What happens if Uganda's 'kill the gays' bill passes? How can the World help then?

Zimbabweans fleeing to South Africa: could this be repeated for LGBT Ugandans?

By Paul Canning

Uganda's anti-gay forces do not give up. Despite the government indicating hostility to the Anti-Homosexuality 'kill the gays' bill they have pushed it up the Parliamentary agenda. Even if it did not get to a vote today, at the last gasp of Uganda's current Parliament, they have insisted it will be brought back, brought to a vote - which they are near certain to win - and reports suggest this could be as soon as next month.

If passed, the World will continue to urge President Museveni to veto it (huge petitions are urging a veto). Undoubtedly Museveni will come under a lot of diplomatic pressure - this has happened before and is happening again. There will also be legal moves to have the then law declared unconstitutional, Ugandan activist Frank Mugisha:

"It violates the constitution of Uganda, so we shall go to courts of law, and appeal for the law to be repealed."

But even though Museveni has said in the past he would veto it, a veto would be unprecedented on any legislation by him.

Various people on the ground have said that the bill's revival is a "distraction", coming at a time when Museveni's governments is being heavily criticised for its repression of street protests and the opposition. Last week he was asked if he could be compared to Idi Amin Dada by a Kenyan TV reporter.

Says Sarah Gunther of the American Jewish World Service, which funds several Ugandan groups, suggests that this means Museveni has every reason not to listen to the West's calls for a veto:

"Passing the Anti-Homosexuality Bill and pandering to the country’s hateful climate for LGBTI people would surely garner Museveni increased public approval at a time when he desperately needs it."

Is the world ready for the consequences of Uganda enacting this law? A key Kenyan activist tells us that he is already receiving two to three calls A DAY from Ugandans wanting help. "We are speaking of a crisis here," he said. If the World loses and the bill becomes law and a witch hunt starts what will the consequences be and what we should be doing?

The threat to NGOs and trade

There will be the usual manoeuvrings from key proponents David Bahati MP and Pastor Martin 'eat da poo poo' Ssempa about "concessions". At the time of writing it appears that they have removed the death penalty and reduced the sentences. Both have spoken about the bill not being a threat to NGOs. But as part of their campaign to bring the bill to a vote, Ssempa named nineteen NGOs as "promoters of homosexual activities in the country" (as well as the Norwegian Embassy).

If the bill is passed all these organisations would not only be under threat because of the extremely broadly written provisions on 'promoting homosexuality' as well as the requirement to 'report homosexuals' but - and this is the issue which every 'western' organisation with business in Uganda will have to consider - they will have to weigh the risk of being threatened: Will Uganda be a safe place for them to operate in? Ssempa has said it won't and has a 'hit list' just as the newspapers have previously published hit lists of gay Ugandans. It was thought the bill had been killed and Ssempa and his colleagues have got it this far. Why wouldn't they have the power to attack NGOs?

Tourism, a major supplier of foreign currency and 3% of the whole economy, will undoubtedly be effected - it is already being hit by the unrest caused by human rights repression and protests over price rises (see this NTV TV report).

Corporations such as Barclays Bank doing major business in Uganda will have to make the same risk assessment that NGOs will have to make but they will also face protests in the West regarding their business in Uganda.

Another possible outcome is boycotts of Ugandan products such as coffee, which alone is 27% of Uganda's exports.

The EU has started to insert human rights agreements into trade relationships with 'global south' countries like Uganda. The MEPs who have lobbied for this are not going to stop putting the pressure on as agreements come up which involve Uganda.

EU parliament President Jerzy Buzek and the head of the Liberal group in the EU parliament on Tuesday again urged Uganda to think twice about passing the bill into law.

“If the law is approved by the Ugandan parliament, it will be necessary for the EU to review its relationship with the country,” the Liberals’ Guy Verhofstadt said in a statement.

Another group of Members of the European Parliament wrote to Ugandan MPS today and said:

"We are determined that the adoption of any legislation further criminalising consensual sex between adults (including the adoption of this Bill, whether in its current or in any modified form) will have a severe negative impact on our bilateral relations, in both its aid and its diplomatic dimensions."

Will it be enforced?

Many may say or expect that the law will be unenforced because the current colonial hand-me-down sodomy law is widely believed to be unenforced - but this is untrue.

Recently updated country guidance for the UK Border Agency quotes the 2009 US State Department human rights report for Uganda saying that "no persons have been charged under the law" (the 2010 report repeats this line).

