Stigmatization and Criminalization of LGBT Persons in Uganda during the COVID-19 pandemic

Stigmatization and Criminalization of LGBT Persons in Uganda during the COVID-19 pandemic

Young Park is a JD Candidate and International Law and Human Rights Fellow at New York University School of Law. Currently she is an intern at the International Commission of Jurists, Africa Regional Programme.
Onen Cylus is an LLB finalist at Makerere University. He is also currently working as an intern with the International Commission of Jurists, with a passion for research and human rights activism.

From the outset of the pandemic, the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity warned that because lesbian, gay, bisexual and transgender (LGBT) persons are “disproportionately represented in the ranks of the poor, people experiencing homelessness, and those without health care”, they are disproportionately at greater risk to and during the COVID-19 pandemic than the rest of the population.

As the International Commission of Jurists has observed globally, and most recently in Colombia, South Africa and Malaysia, greater risk of contracting COVID-19 and greater exposure to risks associated with the pandemic have increased social stigma against LGBT persons and, in turn, the risk of criminal sanctions arising from their real or purported sexual orientation, gender identity or expression. Both stigma and the risk of criminalization act as barriers to accessing all healthcare services, including those necessary to survive the COVID-19 pandemic.

The situation in Uganda provides a vivid illustration of the toxic combination between social stigma against and the criminalization of LGBT individuals, and shows that, in this context, States can manipulate what should be public health measures to further marginalize LGBT persons.

On 31 May 2021, 44 people were arrested at an LGBT shelter in Nansana, Uganda. Upon their arrest, three were released on bail, while the rest were held for days until a bail hearing where 39 people were additionally granted bail and released pending trial. At the time of writing, information about the two remaining individuals who had originally been arrested was not available. The Ugandan police maintained the arrests were not related to the sexual orientation of the individuals concerned, and charged them with committing a “negligent act likely to spread infection of disease”, in violation of Section 171 of the Penal Code Act.

While the Ugandan police have pointed to the COVID-19 regulation limiting public gatherings to no more than ten people, there are no orders that restrict the number of residents in a shelter. Further, activists and rights groups have reported that 17 among those arrested and detained were subject to “rectal examinations”. In this context, such examinations serve no purpose and are a gross violation of the rights to dignity, privacy and freedom from torture and other cruel, inhuman and degrading treatment or punishment.

Anti-LGBT legislation in Uganda and violent enforcement

Widespread homophobic sentiment in Uganda was, once again, embedded into law on 3 May 2021, when the Ugandan Parliament passed the Sexual Offences Bill (the “Bill”). The broad purpose of the Bill is, allegedly, to combat sexual violence and address defects in outdated legislation, like the Penal Code Act, including adding new offences such as sex tourism and child marriages.

Notwithstanding its stated intention of “addressing defects in outdated legislation”, the Bill renews the criminalization of consensual same-sex sexual acts, even adopting the same stigmatizing, vague, irrational and downright offensive language of Sections 145 and 146 of the Penal Code Act. In Clause 11 on “Unnatural offences”, the Bill criminalizes “sexual act[s] with another person contrary to the order of nature”, as an offence liable to “imprisonment for ten years”. Expressing satisfaction in reinstating what Ugandan authorities appear to regard as a “ban on homosexuality”, Jacob Oboth-Oboth, chairperson of the Legal and Parliamentary Affairs Committee, indicated before Parliament that sexual acts between persons of the same gender are considered “unnatural offences”.

The Ugandan President, Yoweri Museveni, must still formally sign the Bill before it becomes enforceable as law, but this is likely to be only a matter of time. President Museveni has not only publicly made homophobic statements, but has also previously signed the Anti-Homosexuality Act in 2014, which outlawed consensual same-sex sexual acts and made those convicted of the offence liable to imprisonment for life. The 2014 Act is not in force today only due to a failure to comply with procedural requirements for the enactment of the legislation.

While the 2014 Act was struck down in the Ugandan Constitutional Court on procedural grounds, the Act still managed to incite animosity against LGBT individuals, leading to an increase in violence and other discriminatory acts against the LGBT community. Similarly, violence and homophobic sentiment directed specifically at LGBT persons and organizations has substantially increased since the introduction of the Sexual Offences Bill in Parliament in 2019, further encouraged by homophobic statements made by Ugandan officials.

