Sexual orientation and the law: A case study of homosexuals in Kampala District.

Abstract

The study examines Sexual Orientation and the Law. The general objective of this study was to investigate the Legal and Constitutional framework for the protection of homosexuals in Uganda. In this respect, the researcher embarked on establishing and analyzing human rights abuses suffered by homosexuals; establishing the contradictions that exist between Uganda’s human rights commitments and obligations and its treatment of homosexuals; making a comparative analysis between South Africa and Uganda regarding the protection of homosexuals and advancing proposals and practical solutions to ensure equality and change. The study adopted the snowball sampling procedure in selecting some of the respondents on the basis of the rare characteristic they possess to participate in the study. This is a non – probability sampling technique where the existing study subjects recruit future subjects from among their associates. Purposive sampling technique was also adopted in selecting some respondents due to their perceived knowledge in relation to the problem under investigation. The study population comprised: Homosexuals (25) and Human Rights Activists (15). Primary data was collected using an interview guide to conduct in-depth interviews whereas secondary data was collected through review of relevant documents in the libraries and the internet. Utmost confidentiality was observed while handling the data given the sensitivity of the topic under investigation and as such pseudo names are used to protect the subjects. A descriptive and qualification method of data analysis was used. The key findings of this study reveal that homosexuals do not enjoy the legal and constitutional liberties provided for in the constitution. Homosexuals have suffered human rights abuses at different levels namely: i) Discrimination within religious institutions (ii) Discrimination in schools (iii) Discrimination from family and friends (iv) Discrimination in employment (v) Discrimination in sports clubs (vi) Discrimination in health facilities and (vii) Discrimination in the public arena. Uganda is a party to numerous International and Regional human rights mechanisms and has got a comprehensive bill of rights in its constitution and a legal frame work for the protection of minorities. The findings reveal that there is a contradiction between Uganda’s human rights commitments and obligations and its treatment of homosexuals. A comparative analysis undertaken between South Africa and Uganda regarding the protection of homosexuals discloses that Uganda and South Africa lie at the extreme opposite ends of the human rights spectrum. South Africa’s constitution contains a prohibition against discrimination based on sexual orientation. While Uganda is still struggling with archaic penal laws that criminalize consensual sexual conduct in private, the South African constitutional court made a landmark decision in the case of National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others CCT11/98 (1998). The court unanimously overturned as unconstitutional the law prohibiting homosexual conduct between two consenting adults in private. While South Africa takes a stage of progress with regard to the protection of homosexuals, Uganda retrogresses with the introduction of the Anti-Homosexuality bill, 2009 which if enacted, would broaden the criminalization of homosexuality and further violate several fundamental human rights. Considering the discrimination that homosexuals suffer, perpetuated by the law and homophobia that still rides high in Uganda, proposals and solutions to ensure equality and change have been advanced. The recommendations include: (i) Decriminalization of homosexuality (ii) The inclusion of homosexuals in all programmes by the government (iii) The complete withdrawal of the Anti-Homosexuality bill from parliament (iv) Implementation of clear policies to address the current impunity for torture (v) Police should be held accountable for their acts (vi) Sensitization of the general public about the existence of LGBT rights in the international culture of human rights through media, seminars, workshops and in schools by the government (vii) A framework should be put in place by the government to implement International Human Rights provisions in order to protect and support sexual minorities in Uganda (viii) The amendment of the 1995 constitution to clearly, in ascertainable words include homosexuals under the minorities (ix) The preservation of the identity of sexual minorities by the state by abstaining from policies that negatively impact on LGBT people (x) Outlawing State discrimination on the basis of sexual orientation (xi) Culture should not be used as a yardstick to condemn homosexuality (x) Discouragement of religious inspired homophobia by pastors/priest/bishops/pope