Introduction
Uganda is widely recognized for its strict views on sexuality and intolerance towards homosexuality. Recently, Uganda’s Constitutional Court rejected a petition against the Anti-Homosexuality Act, 2023, which is considered to be one of the world’s harshest anti-LGBTQ laws. It is critical to raise awareness about this problem for the benefit of Uganda’s LGBTQ+ population and to promote a larger conversation about human rights and tolerance in the twenty-first century. The authors attempt to bring a rationale that the passed legislation stands out as an anomaly because it adheres to archaic and harmful notions in a world where LGBTQ+ rights are recognized and protected in many countries.
In this blog, I shall be discussing the reason behind its introduction, its impact, and the legislation being archaic and orthodox impeding upon the rights of the LGBTQ+ community. Further, I shall be dealing with its unconstitutionality under the Ugandan constitution and its non-compliance with international law.
The Anti-Homosexuality Act, 2023
The impact of the recent Act is severe. At least six people have been charged under the new act. It has created a sense of fear among the LGBTQ people residing in Uganda. The new act has introduced severe punishments including the death sentence and therefore, they are afraid that their identity might be used against them which has also increased the psychological pressure including suicidal thoughts among the LGBTQ community. There have been increasing cases of physical violence, their freedom of expression has been curtailed, and a general atmosphere of animosity against them.
The primary motive behind the enactment of this Act includes the effect of western imperialism, socioeconomic difficulties, and political pressure. Initially, nonconforming sexualities may have been frowned upon, but they were not criminalized until western imperialism spread to the African continent, introducing state-sanctioned homophobia in the form of religious laws. This shift is significant as African countries were originally liberal in their approach towards LGBTQ rights until the influence of Western imperialism took hold.
These anti-homosexuality laws were adopted by African leaders seeking to consolidate power in the post-colonial era, exploiting societal sentiments to portray homosexuality as immoral. By vilifying same-sex relations, these leaders establish themselves as guardians of traditional values and cultural identities, thus exerting control over the people.
The systematic targeting of the LGBTQ community is commonly used by governments in times of political and social turmoil to distract the public from other issues such as extreme poverty, unprecedented rates of unemployment, low wages, high taxes alongside high costs of living in the society.
The African community perceives efforts to promote LGBTQ rights as a manifestation of Western imperialism, seeing it as an idea enforced upon them by western nations. They argue that by resisting LGBTQ rights, they are pushing back against western influence, and those supporting such rights are seen as approving of western imperialism.
In an attempt to oppose LGBTQ+ rights, Uganda passed a bill in 2014 which was struck down by the Ugandan Supreme Court on procedural grounds. The present act also has arbitrary provisions. The Act defines the offense of homosexuality means a person performs or allows a person of the same sex to perform an act of homosexuality. The offense of homosexuality is defined into two categories namely general and aggravated forms of homosexuality.
The act is severe in its punishment in that it also punishes an attempt to perform such an act by imprisonment of 10 years whereas the aggravated form is the one committed against the child, disabled, person of advanced age, or person with terminal illness. Section 6 of the act says that consent to a sexual act is no defence which means that a consensual act between two persons of the same sex shall also be punishable.
The act also prohibits any form of promotion or assistance to homosexuality by a person or a legal entity in Uganda and if found guilty shall be punishable with imprisonment of 20 years or a fine respectively. Section 14 of the act makes it harsher, for the LGBTQ community as it casts an obligation on the citizens to report acts of homosexuality which means that if a person has a reasonable belief that a person has an intention to commit or is committing shall have a duty to report it to the police failing to do so may attract punishment.
The present act also violates the fundamental rights of both the LGBTQ community and the people of Uganda given in the constitution. The Constitution of Uganda, in Article 21, unequivocally advocates for equality and freedom from discrimination on various grounds, including sex, birth, race, and others, in all aspects of life, whether political, economic, social, or cultural. This, therefore, precludes any different treatment that may be discriminatory toward the LGBTQ+ community. Additionally, Article 44 prohibits any derogation of specific human rights and freedoms, including freedom from cruel, inhuman, or degrading treatment. Such actions would also be in contravention of Article 27, which safeguards the privacy of individuals regarding their homes, communications, and other forms of property.
