Relationship between the 2014 AHL and the 1950 Penal Code.

It should be noted that in Uganda both pieces of legislation (the 2014 AHL and the 1950 Penal Code) are known for their intended goal to criminalize homosexuality. Compared to the 1950 Penal Code, the 2014 AHA broadens its description of homosexuality and under which terms the offense of homosexuality may be committed. It makes use of new linguistic terms such as ‘homosexuality’, a term which does not appear in the previous legislations. It is however, an argument that this study raises that these pieces of the Law can hardly relate correspondingly even though by interpretation, both laws have been argued to criminalize homosexuality. I argue this, from a linguistic point of view basing on both the clarity and vagueness of the terminologies used. While the 2014 AHL uses terms such as ‘Homosexuality’, ‘Homosexual’, ‘Anus’, ‘Vagina’, ‘Penis’, penetration and details its explanation of these terms, the 1950 Penal code vaguely uses terms such as unnatural offences, carnal knowledge, and the order of nature. While the 2014 AHL is specific to what it attempts to criminalize, the 1950 Penal Code is open for interpretation. This is a tendency that leaves doubt if both pieces of the law can lead to a similar understanding beyond reasonable doubt today.

While to some, the 1950 Penal Code may be seen as a sufficient law, to other interpreters and advocates, it may be seen as inadequate especially if context and time are applied. It can be held that the Penal Code and the 2014 AHL cannot be understood if one does not recognize the role played by the aspect of language, context and time. However, it is imperative for one to consider the context and period when both pieces of legislation were enacted. While the 1950 Penal Code may have been communicative and understandable at the time of its enactment, in today’s context its meaning and references can be questionable. According to Scott Long,

colonial legislation including the 1950 Penal Code “are deeply rooted in European Christian culture” (2003:256). Hence the language used in the Code.

It can be construed that by using an indirect, vague language in the Law, the 1950 Penal Code writers intended to keep in the closet the acts of reference. It seems to appear that by not being categorical on “unnatural offenses or acts of “gross indecency” the law sought to promote a culture of ridiculing sexual acts other than those performed under heterosexual unions. This could be argued to have been communicated to the Ugandan public- that not only was homosexuality interpreted as a criminal offense, it was also despised as inappropriate for any decent human being. However, by allotting such language over homosexuality, the Penal Code renders the legislation unspecific, broad, ill-defined and embarrassing with regard to statutory interpretation.

It is obvious that the legislators or drafters of the 2014 AHL had taken a considerable effort in describing and broadening the crime of homosexuality as well as on the need and purpose of this legislation (Mubangizi and Twinomugisha 2011:331). The analysis shows that the 2014 AHL is more descriptive in respect of the conduct, parties, and penalties imposed. For instance, apart from the offence of homosexuality, the law outlines and describes other offences such as ‘Aggravated homosexuality’ and the ‘Attempt to commit homosexuality.’ It could be stated that 2014 AHL intended to address the ambiguities of the 1950 Penal Code by being more precise in the description of the parties, the conduct and the interpretation thereto. It further widens its applications by including elements like “brothels”, “confidentiality” and “promotion of homosexuality” (Anti-homosexuality Act 2014:8-10). The details of the 2014 AHL incorporate statutory bodies like companies, body corporates and close corporations in its application which was not addressed by the 1950 Penal Code.

It was assumed that in criminalizing homosexuality under the 2014 AHL, certain objectives that had not been clearly taken care of by the previous legislations would be realized. A part from the major objective of the 2014 AHL, other key objectives the Act sought to achieve were to:-

a) …establish a comprehensive consolidated legislation to protect the traditional family by prohibiting any form of sexual relations between persons of the same sex; and the promotion or recognition of such sexual relations in public institutions and other places through or with the support of any government entity in Uganda or any other non-governmental organization inside or outside the country.

b) …strengthen[ing] the nation’s capacity to deal with emerging internal and external threats to the traditional heterosexual family.

c) Protect the children and youth of Uganda who are vulnerable to sexual abuse and deviations as a result of cultural changes, uncensored information technologies, parentless child development settings and increasing attempts by homosexuals to raise children in homosexual relationships through adoption and foster care