It also quotes the 12th Annual Report of the Uganda Human Rights Commission to the Parliament of
the Republic of Uganda, covering events in 2009, released in October 2010, which says that "few arrests, prosecutions and convictions have been made under section 145 of the Penal Code Act, which suggests that this law is redundant."

However, citing the most up to date evidence, it also says that:

"Amnesty’s 2010 Report 'I Can’t Afford Justice' published on 6 April 2010 commented “…section 145 of the Penal Code Act has been and continues to be used by the police and other law enforcement officials to subject lesbian, gay, bisexual and transgender (LGBT) people in Uganda to arbitrary arrest and detention often resulting in torture or other cruel, inhuman and degrading treatment.” [10b] This comment is contrary to that made by UHRC at 19.04 and should be considered accordingly. [This means that this information should be prioritised over prior information.]"

Ugandan activists have reported arrests under the existing law. In her eulogy for the murdered gay activist David Kato, Val Kalende noted that he had: "visited all of the prisons and police stations where a member (s) of the LGBT community had been arrested or detained."

Ugandan refugees in the UK like John Bosco and Prossy Kakooza both experienced arrest (and torture) by police.

In a Channel Four documentary 'Africa’s Last Taboo' last year, African journalist Sorious Samura documents in detail the arrest and detention of two gay men in Mbale (a city in southeastern Uganda) under the existing sodomy law.

Barrister S. Chevan, of London's No5 Chambers, says:

"What they [the police] do is use the law to act with impunity. That's what happens."

He says there are arrests, detention and torture - but prosecutions generally don't eventuate: "you bribe yourself out." This was John Bosco's experience. Inspector General of Police, Maj Gen Kale Kayihura, has explained the lack of officially reported prosecuted cases as them 'dying a natural death'.

Interference on the question of the existing law's application has been a consistent tactic by anti-gay forces and the police itself, in its 2010 police crime report, says that "there were no cases of homosexuality reported in Uganda" (that's the language reported in the Observer newspaper). Pastor Ssempa has claimed that:

"For the last 50 years we’ve had this law, since we’ve had a law against homosexuality, no homosexual has been arrested or killed for homosexuality."

We have noted how international media has repeated such claims and other ones, such as the repeated 'concession' by bill author David Bahati MP that the death penalty would be removed - and its repeated newness - and the claims that the bill only pertains to child abuse or sexual assaults.

Yet some comments have made it through which suggest the real motives of the anti-gay forces and what could be the actual impact of the bill's passage into law. On the Christian radio show Michael Brown’s Line of Fire Pastor Julius Oyet, another author of the bill, tells a gay man that he will be arrested when the Anti-Homosexuality law takes effect.

In the documentary 'Uganda: Killing in the name of god' Oyet defends death for gays with his Bible and a Muslim cleric is shown preparing squads to hunt down gays.

And most infamously David Bahati told investigative journalist Jeff Sharlet in an unguarded moment after a long day spent together that he wanted “to kill every last gay person.”

Speaking about the experience to NPR, Sharlet said:

"It was a very chilling moment, because I'm sitting there with this man who's talking about his plans for genocide, and has demonstrated over the period of my relationship with him that he's not some back bencher — he's a real rising star in the movement. This was something that I hadn't understood before I went to Uganda, that this was a guy with real potential and real sway and increasingly a following in Uganda."

Bahati also famously threatened gay British radio star Scott Mills as he was interviewing him for a documentary.

When the presenter said he was gay, Bahati became enraged and the film crew fled.

Later, they heard that Bahati had sent armed police to a hotel he thought they were staying at.

The 31 member Ugandan Civil Society Coalition on Human Rights and Constitutional Law warned about so-called 'concessions' in their press release yesterday (our emphasis):

"The Coalition has been reliably informed that attempts have been made to find a ‘win win situation’ which protects both National and International interests by amending those portions of the Bill which are most offensive to international best practice." 

"As a Coalition we do not believe that there is any conflict between national and international perspectives on the failings of the original Bill, nor do we believe that amendments in any way offer an acceptable way forward; while the wording may change, the intention of an Anti-Homosexuality Bill will remain the same: to Kill the Gays. We therefore reject the original Bill, together with any attempts to amend it, in their entirety."

Uganda's choice: kill the gays or get the development aid?

The US government has moved increasingly to tie aid to human rights, including LGBT human rights. The issue was one highlighted by Hillary Clinton as she released the latest US State Department human rights reports last month.

