In concert with actions in Africa, Europe and Canada, human rights activists in NYC descended on the Ugandan Mission Nov. 30 to expose Rebecca Kadaga, Speaker of the Ugandan Parliament, as a human rights abuser. Signs read, "Shame On Kadaga, Gays 'R Humans Too!" and, "Stop Gay Genocide. Arrest Kadaga Now!" expressing distain for her intention to pass the "kill the gays" bill by Christmas. These and the myriad of other interventions have apparently stopped the bill this legislative session, which adjourned Friday, but it remains on the agenda and can be picked up in February right where they left off. So the unexplored question remains: If her incitement has not already done so, would the passage of this bill place Ms. Kadaga among the few women in history to perpetrate a crime against humanity?
Women are usually the victims of these most egregious of crimes, so it's particularly disturbing that female leadership in Africa would make its mark in such a way. Ms. Kadaga, who became Speaker in May 2011, is a lawyer educated at Makerera University, with a diploma in women's law from the University of Zimbabwee. She is no doubt an expert on the African Charter on Human and Peoples' Rights, which prohibits this action against gays; the International Covenant on Civil and Political Rights, which is clearly being violated; the International Criminal Court treaty, which applies here; and other applicable laws. So why would she press this knowing that killing a group exposes her to criminal liability on the world stage?
Some are calling upon President Museveni to veto any such bill, but lawyers familiar with Ugandan parlimentary procedure say the president's reaction is secondary, because the support in the legislature is broad enough to override his objections regardless. So this means Ms. Kadaga is the woman wielding the power of the axe. She is stirring this debate intentionally. And she could end it. But does the advancement of this bill or its implementation constitute genocide or a crime against humanity? A strong case can be made that it does.
This is a very strong assertion, and one not to be made lightly. But for too long the persecution of LGBT people has been overlooked, as they are systematically and inhumanely abused, tortured and killed thanks to government policy and politicians. Women in Africa, in particular, should call out Ms. Kadaga, who tarnishes their global image with promises of death to gays as a Christian act, like the male tyrants who have denied Africa its glory. One need only imagine how the world would react if she were calling for the murder of non-Christians to admit that there is a double standard when it comes to the lives of LGBT human beings under the laws designed to protect against the extermination of disfavored groups based on identity -- which is exactly what the genocidal bill seeks to do.
Ruth Messinger, president of the American Jewish World Service, recently compared the Uganda bill to Germany's anti-Jewish laws of the 1930s and called for greater international intervention from President Obama, quoting Rabbi Abraham Joshua Heschel, who said: "Few are guilty, but all are responsible." She added, "In other words, our silence equals death for others."
Likewise, Archbishop Demond Tutu, a highly respected religious leader, has likened the persecution of gays to that crime against humanity known as apartheid. He wrote powerfully that, consistent with his work against persecution based on race and gender, "I cannot keep quiet while people are being penalized for something about which they can do nothing -- their sexuality. To discriminate against our sisters and brothers who are lesbian or gay on grounds of their sexual orientation for me is as totally unacceptable and unjust as apartheid ever was."
But is Speaker Kadaga's law, if implemented, or perhaps even if passed, a crime against humanity, or even genocide? What constitutes genocide and a crime against humanity was defined in the creation of the International Criminal Court (ICC), which has the power to indict and issue arrest warrants for Ms. Kadaga and her cohorts if need be. The provisions of the ICC that would apply to the persecution and elimination of gays in Uganda are contained in Part 2, Articles 6 and 7, as follows:
For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
(d) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
(h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime...
The "kill the gays" bill clearly qualifies under many of these criteria. The threat of arrest and death is already inflicting "severe pain and suffering." The criminalization of being gay or having any association with gay people is "contrary to international law by reason of the identity of the group." The law would forcibly displace any gay person who could escape, though most cannot. Their imprisonment would be "in violation of fundamental rules of international law." And their murder would be just that. In fact, the entire point of the law is to create "group conditions of life calculated to bring about its physical destruction in whole or in part."
