Uganda Today: Why the Anti homosexuality law doesn’t infringe on human rights
By Muhimbise George (human rights law student)
As a student of human rights, I have had serious arguments with colleagues in regard to whether the recently passed anti homosexuality law infringes on the people’s human rights.
First of all I must salute the resilience of the eleventh Parliament led by the Speaker Rt Hon Anita Among for the spirited fight they put amidst external and internal threats and pressures to have this law in place.
Because of limited space, I will not delve into every detail of the law but rather will focus on the fundamental issues;
First, it’s fundamentally known that you can’t have a law that has 100 percent acceptance by the society. However like the saying goes that democracy is a tyranny of the majority over the minority, with the majority getting their way and the minority having their say, it ended with majority of Ugandans being triumphant by having a law that reflects their aspirations. If this law was put on a vote, about 95 percent of Ugandans would have supported it!
The second fundamental issue is whether a morality based law is enforceable. Law enforcement has three aspects that determine enforce ability and they base on the following characteristics; the moral law, the legal law and the moral-legal law.
Moral law refers to our moral beliefs, these are societal norms which can’t be enforced by law but are generally acceptable by the society, e.g respecting elders, it’s a moral law but can’t be enforced in courts.
Secondly are the legal laws, these are written and enforced but may not be morally accepted, e.g traffic laws. Enforcing such laws is difficult because they are inconveniencing and their absence doesn’t hugely affect the society.
If the president ignores these international calls and pressure, it will be his second time in his record 37 years so far, as president of Uganda, that he assents to the same bill that attracts 98% support of citizens.
In 2014, the same President assented to the bill that was later nullified on a technicality of having been passed without House quorum.
The last are the moral – legal laws where homosexuality lies, these are laws made on the basis of moral beliefs of a society e.g laws against murder, theft etc. such laws are easy to enforce because the society has the will to help the state in enforcement. The recent incident in Jinja where a suspected homosexual was nearly lynched explains how much determined our people are to safeguard their moral values hence making this law enforceable.
The other issue was whether it would be proper for the state to interfere in the privacy of two adults who have consented. That argument was also myopic, there are many incidences where consent is not an excuse to commit a crime. For example cases like abortion, elopement (running away with a married person to form a family) etc. are done with consent of the both parties, even with human trafficking sometimes there is consent, but that can’t be used as an excuse to commit those offenses.
The other argument was on whether homosexuals have freedom of conscience, thought, association etc. This does not merit, first because these rights are not among the non derogable rights. However again if your conscience or thought is potentially dangerous to the common good or society, then you deserve to be punished. That explains why police by law has a right to arrest you if it suspects that you are about to commit a crime. This means that as long as your thoughts are taking you to a direction of illegality, then you have no liberty to enjoy those rights.
The other questions was why the section 145 of the Penal Code Act hasn’t been used to prosecute the homosexuals; first it was insufficient, because it only punish those who do homosexuality, however proving such a case would be difficult even to a known homosexual because there would be a need of evidence of having committed that Act. But with this new law, even if one proclaims to be a homosexual, funds, trains or recruits people into homosexuality, he is held liable.
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It should be noted that putting a law doesn’t necessarily serve to punish offenders, it at times serves to restrict and prevent behavior. There is no body dying to prosecute homosexuals, if they can change their ways and desist from their actions, the law can’t get them.
Most of the other arguments that were brought were simply assumptions and anticipations which can be dealt with by the Minister of Ethic’s when he makes regulations for the said laws.
Lastly laws emanate from societal values, norms and morals, Uganda and Africa doesn’t embrace homosexuality, it threatens our existence as a people, it doesn’t matter what the West wants, if it’s the will of Ugandans that we fight homosexuality let it be.
This law doesn’t infringe on any recognized human rights, being a criminal is not a right, the homosexuals should be severely punished!
Muhimbise George, muhimbiseg@gmail.com,+256 787 836 515, the author is a student of Human Rights at the Law Development Centre