In Uganda, like in many other places, the concept of arbitrariness is about determining if a law or government decision is fair and makes sense. Although, Uganda doesn’t have a specific rule called “arbitrariness,” unlike India, Uganda’s Constitution protects significant rights like being treated equally, keeping things private, and speaking freely. If a law or government action goes against these rights, people can argue in court that it’s not fair or reasonable.
The rules in the described act are unfair for a few main reasons. First, it’s not right to make consensual actions between adults of the same sex illegal because it takes away their right to privacy and freedom to make their own choices. Second, the punishments for homosexuality and promoting homosexuality are way too harsh, with people facing up to 10 or even 20 years in prison. This isn’t fair because the punishment doesn’t match the crime. Third, the act stops people from talking about or helping with homosexuality, which goes against the freedom of speech. Moreover, it forces people to tell the police if they think someone might be gay, which makes people scared and could lead to unfair treatment. Lastly, saying that consent doesn’t matter for same-sex relationships isn’t fair because it treats people differently under the law.
The Global Paradigm of LGBTQ+ Rights
It should be noted that the constitutional provisions under consideration are in line with Resolution 275 of the African Commission.
Article 53 of the Vienna Convention on the Law of Treaties of 1969 provides for peremptory norms (jus cogens). However, these norms are not defined under this article and therefore, it is left open for the ‘international community as a whole’ to identify certain international principles in the category of jus cogens. These norms are unrestrained by the will of the states and can be overruled by the collective will, supported by shared values, of the international community of states.
It is a jus cogens norm in an international community that the rights of LGBTQ people are universally recognized and regardless of the will of the government, Uganda must give them equal treatment, and ensure no discrimination based on any sexual orientation and identity is inflicted on them.
The Ugandan administration’s actions toward LGBTQ are a menace to the jus cogens norms. By the enactment of this act, there is a conflict that has arisen between the jus cogens norm and a domestic law. Therefore, the Uganda government must hold up jus cogens obligations and enforce these obligations to represent their values effectively. It is the responsibility of the Uganda government towards the international community to do away with a law whose objective is archaic in nature as the law must be enacted for the welfare of people and not to affect their interests negatively.
It is also to be noted that Article 48(1)(b) of Responsibility of States for Internationally Wrongful Acts (ARSIWA) provides for the erga omnes obligation by the state. It is an obligation of a state toward the international community whose basis is customary law. The states have an obligation from universal human rights treaties towards the international community as a whole to the extent that it has been recognized as customary international law. A breach that affects an obligation is a concern for the entire international community as it was established to protect the collective interest.
The International Covenant on Civil and Political Rights (ICCPR) which explicitly recognizes sexual orientation to be a ground on which a State cannot discriminate under Article 26, guarantees equal protection under the law without discrimination based on any ground. Furthermore, the Human Rights Committee, which is responsible for interpreting and ensuring compliance with the ICCPR, has provided guidance that affirms the protection of individuals against discrimination based on sexual orientation under Article 26. It can be argued that this proposed act does not align with broader principles of non-discrimination and equal protection under the law enshrined in international principles of human rights.
A violation by the Uganda government of an obligation is a concern for the entire international community as it was established to protect the collective interest of the LGBTQ community. The Uganda government must bring down the act to conform to the norms. By denying them the right to sexual orientation, having to face atrocities by the government, and punishment for committing such acts the Uganda government is violating their human rights.
The recent act as enacted by the Uganda government is wrongful in international law irrespective of the fact that it is declared lawful by the Uganda’s Court. There exists a breach by Uganda of an international obligation that is not in conformity with what is required of it by that obligation.
Article 26 of the ARSIWA states that the internal laws of the state shall comply with the peremptory norms. An act shall be wrongful if it violates the norms. Article 40 mentions that a state has an international responsibility that its actions do not contravene a peremptory norm. Moreover, Article 28 of the ARSIWA provides for the legal consequences of an internationally wrongful act.
The Anti-Homosexuality Act of 2023 is a gross failure of Uganda’s responsibility to not discriminate among its citizens based on their sexual orientation. The State of Uganda must repeal this act and it shall also assure the citizens of the state of its non-repetition. The LGBTQ community is facing the brunt of the Ugandan administration. The violation of human rights and dignity of the LGBTQ community people cannot be justified based on this internal law since the administration fails to comply with international general law. They shall make the necessary changes to bring back the situation where these people were able to live peacefully, without the fear of atrocities by the government based on their sexual orientation.