In October of 2019, for example, Ugandan police arrested 16 LGBT activists at a sexual health charity where they worked and lived. The activists themselves had called the police for protection against a menacing mob that had surrounded the office and was threatening to break in. After dispersing the mob, the police interrogated the activists and, using homophobic insults, questioned them about their gender identity before eventually arresting  them. The police then searched the office and shelter, confiscating condoms and lubricants, and charged the occupants with “carnal knowledge against the order of nature” under Section 145 of the Ugandan Penal Code, the predecessor to Clause 11 of the Sexual Offenses Bill.

Exacerbation of anti-LGBT violence and law enforcement during the COVID-19 pandemic

The pattern of harassment of LGBT persons in Uganda has intensified since the onset of the COVID-19 pandemic. As the executive director of Sexual Minorities Uganda, Frank Mugisha, put it “the community already faces so much discrimination but now with this coronavirus, things are getting worse… we’ve had reports of LGBTQI members being blamed for the virus”.

In several instances throughout the last year and a half, the Ugandan police have manipulated COVID-19 response measures to arbitrarily detain and further violate the human rights of LGBT people in Uganda.

In April 2020, while arresting over twenty LGBT people gathered at a shelter in Kampala, purportedly for violating social distancing rules, witnesses reported that the police confiscated everyone’s phones and shoes, bound everyone’s hands with rope and marched the detainees barefoot to a nearby police station.

After a similar raid on an LGBT shelter in May 2020, the police charged those arrested with conducting an act likely to cause the spread of an infectious disease and again used COVID-19 regulations as an excuse to restrict access to lawyers and to deny release on bail.

Violation of international human rights law and standards and the impact on health

Although police authorities have denied any relation between these arrests and the sexual orientation of the detainees, the police have repeatedly conducted forced anal examinations, a procedure that, in this context, is medically worthless, has no evidentiary value and, among others, violates detainees’ right to freedom from torture or other cruel, inhuman or degrading treatment or punishment under international human rights law.

In 2016, the Court of Appeal in neighbouring Kenya dismissed the evidentiary value of such examinations, finding them to be unreasonable, unnecessary and unconstitutional. Within Uganda’s own Constitution, Article 24 creates an obligation for the State to protect against inhuman and degrading treatment. Subjecting detainees to forced anal examinations not only proves the charge of violating COVID-19 regulations to be merely a cover, but also violates Uganda’s international human rights law obligations, as well as the country’s domestic obligations outlined in the Ugandan Constitution.

Uganda’s homophobic legislation and use of emergency COVID-19 measures to harass, arbitrarily arrest, and subject members of the LGBT community to violence violates international human rights law and standards. Article 26 of the International Covenant on Civil and Political Rights, as the UN Human Rights Committee has authoritatively interpreted it, guarantees the right to equal protection of all persons before the law and prohibits discrimination based on sexual orientation.

By labelling homosexuality as an “unnatural offence” and defining it as “against the order of nature,” the Sexual Offences Bill stigmatizes consensual same-sex sexual acts and the LGBT community. Stigmatization and discrimination are significant barriers that discourage people from accessing necessary healthcare services. Such barriers to healthcare are particularly dangerous and life-threatening during a global pandemic.

A call to action for Uganda in light of Pride Month

Pride Month is meant to be a time of celebration and encouragement for all people to be themselves. However, in Uganda, Pride has become a time of heightened homophobia. In the past, despite plans to hold peaceful celebrations outside of Kampala to avoid crowded areas, police have disrupted Pride parades and arrested participants. Simon Lokodo, the Ugandan Minister of Ethics and Integrity, even threatened the LGBT community with arrests and violence if they held or participated in Pride events.

This Pride month, Uganda should uphold its obligation under its own Constitution and under international human rights law to protect every person under its jurisdiction from discrimination and unequal treatment before the law. President Musveni should not sign the Sexual Offences Bill into law and the Ugandan Parliament should take steps toward decriminalizing consensual same-sex sexual acts by repealing those provisions from the Penal Code Act. Most importantly, Uganda should stop stigmatizing homosexuality as “unnatural” and instead celebrate and respect each person for who they are.

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Africa, International Human Rights Law
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