Uganda tweaked its anti-gay law just to get donor cash, activists say

As a court in Uganda refused to strike down one of the world’s harshest anti-gay laws enacted nearly a year ago, activists fear the law there and the “lackluster” response to it from donors will spur on other countries considering similar harsh legislation.

The Constitutional Court of Uganda on Wednesday rejected the nullification of The Anti-Homosexuality Act in its entirety, scrapping just two sections and two subsections and declaring the rest of the law constitutional. The ruling, which had been expected months ago, comes as activists in Ghana wait to see if a draconian new anti-gay bill passed by the country’s Parliament last month will become law.

In a written ruling of over 200 pages, five justices led by Deputy Chief Justice Richard Buteera declared that the law “complies with the Constitution of Uganda except in four aspects.”

“The nullified sections had criminalised the letting of premises for use for homosexual purposes, the failure by anyone to report acts of homosexuality to the police for appropriate action, and the engagement in acts of homosexuality by anyone which results into the other persons contracting a terminal illness,” it said in its unanimous judgment.

However, Justice Richard Buteera, Uganda’s deputy chief justice and head of the court said: “We decline to nullify the Anti-Homosexuality Act 2023 in its entirety, neither will we grant a permanent injunction against its enforcement.”

Activist Herman Shasha, who was in the court in Kampala, told Devex via phone that the atmosphere there had been calm, despite the community’s disappointment. He said that the ruling was not a shock to him, but added: “We [are] now totally criminalized. It’s a sad day for us. And scary. You could see that the politics of the day took a bigger role in this ruling.”

Shasha said that the justices had taken the position on the right to health because the government “can’t fund our health care system.”

“So they’re baiting the donors, yet the health care workers are intimidated not to treat LGBTQIA Ugandans,” he said.

Referring to a bill passed by the Parliament of Ghana on Feb. 28, which the country’s president is now deciding whether to sign or not, and reports that Kenya and Tanzania are contemplating similar legislation, Shasha added: “The struggle has just begun.”

The Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill prescribes a prison sentence of up to three years for simply identifying as LGBTQ and three to five years for the “wilful promotion, sponsorship, or support of LGBTQ+ activities.”

It was introduced in 2021 and supported by Ghana’s two main political parties. President Nana Akufo-Addo must now decide whether to sign the private member’s bill or send it back to Parliament. He reportedly wants two legal challenges, including one claiming that the required minimum number of MPs in Parliament were not present when it was passed, resolved before doing so. But Nana Akufo-Addo is coming under heavy pressure from MPs and citizens to endorse the law, similar to the situation faced by President Yoweri Museveni nearly a year ago in Uganda.

A ploy for donor funding?

Tuesday’s ruling in Uganda was the second blow to the country’s LGBTQ+ community in a month, with a court on March 12 dismissing a petition by NGO Sexual Minorities Uganda, or SMUG, to compel the government to register it.

“This ruling is wrong and deplorable,” said activist Frank Mugisha, executive director of SMUG and the co-convener of Convening for Equality group, or CFE, in a statement released by CFE on the latest court decision to refuse to nullify the law. “Uganda’s Constitution protects all of its people, equally.”

He said that activists would continue to call for the law to be repealed. “We are calling on all governments, U.N. partners, and multilateral institutions such as the World Bank and the Global Fund to likewise intensify their demand that this law be struck down because it is discriminatory,” Mugisha added. “This ruling should result in further restrictions to donor funding for Uganda — no donor should be funding anti-LGBTQ+ hate and human rights violations.”

Richard Lusimbo, director general of the Uganda Key Populations Consortium, or UKPC, and CFE co-convener added that the partial nullification of a provision on reporting LGBTQ+ people to the police would not protect them from discrimination when seeking health services.

“This partial nullification is merely window dressing designed to try to persuade donors to restart funding,” he said in the statement.

Fox Odoi-Oywelowo, one of two MPs who voted against the bill in Parliament and the first petitioner in the legal challenge, told Devex by phone that the petitioners plan to appeal to Uganda’s Supreme Court.

Civil society had been warned in the lead-up to the passage of the bill, labeled by the United Nations as “among the worst of its kind in the world,” that it would devastate the response to HIV and AIDS in Uganda. Clauses include sentences ranging from 10 years in jail to the death penalty for “aggravated homosexuality.”

There have been over 180 evictions, 18 cases of forced anal examinations, 176 cases of violations of torture, 159 cases of violations of the right to equality and freedom of discrimination, and 102 hospitalizations directly linked to the violations, according to the CFE statement. “And these are only the reported and documented incidents,” it said. “With today’s ruling, these types of human rights violations will continue.”

A lackluster donor response

One activist, Steven Kabuye, co-executive director of NGO Coloured Voice Truth to LGBTQ, was nearly fatally stabbed in January.

“The Anti-Homosexuality Act 2023 has been re-edited, with articles that were objected by the World Bank and PEPFAR removed and the court slapped it back to the LGBTQ+ community in Uganda,” he told Devex via phone after Wednesday’s ruling. “We should not waver in our fight against this law. We should fight it now more than ever.”

Activists said except for the United States announcing a few measures and the World Bank freezing funding in August, there could have been a tougher response, singling out one donor in particular.