The US Treasury Secretary, Timothy Geitner, last month indicated that the US will use its influence in world bodies which provide Uganda with a big chunk of its budget. This followed bipartisan support in Congress for moves to block aid on LGBT human rights grounds - which singled out Uganda for mention. Rep. Barney Frank, who has pushed for aid to be blocked, said yesterday:

“If the bill before the Ugandan parliament becomes law, it must be the policy of the United States government to oppose any aid to Uganda from the World Bank, the African Development Bank, or any other international financial institution of which we are a member.”

The European Parliament passed a resolution 16 December 2009 against the bill, which threatens to cut financial aid to Uganda.

Aid makes up around 30% of the Ugandan government's budget.

Already Germany has publicly threatened Uganda on aid and there is the precedent in Africa of aid to Malawi being stopped by several countries following anti-gay moves, including the recent criminalisation of lesbians. Funding for a huge infrastructure project only went ahead after reassurances on human rights from Malawi's government.

Representatives from the US Embassy have been attending the bill's committee hearings and the British Foreign Office as well as other embassies are closely watching developments.Yesterday British Foreign Secretary William Hague responded to lobbying on Twitter saying that the Kampala embassy had issued a formal diplomatic demarche, a representation of protest/concern, agreed and issued by the EU member states to the Ugandan government.

Blogger and activist Melanie Nathan of LezGetReal, who has had the dubious pleasure of being courted by David Bahati (who she describes as a man of "truly sinister intentions") as an outlet for his 'side' on the 'kill the gays' bill, and who is also in close touch with developments at the State Department, says that they "are taking the matter very seriously."

"Speculating,  I am sure there will be pressure on Museveni from the US Secretary of State to veto such bill if it passes. I am sure also that such a plea from the USA and possibly UK [foreign] office, will be a private affair and separate from any public statements." 

Anti-gay forces in Uganda have made it clear that they regard such moves on aid as interference in Uganda's internal affairs and Ugandan activists have had to be very careful in what they say because opponents have constantly claimed that they are massively funded by foreigners; they have even claimed that individuals are being paid massive sums to 'become homosexual' by foreign groups. Despite producing no evidence - because it does not happen - this remains widely believed in Uganda.

However moves on aid would undoubtedly be popular with Western audiences. Comment on websites when the issue is raised is full of calls for aid to countries which suppress human rights to be cut.

Where will they go?

A group of Italian radical MPs, the country's LGBT group Arcigay and Everyone Group has petitioned UNHCR to "provide support to homosexual refugees if the unjust law is passed as it would lead to a tragic exodus."

S. Chelvan says that he would expect there to be an influx of refugees to the UK:

"If the Anti-Homosexuality Bill becomes part of Ugandan law, I am sure the UK will fulfil her international treaty obligations and provide safe refuge to lesbian, gay and bisexual asylum seekers. Since our Supreme Court's ruling last July in HJ/HT, the UK accepts that LGBs have the right to live openly and freely, without the fear of being harmed." 

"The threat of a sentence of up to 20 years for expressing your love for another human being, will provide a clear signal that there is no need for prosecution - for abitrary arrest, detention and torture with impunity results in persecution. Replacing the death penalty with lengthy sentences is no concession. The UK owes a duty to protest loudly and protect those who flee this outrage."

Says Melanie Nathan, who is also an asylum lawyer:

"I personally believe that if a country enacts a law against the very existence of its own citizens - in the sense of wanting to rid society of a group - which in reality is what is happening in Uganda, then the international community has a duty to put into place a special process to help those people leave their country."

"If we learned any lessons from history, and the holocaust were to happen now, we may find a way to get the targeted scapegoats out of their respective countries, into safe places where they could live in peace. This would mean a special category for LGBTI refugees and special plans."

Rachel Levitan, Director of Advocacy of the Organisation for Refuge, Asylum and Migration (Oram), who work internationally to help refugees fleeing persecution based on their sexual orientation, gender identity and gender through legal representation, education and advocacy, said:

"Since LGBTI people in Uganda have been living with serious state-sanctioned harassment, violence and identity-based targeting without this bill, I don't think it likely that there will be a mass exodus [if it becomes law]."

"We've been working in Turkey, next door to a country [Iran] that already has instituted the death penalty (which Uganda may not, it seems), and do not have a flood of refugee applicants based on sexual orientation or gender identity."

"There of course is a steady flow, but it's relatively small compared to the general refugee population."

Oram has been working with The United Nation's refugee agency, UNHCR, since June 2009 on plans for protections for LGBT refugees. A detailed plan exists which they and other NGOs have been closely collaborating with UNHCR on. Last month Vincent Cochetel, UNHCR's representative in the United States, told a Washington DC conference that protections for LGBT refugees needed to be "stepped up."

