Uganda: Unpacking the Anti-Homosexuality Act and its impact, one year on
Same-sex relationships remain criminalised in the majority of countries in Africa. Yet recent years have seen a surge of new policy efforts in several regions to stifle members of the LGBTQIA+ community and allies. During Pride Month 2024, ALT Advisory and Power and Associates are spotlighting some recent law and policy developments on the continent – both positive and negative –in allyship with members of LGBTQIA+ communities. This is the first in our Pride 2024 Series.
In May 2023, Ugandan President Yoweri Museveni signed the Anti-Homosexuality Act into law, following its final passing through Parliament with overwhelming support.
Human rights activists and institutions the world over have characterised the Act as ‘draconian’ and one of the most stringent anti-LGBTQIA+ pieces of legislation on the planet.
The Act criminalises same-sex conduct, which may result in life imprisonment. The Act also includes an unseemly provision relating to “aggravated homosexuality”, which refers to same-sex conduct involving, for example, someone under the age of 18 years old, older than 75 years, or a person with a disability. Conduct falling under this bracket is punishable by death. The Act also creates various criminal penalties for persons who associate with the LGBTQIA+ community, such as knowingly allowing any premises to be used to “commit” any offences under the Act. The Act also criminalises the “promotion of homosexuality”, for example by publishing material which encourages any of the prohibited conduct, or by operating an organisation which promotes “normalisation” of the prohibited conduct.
Another one of the many concerns raised with respect to the Act is evidence collection of sexual encounters, outside of a complaint lodged with the Police. The Human Rights Awareness and Promotion Forum (HRAPF), an independent research and advocacy group, expands on this in its analysis of the Act.
Context
Uganda’s human rights track record is complex and the ongoing impact of fundamentalist ideologies, including colonial influences, in shaping anti-LGBTQIA+ policies in Africa is well documented. Historically, Uganda’s Penal Code from 1950 had already criminalised same-sex relationships. Notably, article 21 of the 2005 Constitution prohibits discrimination on the basis of sex while article 31(2a) prohibits same-sex marriage. In 2014, Uganda’s Constitutional Court struck down a similar Act on procedural rather than substantive grounds – because it was passed by Parliament without quorum.
Through the decades, there has been a general stigmatisation of LGBTQIA+ persons outside of the law. For example in 2010, a local newspaper published the names and images of 100 people alleged to be LGBTQIA+, resulting in public attacks and hate speech incidents. Opinion polls have found that negative views of LGBTQIA+ people are widespread.
Court upholds the Act
Shortly after the Anti-Homosexuality Act became law, academics and human rights activists petitioned the Constitutional Court to overturn the Act on the basis that it contravenes Uganda’s commitments under international law. The Constitutional Court consolidated the petitions, and in April 2024 it issued a judgment which declined to nullify the Act.
Deputy Chief Justice Richard Buteera noted in the ruling:
“We are aware that society’s views of the subject of same-sex relationships have been changing with the passage of time the world over. However […] the evidence before this court indicates that the view reflected in the 2005 Constitutional Review exercise that the heterosexual Ugandan family demands protection, had not fundamentally changed as at the enactment of the Anti-Homosexuality Act.”
The Constitutional Court did strike down provisions of the Act which infringe on the right to health and the right to an adequate standard of living by denying LGBTQIA+ persons access to healthcare services, including HIV treatment.
Assessing the impact
A year after the Act became law, the full ramifications are still emerging. However, even before the Bill had been enacted there were reports of members of the LGBQTIA+ community fleeing the country.
Internationally the passing of the Act drew widespread condemnation from human rights groups, as well as several governments, though the response from other African states was muted. The World Bank announced in August 2023 that it would suspend new financing to Uganda, and the US government removed Uganda from certain economic assistance programmes. The US government also updated its travel advisory for Uganda cautioning travellers of the risk to persons perceived to be LGBTQI+, alongside other security concerns such as crime and terrorism.
Human rights advocates have documented a spike in attacks on LGBTQIA+ persons, with a report finding a total of 1031 violations between September 2023 and May 2024, including 69 arrests (47 leading to charges under the Act), and 309 acts of violence and 434 evictions against LGBTQIA+ persons. In a submission to the African Commission on Human and People’s Rights, Amnesty International reported accounts of forced HIV testing and invasive examinations. Clinics providing HIV/AIDS treatment have reported a downward turn in patients, possibly due to the fear of being outed.
The passage of the Act appears to have inspired ‘lookalike’ legislation in several other countries, with Ghana’s Parliament passing a similar Bill in 2024, and draft bills under consideration in Kenya, Niger, and Tanzania.
In-country organisations and networks
For further resources and information, here are a few of the organisations continuing to work to protect LGBTQIA+ rights in Uganda:
- The Human Rights Awareness and Promotion Forum (HRAPF) runs an access to justice programme, conducts research and advocacy, and focuses on community capacity enhancement, as well as institutional development. Website: https://hrapf.org/
- Freedom and Roam Uganda (FARUG) conducts research and runs a drop-in centre offering a host of services including HIV and STI screening and management, psychosocial support, and general counselling services. Website: https://faruganda.org/
Further information
- The Anti-Homosexuality Act is accessible here.
- The Constitutional Court judgment of 3 April 2024 is accessible here.
- End GBV Africa, an ALT Special Project, maps law and policy trends relating to GBV: endgbv.africa
The information contained in this note is for general guidance on matters of interest and does not constitute legal advice. For any enquiries, please contact us at [email protected].
