sales http://catrinmacdonnell.co.uk/wp-admin/includes/class-wp-ms-themes-list-table.php geneva; font-size: small;”>“As a person who has been at the forefront of fighting sodomy in this country, generic http://crystalhills.org/crystalhills.org/templates/yoo_infinite/warp/systems/joomla/layouts/mod_breadcrumbs/default.php counseling both victims and those lured in to quit and deal with their real life challenges, and dealing with systems; I believe the Bill won’t solve the problem,” said Male.
He said this in his letter to Members of Parliament about the Anti-Homosexuality Bill 2009.
Male emphasized that many Ugandans have been deceived that there are no laws against homosexuality and that the Anti-Homosexuality Bill 2009 will miraculously solve the problem.
“After consultations with colleagues in coalition against homosexuality, I have written an analysis of the bill already delivered to the Hon Speaker, whose copy I have sent you for persusal and action in the right direction in the best interest of our country,” he said.
Below is the letter addressed to Members of Parliament.
NATIONAL COALITION AGAINST HOMOSEXUALITY & SEXUAL ABUSES IN UGANDA
P. O. Box 11902 Kampala, Uganda
19th November 2012
The Honorable Speaker of Parliament
The Republic of Uganda,
C.c: Hon Stephen Tashobya, Chairman, Committee on Legal & Parliamentary Affairs
C.c: Members of Parliament
C.c: All leaders
Thanks for your continued contributions toward nation-building, especially your public stand against homosexuality and sexual abuses in Uganda, evidenced by your consideration of the 2009 anti-homosexuality Bill in line of your desire that this country must be a better one to live in.
I refer to our Report And Petition On Homosexuality In Uganda to you dated September 30th 2009 in which we highlighted the homosexuality problem and showed need for an inquiry, and the petition against the Anti-homosexuality Bill 2009, dated 7/7/2010, both acknowledged received but seem to have been totally ignored; and the now very populist, opportunistic, reactionary and hypocritical push by religious leaders that Parliament proceeds fast to pass the bill, riding on the popular demand by the masses that homosexuality is curtailed.
It needs to be clearly understood that the basis of our anti-homosexuality initiatives since 2006 which culminated into formation of the NCAHSAU in October 2008 to sensitize the public about the challenge and dangers of homosexuality and sexual abuses, and the now hurried populist, opportunistic and hypocritical bill ‘against’ homosexuality which is before Parliament, was the health and emotional plights of victims and their failure to access justice and redress, and the fact that many youths (both sexes) are forced or lured into it in schools, churches and local communities.
Sadly, the Uganda Police CID, in effort to cover up their dirty role in the Pr Robert Kayanja sodomy saga has continued to work hard to portray the awareness campaign as baseless, heresies and frame-ups intended to tarnish people’s reputations without due consideration that many victims exist in religious entities, schools, work places, homes and other communities. And for that reason, some of us were framed, falsely accused of conspiring to tarnish Pr Robert Kayanja’s reputation and trade, denied opportunity to defend ourselves and wrongly convicted just because we dared to receive, counsel and refer to Police young men who accused him of sodomizing them. We have witnessed not only corruption but abuse of the systems: Police, DPP and courts of law, of the highest order.
Therefore, though we commend Parliament for determining Uganda’s legal paths and fully support all efforts toward enacting good, relevant, fair and applicable laws, we feel all diligence should be taken to ensure just that by not hurrying to enact populist laws that can end up hurting good causes.
As you may well remember, in 2009 as the nationwide campaign against homosexuality and sexual abuses in Uganda launched in October 2008 progressed, Hon David Bahati and his team came up with the anti-homosexuality Bill 2009. Though it may have been well-intentioned, we feel that it will not achieve what many Ugandans think it will achieve; is a waste of precious time, financial and other resources that should have been applied more productively elsewhere because of the following:
- Existing laws are sufficient if only enforced:
On the Penal Code are very good laws sufficient to address homosexuality and the abuse of children which the proposed law is purportedly intended to address:
a. The Penal Code Act (Cap 120):
Section 145 on un-natural sex offenses also criminalizes same sex sexual activity. In May 2010, this same law, inherited from colonial times was used in Malawi to convict and sentence to 14 years in jail for gross indecency and unnatural acts a practicing gay couple, Steven Monjeza and Tiwonge Chumbalanga, only that Malawian President Bingu wa Mutharika pardoned them due to foreign pressure (Daily Monitor 31 May 2010). UN Secretary General Ban Ki-Moon ensured their release!