UNHCR in 2008 issued a first “Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity,” which will be updated this year. Work is planned with national asylum systems to adopt the guidelines. This will be tied to training for Refugee Status Determination, again with outreach to nations to take part. Another aspect is ensuring safe environments for LGBT refugees in countries of asylum, including camps
and urban settings. There's much more included a wealth of research and reporting.

Prioritisation for expedited resettlement is also included, for those "at heightened risk" due to issues such as:

• threats from within communities (both refugee and local populations in country
  of asylum)
• Abuse and lack of protection by local police/ authorities (both in country of
  origin and country of asylum)
• Sodomy and related laws targeting LGBTIs in countries of first asylum

“If the ‘Anti-Homosexuality Bill’ passes, LGBTI Ugandans will face ongoing violence, abuse and torture with no mechanism for redress,” said Neil Grungras, ORAM’s Executive Director. 

All refugee systems, such as UNHCR's, are based on helping people who have left the country concerned, not those still there.

Many may flee to Kenya. It has one of the region's most developed gay communities and we have reported on how the Hebrew Immigrant Aid Society has resettled a Ugandan refugee from Kenya in collaboration with Oram in San Francisco, the first in a new programme. However we have also reported on how delays at the Canadian mission in Nairobi is making Canadian resettlement for Ugandan LGBT refugees "unrealistic".

Kenyan law does prohibit Kenya from blocking refugees who try to enter the country and guarantees their right to travel to refugee camps for screening and registration. However there is also an offence of "unlawful presence", 300,000 Somalis in camps have reported attacks and rapes by the police and local LGBT have documented police harassment and bribe taking from them.

The main border crossing at Eldoret doesn't have an office for a refugee supporting NGO. As of now, LGBT refugees will be on their own, relying on their own resources to get closer to sanctuary.

Dr. Barbara E. Harrell-Bond, Director, Fahamu Refugee Programme, says "I see no other solution but resettlement for them given the situation for LGBT's in Kenya."

Denis Nzioka, the spokesperson for Gay Kenya, said he had received many phone calls and worrying messages from LGBT Ugandans who have contacted him seeking assistance to come to Kenya. He reports receiving two or three per day.

"One message from a gay Ugandan the other day was really emotional; he said he has been targeted by his neighbors who call him derogatory words on account of his dressing and feminine character. A group of them once jeered at him and told him, 'Wait until its legal to kill you and you will see.'"

"He fears for his life and I am afraid he is not the only one. There is a feeling of worry and fear, many are desperate and leaving Uganda to safety, to anywhere, is their only option. We are speaking of a crisis here."

"At the moment, and with the progress of a common EA [East African] region, movement of persons between Kenya, Uganda, Tanzania has become easier, faster and common. One needs only a passport that they can get stamped with a visa at the entry points/borders. The process takes less than five minutes. This is most welcome to many LGBT Ugandans who would otherwise have difficulty securing passage to other countries."

"We have followed the development in Uganda keenly and we had a chance to speak to some activists at the recent regional Changing Faces, Changing Spaces conference and many said that they are worried not only for other LGBT Ugandans but themselves and how open they are."

"We feel that time has come the LGBT community in Kenya to serve its Ugandan community in any way possible. If they need accommodation, we will offer them. If it is food, we will share what we have. If it is protection, we will offer that."

Levitan said that "NGOs in Kenya should be supported in their efforts to create open and welcoming environments for LGBTI refugee."

Resettlement can take an extremely long time, even with increased cooperation through the plan being enacted by Oram and others with UNHCR, and this will not help everyone - what about those still there but in immediate danger? What about, as Harrell-Bond points out, those that may flee to Rwanda, Tanzania, Congo or Egypt.

Levitan said that there is a mechanism for in-country processing through the American embassy in Kampala - "this is used in Iraq and a few other countries" - for key activists. And other countries like Canada and Sweden could help.

But she worries about "whether it can be developed in Uganda without putting the entire population of LGBTIs at risk."

Says Nathan:

"Ideally we would see a deal made with Uganda that all LGBT people be given a moratorium to leave and also a program put it into effect for screening and supporting a lift out of Uganda, with external resources to support the mission. But there is no existing law to make this possible, and there are no resources for such a thing."

"Where would the people go - how would they survive and support themselves. We are looking at a great amount of money in a climate of major cutbacks and a Congress in the USA that has a majority that would do nothing to support American LGBT equality and social services - imagine any latitude for LGBT from Africa."

"In any event how likely is Uganda to make a deal - to help get Ugandans out, when the very legislation itself insists that homosexuals who leave Uganda, be returned to face their day in court and sentencing?"