Anti-Homosexuality Bill, 2023

On 28 February 2023, parliament granted Asuman Basalirwa leave to introduce the Anti-Homosexuality Bill.[2] The memorandum to the bill[3] stated that its object was to 'establish a comprehensive and enhanced legislation to protect the traditional family' by

• prohibition of same-sex sexual relations and their 'promotion or recognition',
• strengthening measures to 'deal with emerging…threats to the traditional, heterosexual family',
• 'protecting' Ugandan culture from 'sexual rights activists seeking to impose their values of sexual promiscuity', and
• 'protecting children and youth who are made vulnerable to sexual abuse through homosexuality and related acts'.

The memorandum further said that the bill sought to address 'gaps' in existing legislation, which did not clearly provide for 'charging, investigating, prosecuting, convicting and sentencing' of offenders under then existing prohibitions of homosexuality.

The bill, as introduced:

• defined 'the offence of homosexuality' to include various forms of gay sex, 'touch[ing] another person with the intention of committing the act of homosexuality', and 'hold[ing] out as a lesbian, gay, transgender, a queer, or any other sexual or gender identity that is contrary to the binary categories of male and female';[4]
• provided for ten years' imprisonment on conviction of the 'offence of homosexuality';[5]
• defined the 'offence of aggravated homosexuality' to be committed by A when A has gay sex with B and A has HIV, A is a guardian or parent of B, A has authority or control over B, B has a disability, A is a serial offender, or A causes B to use any thing 'with intent to stupefy or overpower' B 'to enable any person to have unlawful carnal connection with any person of the same sex';[4]
• provided for ten years' imprisonment on conviction for the 'offence of aggravated homosexuality',[6] and HIV tests for persons so charged;[7]
• provided for two years' imprisonment for attempts to commit 'the offence of homosexuality'[8] and ten years' in the case of 'aggravated homosexuality';[9]
• excluded punishment of 'victim[s] of homosexuality' for their 'involvement in homosexuality', and orders for compensation from persons convicted;[10]
• excluded consent as a defence to homosexuality;[11]
• required proceedings under the act to be held in camera when involving children or so ordered by the court;[12]
• prohibited publication of information tending to identify the victim without either their or the court's permission and provided for punishment of two hundred and fifty currency points (then USh 5,000,000 or approximately $1300)[13];[14]
• prohibited the 'aid[ing], abet[ting], counsel[ling] or procur[ing] [of] another person to engage in acts of homosexuality' and provided for punishment, 'detention with intent to commit homosexuality', and 'conspiracy' to 'induce another person of the same sex…to have unlawful carnal knowledge' by 'fraudulent means', and provided for punishment of both by two years' imprisonment;[15]
• prohibited the 'procuring [of] homosexuality by threats' and provided for punishment by five years' imprisonment;[16]
• prohibited the keeping of brothels 'for purposes of homosexuality' by and provided for punishment by seven years' imprisonment, and provided for encouragement of others to be present in any premises for the purpose of gay sex to be punishable by one year's imprisonment;[17]
• prohibited 'purport[ing]' to enter a same-sex marriage and provided for punishment by ten years' imprisonment;[18]
• prohibited the conducting of a ceremony in that connexion with up to ten years' imprisonment;[19]
• prohibited 'promotion of homosexuality', including publication, funding, or offering premisses, and provided for punishment by fine of five thousand currency points (then USh 100 million or approximately $25,000) or five years' imprisonment or both;[20] and
• permitted courts to make rehabilitation orders or protection orders 'if satisfied that a child is likely to engage in acts of homosexuality'.[21]

On 9 March 2023, the bill was referred to the Committee on Legal and Parliamentary Affairs of parliament.[22] The committee was divided. Two members, Fox Odoi-Oywelowo and Paul Kwizera Bucyana, issued a minority report, dissenting from the majority.[23]

The majority found that 'the prohibition against homosexuality is entrenched in the laws of Uganda and our cherished and shared cultural norms and values.'[24] It found that the media had 'recently been awash with reports of sodomy and lesbianism in Ugandan schools' and that 'grooming and recruitment of school children into homosexuality has taken shape in Uganda'.[24] It further found that 'a number of non-governmental organisations have been found to promote the normalisation of same sex relations'.[24] Chapter Four Uganda, which submitted evidence to the committee, said to the BBC that "[w]hether you're heterosexual or homosexual, the government and parliament should introduce laws, or at least implement existing laws that protect all children – boys, girls from defilement. So the issue of recruitment has been unproven, it is baseless, it is biased."[25]

