexuality.
The bill, as introduced: defined 'the offence of homosexuality' to include various forms of gay sex, 'touch[ing] another person with the intention of committing the act of homosexuality', and 'hold[ing] out as a lesbian, gay, transgender, a queer, or any other sexual or gender identity that is contrary to the binary categories of male and female'; provided for ten years' imprisonment on conviction of the 'offence of homosexuality'; defined the 'offence of aggravated homosexuality' to be committed by A when A has gay sex with B and A has HIV, A is a guardian or parent of B, A has authority or control over B, B has a disability, A is a serial offender, or A causes B to use any thing 'with intent to stupefy or overpower' B 'to enable any person to have unlawful carnal connection with any person of the same sex'; provided for ten years' imprisonment on conviction for the 'offence of aggravated homosexuality', and HIV tests for persons so charged; provided for two years' imprisonment for attempts to commit 'the offence of homosexuality' and ten years' in the case of 'aggravated homosexuality'; excluded punishment of 'victim[s] of homosexuality' for their 'involvement in homosexuality', and orders for compensation from persons convicted; excluded consent as a defence to homosexuality; required proceedings under the act to be held in camera when involving children or so ordered by the court; prohibited publication of information tending to identify the victim without either their or the court's permission and provided for punishment of two hundred and fifty currency points (then USh 5,000,000 or approximately $1300); prohibited the 'aid[ing], abet[ting], counsel[ling] or procur[ing] [of] another person to engage in acts of homosexuality' and provided for punishment, 'detention with intent to commit homosexuality', and 'conspiracy' to 'induce another person of the same sex...to have unlawful carnal knowledge' by 'fraudulent means', and provided for punishment of both by two years' imprisonment; prohibited the 'procuring [of] homosexuality by threats' and provided for punishment by five years' imprisonment; prohibited the keeping of brothels 'for purposes of homosexuality' by and provided for punishment by seven years' imprisonment, and provided for encouragement of others to be present in any premises for the purpose of gay sex to be punishable by one year's imprisonment; prohibited 'purport[ing]' to enter a same-sex marriage and provided for punishment by ten years' imprisonment; prohibited the conducting of a ceremony in that connection with up to ten years' imprisonment; prohibited 'promotion of homosexuality', including publication, funding, or offering premises, and provided for punishment by fine of five thousand currency points (then US 100 million or approximately $25,000) or five years' imprisonment or both; and permitted courts to make rehabilitation orders or protection orders 'if satisfied that a child is likely to engage in acts of homosexuality'.
Consideration in committee On 9 March 2023, the bill was referred to the Committee on Legal and Parliamentary Affairs of parliament. The committee was divided. Two members, Fox Odoi-Oywelowo and Paul Kwizera Bucyana, issued a minority report, dissenting from the majority of thirty members.
The majority found that 'the prohibition against homosexuality is entrenched in the laws of Uganda and our cherished and shared cultural norms and values.' It found that the media had 'recently been awash with reports of sodomy and lesbianism in Ugandan schools' and that 'grooming and recruitment of school children into homosexuality has taken shape in Uganda'. It further found that 'a number of non-governmental organisations have been found to promote the normalisation of same sex relations'. Chapter Four Uganda, which submitted evidence to the committee, said to the BBC that "[w]hether you're heterosexual or homosexual, the government and parliament should introduce laws, or at least implement existing laws that protect all children – boys, girls from defilement. So the issue of recruitment has been unproven, it is baseless, it is biased."
In evidence submitted to the committee, several NGOs and legal academics submitted that the provisions of the bill were either unconstitutional or redundant. The Director of Public Prosecutions submitted that the provisions of the bill should be made as amendments to the Penal Code to avoid fragmentation of the statute book. The majority responded that '[h]omosexuality is a unique offence', and cited the example of legislation specially dealing with terrorism and corruption. The majority further found section 145 of the Penal Code to be inadequate. It found that it failed to prohibit oral sex or use of "contraption[s]" other than "sexual organ[s]", did not define "carnal knowledge" and "the order of nature", failed to prohibit identification as transgender, queer, or LGBTQ, and failed to prohibit "promotion of same sex sexual acts", allowing LGBTQ advocacy.
The minority dissented on this point. It said that many of the acts above were prohibited by section 145 read with the 'general prohibition on conspiracies under Chapter XLI of the Penal Code...(conspiracy to commit felony, conspiracy to commit misdemeanor[sic] and other conspiracies)', and the same case the majority later used to justify the criminalisation of homosexuality as a demonstration that existing legislation provided for 'acts that tend to promote homosexuality'. The minority considered the bill, therefore, be unnecessary, and suggested that 'anti-homosexual sentiment' without clear evidence had motivated its introduction.
The minority further argued that the interaction of the bill with other legislation was undesirable. In particular, sections 2 or 3 prohibiting the 'offence of homosexuality' and 'offence of aggravated homosexuality' effectively duplicated provisions of the Penal Code prohibiting rape and defilement but weakened the penalty from death or life imprisonment to ten years' imprisonment.
On other evidence, the bill was unconstitutional or contravened human rights. The majority found that international human rights law did not supersede 'the supreme law of Uganda', viz., the constitution, and suggested that prohibition of homosexuality was in the 'public interest'. It cited the proscription of a workshop by the High Court on the gay rights and its justification in the name of 'national security and public order and public interest[sic]'.
The minority dissented on this point too. It said that criminalisation of homosexuality 'denies...equal protection under the law' and creates 'harsh differential treatment'. In particular, the minority held that the inclusion of HIV status under the definition of 'aggravated homosexuality' wrongly assumed that HIV precluded safe sex and that disabled people would invariably be victims; section 5(1) amounted to an introduction of the gay panic defence; and the definition of 'touching' as 'constituting' homosexuality, and reference to 'aiding and abetting' homosexuality were unconstitutionally vague. The minority also said that the bill would criminalise appearances and not 'prohibited conduct'.
The committee received evidence on the question of whether homosexuality was 'a result of nature or nurture'. The majority held that 'homosexuality is mainly an acquired and learnt sexual practice, with little or no influence from nature', except for a few genetically caused cases of 'unusual expressions of physical phenotypic expression associated with the genital organs'.
In its analysis of the bill, the majority was concerned that sections 1 and 2 gave differing definitions of homosexuality. For example, section 1 would not require 'penetration of the anus or mouth' but section 2 would. Neither provision would supersede the definition of 'unnatural offences' in the Penal Code. The majority suggested that these conflicting definitions could lead to unconstitutional vagueness. It, therefore, proposed harmonisation of each of the definitions.