Some argue that the crafters of these laws were intent on excluding persecution of gays. To do this they named "group" persecution very specifically as pertaining to "nationality, ethnicity, gender and religion." Likewise, to avert the extension of "gender" to cover gays, the term was defined this way: "For the purpose of this Statute, it is understood that the term 'gender' refers to the two sexes, male and female, within the context of society. The term 'gender' does not indicate any meaning different from the above."
But these laws were clearly intended to stop the persecution of groups, regardless of attempts to exclude gays. And the language is broad enough to cover Speaker Kadaga's bill, if under no other provision than that covering "persecution against any identifiable group or collectivity on political, ... cultural ... or other grounds that are universally recognized as impermissible under international law." Again, efforts were made to limit "other grounds" to those "universally recognized as impermissible," which is legalese meaning that if Africa doesn't agree, it's not "universal." But the persecution is at least political, because the laws first and foremost prevent LGBT people from assembling for political purposes to block them from fighting for their own lives, and threatens death to those who harbor or try to help them. And this violates other international laws that are clearly universal.
So the idea that the ICC statute was crafted with qualifiers as to what kinds of group persecution it applies to does not change the fact that gay people are a group being targeted for murder and persecution in the same way as "national, ethnical, racial or religious" groups. Therefore, the world's moral imperative to address this crime is the same. And if there were homophobic sentiments underlying the ICC statute, this is just further evidence of how bad the situation is for gay human beings. It is not an excuse to fail to use this law in every imaginable way to try to protect gay Africans.
Admittedly, gay people are unique among groups, because we exist as individuals within every other group, nation, religion and people. But our persecution is categorical and based on our shared trait and identity as same-sex-loving beings. As such, the intention of Ms. Kadaga to ignore international law, basic human dignity and the teaching of her own religion must be exposed for what it is: a plan to persecute gay Ugandans out of existence, to create such fear and societal animosity as to deny their soul's safe haven on earth, and to engender such animosity that families betray their own brothers and neighbors banish their own sisters. If this is not a crime against humanity, then it is time to rewrite the definition.
In any event, the ICC should investigate Ms. Kadaga and her cohort, MP David Bahati, who filed the bill right away. If they were actively calling for the death of any other group, this would be happening already. So where does the responsibility rest for the first Ugandan killed under this bill? Or for David Kato, the gay Ugandan activist already murdered due to this incitement? It rests with those who do nothing today. And it is time both African leaders and the world community ended the double standard in prosecuting gay human rights violations and started acting consistent with what we all know to be the duty to protect this most vulnerable of groups.
As the world enters a showdown with Africa on gay rights, activists have set up a new Facebook page to follow all the actions against this bill worldwide and provide legal analysis demonstrating the bill's unconstitutionality and violations of international law: Gay Ugandans: The World Stands With You. The seriousness of this matter is clear from the degree of activity, including petitions from 10 different groups, ranging from the Ugandan Civil Society Coalition for Human Rights and Constitutional law, which lists over 20 African groups on a document decrying the law; the Center for Constitutional Rights, which is suing Scott Lively, the U.S. evangelical whose anti-gay activities in Uganda may have encouraged the creation of this bill; the Association for Women's Rights in Development; Public Services International; Amnesty International; and many others, including the governments of England and Canada.
The slogan of the new page is: "Never Again. Not Now. And No Way Uganda." But only time will tell whether the world's response was enough, soon enough, or whether yet another crime was foretold and ignored. It's quite possible that the mere initiation of an investigation by the ICC prosecutor could avert the impending atrocity. And launching that today would be none too soon, because the killings have already begun, the witch hunt is soon to ensue, and gay people are already living in abject fear. What a Christmas.
This piece is endorsed by the following Ugandan citizens, human rights lawyers and religious leaders: anonymous gay Ugandan citizens; Virginia Setshedi, human rights activist, Johannesburg, South Africa; Azubike Onuora-Oguno, human rights lawyer, Nigeria; Adda Angula, human rights lawyer, Namibia; Metropolitan Archbishop Marcis Heckman, the Reformed Catholic Church; and Peter Schey, president of the Center for Human Rights and Constitutional Law, Los Angeles, Calif.
Follow Todd Fernandez on Twitter: www.twitter.com/AEB2010