Uganda’s Attorney General has told parliament to amend several provisions in the Anti-Homosexuality Bill before President Yoweri Museveni will sign it.
Uganda’s Anti-Homosexuality Bill, otherwise known as THE KILL THE GAYS BILL, which passed Parliament on 21 March, 2023, has left the desk of President Museveni, who, pressured by International outcry, did not provide his assent within the requisite thirty day period. Instead the legislation has been sent by Attorney General Kafuuzi Jackson Karugaba back to Parliament to be reworked through considering several concerns about the Bill.
Predictably the major concern would be the mandatory death penalty, for so called “aggravated homosexuality”. The term “aggravated homosexuality” is problematic to define with clarity. When it is hard to define a crime with clarity – imagine legislating a mandatory death penalty. There is also clear conflict with current Ugandan law that requires discretion.
Clearly the AG, eager to include the death penalty as clearly evidenced during the hearings in Parliament, is less concerned about absolving gays from death and more concerned about the law passing the inevitable tests of constitutionality when advocates bring it before the Constitutional Court.
The Bill once it passes Parliament in amended form can go back to Museveni for assent. If at any time Museveni does not assent, because it is a private member bill, Parliament can still ensure it is made law into law merely by a two-third majority vote, averting the need for assent by the President.
According to a report in MAMBA ONLINE: “Karugaba said Ugandan case law limits the imposition of the death penalty to very specific and extreme crimes. In addition, a mandatory death sentence would be unconstitutional because it violates “the principle of separation of powers as it does not give the judiciary an opportunity to exercise its discretion to determine an appropriate sentence”. Karugaba wrote that two other provisions in the bills are also of concern. The first makes it an offence for “a person who keeps” a house, room, set of rooms or place of any kind to allow or facilitate the commission of the offence of homosexuality on the premises. The second is a provision compelling a person who knows or has “reasonable suspicion” that another person has committed or intends to commit the offence of homosexuality to report the matter to the police. Karugaba argued that these provisions are too broad and vague as they do not define terms such as “a person who keeps” and “unreasonable suspicion”.
“In conclusion,” he wrote, “the above provisions need to be revisited before the bill is assented to by His Excellency the President to avoid the bill being challenged in court on grounds of unconstitutionality upon coming into force.”
Museveni, amidst his own calls for the eradication of homosexuality from Africa, has indicated he will sign the BILL – and so revision is ultimately a next step. At the same time I believe Museveni wants to be seen to be placating the International community while insuring constitutionality.
The Bill includes ten years to life in prison as well as the death penalty at this time.
April 20, 2023
Melanie Nathan
Nathan@AfricanHRC.org
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