EXPLAINER: All About Uganda’s Anti-Homosexuality Law
President Museveni has assented to the Anti-Homosexuality Act, 2023, sparking an international backlash.
In May, Parliament passed the Anti-Homosexuality Bill, 2023 with amendments to five clauses following proposals by President Yoweri Museveni.
The Bill was first passed on 21 March 2023 but was returned by the President.
While presiding over the House sitting on Tuesday, 02 May 2023, Speaker Anita Among commended the commitment of legislators in ensuring the protection of Uganda’s values and culture and urged them to stand firm on their decision.
“I want to urge the Members of Parliament to remain steadfast. No amount of intimidation will make us retract what we have done. Handouts or small envelopes should not be the ones to destroy you. The Western World will not come and rule Uganda,” said Among.
But the activists have petitioned the Constitutional Court, challenging the legality of several provisions of the law.
What does the law say?
The offence of homosexuality
A person commits the offence of homosexuality if the person performs a sexual act or allows a person of the same sex to perform a sexual act on him or her.
A person who commits the offence of homosexuality is liable, on conviction, to imprisonment for life.
A person who attempts to perform a sexual act in the circumstances referred to above commits an offence and is liable, on conviction, to imprisonment for a period not exceeding ten years.
A person shall be deemed to attempt to commit an offence when the person intending to commit an offence begins to put his or her intention into execution by means adapted to its fulfilment, and manifests his or her intention by some overt act, but does not fulfil his or her intention to such an extent as to commit the offence.
Aggravated homosexuality
A person who commits the offence of aggravated homosexuality is liable, on conviction, to suffer death.
Aggravated homosexuality occurs when:-
The person against whom the offence is committed is a child
The offender is a parent, guardian or relative of the person against whom the offence is committed
The person against whom the offence is committed contracts a terminal illness as a result of the sexual act
The offender is a serial offender
The offender is a person in authority over the person against whom the offence is committed
The person against whom the offence is committed is a person with disability or suffers a disability as a result of the sexual act
The person against whom the offence is committed is a person with mental illness or suffers a mental illness as a result of the sexual act
The person against whom the offence is committed is of advanced age
The sexual act is committed against a person by means of threats, force, fear of bodily harm, duress or undue influence, intimidation of any kind, or through misrepresentation as to the nature of the act; or
The person against whom the offence is committed was, at the time the offence was committed, unconscious or in an altered state of consciousness due to the influence of medicine, drugs, alcohol or any other substance that impaired his or her judgement.
Attempted homosexuality
A person who attempts to commit an act of homosexuality commits an offence and is liable, on conviction, to imprisonment for a period not exceeding fourteen years.
A person shall be deemed to attempt to commit an offence when the person intending to commit an offence, begins to put his or her intention into execution by means adapted to its fulfilment, and manifests his or her intention by some overt act, but does not fulfil his or her intention to such an extent as to commit the offence.
This section seeks to provide punitive action for those who solicit for homosexual acts through verbal expressions or communication (such as cell phone messages).
Punishment for child offender
A child who is convicted of an offence for an offence of homosexuality or attempted homosexuality, instead of the punishments prescribed above, will be liable, on conviction, to imprisonment for a period not exceeding three years.
Protection, assistance and payment of compensation to victim of homosexuality
A person involved in the investigation, prosecution or trial of an offence under this Act shall assist the victim of the offence to present his or her views and concerns at the appropriate stages of the criminal proceedings.
Where a person is convicted of the offence of homosexuality or aggravated homosexuality under this Act, the court may, in addition to any punishment imposed, order the person to pay compensation to the victim of the offence, of an amount which, in the opinion of the court is just, having regard to the physical, sexual or psychological harm suffered by the victim of the offence, the degree of force used and medical and other expenses incurred by the victim of the offence as a result of the offence.
The order referred to above shall be deemed to be a decree under the Civil Procedure Act, and shall be executed in the manner provided under that Act.
Consent to sexual act is no defence
The consent of a person to commit a sexual act shall not constitute a defence to a charge under this Act.
Confidentiality
Any editor, publisher, reporter or columnist in the case of printed materials, announcer or producer in the case of television and radio, producer or director of a film in the case of the movie industry, or any person utilising trimedia facilities or information technology who publishes or causes the publication of the names and personal circumstances or any other information tending to establish the identity of a victim of the offence without the authority of the victim of the offence or court commits an offence and is liable, on conviction, to a fine not exceeding two hundred and fifty currency points.
This section is aimed at protecting the identities of homosexuality victims since the act is now a crime.
Child grooming
The Act provides that a person who recruits, transports, transfers, harbours or receives a child for purposes of engaging the child in homosexuality or any other conduct prohibited under this Act commits an offence and is liable, on conviction – to
imprisonment for life.
A person can be imprisoned for a period not exceeding 20 years if the person:-
Displays, distributes or supplies to a child, any material demonstrating, depicting or illustrating a sexual act between persons of the same sex or any other conduct that is prohibited under this Act;
– Shows or avails to a child, a picture, video or film showing, depicting or illustrating a sexual act between persons of the same sex or any other conduct that is prohibited under this Act; or
– In the presence of a child, performs a sexual act or causes another person to engage in a sexual act,
The consent of a child or the consent of the child’s parent or guardian, person in authority or any other person with parental responsibility over the child to these acts shall not be a defence to a charge under this Act.