(Parliament of Uganda 2015).23

According to the 2009 Anti-homosexuality Bill Memorandum, it was argued that there existed tremendous gaps in the provisions of laws in Uganda as far as the control of homosexuality was concerned (Bahati 2009). The drafters of the 2009 Anti-homosexuality Bill (AHB) argued that there existed flaws especially in article 145 of the Penal Code; that the law simply mentions “unnatural offences” without giving sufficient “provisions for penalizing the procurement, promoting, disseminating literature and other pornographic materials concerning the offences of homosexuality” (Bahati 2009). Therefore, there was a “need for legislation to provide for charging, investigating, prosecuting, convicting and sentencing of offenders” (Bahati 2009). Although the drafters of the 2009 AHB cited flaws in previous legislations as a justification for proposing the 2014 AHL, there could be a combination of other factors. It can be noted that from the beginning of the 21st _{century, and more chiefly during the first decade, Uganda has}

experienced growing emotions calling for tougher regulations on sexual conducts especially on same-sex relationships. The best example of this development can be noted in the 2005 constitutional amendment. Nyanzi and Karamagi have observed that through the definitions of marriage as the amended article 31(1) and 31(2a) defines, the 1995 constitution explicitly outlawed “same-sex marriage, stating: ‘Marriage between persons of the same sex is prohibited’” (2015:29). The amendment of article 31(1) and 31(2a) has been used to argue that homosexuality is prohibited as such. However, this study argues that this amendment is not sufficient to state that homosexuality was criminalized at all instances in the society.

The analysis would suggest that while homosexuals would not legally contract marriage, they were not barred from engaging in other forms of relationships under this amendment. What would seem to regulate homosexual practices at this level would be the interpretation of homosexuality as an unnatural act which can be placed under article 145 of the 1950 Penal Code. However, apart from contributing to the demonization of homosexuality, as an act of ‘gross indecency’, the criminalization of homosexuality under the Penal Code even at this level could be found implausible given the ambiguity of the legal language used. Consequently, the argument of this study holds that the prohibition of same-sex marriages would not necessarily

23 _{Parliament of Uganda “Parliament Outlaws Homosexuality” available from}

<http://www.parliament.go.ug/new/index.php/about-parliament/parliamentary-news/326-parliament-outlaws- homosexuality> accessed on 4th April 2017.

mean an all-inclusive prohibition and criminalization of homosexuality.

The unfolding events that point to homosexuality criminalization, classify Uganda as one of the commonwealth countries that has “formally grappled with the regulation of homosexuality the most” (Ambani 2017:43). Although it is argued that practicing homosexuality has been a criminal offence even prior the 2014 AHL, the 2014 AHL does not refer to any history pertaining the criminalization of homosexuality in Uganda. For instance, the Act does not make reference to article 31(2a) of the Uganda Constitution which prohibits marriage between persons of the same sex. Further, the Act pays no reference to the Penal Code especially on articles 145-150 which lays ground for severe punishments upon conviction in relations to the “unnatural acts”. Instead, the 2014 AHA seems to suggest that prior to the legislation of the 2014, the practice of homosexuality received no sorts of prohibitions.

The study holds a view that although homosexuality was believed and claimed to have been criminalized by the 1950 Penal Code, the criminalization was more of a demonization, a subject of seated ambiguities that hid the explicit understanding of the said criminalization. As such it would be difficult to claim with certainty whether or not homosexuality, as defined in the 2014 AHL, was already criminalized by the 1950 Penal Code. However, a partial criminalization of homosexuality can be deduced from the 1995 Ugandan Constitution which outlaws, categorically, same-sex marriages under its amendments on articles 31(1) and 31(2a). The study also finds it to be partial since it does not speak of homosexuality outside the attempted bonds of marriage. However, the raised uncertainties on the criminalization of homosexuality have not barred the categorization of homosexuality as explicitly criminalized in Uganda. Both the 1950 Penal Code and the 1995 Ugandan constitution are official documents that align Uganda among the countries which have a history of criminalizing homosexuality. Having explored the 2014 AHL, it can be noted that the emergency of this law is related to a number of factors which seems to be overlooked when the law is quickly associated with the American Anti-homosexual Evangelicals.

In the following part, attention is given to analyzing the implication of the pre-2014 AHL environment by revisiting the possible implications of colonialism and the anti-homosexual laws introduced by the British colonial masters in Uganda. The intention is to explore and understand how this environment, informed by the history of colonialism and the legacy of British sodomy laws, would contribute to the legislation of the 2014 AHL. Therefore, the subsequent part of this chapter contends a question: What impact does colonialism, the legacy of Sodomy laws and the local attitude on the criminalization of homosexuality in Uganda

contribute to homosexuality criminalization in Uganda?

4.3.4. Colonialism, legacy of Sodomy Laws and its influence towards the 2014