THE BLOG
01/30/2014 06:14 pm ET Updated Feb 02, 2016

Expanded Criminalization of Homosexuality in Uganda: A Flawed Narrative

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Proponents of Uganda's Anti-Homosexuality Bill, which was passed by Parliament late last year but is still with the President, often try to rationalize expanded criminalization of homosexuality on a number of grounds. Given the seriousness of the consequences of this proposed law in terms of potential human rights violations and negative impacts on public health and governance, these so-called justifications should be subjected to heightened scrutiny.

To this end Sexual Minorities Uganda (SMUG) has recently published a report that, with the aid of extensive historical, anthropological and comparative social data from other sub-Saharan African states, sheds light on the true nature of these preconceptions or myths with the aim of informing the debate in Uganda and the wider world.

To begin with that most tenacious of myths that homosexuality is somehow un-African: Historical and anthropological evidence shows that same sex relationships existed throughout Africa, including in the territories that now make up Uganda, long before colonization by Western powers. There was no particular stigmatization of same-sex desire; indeed in many cultures it was part of accepted normal relationships between people. Current homophobic attitudes date from the colonial period, and are strongest in those countries that were once part of the British Empire.

Uganda's laws criminalizing homosexuality stem entirely from laws introduced by the British colonial administration in 1902 and 1950 in an attempt to counter what was seen at the time as dangerous sexual tendencies among Ugandans. The concept of Ubuntu (or "African humanism") has been interpreted by respected figures, such as Archbishop Desmond Tutu, as extending tolerance towards and acceptance of other sexualities, including lesbian, gay, bisexual and transgendered people. Consequently, it is more correct to see homophobia as alien to Africa, rather than homosexuality.

Another justification derives from the tendency to view homosexuality as either a mental disorder or some sort of mutable behavior that can be altered. This flies in the face of the overwhelming opinion of the psychological and psychiatric professions in Africa, and across the globe, which has affirmed that homosexuality is not a mental disorder, but a natural variant of human sexuality. Nor is it considered "abnormal," as President Museveni suggested in his recent letter to the Speaker of the Ugandan Parliament concerning the proposed law. The label "mental disorder" derives not from scientific fact but personal feelings of hostility towards homosexuality simply because it is different.

Furthermore, the overwhelming medical opinion concerning so-called conversion or reparative therapies, which claim to change the sexual orientation of homosexuals, is that, at best, they do not work, and at worst, they are damaging to individuals. Therefore the notion that homosexuality can be consciously altered is completely without merit.

Ugandans are told that without expanded criminalization of homosexuality the traditional African family unit will be destroyed. Underlying this assumption is the idea that homosexuality is "contagious," that children will somehow be recruited into the so-called "homosexual lifestyle," unless tough criminal sanctions are in place. Putting aside the issue of whether what is in effect a Western construct of the family could be conceived of as "traditionally" African, countries such as Niger, Mali, Burkina Faso and Congo, which have never criminalized homosexuality, do not have ever-increasing populations of gay men and lesbian women, and the traditional African family unit which forms part of their respective societies is very much alive and well. Therefore, expanded criminalization can have no impact on the traditional family unit.

Africans are religious people, and another accusation aimed at homosexuality is that acceptance will lead to a decline in religion. Yet, data across Africa indicate that there is no basis in the belief that expanded criminalization is needed to maintain strong religious faith. What's more, a number of religious leaders, including heads of the Southern African Anglican Communion, and Archbishop Desmond Tutu in particular, as well as the Vatican, condemn the persecution of sexual minorities through expanded criminalization. Whatever one's religious or moral view about diverse sexualities, those views are separate and distinct from the domain of criminal law, which should only concern itself with the protection of members of society from harm, as in the case of non-consensual sex, coercive sex, sex with minors, incest, sex trafficking and the sexual exploitation of children.

And then there is the issue of HIV/AIDS. Contrary to what the supporters of the Anti-Homosexuality Bill maintain, all indicators suggest that the criminalization of same-sex sexual conduct actually increases the risk of HIV infection, not just among men who have sex with men (MSM) but in the wider society. One of the underlying principles of successful HIV programming is non-discriminatory access to sexual health services. Given the overwhelming medical and scientific evidence, promulgated by international organizations such as UNAIDS, which demonstrates criminalization of homosexuality has severe negative consequences for HIV programs -- and therefore public health in general -- the expanded criminalization in the proposed law can only further exacerbate the situation in Uganda. To counter this, access to healthcare must be on a non-discriminatory basis.

Another reason for promoting the proposed law is that it is necessary to protect children and minors from sexual abuse and transactional sex. Sex with minors, who are by definition under the age of consent, should be criminalized. Yet, current legal provisions in Uganda distinguish penal sanctions between victims based on their gender. Even with legal safeguards in place to protect the girl-child from sexual abuse, for example, it remains one of the most common crimes in Uganda. This is why prominent opponents to the proposed law from within Uganda agree in principle with the aim to protect the young and vulnerable but recognize that this must extend to all situations of abuse, whether the abuse is opposite-sex or same-sex in nature. The criminalization of adult, consensual same-sex intimacy does nothing to address these concerns. Rather it would be better to amend current sexual offence laws to ensure offences and sentences are gender neutral, implement a system of mandatory reporting of suspected child abuse, and address the major risk factors associated with child sexual exploitation, including poverty.

One final commonly held perception is that without expanded criminalization of homosexuality, LGBTI people will be able to assert rights or privileges beyond those that are provided for in the Constitution of the Republic of Uganda. This misconception is as a result of a misunderstanding of the nature of the rights provided for in the Constitution. Rights are inherent and are not granted by the state, and one need be of no particular sexual orientation to enjoy them. So the gay and lesbian community cannot accrue any special privileges beyond the rights they enjoy as Ugandan citizens.

Recent reports have indicated that President Museveni will present to Parliament his own amended version of the Anti-Homosexuality Bill. We can only hope it isn't informed by the same preconceptions that forged the original bill, and that any new legislation actually deals with the real issues of child abuse and the spread of HIV in a sensible and effective way, and ignores the prejudice and myths.