In evidence submitted to the committee, several NGOs and legal academics submitted that the provisions of the bill were either unconstitutional or redundant.[26] The Director of Public Prosecutions submitted that the provisions of the bill should be made as amendments to the Penal Code to avoid fragmentation of the statute book.[26] The majority responded that '[h]omosexuality is a unique offence', and cited the example of legislation specially dealing with terrorism and corruption.[26] The majority further found section 145 of the Penal Code to be inadequate.[26] It found that it failed to prohibit oral sex or use of 'contraption[s]' other than 'sexual organ[s]', did not define 'carnal knowledge' and 'the order of nature', failed to prohibit identification as transgender, queer, or LGBTQ, and failed to prohibit 'promotion of same sex sexual acts', allowing LGBTQ advocacy.[26]

The minority dissented on this point.[27] It said that many of the acts above were prohibited by section 145 read with the 'general prohibition on conspiracies under Chapter XLI of the Penal Code…(conspiracy to commit felony, conspiracy to commit misdemeanor[sic] and other conspiracies)', and the same case the majority later used to justify the criminalisation of homosexuality as a demonstration that existing legislation provided for 'acts that tend to promote homosexuality'.[27] The minority considered the bill therefore be unnecessary, and suggested that 'anti-homosexual sentiment' without clear evidence had motivated its introduction.[27]

The minority further argued that the interaction of the bill with other legislation was undesirable. In particular, sections 2 or 3 prohibiting the 'offence of homosexuality' and 'offence of aggravated homosexuality' effectively duplicated provisions of the Penal Code prohibiting rape and defilement but weakened the penalty from death or life imprisonment to ten years' imprisonment.[28]

On other evidence, the bill was unconstitutional or contravened human rights. The majority found that international human rights law did not supersede 'the supreme law of Uganda', viz., the constitution, and suggested that prohibition of homosexuality was in the 'public interest'.[29] It cited the proscription of a workshop by the High Court on the gay rights and its justification in the name of 'national security and public order and public interest[sic]'.[29]

The minority dissented on this point too. It said that criminalisation of homosexuality 'denies…equal protection under the law' and creates 'harsh differential treatment'.[28] In particular, the minority held that[28]

• the inclusion of HIV status under the definition of 'aggravated homosexuality' wrongly assumed that HIV precluded safe sex and that disabled people would invariably be victims;
• section 5(1) amounted to an introduction of the gay panic defence; and
• the definition of 'touching' as 'constituting' homosexuality, and reference to 'aiding and abetting' homosexuality were unconstitutionally vague. The minority also said that the bill would criminalise appearances and not 'prohibited conduct'.[30]

The committee received evidence on the question of whether homosexuality was 'a result of nature or nurture'.[31] The majority held that 'homosexuality is mainly an acquired and learnt sexual practice, with little or no influence from nature', except for a few genetically caused cases of 'unusual expressions of physical phenotypic expression associated with the genital organs'.[31]

In its analysis of the bill, the majority was concerned that sections 1 and 2 gave differing definitions of homosexuality.[32] For example, section 1 would not require 'penetration of the anus or mouth' but section 2 would.[32] Neither provision would supersede the definition of 'unnatural offences' in the Penal Code. The majority suggested that these conflicting definitions could lead to unconstitutional vagueness.[32] It therefore proposed harmonisation of each of the definitions.[32]

The majority further found that the 'offence of aggravated homosexuality' was redundant in that the sentence proposed was the same, and that the elements of the offence were undefined; it proposed remedying both.[33] It further found[34] that the bill should be amended to define 'victims' for the purposes of section 5, and proposed the deletion of the provision excluding punishment of 'victim[s] of homosexuality' for their 'involvement in homosexuality'.[10]

The majority further recommended the prohibition of 'activities by civil society organisations that are intended to normalise acts and conduct that normalises conduct that is banned or unlawful in Uganda', as an amendment to the existing text.[35] It proposed that 'grooming of persons to engage in homosexuality' should be prohibited, and that such provision should 'cater for all the methods through which homosexuality…[is] promoted, including in academic institutions'.[35]

The majority recommended 'different penalties for children offenders',[36] the deletion of offences 'based on…appearance' without reference to conduct,[37] and further definition of 'gender' and sex'.[37]

The minority recommended the drafting of a 'comprehensive non-discriminatory sexual offences Bill[sic]'.[38]

The majority proposed a number of textual amendments.