“The EU’s response in Uganda has been lackluster compared to their U.S. counterparts,” Clare Byarugaba from local civil society group Chapter Four told Devex via email before the ruling. “That is sending a certain message to other countries like Poland and Kenya that are considering similar draconian anti-LGBTIQ rights laws and rolling back protections to their most vulnerable populations.”

Mugisha, a petitioner in the case, told Devex via phone before Wednesday’s ruling that “the EU in Uganda is giving red carpet [treatment] to Ugandan authorities.”

“If the EU had done more in Uganda like we asked, we would not be seeing the Ghana bill passing in Parliament and threats of other bills in Africa,” he said.

An EU spokesperson would not comment on these claims or whether the head of the European Commission in Kampala was embracing Uganda’s government by showering it with private sector contracts, in light of the recent Uganda-EU Business Forum. 

“In the case of Uganda, the EU is engaging with the authorities and following closely the developments related to the law,” the spokesperson said in an email to Devex before Wednesday’s ruling. They pointed to a statement released immediately after the signing of the law last year, adding that “the Ugandan government has an obligation to protect all of its citizens and uphold their basic rights”.

Failure to do so will undermine relationships with international partners, the spokesperson told Devex.

Uganda government spokesperson Chris Baryomunsi did not respond to several requests for comment.

In Ghana, the LGBTQ+ community is living in fear, with people afraid to walk on the streets, activists said. Roslyn Mould, a board member of local NGO LGBT+ Rights Ghana and vice president of Humanists International, said that there were clauses in their new bill that “use the term ‘promoter’ or ‘promotion’ that seek to prosecute and punish any individuals, institutions or organizations such as the Ghana AIDS Commission, medical centers and other CSOs for assisting LGBT people who are diagnosed with HIV/AIDS.”

“So this will be detrimental to their healthcare and workers in the healthcare system,” Mould told Devex via email. “The bill, if passed, would definitely roll back progress made on the prevention and management of HIV/AIDS.”

Va-Bene Elikem Fiatsi, a trans woman and activist from Ghana told Devex in a phone interview that given that the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill criminalized simply renting out a house to queer people, there were fears about what would happen to health services in the West African nation.

“If you’re having a bill that prohibits renting a house out to queer people, are we going to even have a health service?” she said. “The bill prohibits everything. Your landlord is criminalized, your school authorities are criminalized for having you in school. So what happens to health?”

The EU spokesperson said that they hoped Ghana “will stand to its commitment to human rights and principles of equality, inclusion, and nondiscrimination based religion and belief, ethnicity, political affiliation, and sexual orientation — as protected by the African Chapter on Human and People’s rights.”

USAID said that the U.S. was deeply troubled by the bill in Ghana, which would threaten all Ghanaians’ constitutionally protected freedoms of speech, press, and assembly. If it becomes law, it would be personally devastating, while also undermining development progress that benefits everyone, they said.

Last month, Ghana’s finance ministry warned that enacting the law could jeopardize $3.8 billion in World Bank funding.

Jefferson Sackey, deputy director of communications in the office of the president of Ghana did not respond to several requests for comment.

In Kenya, religious leaders last month sent a letter to parliament pushing for an anti-gay law there. Maureen Milanga, director of international policy and advocacy at Health GAP, who has seen the document circulated to some activists, told Devex via phone that they were “always worried about the expansion of colonial laws by overzealous politicians”.

“This anti-LGBTQIA+ hate not only hurts people,” she said. “It also hurts the economy.”

Milanga pointed out that Kenya gained greatly from external resources. “Pushing a bill to take away the rights of LGBTQIA+ communities threatens Kenya’s ability to host the mass U.N. staff relocation to Kenya, the U.S.-Kenya FTA, whose discussions are still ongoing, Kenya’s AGOA eligibility, and World Bank funding,” she said.

Milanga said that there was also concern about the “doublespeak coming from the EU on Kenya, Ghana, and Uganda.”

“They have embraced President Museveni in particular, and think no one has noticed their emboldening of anti-LGBTQIA+ forces,” she said. “We are extremely worried [that] should the situation worsen in Kenya and Ghana, the EU will continue to choose business deals over queer and trans people’s lives.”

Activists have asked U.S. President Joe Biden to raise the issue when he hosts Kenya’s President William Ruto at the White House in May.

Tanzania, where the law already imposes prison for gay sex, is also considering tougher punishments for gay people, including the death penalty and castration, it was reported last year just before Uganda’s law was approved.

Winnie Byanyima, executive director at UNAIDS, told Devex in an email that the “pushback against human rights is global, long-term, well-funded, well-organized and brutal.”

“In the name of family values, groups of parliamentarians networked across the world are in overdrive to criminalize and punish people for who they are and who they love,” she said. “Harmful laws and policies are being advanced, vigilante violence is rising, hate is being normalized.”

But prejudiced laws, policies, and practices undermine health and hurt everyone, said Byanyima. “Discrimination obstructs HIV prevention, testing, treatment and care, holds back progress towards the end of AIDS, and undermines the health security of everyone. It is only by protecting everyone’s rights that we can protect everyone’s health.”

At the start of the AIDS pandemic, most countries in the world criminalized LGBTQ+ people. Today two-thirds of them do not.