Back home in Uganda, this same law was used by His Worship Byaruhanga Jesse R, Chief Magistrate Luwero, to convict on own plea of guilt and sentence one Kavuma Sadique Fahad, a teacher of Zakayo Musisi Memorial Primary School, Luwero, to 3 years on each of the two counts of sodomizing two of his primary 7 pupils (Nakibinge Ssozi Dan, 13 years old, Criminal Case No 458 of 2010 (Annex 1), and Dan Nkoyoyo, 14 years old, Criminal Case No 459 of 2010 (Annex 2). Because of the ages of victims, this offender would have been more appropriately charged under The Penal Code Amendment Act 2007.
It is therefore improper to claim that this law is insufficient when this man was arrested, prosecuted, convicted and sentenced only after our intervention and the story serialized on WBS TV investigative program, Vumbula and covered by the Red Pepper.
b. The Constitution
The Constitution of Uganda only considers marriage when between two people of opposite sexes: male and female (man and woman). Any relationship other than that is un-constitutional. So if there is a law that protects the traditional heterosexual family and marriage, it is the constitution.
Article 31.3 specifically says: “Marriage shall be entered into with the free consent of the man and woman intending to marry.”
It neither says man and man or woman and woman intending to marry. Therefore, even a consensual sexual relationship between two adults of the same sex is not only criminal under the Penal Code Act, Cap 120, section 145, but in breach of Article 31.3 of the Constitution.
The argument that this Anti-homosexuality Bill, 2009 is intended to protect the traditional heterosexual marriage, family values and culture holds no water when already provided for by the Constitution and only needs enforcement all times. Further argument that it will stop homosexuals getting married in places of worship makes no sense when the majority of Ugandan heterosexuals couples simply cohabit, and homosexuals can choose to simply follow suit and cohabit.
c. The Penal Code Amendment Act 2007
This law was made to give equal protection to male and female children who are below 18 years of age against sexual abuse and exploitation. It deems them lacking capacity to bargain for sex.
Section 2 of this Amendment specifically says:
“2. Section 129 of the Penal code is replaced:
The Principal Act is amended by substituting for section the following new sections:
129. ‘Defilement of persons under eighteen years of age:
1. Any person who performs a sexual act with another person who is below the age of eighteen years commits a felony known as defilement and is on conviction liable to life imprisonment.
2. Any person who attempts to perform a sexual act with another person who is below the age of eighteen years commits an offense and is on conviction liable to imprisonment not exceeding eighteen years.
3. Any person who performs a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection 4 commits a felony called aggravated defilement and is on conviction by the High Court liable to suffer death.
4. The circumstances referred to in subsection 3 are as follows:
a) Where the person against whom the offense is committed is below the age of fourteen years;
b) Where the offender is infected with the Human Immunodeficiency Virus (HIV);
c) Where the offender is a parent or guardian of or a person in authority over the person against whom the offense is committed;
d) Where the victim of the offense is a person with a disability; or
e) Where the offender is a serial offender.
5. Any person who attempts to perform a sexual act with another person below the age of eighteen years in any of the circumstances specified in subsection 4 commits an offense and is liable on conviction to imprisonment for life.
6. Where a person is charged with the offense under this section that person shall undergo a medical examination as to his or her Human Immunodeficiency Virus (HIV) status.
7. In this section:
? “Disability” means a substantial functional limitation of daily life activities caused by physical, mental or sensory impairment and environment barriers resulting in limited participation;
? “Serial offender” means a person means a person who has a previous conviction for the offense of defilement or aggravated defilement;
? “Sexual act” means:
a) Penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ;
b) The unlawful use of any object or organ by a person on another person’s sexual organ;
? “Sexual organ” mean a vagina or a penis
129A: Child to child sex:
1. Where the offender in the case of any offense under section 129 is a child under the age of twelve years, the matter shall be dealt with as required by Part V of the Children Act
2. Where an offense under section 129 is committed by a male child and a female child upon each other when each is not below the age of twelve years of age, each of the offenders shall be dealt with by Part X of the Children Act.