Furthermore, any other state in the interest of the international community as a whole can bring an action against the Uganda government, reluctant to reconsider this act. It can demand the cessation of this wrongful act, and assurances of its non-repetition in the future. In light of the same, it can take the necessary steps such as boycotting, creating international pressure by suspending loans and grants, by resolution against the State, etc.
As a result, the Uganda government must take into account the sociological aspect, especially the dynamic international society. The government must understand that present circumstances are very different from what it was and with time it must change and reap the positive benefits of LGBTQ people’s contribution by making them all-inclusive in society.
The Relevant Case Laws
USA, Europe, and India among other countries are considered to be progressive for the rights of the LGBTQ+ community and therefore the judicial rulings of these countries will help understand the present issue. The courts of these countries have decriminalized homosexuality.
In National Coalition for Gay and Lesbian Equality v The Minister of Justice the South African Constitutional Court struck down laws criminalizing consensual homosexual conduct, finding that they violated the country’s constitution, which prohibits discrimination based on sexual orientation under Article 9 and other provisions.
In Lawrence Et Al. v Texas the Supreme Court of the United States declared the s. 21.06 of the Texas statute unconstitutional that prohibited consensual sexual activity between same-sex couples. The court observed that “this law violated the Fourteenth Amendment due process clause as it interfered with people’s ability to engage in behaviour without government interference.”
In Dudgeon v United Kingdom, the European Court of Human Rights found that Northern Ireland’s criminalization of homosexuality went against Articles 8, 10, and 14 of the European Convention on Human Rights. The court held that such laws infringed upon an individual’s right to respect family life.
In Navtej Singh Johar v Union of India, the Indian Supreme Court ruled that Section 377 of the Indian Penal Code, which made consenting to sex with another adult of the same sex a crime, was unconstitutional. According to the court, Section 377 breached the Constitution’s Articles 21 and 14, which provide freedom of speech and privacy and the right to equality, respectively. It was regarded as a turning point for LGBTQ+ rights in India when the court decided to decriminalize homosexuality.
However, the Supreme Court in its latest decision on Supriya Chakraborty & Anr. v Union of India on same-sex marriage for the LGBTQ community would have determined the country’s path in granting rights that are enshrined in the Constitution. The judgment has impacted the lives of LGBTQ individuals in India but also served as a setback for people residing in other nations, fighting for their rights. Hence, as suggested by the Supreme Court, the Legislature should seek a solution by enacting legislation that grants rights to the people of the LGBTQIA+ community in the Indian society, where they have faced atrocious intolerance.
The recent circumstances in Uganda serve to emphasize how crucial it is to protect human rights, particularly those about LGBTQ+ rights. Governments should make sure that their laws and policies support equality, respect, and dignity for all people, regardless of their sexual orientation or gender identity.
Conclusion
The recent law passed by the Ugandan government appears to be incongruous with both their own constitutional values and international judicial precedents. Given its potential impact on its people, the government must reconsider this law. The government must rise above religious and unconventional beliefs, that is the basis of this law. The purpose of the act should align with international principles but the present act is contrary to them. In conclusion, with the implementation of the discriminatory Anti-Homosexuality Act in 2023, the situation of Uganda’s LGBTQ+ community is in jeopardy. This act not only contravenes Uganda’s constitution’s guarantees of equality and freedom from discrimination but also goes against global human rights norms.
The judicial approach highlighted in the above-mentioned countries showcases that everyone including the LGBTQ community deserves the same protections and basic human rights, no matter in which nation they live whether developing or underdeveloped. By granting them equal rights we mean recognizing their inherent dignity and fostering an accepting environment where they are not subject to violence, or discrimination because of their sexual orientation.
(This post has been authored by Ayush Agarwal, a 3rd year law student at National Law Institute University, Bhopal)
CITE AS: Ayush Agarwal, ‘Uganda’s LGBTQ Legislation: A Step Backward in the Modern World’ (The Contemporary Law Forum, 08 July 2024) <tclf.in/2024/07/08/ugandas-lgbtq-legislation-a-step-backward-in-the-modern-world/>date of access.