This section appears to target school owners, educationists and NGOs which allegedly use educational materials to promote homosexuality in Uganda.
Premises
A person who keeps a house, room, set of rooms or place of any kind for purposes of facilitating the commission of the offence of homosexuality commits an offence and is liable, on conviction, to imprisonment for a period not exceeding seven years.
The owner, occupier or manager of premises who knowingly allows the premises to be used by any person for purposes of homosexuality or to commit an offence under this Act, commits an offence and is liable, on conviction, to imprisonment for a period not exceeding ten years.
Prohibition of marriage between persons of same sex
A person who—
Purports to contract a marriage with a person of the same sex;
Presides over, conducts, witnesses or directs a ceremony purported to be a marriage between persons of the same sex; or
Knowingly attends or participates in the preparation of a purported marriage between persons of the same sex,
commits an offence and is liable, on conviction, to imprisonment for a period not exceeding ten years.
In this section, “marriage” means the union, whether formal or informal, between persons of the same sex.
This section targets hotel owners and real estate dealers providing accommodation services.
Promotion of homosexuality
A person who promotes homosexuality commits an offence and is liable, on conviction, to imprisonment for a period not exceeding 20 years.
A person promotes homosexuality where the person-—
Encourages or persuades another person to perform a sexual act or to do any other act that constitutes an offence under this Act;
Knowingly advertises, publishes, prints, broadcasts, distributes or causes the advertisement, publication, printing, broadcasting or distribution by any means, including the use of a computer, information system or the internet, of any material promoting or encouraging homosexuality or the commission of an offence under this Act;
Provides financial support, whether in kind or cash, to facilitate activities that encourage homosexuality or the observance or normalisation of conduct prohibited under this Act;
Knowingly leases or subleases, uses or allows another person to use any house, building or establishment for the purpose of undertaking activities that encourage homosexuality or any other offence under this Act; or
Operates an organisation which promotes or encourages homosexuality or the observance or normalisation of conduct prohibited under this Act.
Where an offence prescribed under this section is committed by a legal entity, the court may—
– Impose a fine not exceeding fifty thousand currency points for breach of any of the provisions of this section (One currency point is equivalent to twenty thousand shillings).
– Suspend the licence of the entity for a period of ten years; or
– Cancel the licence granted to the entity.
This section appears to be targeting NGOs and other entities which are accused of promoting homosexuality and receiving grants from the western world for the same cause.
Disqualification from employment upon conviction
A person who is convicted of the offence of homosexuality or aggravated homosexuality shall be disqualified from employment in a child care institution or in any other institution which places him or her in a position of authority or care of a child or a vulnerable person until such a time as a probation, social and welfare officer determines that the person is fully rehabilitated or no longer poses a danger to a child or a vulnerable person.
Disclosure of sexual offences record
A person convicted of an offence under this Act shall disclose the conviction when applying for employment in a child care institution or any other institution which places him or her in a position of authority or care of a child or other vulnerable person.
A person who contravenes this subsection commits an offence and is liable, on conviction, to imprisonment for a period not exceeding two years and the employment of that person shall terminate.
Duty to report acts of homosexuality
A person who knows or has a reasonable suspicion that a person has committed or intends to commit the offence of homosexuality or any other offence under this Act, shall report the matter to police for appropriate action.
A person who is otherwise prevented by privilege from making a report under this subsection shall be immune from any action arising from the disclosure of the information without the consent or waiver of privilege first being obtained or had.
A person who, knowing or having reason to believe that a person has committed or intends to commit an offence, and does not report the matter to police, commits an offence and is liable, on conviction, to a fine not exceeding five thousand currency points or imprisonment for a period not exceeding six months. (One currency point is equivalent to twenty thousand shillings).
A person who makes a report referred to in this section shall be treated as a whistle-blower in accordance with the Whistleblowers Protection Act, 2010 and shall be protected from victimisation.
This section shall not apply to an advocate under the Advocates Act.
This section seems to encourage the public to report acts of homosexuality to authorities for action.
False sexual allegations
A person who intentionally makes false or misleading allegations against another person to the effect that the person has committed an offence under this Act commits an offence and is liable, on conviction, to imprisonment for a period not exceeding one year.
In this section, an allegation is false or misleading if at any stage of investigation or prosecution, it is proved that the alleged act did not take place or the information was reported maliciously.
Rehabilitation of homosexual
The court may, upon convicting a person of the offence of homosexuality, order the provision of social services for purposes of rehabilitating the convicted person.
The services referred to in this subsection may be provided by the prisons service or by a probation, social and welfare officer of the area where the convicted person is serving his or her sentence.
Repeal
The enactment of the Anti-homosexuality Act meant that Section 145 (a) and (c) of the Penal Code Act which MPs said was vague on criminalising ‘sexual crimes against the order of nature’ is repealed.
Regulations
The Minister may, by statutory instrument, make regulations for better carrying out the provisions of this Act.
ENDS
The post EXPLAINER: All About Uganda’s Anti-Homosexuality Law first appeared on ChimpReports.