International Human Rights Day
Over the past two decades, parliaments in Africa have increasingly entrenched human rights in their national constitutions. These constitutions require that governments protect and promote human rights. The rights protected in national constitutions are often elucidated in international instruments ascribed to by states. But things are not always as simple, especially when the rights of marginalised and minority groups are at stake. In 2012, campaigns in favour of LGBT rights have often felt like a one step forward, two steps back scenario.
On 20 November 2012, for example, the UN General Assembly adopted an amended Resolution on Extrajudicial, Summary and Arbitrary Executions. Notably, Uganda, Zimbabwe, the United States, Israel and a few other countries abstained from the vote. The Resolution has been particularly controversial for its reference to “sexual orientation” and “gender identity” – but was accepted by the overwhelming majority thanks to the principled arguments of countries such as South Africa. It is hoped that the Resolution will encourage States to act diligently against hate crimes, including those perpetrated against LGBT persons.
Section 6(b) of the Resolution urges all States –
“[t]o ensure the effective protection of the right to life of all persons under their jurisdictions, to investigate promptly and thoroughly all killings, including those targeted at specific groups of persons, such as racially motivated violence leading to the death of the victim, killings of persons belonging to national or ethnic, religious and linguistic minorities or because of their sexual orientation or gender identity, killings of persons affected by terrorism or hostage taking or living under foreign occupation, killings of refugees, internally displaced persons, migrants, street children or members of indigenous communities, killings of persons for reasons related to their activities as human rights defenders, lawyers, journalists or demonstrators, killings committed in the name of passions or in the name of honours, and all killings committed for discriminatory reasons on any basis, to bring those responsible to justice before a competent court, independent and impartial judiciary at the national or, where appropriate, international level and to ensure that such killings, including those committed by security forces, police and law enforcement agents, paramilitary groups or private forces, are neither condoned or sanctioned by State officials or personnel.”
However, despite the increasing recognition of the rights of LGBT, there has also been a corresponding discourse against the rights of LGBT persons. Such arguments against LGBT rights often strike a desperate tone, arguing against the universality of human rights and suggesting provisions which are often incomprehensible – see for example arguments against LGBT rights in Zambia, Zimbabwe and Liberia.
The most current example of a country which is deliberately flouting human rights principles in its legislative process is Uganda. The Ugandan parliament has allowed in its business for the current session, the inclusion of the Anti-Homosexuality Bill – a bill which flouts international law, including the above Resolution. Here is the interesting part – the Uganda Constitution, with provisions similar to those of many constitutions on the continent, specifically states as a foreign policy objective “respect for international law and treaty obligations”. In contrast, the Anti-Homosexuality Bill provides that “any international legal instrument whose provisions are contrary to the spirit and provisions enshrined in the Act, are null and void”. The Uganda Constitution specifically states that “fundamental rights and freedoms of the individual are inherent and not granted by the State”. Thus, the Constitution recognises that you cannot simply legislate away rights. The Constitution entrenches the rights to equality, life, liberty, dignity, freedom from cruel, inhuman and degrading treatment or punishment, privacy, a fair hearing and freedom of assembly and association.
The Anti-Homosexuality Bill violates all of these rights in no uncertain terms. Take for example the simple matter of the right to freedom from cruel and inhuman treatment. The bill imposes the following penalties which are clearly disproportionate to the offence committed:
- Trying to enter into a same-sex marriage – life imprisonment;
- Offering premises to an organisation that defends the rights of LGBT – 5 years and cancellation of registration;
- Being aware of any offence under the Act and failing to report it within 24 hours – 3 years;
- Touching a person with the intent to commit a single act of homosexuality – life imprisonment;
- More than one conviction of acts of homosexuality – death penalty; and
- Attempt to commit an offence of homosexuality – 7 years.
The proposed bill provides for extra-territorial jurisdiction, which means that LGBT persons would be held liable for offences under this law even if such acts were committed in countries where same-sex marriages and same-sex sexual conduct are completely legal. Many provisions in the bill portray a person who commits same-sex sexual acts, as someone who preys on its victims, ignoring the consensual nature of most same-sex sexual acts.
Offences related to non-consensual sexual acts, and abuse of children, are catered for in existing criminal legislation, as are offences against pornography and detention with sexual intent. The current constitution already prohibits same-sex marriages whilst the existing Penal Code imposes life imprisonment for sex between men. If its provisions are so clearly obsolete, why bother with such a bill in parliament?
The fact that parliaments in Uganda and elsewhere have sought harsher sanctions for same-sex sexual acts and same-sex marriages, is often indicative of a parliament in crisis – seeking such laws are used as a proxy to illustrate “moral fibre” to citizens who are often wary of politicians’ promises and disillusioned by their government’s corruption and lack of service delivery. If we allow human rights to be trampled on in the name of politics, we will be encouraging a slippery slope of rights violations. Once everything related to LGBT is entirely criminalised, whose rights will be next on the agenda?
The Uganda Constitution guarantees the right to participate in peaceful activities to influence the policies of government through civil organisations. Ugandan civil society organisations have tried to campaign against the Anti-Homosexuality Bill, but are at risk of persecution by doing so. The Civil Society Coalition on Human Rights and Constitutional Law in Uganda has issued a call for governments and civil society organisations everywhere to voice their concerns about the bill and to urge the Ugandan parliament to reject the bill. Visit their website for more information on how your organisation can assist with the campaign against the bill.