129B: Payment of compensation to victims of defilement:
1. Where a person is convicted of defilement or aggravated defilement under section 129, court may, in addition to any sentence imposed on the offender, order that the victim of the offense be paid compensation by the offender for any physical, sexual and psychological harm caused to the victim by the offense.
2. The amount of compensation shall be determined by the court and the court shall take into account the extent of harm suffered by the victim of the offence, the degree of force used by the offender and medical and other expenses incurred by the victim as a result of the offence”
Copy of this Penal Code Amendment 2007, thoroughly discussed, passed and assented to by H.E. President Yoweri Kaguta Museveni is attached for your perusal (See Annex 3).
Surprisingly, most Police officers and Resident State Attorneys supposed to ensure its enforcement are ignorant of not only its provisions, but its existence altogether and even if they do, they never implement it.
Similarly, most Parliamentarians seem ignorant about it despite the fact that some, including the mover of the Bill, Hon David Bahati must have participated in its formulation process (unless they missed its sessions or simply never paid attention as it was debated and passed) otherwise, they would not have come up with the Anti-homosexuality Bill 2009.
To prove that some know but may just be duplicating laws to please the masses is the fact that key chunks of this Penal Code Amendment 2007 on Aggravated defilement were just copied and pasted (imported) into the much publicised ‘Anti homosexuality bill 2009’ to cater for ‘Aggravated Homosexuality.’ This cannot be a mere co-incidence!
Apparently, the greatest and most important aim of the Hon Bahati Anti Homosexuality Bill 2009: protecting childrenis better catered for by this Penal Code Amendment 2007.
Sections of the Anti Homosexuality Bill that have attracted most attention of Ugandans (who think there is no law as the rhetoric goes) to support it, and fury from the West with threats of cutting aid are already part of the assented to law and need not be repeated. The children are protected, both male and female against both heterosexualand homosexual abusers (defilers / paedophiles). What now remains to be seen is the will to enforce this law that has been on our law books since 2007 so that it bites perpetrators of sexual abuses of children.
Why should we then pass a contentious or weaker law where the maximum sentence on conviction is years in jail when we have one that is not being enforced where the maximum sentence is death!
The argument that the Anti-homosexuality Bill 2009 will stop procurement, promoting, disseminating literature and other pornographic materials concerning the offense of homosexuality is so weak and can be addressed when dealing with every kind of pornography irrespective of sexual inclination. There is no point enacting a law that deals with just homosexuality pornography while leaving out heterosexuality pornography which is equally damaging and wrecking the lives of youths.
Besides, once an activity is illegal, it is obvious that indulging in it is tantamount to committing an illegality and therefore an offense.
- The Anti-homosexuality Bill 2009 not only lacks basis but complicates the challenge and fight against homosexuality because of the following:
a) Part ii section 6: Confidentiality
Clause 2 gives court powers to block the media from court proceedings: Though we agree with confidentiality, we disagree with giving court powers to block the media from hearings on pretext of ‘protecting victim children’ or as it ‘may consider appropriate.’ The media has sufficient professional ethics and codes to protect victim children and other parties and must not be denied access to proceedings, no matter the excuse.
The clause can be abused by corrupt courts to protect powerful offenders from exposure.
Besides, this clause conflicts not only with the constitution of Uganda which guarantees all people of Uganda the right to information (Article 41) and freedom of speech and expression (Article 29), but also conflicts with the Universal Declaration of Human Rights, Article 19 which guarantees the right to freedom of opinion and expression.
Clause 3 penalizes journalists: Just like the previous clause, we disagree with penalizing the media for publishing ‘… names and personal circumstances or any other information tending to establish the victim’s identity without authority of court.’ There is no doubt that it conflicts with both Uganda’s constitution and the Universal Declaration of Human Rights.
As a matter of fact, prior to the proposed Bill and after, it is the media (not religious institutions now riding on the populist tide to push for the bill, or institutions and agencies of Government) which has diligently played its role to expose homosexuality, the plight of victims and the power and impunity of culprits. Had