Last year a gay couple in Malawi were sentenced to 14 years in jail for attempting to conduct a gay marriage whilst in March of this year Roger Jean-Claude Mbede was imprisoned for three years in Cameroon for being homosexual.
Seventeen of the nineteen African Commonwealth criminalise sexual practices not thought proper. (South Africa and Rwanda are the only two who do not). Most countries use a variation of the sodomy laws from the colonial era. The typical sodomy law criminalises a man performing an “unnatural act” upon any man or woman, as well as any man or woman that allows a man to perform an “unnatural act” upon them. An important factor of these provisions is that they negate the possibility of males suffering rape, unless as a minor, making the LGBT population vulnerable. The victims would potentially be criminalised for allowing a man to perform unnatural acts upon them.
Throughout the African members of the Commonwealth Christianity and Islam are prominent religions. Religious texts are clear in the condemnation of those who engage in same sex relations and these religious views have continued to inform the laws on the African homosexual community.
The London office of CHRI are currently doing some great research on LGBT issues throughout the Commonwealth, and are hoping to draft an official report soon. In the meantime we are going to give regular summaries of their research, in particular the legislation directed towards homosexuals. To start off with here is the status in relation to homosexuality in Uganda.
Law that makes Homosexuality illegal
The Penal Code Act of 1950 (Chapter 120)
Section 145 criminalises carnal knowledge of any person against the order of nature or of an animal; or permitting a male person to have carnal knowledge of him or her against the order of nature. Whoever is guilty of this felony is liable to imprisonment for life.
Under section 146 any person who attempts to commit any of the offences specified in section 145 commits a felony and is liable to imprisonment for seven years.
Under section 147 it is an offence to unlawfully and indecently assault a boy under the age of eighteen. Whoever commits this felony is liable to imprisonment for fourteen years, with or without corporal punishment.
Under section 148 it is an offence for any person who, whether in public or in private, commits any act of gross indecency with another person or who procures, or attempts to procure, another person to commit any act of gross indecency with him or her. Whoever commits this offence is liable to imprisonment for seven years.
Under section 123 rape is defined as unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats, intimidation, or false representation.
Under section 124 a person convicted of rape is liable to suffer death.
Under section 125 any person who attempts to commit rape commits a felony and is liable to imprisonment for life with or without corporal punishment.
Practical Consequences of the Law
SMUG – Sexual Minorities Uganda came together so as to create one big strong LGBT community in Uganda; to provide the LGBT community with organized representation so as to achieve a liberated LGBT community.
In 2010, the Ugandan newspaper The Rolling Stone was guilty of exposing the faces of members of the LGBT community within Uganda. David Kato, a gay activist and the advocacy officer for SMUG was one of three complainants who sought and succeeded in being granted an injunction which had the effect of preventing the newspaper from exposing details such as addresses and names. On Wednesday 26th of January, David was murdered just weeks after his victory in court. It was revealed that for weeks David had been harassed and was threatened on several occasions, being told that he would be dealt with.
Constitutional Clause on Equality or Right to Privacy
Constitution of the Republic of Uganda, 1995
Article 21 protects equality, whereby all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law. A person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability, where ‘discriminate’ is defined as giving different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.
Article 27 protects the right to privacy of person, home and other property, whereby no person shall be subjected to unlawful search of the person, home or other property; unlawful entry by others of the premises of that person; or interference with the privacy of that person’s home, correspondence, communication or other property.