By Melanie Nathan, October 22, 2014.
Two Ugandans charged under a draconian anti-homosexuality Penal Code in Uganda have had all charges against them dismissed by the Magistrates Court, in Buganda.
The charges in the case of Uganda v. Mukisa Kim and Mukasa Jackson, Criminal Case No. 0085 of 2014 have been dropped as the prosecution, despite several postponements giving them ample opportunity to prepare the State’s case, failed to secure witnesses to testify against the accused.
The two accused were arrested on the 27th and 28th of January 2014 respectively by the Police following a mob’s attempt on the life of one of the accused. Instead of arresting the mob for their attempts to exact so called “mob justice” the two men were arrested based on the allegations.
The two were arrested after Kim Mukisa was thrown out of his house and beaten by local council authorities assisted by residents on the basis of allegations that he was a homosexual. The police arrested one of the accused, Jackson first and used Jackson to call Kim to the police station where he was then also arrested. The two were subjected to HIV examinations without their consent, and one of them had an anal examination performed on him. Both were paraded before the media as homosexuals.
Kim was charged with ‘having carnal knowledge of a person against the order of nature’ contrary to Section 145(a) of the Penal Code Act Cap 120 and Jackson was charged with ‘permitting a male person to have carnal knowledge against the order of nature’ contrary to Section 145(c) of the Penal Code Act Cap 120.
They spent seven days in police custody without being charged or given an appearance in court. They were only produced before court when their lawyers from Human Rights Awareness and Promotion Forum (HRAPF) wrote to the Inspector General of Police and the Uganda Human Rights Commission complaining about the continued illegal detention.
They were then remanded to Luzira Prison, and brought back to again on 21st January 2014 and though they were granted bail, the Magistrate insisted on a letter from the same local council officials who had thrown Kim out of his home, and also on two sureties.
The Local Council authorities refused to write the letter until HRAPF lawyers told them that they would be in contempt of court if they continued to refuse to do so. A letter with a disclaimer was later written. For the sureties, the magistrate eventually accepted one surety and both accused persons were released on bail on May 7th for Jackson and May 12th for Kim, after spending a period of 4 months in detention.
This case had been adjourned four times and each time the prosecution failed to produce any witnesses. Prayers to dismiss the case by lawyers were not granted, in order to give the prosecution more time.
Today, when the prosecution again failed to produce its witnesses, the State Attorney requested for another adjournment. The lawyer for both accused, Ms. Fridah Mutesi from HRAPF responded by asking the Magistrate, Hon. Lilian Bucyana to dismiss the case, recounting the unjust number of times that the accused had been appearing in court due to the State’s failure to procure witnesses, this being prejudicial to the accused, who have had charges that could involve a penalty of life imprisonment hanging over their heads since January 2014.
The Magistrate agreed with Ms. Mutesi and ruled that “The prosecution was granted the last adjournment and has no sufficient reason to ask for further adjournment the case is hereby dismissed under S.119 of the Magistrates Courts Act”
The dismissal of charges does not prevent the possibility future prosecution as the charges could be reinstated by the State. The two accused are free for now, in the eyes of the law, but not in the eyes of an unrelentingly homophobic public. Their lives have been shattered by the charges, the publicity, the outing, ongoing threat of mob vengeance and the press exposure.
I have reported this here in the additional hope of drawing attention to the fact that there are no laws in the USA or anywhere in the world that will help people in this predicament leave their countries, if that is what they wanted to do to protect themselves. Their only choice would be to become refugees across an African border, where they will have to declare themselves to UNHCR and apply for a mandate to be resettled abroad. This could take up to 2 years, in uncompromising conditions, and without financial support, they will probably have to be placed in a refugee camp where their lives will still be in great danger.
There is no such thing as an asylum visa . If anyone wants asylum in the USA or abroad, they have to find their way to such countries on visitor visas or work visas, none of which would be likely attainable by these two people, because of their current marginalized circumstances. They will have a hard time “proving” an intention to return back to their persecuting countries, a requirement of such visas.
So what do they do? Spend the rest of their lives running away from their sexuality, if in fact they are gay and transgender, respectively as alleged by the State, do they relinquish their right to live a happy life, their right to freedom of consensual sex in their own homes?
The Ugandan Anti-Homosexuality Act has been recently nullified by the Courts. Ugandan Parliamentarians want to re-table the now defunct law. But this Penal Code remains law of the land, with thanks to the Commonwealth of the United Kingdom. What next for these two people? And will there be justice against those who physically assaulted them and invaded their privacy with non consensual medical exams?
Congratulations to HRAPF and its extraordinary team of dedicated lawyers.