HRW: Uganda’s Parliamentary Committee Backs Retaining Death Penalty and Other Expanded Penalties

Jim Burroway

May 12th, 2011

http://www.boxturtlebulletin.com/2011/05/12/32790

Human Rights Watch has issued a press release saying that they have seen the report from Uganda’s Legal and Parliamentary Affairs Committee, which held hearings on Friday and Monday on the Anti-Homosexuality Bill. Despite denunciations from human rights groups and the U.S. State Department, the committee’s report with its recommendations was forwarded to Parliament Speaker Edward Ssekandi on Tuesday, which allowed the bill to show up on Parliament’s agenda on Wednesday. The bill was scheduled to go through its second and third reading as the last item on the agenda. It would have been during the second reading when the committee’s report would be revealed and recommendations discussed and either adopted or rejected. Once any and all amendments have been considered, then the bill would undergo its third reading in its final form for a vote.

Despite erroneous news reports to the contrary, the bill has not been amended since its introduction in October, 2009. To understand the committee’s recommendations, it’s important to review what the bill would do in its current form. It passed, it would:

* Clause 1: Expand the definitions for homosexual acts, making conviction easier. Current law requires evidence of penetration. The new law would expand the definition of homosexual activity to”touch(ing) another person with the intention of committing the act of homosexuality.” Touching itself is defined as “touching—(a) with any part of the body; (b) with anything else; (c) through anything; and in particular includes touching amounting to penetration of any sexual organ. anus or mouth.”

* Clause 2: Affirm Uganda’s lifetime imprisonment for those convicted of homosexuality.

* Clause 3: Define a new crime of “aggravated homosexuality” for those who engage in sex with someone under the age of 18, who are HIV-positive, who is a “repeat offender” (so broadly defined as to include anyone who has had a relationship with more than one person, or who had sex with the same person more than once), or who had sex with a disabled person (consensual or not). The penalty for “aggravated homosexuality” is death by hanging. It also requires anyone arrested on suspicion of homosexuality to undergo HIV testing to determine the individual’s qualification for prosecution of “aggravated homosexuality.”

* Clause 4: Criminalize “attempted homosexuality” with imprisonment for seven years.

* Clause 5: Provide for compensation to the “victim” of homosexuality, which would provide incentives for even a consensual partner in a relationship to later claim “victim” status in order to save his or her own life and freedom by pressing charges against the other partner.

* Clause 6: Guarantee anonymity to people making accusations.

* Clause 7: Criminalize “aiding and abetting homosexuality” with seven years imprisonment. This provision could be used against anyone extending counseling, medical care, or otherwise providing aide gay people.Criminalize “promoting” homosexuality with fines and imprisonment for between five and seven years. This overly-broad provision would criminalize all speech and peaceful assembly for those who advocate on behalf of LGBT citizens in Uganda . It would also criminalize any attempt to repeal or modify the law in the future, as those moves could also be seen as “promoting” homosexuality.

* Clause 8: Criminalize the conspiracy to commit homosexuality “by any means of false pretence or other fraudulent means with seven years imprisonment.

* Clause 9: Criminalize “procuring homosexuality by threats” (No penalty specified).

* Clause 10: Criminalize “detention with intent to commit homosexuality” with seven years imrisonment.

* Clause 11: Penalize people who run “brothels” with five to seven years imprisonment for renting to LGBT people. However, it defines a brothel as “a house, room, set of rooms or place of any kind for the purposes of homosexuality” instead of the more normal definition of a place where commercial sex work takes place. Anyone’s bedroom would be a “brothel” under this definition, placing landlords and hotel owners in jeopardy for renting to LGBT people.

* Clause 12: Criminalize the act of obtaining a same-sex marriage abroad with lifetime imprisonment.

* Clause 13: Criminalize “promoting” homosexuality with fines and imprisonment for between five and seven years. This overly-broad provision would criminalize all speech and peaceful assembly for those who advocate on behalf of LGBT citizens in Uganda . It would also criminalize any attempt to repeal or modify the law in the future, as those moves could also be seen as “promoting” homosexuality.

* Clause 14: Requre friends or family members to report LGBT persons to police within 24-hours of learning about that individual’s homosexuality or face fines or imprisonment for up to three years.

* Clause 15: Trials for “Agrivated homosexuality” would be reserved for Uganda’s High Court. All other can be tried by magistrates.

* Clause 16: The extra-territorial clause extends this law to all Ugandans living or visiting abroad.

* Clause 17: Persons living abroad are made subject to extradition.

* Clause 18: Void all international treaties, agreements and human rights obligations which conflict with this bill.

There has been much speculation about what the committee’s report recommends. HRW says that the recommendations amount to minimal tweaks, plus a whole new “crime” that wasn’t included before:

The committee proposes amendments to the October 2009 draft bill. Despite the suggestion by the bill’s author, David Bahati, that the death penalty could be deleted from the legislation, the committee recommends retaining it. The committee proposes rewording the provision to align with the current Penal Code provision on “aggravated defilement,” which is punishable by death.

Some recommendations integrate concerns raised by Ugandan and international human rights groups. The committee states that provisions criminalizing “attempted” homosexuality should be removed, rightly stating such allegations would be very difficult to prove, Human Rights Watch said. The committee also recognizes that provisions requiring anyone who knows of homosexual conduct to report to police within 24 hours would create “problems especially to professionals whose ethics include confidentiality in order to be able to carry out their functions like Doctors, Lawyers and Counselors.”

The committee also suggests removing the clauses on extra-territorial prosecution of homosexuality and on nullifying Uganda’s international human rights obligations to the extent that they contradict the Anti-Homosexuality Bill.

The committee recommends the creation of an additional crime, “conduct[ing] a marriage ceremony between persons of the same sex,” punishable by three years in prison, which was not in the original draft. It also suggests deleting the crimes of “aiding and abetting homosexuality,” and “conspiracy to commit homosexuality,” but including a penalty of seven years in prison for “procuring homosexuality by threats.” The committee did not comment on the current proposed provision criminalizing the “promotion of homosexuality,” which would jeopardize the legitimate work of national and international activists and organizations working to defend and promote human rights in Uganda.

Warren Throckmorton has looked into Uganda’s constitution and Rules of Procedures to understand what is at stake when Parliament reconvenes tomorrow morning:

Apparently, President Museveni cannot directly veto the AHB. I confirmed this with two sources today and read through their Rules of Procedureand Constitution. He can send it back or refuse to assent to it (although it would be the first time he has ever done so) but he cannot directly stop it. If he refuses to assent to it, Parliament can either turn around and pass it or they can wait 30 days for it to become law. It can either pass or fail tomorrow. If it comes up and fails then it is done in present form. If it doesn’t come up tomorrow, then a MP can make a motion to continue all business forward. In addition, I heard today, but cannot confirm that if no motion is passed to continue all business, then the new incoming Speaker could direct the committees to pick up where they left off with unfinished bills from the last Parliament. We apparently could be monitoring this particular AHB until at least May 19.