Yesterday, government officials read different scripts about the contentious Anti-Homosexuality Bill, of 2023.
While the Attorney General (AG), Mr Kiryowa Kiwanuka, deemed the Bill redundant due to multiple repetitions of offences in existing legislation, the Ministers of State for Disability Affairs, Ms Grace Hellen Asamo, and Ethics and Integrity, Ms Rose Akello, stated that the new law is required to ensure more punitive penalties.
The Directorate of Public Prosecutions, which is tasked with initiating criminal proceedings against any person or authority, has also stated that no new legislation is required.
The officials expressed their opposing views while testifying before the Legal and Parliamentary Affairs Committee, which is reviewing the Bill.
As the primary government legal advisor, the AG plays an important role in the legislative process, including assisting private members in drafting Bills and ensuring that all laws are consistent.
“I would like to draw your attention to the fact that some of the clauses in the Anti-Homosexuality Bill, 2023 are similar to provisional in other enactments…where the law has adequately provided for an offence, it is right and proper to avoid duplication for the sake of ease of implementation,” he said, citing Section 39 of the Interpretation Act, which prohibits punishment under more than one law for the same offence.
Mr Kiwanuka’s viewpoint differs from the government’s previous stance when the Ministry of Finance issued a certificate of financial implication indicating the government’s support for the new legislation.
According to him, the offence of homosexuality under Clause Two of the Bill is provided for as a natural offence under the Penal Code Act Cap 120. Section 146 of Cap 120 of the Penal Code Act covers Clause 4 on attempting to commit homosexuality.
Other duplications cited include clause eight, which punishes aiding and abetting homosexuality, clause nine, which punishes conspiracy to engage in homosexuality, and clause eleven, which punishes detention with intent to commit homosexuality.
The same-sex marriage offence created by Clause 13 is already covered by the Marriage Act, which defines marriage as between a man and a woman. Same-sex marriage is also prohibited under Article 31 (2) of the Constitution.
The AG remained silent on the promotion of homosexuality, one of the key loopholes in existing law cited by Bill supporters.
Mr Fox Odoi (West Budama North East MP) stated yesterday that the problem is a lack of implementation rather than a lack of the law.
Mr Asuman Basalirwa, the sponsor, of the new Bill, said it is necessary to cure inadequacies in the Penal Code Act that provides for unnatural sex, but “lacks provisions on procurement, promoting, disseminating literature and other pornographic materials concerning the offences of homosexuality”.
The Office of the Director of Public Prosecutions, whose staff also testified before the Committee yesterday, proposed a Penal Code Act amendment to close the loopholes.
“This does not justify enacting a completely new law. This can be accomplished simply by amending the penal provision,” said Mr James Odumbi Owere, Deputy Director of Public Prosecutions.
Mr Odumbi also claimed that the new law proposes less severe punishment than the Penal Code Act, making implementation difficult.
Under the Penal Code Act, unnatural offences are punishable by life imprisonment, whereas the new Bill proposes a 10-year sentence for homosexuality.
Penalties that are more severe
Ms Asamo yesterday urged legislators to toughen the penalties.
“Homosexuality is a physiological disorientation that does not easily leave someone’s mind in a short period of time. As a result, there is a need to protect society from the recurrence of homosexual practises by instituting reasonable deterrent penalties,” she said.
The Gender Ministry proposed that two-year sentences be increased to five years, five-year sentences be increased to ten years or more, and ten-year sentences be increased to twenty years or more.
The ministry also proposes a three-year incarceration for any child who engages in homosexual behaviour. In addition, it includes a provision that requires those convicted of homosexuality to be kept in isolation in all prisons “to prevent them from continuing with the practise and to protect the other inmates from becoming victims of the homosexual offences.”
Kisoro Municipality MP Paul Kwizera, on the other hand, questioned why psychological disorientation would be addressed through punitive penalties.
Ms Akello has asked legislators to consider including provisions addressing foreign missions in the country, which she claims are facilitating homosexual acts.
“Foreign missions in Uganda have become hotspots for people claiming to be homosexuals and those promoting the vice. “Provisions should be made to keep them from acting as conduits for this crime in Uganda,” she said.
However, legislators expressed concern that this would violate the Vienna Convention on Diplomatic Relations, to which Uganda is a signatory.
Mr Odoi also directed the ministry to provide a list of missions and organisations promoting the practice.
“Can we get some evidence to back this up…?” and not just one or two? “Laws must be evidence-based,” he said.
According to sources close to parliamentary proceedings, the Bill will most likely be returned to the House next week for a second reading and possible passage. The House Speaker, Ms Anita Among, has previously stated that the bill would be passed quickly at “any cost.”
The Bill was introduced for the first time on March 9.
