The Failed Attempt to Expand the Criminalisation of Consensual Same-sex Relations in Uganda
On 3 May 2021, just as parliament was about to go into recess following the general elections, Ugandan Parliamentarians enacted the Sexual Offences Bill, 2019. This meant that the Bill only awaited Presidential assent before becoming law.
This Bill had been a large focus for LGBT rights activism since its tabling in 2015 because it reproduced provisions of the Penal Code Act criminalising same sex sexual relations. In May 2021, the Sectoral Committee on Legal and Parliamentary Affairs produced its report on the Bill, recommending some changes that greatly expanded the provisions in the Penal Code.
Among other things, this defined “carnal knowledge against the order of nature” to include anal sex, sex with objects, sexual acts between persons of the same gender and sex with animals, as well as expanding the criminalisation to expressly include women.
The Bill was presented for the second and third readings in parliament, and then passed into law with these changes, all on the same day. The passing of the Bill into law in such a fashion was reminiscent of the 2014 passing of the Anti-Homosexuality Bill, 2010, on the very last day before Parliament went into recess and at a time when many NGOs and activists had also gone off for Christmas break.
Immediately after news of the enactment of the Bill was released, activists across the board took on the task of ensuring that the Bill does not get the required presidential assent. This is because, despite a number of positive provisions particularly around the criminalisation of rape and other sexual assaults, as well as the very small win of reducing the penalty for the offence of “having carnal knowledge against the order of nature” from life to ten years’ imprisonment, the provisions expanding the criminalisation of same-sex relations were simply unacceptable.
“Although the Sexual Offences Bill was expected to address sexual violence against all persons, it fell short by failing to protect LGBTI persons and instead creates further layers of persecution through expanded criminalisation. ”
False hopes: The Sexual Offences Bill and dreams of decriminalisation
The Bill begun life as a private members bill in 2015 and was later reintroduced as the Sexual Offences Bill, 2019. It proposed a comprehensive review of Uganda’s sexual offences laws, including the provision on “unnatural offences”, which has traditionally been used to criminalise consensual same-sex relations.
Clauses 16 and 17 of the 2015 Bill reproduced section 145 of the Penal Code Act and proposed to widen its provisions by expressly defining carnal knowledge against the order of nature to include anal sex and expressly criminalising all sexual activity between persons of the same gender, thus effectively extending criminalisation to women as well. That version of the Bill also maintained the penalty of life imprisonment for offenders.
Human Rights Awareness and Promotion Forum (HRAPF), in consultation with Sexual Minorities Uganda (SMUG) and other LGBTI groups, made submissions to Parliament recommending that the new provisions not be adopted on several human rights and public health grounds.
These groups argued instead that the sections of the Penal Code Act criminalising consensual same sex sexual relations simply be scrapped – essentially a prayer for the miracle of decriminalisation through legislation. Not surprisingly, this was not meant to be.
The grim reality: The Sexual Offences Bill 2019 as passed and further criminalisation of consensual same-sex relations
In many ways, the version of the Bill that was passed by parliament was even worse than what had initially been proposed in 2015. Clause 1 of the Bill defined a “sexual act” to mean “the penetration, however slight, of a person's sexual organ by another person’s sexual organ”, and defined sexual organs exclusively to mean a vagina or a penis, definitions that are central to the definition of nearly all offences in the Bill.
This definition clearly excluded all sexual contact that is not penile-vaginal penetrative sex, and lumped all other sexual contact together as “unnatural offences” and then proceeded to criminalise the same.
One of the greatest absurdities produced by this was that victims of rape (and defilement) where the perpetrators’ actions do not involve penile-vaginal penetration would not be protected, and so rape involving penetration of the anus or the mouth or using an object would at best be considered sexual assault or unnatural offences, with much lighter penalties. There would thus be inadequate protection under rape laws for such victims, particularly if they happened to be LGBTI as opposed to their heterosexual counterparts.
Clause 13 on unnatural offences defined the offence to include penetration of “another person’s anus using a sexual organ, allowing such penetration to happen, and penetration of one’s own or another person’s sexual organ with an object, as well any sexual activity with a person of the same gender.
An even more disturbing dimension of this provision is that it also covers sexual activity with an animal, drawing no distinction in definition, scope or penalty between consensual same-sex sexual relations and rapes that occur otherwise than by penile-vaginal penetration. It also conflates bestiality with consensual same sex relations.
The focus on anal penetration, while removing the ambiguity that exists in the Penal Code provisions, at the same time exposed suspected LGBTI persons to forced anal examinations, thus legitimising this evidentially valueless and yet inhumane and degrading practice.
Although the Sexual Offences Bill was expected to address sexual violence against all persons, it fell short by failing to protect LGBTI persons and instead creates further layers of persecution through expanded criminalisation. Some of its provisions on rape and the protection of children from sexual violence would have been a welcome improvement on the current law, however, the Bill was simply too harmful as it introduced new dimensions to the criminalisation of consensual same-sex sexual relations that were clearly discriminatory on the basis of sex and sexual orientation and/or gender identity, and would have contributed to further harm and violence against LGBT persons.
In view of these grave human rights harms, it was welcome that, on 3 August 2021, President Museveni rejected the Sexual Offence Bill 2019. He returned it to parliament on the basis that it covers offences already provided for in the Penal Code. For now, the Bill is not formally before Parliament since it lapsed with the last Parliament, but what is clear is that this was not the last attempt to further criminalise consensual same-sex relations.
