By Benon Gowa
It feels like it's been a year or even more since the ascension of the anti-homosexuality bill (PDF) into law. The debate or at least the conversation around the law seems to be loosing its lustre particularly in the mainstream media. The euphoric frustrations and the naive celebrations by either side of the debate have since receded into the oblivion of our busy schedules. Sadly the media has moved on. Noone is there to remind us of such stories and how they at some point caught our eyes, moved our thoughts, and touched our hearts.
Notwithstanding the fading media attention, there’s no topic that generates as much hostility and controversy as the issue of same sex relationships in Uganda. Discussing it in public has ceased to be a taboo with every individual being free to express their views on the matter. Obviously the discussion has been centered around whether being gay is a matter of choice which could ‘easily’ be changed through corrective re-orientation therapy and constant prayers. It is this focus on the notion of “choice vs. born that way” narrative that is responsible for the introduction of a private member’s Bill in 2009 to provide for wholesale criminal prohibitions of any conduct perceived as being outside the established cultural gender norms of being male and female. It is this controversial Bill which prescribed life sentences for same sex sexual activity in private between consenting adults which President Yoweri Museveni signed into law. Eliciting an angry chain reaction from the donor community coupled with their threats to cut back on aid.
Several months after the bill was signed into law, there has not been any significant aid cuts to Uganda. Despite earlier threats, senior European representatives like His Excellency Hon. Kristian Schmidt, the European Union Ambassador to Uganda, urged that “there won’t be any more aid cuts because of the need to respect Uganda’s sovereignty.” This coupled with their continued assistance to a number of intolerant law enforcement institutions like the Equal Opportunities Commission Tribunal has been viewed by some LGBTI* rights activists across the country as a set-back to their efforts. Such unanticipated twists in this episode in Uganda have further complicated matters for the human rights activists who somehow feel unprotected either way they turn for solidarity. Seeing that certain law enforcement agents have already started implementing the law by arbitrarily searching individuals’ homes and bodies even on an extreme suspicion of an individual’s sexuality.
However, the lodging of a Constitutional Petition [No 08 of 2014] (Original Scan) by Prof. Oloka and team presents a new frontier for challenging the legality of the new law in the Constitutional Court. Such scrutiny and further debate might at least assist in broadening Uganda’s equality jurisprudence especially when the Constitution does not expressly provide for sexual orientation and gender identity as grounds for discrimination. More so, the proceedings of this case are going to be the very first time Ugandan courts will be pronouncing themselves on the legal status of LGBTI individuals in Uganda. In the past, in cases involving discrimination and violence against gay people, the High Court of Uganda has painstakingly avoided the question of sexuality. The major scapegoat was conveniently sticking to generalities like, abuse of individuals’ rights to privacy, unlawful searches without warrants as well as citing such aspects as attack on freedom from inhumane and degrading treatment. Even when the complainants were individuals whose perceived “divergent” sexual orientations had been the main motive for their being attacked. It still remains to be seen how far the Constitutional Court will be willing stretch the Bill of Rights to provide for sexual orientation and gender identities as potential grounds for discrimination just like social class, race, tribe, and religion.
*Lesbian, Gay, Bisexual, Transgender/Transexual and Intersexed.
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.