The offences in the proposed Anti-Homosexuality Bill, 2023 are vague and go against the principal of legality under the Constitution of Uganda, according to Dr. Adrian Juuko, the Executive Director of Human Rights Awareness and Promotion Forum.
Juuko cited section 29(1) of the Constitution that provides for freedom of expression and association among others saying that the proposed Bill’s criminalization of homosexuality would in turn limit freedom of expression of individuals.“If passed into law, this Bill would violate state obligations to respect, protect and promote the rights and freedoms of the individual and groups, under articles 20 and 45. Everyone including Parliament have the obligation to protect and fulfil human rights,” Juuko said.
Article 20(1) and (2) of the Constitution states that, ‘Fundamental rights and freedoms of the individual are inherent and not granted by the State’ and ‘the rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons’.
Article 45 states that, ‘The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned’.
Juuko also said that the Bill replicates existing laws, citing clauses 5(2), 7, 9, 10, 11, 13, 16 and 17 that he said are redundant.
“The existing law provides for protection of all people against rape, defilement and other forms of sexual violence. Let us implement these laws,” he said.
Juuko added that the Bill is retrogressive saying that punishments proposed in the Bill are less than those provided for in existing laws.
“We want a law to protect our children yet we aree proposing a law that takes away that protection. The Penal Code already provides life imprisonment for homosexuality but the Bill proposes 10 years imprisonment. The Penal Code provides for death penalty for defilement yet the Bill provides for 10 years imprisonment,” he observed.
The Acting Managing Director at Chapter Four, Anthony Masake said the Bill is in contravention of several articles of the Constitution which he added, if passed into law, would infringe on fundamental rights and freedoms of LGBT individuals.
“The first is freedom from discrimination that caters for issues of equality like rights to access healthcare services. The second is the right to privacy of the person and their home. How will the Bill penalize same sex relations without infringing on the rights of these people?” Masake said.
He added that the Bill poses a risk to personal liberty owing to what he cited as vague, overly broad and unconstitutional provisions in the proposed law.
“The principles we have used in analyzing the Bill were stated in the Supreme Court case of David Wesley Tusingwire vs. Attorney General, Constitutional Appeal No.4 of 2016. If this matter were to end up in the Constitutional Court, these are the very principles of constitutional interpretation that the court will apply on this law,” Masake added.
Hon. Yusuf Mutembuli (NRM, Bunyole East County) said section 145 of the Penal Code is vague on the use of the word ‘carnal knowledge’ which he noted has been misused in addressing prohibition of homosexuality.
“That is why we are saying that when we have this specific law on homosexuality, we will address some of those gaps that are already in our existing laws. Our Bill is very clear because we are trying to harmonize it with existing laws,” Mutembuli said.
Bugweri County Member of Parliament, Hon. Abdu Katuntu (said that the Constitution prohibits same sex relations and that the Anti-Homosexuality Bill will act as a single piece of legislation in deterring homosexuality.
“When you are interpreting the Constitution, do not narrow it. The Constitution is not self-implementing or self-executing. You need to enact laws that implement its provisions and that is what this Bill is doing,” Katuntu said.
Hon. Asuman Basalirwa, the mover the Bill said that he has undertaken to clarify words that appear vague and lack clarity in the proposed law.
“The committee highlighted various clauses that required clarity and I took the advice of the committee to revisit them for purposes of making these penal provisions amenable to the current situation,” said Basalirwa.
James Kusemererwa, the Commissioner of Police in charge of the department of Human Rights called on MPs to legislate to make it easy for the Police to enforce the Bill.
He noted that there are vague provisions in the Bill, and cited clause 2(1)(c) that states that, ‘A person commits the offence of homosexuality if the person touches another person with the intention of committing the act of homosexuality’.
“This provision is broad. It is a fertile ground for people to abuse the process and ultimately we will be sued. The law has to cater for us in that direction otherwise we are likely to face multiple suits for infringing on people’s rights as Police,” said Kusemererwa.
The General Secretary of the Uganda Medical Association Dr. Herbert Luswata said doctors have a duty to provide medical care to all patients irrespective of the declared or undeclared sexual orientation according to the Hippocratic Oath.
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