• Section 2 was amended to provide for imprisonment for life for homosexuality, and seven years' imprisonment for 'attempts'. It further was amended to provide for the submission of evidence by a medical practitioner of evidence 'that the accused person…suffer[ed] genetic abnormalities which might have contributed to the acts that constitute the offence of homosexuality.'
• Section 3 was amended to provide for the death penalty for 'aggravated homosexuality', in broadly similar cases, but amended the reference to HIV status to refer instead to the contraction by the other party of 'a terminal illness', newly included sex with persons over the age of seventy-five, and generally included sex with people who were 'unconscious or in an altered state of consciousness due to the influence of…any…substance that impaired…judgment'. It provided for 'attempts' to be punishable by fourteen years, and the same provision as to genetic abnormalities above.
• A new section was inserted to provide for three years' imprisonment in the case of children.
• Section 5(1) on the exclusion of punishment of 'victims' of homosexuality was deleted.
• An offence of 'grooming' was introduced', punishable by up to ten years' imprisonment. It included recruitment or transportation of a child to facilitate sex (only gay sex), distribution of gay pornography to children, and gay sex in the presence of a child.
• Section 13 was amended to additionally prohibit knowing attendance of or participation in a gay marriage.
• Section 14 was amended to redefine 'promotion of homosexuality' to include direct encouragement of gay sex or publication of material 'promoting or encouraging homosexuality or the commission of an offence' under the bill, and 'normalisation of' offences under the Bill, as well as financial support or organisation to that end. It further provided for a court to find shareholders, directors and employees of legal entities convicted of 'promotion of homosexuality' to be convicted in turn and liable to punishment. It also inserted provision for a fine of up to twenty thousand currency points (then USh 400 million or approximately $100,000) and the suspension or cancellation of licences to operate in Uganda.
• A new section was inserted to provide for disqualification of persons convicted of 'homosexuality or aggravated homosexuality' from employment 'in a position of authority or care of a child or vulnerable person'.
• A new section was inserted to create an offence of failing to report offences under the bill, punishable by fine of five thousand currency points (then USh 100 million or approximately $25,000) or six months' imprisonment.
• A new section was inserted to create an offence of making false or misleading allegations of offences under the bill, punishable by one year's imprisonment.

Parliament agreed to suspend certain rules to pass the bill without delay.[39] As a result, the last two readings were approved on 21 March by voice vote. The number of MPs present during the debate was 389, which was enough to constitute a quorum. Fox Odoi-Oywelowo and Paul Kwizera Bucyana, who presented the minority report, were the only two MPs to openly oppose the proposal.[1][40] After the debate, Odoi said that he had been 'permitted…as a minority member to have [his] say, the majority have had their way and that's how democracy works',[39] while Speaker Anita Among praised the passage of the draft law and 'thank[ed] [her]self for taking a bold decision'.[39] The National Resistance Movement Chief Whip, Denis Obua, said that foreign states should not 'impose…foreign customs'.[39] Following discussions on the avoidance of duplication of provisions of the Penal Code, the Deputy Attorney General, Jackson Kafuuzi, said that the government was prepared to support the bill.[39]

The final version of the bill, which Parliament passed on 21 March, contains the following provisions:

• The maximum penalty for homosexual acts is life imprisonment, while the maximum penalty for attempted homosexual acts is imprisonment for 10 years. Furthermore, people convicted of homosexuality or attempted homosexuality cannot cannot be employed in childcare facilities even after release.
• The maximum penalty for "aggravated homosexuality" is death, while the maximum penalty for attempted "aggravated homosexuality" is imprisonment for 14 years. Furthermore, people convicted of aggravated homosexuality or attempted aggravated homosexuality cannot cannot be employed in childcare facilities even after release. Aggravated homosexuality is defined as sexual intercourse with a person older than 75 or younger than 18, a person not consenting or unable to consent, or a disabled or mentally ill person. Serial offenders (meaning those who were convicted of homosexuality multiple times) are also defined as "aggravated homosexuals".
• The maximum penalty for minors convicted of homosexuality is imprisonment for 3 years.
• The maximum penalty for knowingly renting premises to people who wish to engage in homosexual acts on such a premise is imprisonment for 10 years.
• The maximum penalty for promoting homosexuality is imprisonment for 10 years.
• The maximum penalty for sharing homosexual pornography with a minor is imprisonment for 20 years.
• The maximum penalty for recruitment or transportation of a child to facilitate homosexual sex is imprisonment for life.
• The maximum penalty for "purpoting to contract a same-sex marriage", as well as for knowingly attending a purpoted same-sex marriage ceremony is imprisonment for 10 years.
• The maximum penalty for failing to report a witnessed homosexual act is imprisonment for 6 months. Lawyers acting in their official capacity are extempt from this provision.
• The maximum penalty for falsely accusing another person of homosexuality is imprisonment for 1 year.