Currently, there are four African countries that operate capital punishment for being gay. These are Mauritania, Niger, Somalia and South Sudan. Credit: Dai Kurokawa/EPA
By Stephanie Musho
NAIROBI, Apr 14 2023 – Imagine your government enacted a law where you and all people of your race or economic status were imprisoned for extended periods, with some facing the death penalty, simply for existing. In Uganda, sexual and gender minorities are facing this possibility should President Yoweri Museveni sign into law a recently passed Anti-Homosexuality Bill that discriminates against people based on their sexual orientation.
This comes almost a decade after a similar law dubbed ‘Kill the Gays’, was repealed on procedural grounds. For years, the issue of LGBTQ+ rights in the country has been a game of psychological and emotional ping-pong where every so often the worst fears come close to becoming a reality with the enactment and repeal of these laws. Consider the renewed anguish that members of the LGBTQ+ community now face with the alarming possibilities that this draconian Bill seeks to make law.
Uganda, Ghana and Kenya all have obligations under international human rights law. These are legally binding and not merely suggestive. By allowing the progression of these anti-LGBTQ+ laws, these governments will have violated the human rights of their own people
Under this legislative proposal, homosexual ‘conduct’ by adults is not recognized as consensual. This would essentially categorize LGBTQ+ persons with sex offenders including rapists. Additionally, persons who simply identify as LGBTQ+ would face a penalty of up to 10 years in prison. The Bill also seeks, among other things, to punish the ‘promotion of homosexuality’ – that extends to family members and allies including the staff of human rights organizations.
The Bill seeks to introduce the offence of ‘aggravated homosexuality’ where offenders would be subjected to mandatory HIV testing to ascertain the status of the offender. If found to be HIV positive or is a serial offender, could face the death penalty. Not only is this discrimination on sexual orientation, but discrimination based on health status. This is illegal, immoral and unethical.
Despite the last execution happening in 2005, Uganda still maintains the laws and structures to carry out execution orders. Currently, there are four African countries that operate capital punishment for being gay. These are Mauritania, Niger, Somalia and South Sudan.
These homophobic ideologies have also gained traction in West Africa, where Ghana’s parliament is also considering an anti-gay proposed law officially known as the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021. If passed, LGBTQ+ persons face between three to five years imprisonment.
Marrying a person that has had gender reassignment surgery would be outlawed and so would cross-dressing. The government could also force ‘’corrective surgery’’ for intersex persons. Additionally, advocates and allies of the LGBTQ+ community could face jail time for offering their support and protection to sexual and gender minorities.
Since the introduction of these Bills, the LGBTQ+ community and allies in Uganda and Ghana have been the subject of numerous hate crimes including harassment and intimidation, arbitrary arrests and assaults. Just recently, a senior ranking government official in Uganda declared that gay people should not be treated in state-owned public health facilities.
In Kenya, a Member of Parliament, Peter Kaluma, has recently submitted to the Speaker of the National Assembly an anti-homosexuality proposed law through the Family Protection Bill. The homophobic Bill has similarities with the ones in Uganda and Ghana. It criminalizes homosexuality and its promotion.
Additionally, the Bill seeks to limit the rights to assembly, demonstration, association, expression, belief, privacy, and employment in child care institutions in respect of homosexuality convicts and those engaged in LGBTQ behavior. If the Bill goes through, LGBTQ+ persons in Kenya will also be unable to adopt children and found families. Worth noting is that the Bill also seeks to ban sexual health & rights, and sexual education.
This came shortly after the Supreme Court in Constitutional Petition 16 of 2019 ruled that the government’s refusal to register an organization of persons within the LGBTQI+ community amounts to violation of the freedom of association and freedom from discrimination. Mr. Kaluma compares the natural act of two consenting adults deciding to love each other, ‘a vice that will destroy the society’. He even likened it to bestiality. Other leaders have been vocal against LGBTQ+ rights including the President – William Ruto, who is heavily influenced by religion.
This opposition extends to the wider ambit of sexual and reproductive health rights. Here there is a coordinated attack on bodily autonomy and choice, driven majorly by foreign organizations. There also remains steadfast opposition within the gender and reproductive justice movement, particularly in Kenya.
It is a fallacy to claim to be an organization working on sexual and reproductive health and/or rights but draw the line at access to contraceptives and comprehensive sexuality education for adolescents; or at access to safe abortion. Similarly, it is logically impossible to be a human rights organization but take issue with LGBTQ+ rights. The underpinning principles and values of human rights stipulate that they are interdependent. The absence of one right negates the fulfillment of another.
Uganda, Ghana and Kenya all have obligations under international human rights law. These are legally binding and not merely suggestive. By allowing the progression of these anti-LGBTQ+ laws, these governments will have violated the human rights of their own people. These include freedom from torture and cruel punishment, freedom from discrimination, freedom of expression, the right to privacy and all other rights that pertain to the security of person.
One might argue that the homophobic wave in Africa is quickly spreading because LGBTQ+ rights are un-African. The opposite is true. In pre-colonial Uganda, the King of the Buganda Kingdom, Kabaka Mwanga II, was an openly bisexual man. He did not face any resistance until the advent of the white Christian missionaries.
Many other African cultures had women husbands where same-sex marriage was allowed. There are 19 African countries where homosexuality is legal. Does it then mean that these countries are less African than the rest? The criminalization of gay rights in Africa is in fact another detrimental product of colonialism on the continent.
Additionally, religious dogma is often advanced to curtail human rights. Despite whichever faith we subscribe to, none is underpinned on hate and intolerance. It is therefore ironic that the proponents of such like legislative proposals are seeking to legalize targeted violence and killings on people not because they have done harm, but merely because they are different.
Regional and international human rights mechanisms must therefore be ready and willing to hold these three African states accountable to their international legal obligations should the proposed homophobic laws pass in the respective jurisdictions.
Member states of the United Nations and other multilateral organizations must follow through with sanctions that are targeted at government officials including the legislators that introduce the inhumane Bills. African states must no longer hide under the principle of sovereignty to claw back on human rights in justifying the mistreatment and deaths of human beings.
Stephanie Musho is a human rights lawyer and a Senior Fellow with the Aspen Institute’s New Voices Fellowship.