HRAPF IDAHOT MESSAGE ON LAWS AND POLICIES IN EAST AFRICA
HUMAN RIGHTS AWARENESS AND PROMOTION FORUM (HRAPF)
IDAHOT 2016
Laws and policies affecting SOGI rights in Uganda, Kenya and Burundi
Sex between people of the same sex is criminalized in Uganda, Kenya as well as Burundi.
In Uganda and Kenya, this criminalization has been inherited from British colonial rule and retained on the law books. The Ugandan Penal Code Act criminalizes the having of ‘carnal knowledge against the order of nature’ as an ‘unnatural offence’, punishable with life imprisonment. The Kenyan Penal Code Act also criminalises homosexual sex as an ‘unnatural offence’, punishable by imprisonment for up to fourteen years. In Burundi, legislation was only passed in 2009 which criminalises same-sex sexual relations and imposes a punishment of up to two years imprisonment or a 50 000 franc fine.
In all three of these states, charges of consensual same-sex conduct are rarely – if ever – successfully prosecuted. Instead, these criminal provisions are used to fuel the targeting and further marginalization of people based on their real or perceived sexual orientation or gender identity, by both state actors (mainly the police) and individuals. In Uganda, the Non-Governmental Organisations Registration Act could potentially impact upon the law of LGBTI persons in that it provides that an organization shall not be registered with the NGO Board if its objectives are in contravention of the law. The Act also makes registration with the Board a precondition for operation. Considering the fact that same sex conduct is criminalized in Uganda, this section could easily be interpreted to prohibit the registration of organisations working on LGBTI issues. The Equal Opportunities Commission Act creates a Commission which receives and investigates complaints from the general public involving discrimination and marginalization. However, a section of the Act prevents the Commission from investigating any matter involving ‘immoral and socially harmful’ behavior, which excludes cases on the basis of LGBTI discrimination from being considered.
In terms of gender identity, neither Burundi nor Kenya and Uganda recognize a right of persons to change their assigned gender in law. Uganda in particular has a number of laws and policies which impact upon the rights of transsexual and intersex persons. The Births and Deaths Registration Act prevents transgender and intersex people between the ages of 18 and 21 from changing their names without the consent of their parents. The Act makes provision for the registration of sex changes of children, with the consent of their parents, but does not allow adults to change the particulars in the Births Register to reflect a change of sex. This means that only intersex people, who are presumed to undergo sex change operations as a matter of necessity, are covered while transgender people, who presumably undergo sex change operations as a matter of choice, are not afforded legal recognition. Furthermore, there have been arrests of transgender people under the prohibition of ‘personation’ in the Ugandan Penal Code Act. The seemingly ‘non-conforming’ way that transgender people dress are seen by the police and members of the public as ‘fraudulent and intended to misrepresent’.
Another common factor in Burundi, Kenya and Uganda is the constitutional and international law protection of human rights, which ought to be available to citizens of these countries. While there are no express provisions, which protect LGBTI rights; the basic protections of rights of all people that are embedded in these three Constitutions and in international human rights law are applicable.
The Ugandan Constitution contains National Objectives and Directive Principles of State Policy, which are intended to guide all organs and agencies of the state, all citizens, organisations and other bodies and persons in applying and interpreting the Constitution. Some of these objectives have bearing on the protection of LGBTI rights, such as the objective urging all stakeholders to promote a culture of tolerance and respect; the objective to enjoining the State to enhance the promotion and protection of human rights and guarantee respect for human rights NGOs; and the objective which emphasises Uganda’s obligations under international law.
The Ugandan Constitution also contains a Bill of Rights which guarantees the right to equality and freedom from discrimination; the right to liberty; the right to freedom from inhuman and degrading treatment or punishment; the right to privacy; the right to found a family; the right to freedom of expression, thought, opinion and assembly and the right to civic participation.
The Ugandan High Court has confirmed in the case of Mukasa and Another v Attorney General, that the constitutional protection of personal liberty, privacy, freedom from unlawful searches and degrading treatment and punishment apply to all Ugandan citizens, regardless of their sexual orientation and gender expression. Similar rights are guaranteed in the constitutions of Burundi and Kenya. The Kenyan High Court has also confirmed that a person cannot be deprived of his or her human rights on the basis of their gender identity in the case of Republic v Non-Governmental Organisation Co-ordination Board & Another ex part Transgender Education and Advocacy and 3 Others.
International human rights law places these three states under legal obligations to ensure that the human rights of every person are protected. There are numerous human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Convention Against Torture and the Convention on the Elimination of All Forms of Discrimination Against Women.
While LGBTI rights are not expressly mentioned in these instruments, many provisions do have bearing on the protection of the rights of LGBTI persons. Such relevant provisions include the guarantee of freedom from discrimination and equality before the law, freedom from torture, cruel, inhuman and degrading treatment, freedom of expression, association and peaceful assembly and the right to privacy.
In 2006, a committee of experts developed and adopted ‘The Yogakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity’. These principles summarise the different norms in international human rights law and explain how they apply to sexual orientation and gender identity. The Yogakarta Principles can be described as a ‘soft law instrument’. It provides states and non-state actors with recommendations on how to improve the enjoyment of rights by LGBTI persons using existing international law standards.
The fact that constitutional and international law protections exist have proven to come to the aid of LGBTI persons in instances where discriminatory laws have been adopted or applied.
One example of this is the fact that the Uganda Anti-Homosexuality Act 2014 could be subjected to a constitutional challenge. The Act was adopted with the purpose to clearly define the offence of homosexuality and related offences and it also aimed to dramatically expand criminal liability for consensual sexual activity between adults of the same sex. The Act was challenged on constitutional grounds in the matter of Oloko-Onyango and Others v Attorney General and Another. The petitioners submitted that many of the offences created by the Act attracted disproportionate sanctions and constituted infringements of the right to equality, human dignity, privacy and freedom from inhuman, cruel and degrading treatment or punishment. The Constitutional Court annulled the Anti-Homosexuality Act on the technical basis that it was passed without the necessary quorum of parliamentarians present, but it is believed that the challenge would have succeeded on substantive grounds as well. The troubling provision of the Equal Opportunities Commission Act, as discussed above, could also be challenged on constitutional grounds. The Constitutional Court has recently reheard this challenge in the matter of Jjuuko Adrian v Attorney General.
Another example of the practical effects of constitutional and international human rights law on LGBTI rights can be found in the Kenyan High Court case of Gitari v NGO Co-ordination Board and 4 Others. In this matter, the NGO Co-ordination Board refused to register an NGO which promoted the rights of LGBTI persons on the bases that all the names suggested for the organisation were inconsistent with the law of the country. The Court held that the Constitution must be applied to all persons without prejudice and that freedom of association cannot be limited on the basis of a person’s sexual orientation. It was also held that the NGO Board had violated the claimant’s right to non-discrimination.
It is hoped that, through advocacy and awareness-raising, the constitutional and international law protections of LGTBI rights could eventually be used to remove the criminalisation of same-sex conduct from the law books of Burundi, Uganda and Kenya and to provide for the legal recognition of the right of persons to change their assigned gender.
