The Right to Love: How Uganda’s Anti-Homosexuality Act Encourages Discrimination 

You must have heard by now that Uganda has passed the infamous Anti-Homosexuality Act aka ‘Kill the Gays’ law. In an unusual show of unity, Members of Parliament across the party divide came together to decide that homosexuals in Uganda deserve to die. The Anti homosexuality act is malicious, draconian and infringes on a myriad of human rights.

To call the Act backward, would be inaccurate and an affront to the diverse cultures across Africa that are inclusive of homosexuals and non-gender conforming individuals. At the core of the anti-homosexuality legislation is the belief that queer relationships are un-African and contravene local culture. However, research into pre-colonial Africa shows queerness is part and parcel of customary African culture. Reports from as early as  the 1590s show that the Imbangala of Angola had men in women’s apparel whom they kept among their wives.  Closer to home, among the Langi in northern Uganda there is an alternative gender known as mudokodako. These ‘effeminate males’ are allowed to marry men. These examples are a clear indicator that African society was more tolerating ore even accepting of the LGBTQ despite what politicians and lobbyists would have us believe.

Why then do we continue this crusade against homosexuality, using the excuse of preserving African culture? The objectives outlined in the Uganda Constitution support the promotion of cultural and customary values that align with fundamental rights, freedoms, and human dignity. Consequently, despite Female Genital Mutilation being a traditional practice in certain tribes, it is now considered illegal. From analysis of various traditional societies homosexuality is consistent with African culture and an attempt to criminalize it would be against the objectives set out by the Constitution. Furthermore, culture is not static, but rather dynamic, requiring a shift in our perspectives on sex, gender, and sexuality, towards a process of decolonization.

The Anti-Homosexuality Act was passed under the guise of protecting the moral fabric of society. However, the essence of criminal law lies in the element of harm where a person suffers injury and hence is a victim of the crime. Therefore when two consenting adults get together, why should it matter that they are of the same sex? What is inherently wrong with allowing people who love each other to be together? Besides, the functions of Parliament are to make laws on any matter for the peace, order, development and good governance of Uganda. Remarkably absent from the constitutional duties of the August house is the preservation of morality. The Anti-Homosexuality Act creates a victimless crime, condemning individuals to a life in prison because of whom they choose to love.

The passing of the Anti Homosexuality Act has rolled back the progress Uganda had made in advancing sexual and reproductive health rights in Uganda. According to the International Planned Parenthood Federation (IPPF), the law instills fear among health workers providing essential Sexual and Reproductive Health (SRH) services and deters individuals from seeking vital SRH services due to fear of being targeted thereby hindering access to HIV/AIDS testing and treatment, provision of antiretroviral therapy, and contraceptive services. Moreover, the U.S. Government has expressed intentions to suspend development funding to Uganda, including through the U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) and the Global Fund and UNAIDs, jeopardizing the progress in the fight against HIV/AIDS in Uganda.

Fundamentally, the Anti-Homosexuality Act places a target on the backs of those who do not conform to society’s expectations. The question arises: how can one accurately identify another person’s sexual orientation? In his State of the Nation address, President Museveni stated that ‘the law now says a homosexual will not be criminalized’ and being [homosexual] is ‘your personal problem’. On the other hand, the Act itself defines homosexuality as an offense if a person engages in a same-sex sexual act or permits it, with consent not serving as a defense. It appears that the President may not have fully grasped the implications of the law he approved, leading to ambiguity in its interpretation. Consequently, individuals who express themselves differently through their appearance, behavior, and lifestyle are bound to suffer indignities. The Anti-Homosexuality Act has effectively legalized homophobia, marginalized a specific group within society, and provided justification for hatred and hate crimes. All this unnecessary pain and heartache stems from the ruling powers’ decision to deny homosexual Ugandans the right and space to live, love, and freely associate in society.

The ambiguous nature of proving homosexuality creates opportunities for the state and other parties to infringe upon civil rights. A notable case, Mukasa and Oyo v Attorney General, exemplifies this issue when the home of two women suspected of being lesbians was unlawfully searched by a Local Council Chairperson. The court ruled that this search and seizure violated their right to privacy. However, since the enactment of the Anti-Homosexuality Act, these legal protections have been eroded. Disturbingly, since March 2023, there has been a significant increase in physical attacks against the LGBTQ community, threats against civil society organizations, and a rise in hate speech targeting LGBTQ individuals and their allies. In a situation where possessing something as innocuous as lubricant can be used as evidence of a crime, the rights to privacy and personal liberty of all Ugandans are at stake.

Not only does the Anti-Homosexuality Act undermine fundamental rights and freedoms but also perpetuates discrimination, fear, and violence against the LGBTQ community. The Act reinforces homophobia, marginalizes the vulnerable, and denies them the right to live authentically and love freely. It is crucial for Ugandans to recognize and address the harm caused by such legislation, advocating for equality, acceptance, and respect for the rights and dignity of all individuals, regardless of their sexual orientation or gender identity.