by Benon Gowa
About a few months ago, the national parliament of Uganda passed two controversial Bills that sent shock waves around the world over their inherent wanton disregard for basic Human Rights. With the Anti-Gay Bill drawing wider condemnation than its counterpart the Anti-Pornography Bill which were passed on the same day under very questionable circumstances. Seeing that both bills were neither itemized on Parliament’s Order Paper, as matters coming-up for debate and nor were some of the members notified of what was to happen at the August House on the day they were passed. But the Speaker of Parliament, unrelenting in her efforts to ensure that both Bills be assented to, insisted on presiding over a House which lacked the requisite quorum. Most Ugandans only got to find-out about the travesty a day after local dailies decided to break the story on their front-pages. Which not surprisingly drew quite a lot of excitement from a great section of our moral majorities, who up to now are convinced that the State is entitled to use its coercive power to uphold and enforce the nation’s moral convictions and prevent individuals from engaging in activities that offend those prevailing standards of morality and decency.
So after a few days of lambasting the Speaker for acting outside Parliament’s established Rules of Procedure and the Prime Minister querying the Hon. Minister of Ethics and Integrity over the legitimacy of the “Miniskirt Bill”, the President decided to sign the Anti-Pornography Bill into law. Which a few moments thereafter triggered off a chain of attacks on some young women who were reportedly undressed by some overly enthusiastic self appointed law enforcers. Under the guises of enforcing the new “Anti-Miniskirt law” which prohibited the wearing of any ill-fitting clothes that exposed one’s body parts like their thighs, buttocks, cleavage and bare breasts-a thing which some cabinet members have repeatedly refuted on grounds that the new law does not expressly prohibit women from wearing miniskirts.
However, the interpretation of the contentious definition provision of the Anti-Pornography Act, 2014, will reveal something totally different. As it broadly defines the term pornography to mean:-
“Any representation through publication, exhibition, cinematography, indecent show, information technology or by whatever means, of a person engaged in real or stimulated sexual activities or any representation of the sexual parts of a person for primarily sexual excitement.”
Clearly, by choosing to define the term pornography to also include the representation of one’s sexual parts, the Act went too far to encompass other underlying anti-social behavior closely associated with acts of obscenity like indecent exposure which ordinarily involves the exposure of one’s specific body parts with an intention of being sexually suggestive. Yet strictly speaking, such lewd behavior is not ordinarily perceived as the depiction of sexual behavior whose over riding aim is to produce sexual arousal in its audience as the term pornography is widely known to be here. So, it’s this attempt at trying to regulate what’s required to be worn in public by seeking to punish those who expose their sexual parts-which the Act defines to include one’s genitals, buttocks, anus, bare chest for women- that has brought about most of this ensuing harm that has befallen mostly women who’ve been stripped by some over-zealous goons on account of enforcing the new “Anti-Miniskirt law”. Which in fact has already created more problems than it attempts to address since the overriding aim of the new law, as stated in its preamble, is to:-
“Protect both women and children from the dangers of pornography which fuels sexual crimes against them like rape, child molestation and incest.”
Yet in all honesty, its ambiguous provisions have already exposed the people it purports to protect to the threat of being sexually assaulted by rowdy groups of individuals who simply can’t keep their eyes off their bodies. Especially in an open society like ours which doesn’t seem to hold shared views on what type of proper clothes are to be worn while in public.
The Act is also bound to run into another road-block over its wholesale criminal prohibitions on the voluntary private consumption of pornography by consenting adults. The Act provides that “a person who produces, or participates in the production of, or traffics in, or publishes or broadcasts, or procures or imports or exports in anyway abets pornography commits an offence.” The operating verb here being the term “procures” which the Act defines as “means to purchase or obtain or being found in possession or custody or being found viewing in a premise, any material prohibited in this Act.”
Okay, we know that the Right to Privacy enshrined under Art. 27 of the Constitution is not an absolute right which can override if the private activities of the individual are such as to cause significant harm to those around them. However, no reliable information was ever presented to establish an empirically verifiable link of causation between the consumption of pornography and violence against women and children. This leaves the debate open as to whether the State’s restrictions on the individuals’ freedoms in order to prevent a perceived threat of actual harm to those around them is a legitimate reason to control which thoughts are good for us. Since one’s Right to Privacy also implies that the State has no business telling a mentally competent adult sitting alone in the comfort of their house, what books they may read or what films they may watch. Where the consumption of such sexually explicit materials hasn’t been shown to harm its viewer by making them more likely to harbor rape or defilement fantasies.
Such scenarios definitely make the Act prone to attacks from the traditional free speech advocates. Who oppose any interferences in a way an adult chooses to live their lives even if it goes against the will of the moral majority. Who’ve been in the habit of using their numbers in the national parliament to force their own moral convictions on the other non-mainstream groups. We therefore expect a very protracted legal battle in both the Constitutional and Supreme Courts challenging the constitutionality of the provisions of both the Anti-Pornography Act and Anti-Homosexuality Act, 2014. Since both pieces of legislation have been widely viewed among the members of the legal fraternity as being in total disregard to the principles and values we subscribed to under Chapter Four on the Bill of Rights of the 1995 Constitution.
Benon M. Gowa practices with the Civil Aviation Authority of Uganda. Where he advises the organization and in-house counsel on a range of compliance and transactional matters touching on legal and regulatory affairs, due diligence, procurement contracts , corporate governance, administration, compliance and risk. He's also a very passionate civil rights activists and a seasonal contributor of articles touching the matter of rights observance for the disadvantaged groups of individuals in his community. Benon holds a Bachelor of Laws degree from Makerere University and a Post Graduate Diploma in Legal Practice of the Law Development Center. His a member of the Uganda Law Society.