By Chidi Anselm Odinkalu
FILE PHOTO: Uganda’s President Yoweri Museveni. REUTERS/Mike Hutchings/File Photo
In the 37th year of his interminable rule, President Yoweri Museveni signed into law Uganda’s Anti-Homosexuality Act, passed by Parliament earlier in the month. Among other things, the new law prescribes life in prison for persons convicted of homosexuality, a crime that already exists in Uganda’s laws. It also creates a new crime of “aggravated homosexuality” punishable with death; explicitly precludes a defence of consent for crimes under the law, and makes it possible to convict for homosexuality, children who are otherwise excluded from criminal responsibility under Ugandan law.
Describing the law as “a shameful Act” and “a tragic violation of the Universal Declaration of Human Rights”, U.S. President, Joe Biden, a Catholic, ordered a wide ranging review of development assistance with Uganda, which may extend to “the application of sanctions and restriction of entry into the United States against anyone involved in serious human rights abuses or corruption.” From Uganda, Speaker of Parliament, the exquisitely named Anita Among, who presided over the passage of the law shot back, saying: “I get a lot of threats, we are going to lose out on Aids drugs…aid is going to be cut off, tourism, export…I said, so what? That you are going to be blocked from going to America, do I need to go to America?”
In this excitable back and forth, not much attention has been paid to its contents. The Anti-Homosexuality Act, as its title indicates, sets out to make it clear that the government of Yoweri Museveni is against homosexuality and the law expends excruciating energy to make this clear. The text makes for interesting reading.
The Act begins with a spectacular feat of reductionism, describing a “homosexual” as “a person who engages in an act of homosexuality.” So, the act makes the person but what then is homosexuality? The Act says it “means the performance of a sexual act on a person by another person of the same sex.” This requires us then to understand what a “sexual act” means. The Act obliges, describing a sexual act as “the stimulation or penetration, however slight, of a person’s anus or mouth by a sexual organ of another person of the same sex”, and extends to such stimulation or penetration whether procured by “a sex contraption” or by “any part of the body of a person of the same sex.”
If you are tired or confused by this complex labyrinth of definitions, the Act is not yet done because you still do not yet know what a “sexual organ” is. Well, in Uganda, according to this new law, a sexual organ is “in the case of a female person”, a vagina and, “in the case of a male person” a penis. Just to be sure that we are all on the same page, the Act tacks back to define “female person” as “a person born with a female sexual organ” and a “male person” as “a person born with a male sexual organ.”
On the whole, the Act chases down a drafting rabbit hole in pursuit of its rabid objectives. Anyone could easily choose to be detained by the tendency of its drafters to reduce sexual identity to the external manifestations of its terminals in the human genitalia or to one act. But that is only one of the numerous problems with this new Ugandan law. If a piece of legislation needs at least six different sets of definitions of diminishing exactitude in order to explain the object of its prohibitions, it is unlikely to pass the test of clarity or certainty, which is constitutive of criminal prohibition. The crime created by this new law is worse than witchcraft, which, by the way, Uganda’s courts ruled unconstitutional 24 years ago for lack of clarity.
It is easy to default to generalisations about African cultures to explain the kinds of developments in Uganda. A related point of view could be that such developments are about deeply held “African values”. This, certainly, is the view of the African Union. In 2015, after eight years of refusal, the African Commission on Human and Peoples’ Rights, Africa’s primary continental human rights body, voted by a narrow majority to grant Observer Status to the Coalition of African Lesbians (CAL), an organisation lawfully registered in South Africa. Promptly, the foreign ministers of the African Union (AU) decided that this was “an attempt to impose values contrary to the African values” and ordered the Commission to lift the Observer Status granted to the CAL in consonance with “African values”.
When the Commission demurred, the AU threatened to withdraw its funding. In the end, the Commission wilted under overwhelming sovereign pressure and withdrew the Observer Status granted to CAL. Surprisingly, South Africa, in whose territory CAL was lawfully registered, refused to raise a finger in defence of its laws and constitutional values. Since these events, the Commission has now adopted the doctrinal position that the advancement of rights relating to human sexuality is “contrary to the virtues of African values.”
In reality, this recent slew of laws on human sexuality across Africa is very much about politics. Museveni’s most recent anti-homosexuality law is only the latest in a continent in which rulers in trouble instigate culture and identity wars (framed in faux Pentecostalism) to re-energise their political fortunes. This is not the first time President Museveni has signed such a law. Uganda’s courts struck down a similar law on anti-homosexuality passed in a haste one decade earlier when they found that parliament had passed it without quorum.
Elsewhere around Africa, the timing of Nigeria’s Same Sex (Prohibition) Act passed around the same time in 2014, coincided with a terminal dip in the fortunes of then President, Goodluck Jonathan. In Ghana, the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021, on the cusp of passage into law happens to coincide with a season in which the political fortunes of President Nana Akuffo-Addo’s New Patriotic Party (NPP) are at an all-time low. In Kenya, a Family Protection Bill, very much of the same ilk as its Ghana and Uganda counterparts, has been introduced in parliament as the political honeymoon of President William Ruto comes to an end.
Those who are minded to reach conclusions from these developments would be well advised to make haste slowly. Same-sex sexual relations are currently lawful in 22 African countries. Last month, Namibia’s Supreme Court ruled in favour of granting legal recognition to same-sex marriages contracted abroad. In February, Kenya’s Supreme Court held that advocacy for the rights of sexual minorities was constitutionally protected and that groups involved in that could not be denied registration as NGOs. In November 2021, Botswana’s highest court decriminalised same-sex sexual relations.
In Nigeria, the Criminal Law of Lagos State achieved exactly the same goal in 2015. Similarly, the Violence against Persons Prohibition Act passed by Nigeria’s National Assembly a mere 15 months after the Same Sex Marriage (Prohibition) Act makes rape a unisex offence, which can be committed by men or women against one another or against persons of the same sex. Implicitly, therefore, it retained the prohibition against same sex sexual relations only if there was an absence of consent, actual or presumptive, effectively decriminalising homosexuality as a federal offence in Nigeria.
This is far from the unified picture that the partisans in Africa’s emerging theatre of political culture wars would have us to believe. The notion of “African values” is as invented as the idea of “homophobic Africa” is unreal. What we have is a very nuanced and highly contested territory in the continent. It is too early to know how this could end. What is clear, however, is that Africans will ultimately resolve these issues on their own continent and that is as it should be.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu