UPDATE ON NEXT STEPS IN THE LEGISLATIVE PROCESS REGARDING THE SEXUAL OFFENCES BILL
Although our analysis uses the word Act, the law at present is officially still a Bill and will only become an Act after receiving presidential Assent under article 91 of the Constitution. The reason we referred to it as an Act in the Analysis is because it will only have impact after it has become an Act so our analysis is speculative.
This means that at this stage, there is still an opportunity to have the Bill amended if the President returns it back to Parliament with a request that the Bill or a particular provision of it be reconsidered by Parliament or notifies the Speaker in writing that he refuses to assent to the Bill. Both courses of action have implications.
The President has 30 days to sign the Bill into law after it is presented before him. It is only presented to him by the Clerk of Parliament who is required 'as soon as possible' after the Bill is passed by Parliament to have checked to confirm that the Bill is as passed, and only then to present it before the President for signing. This is a process that can take some time. So the days only start running after the bill is presented before the President.
If the President returns the Bill to Parliament with a request for revision, Parliament is mandated to reconsider it and then the Bill is presented for the second time to the President. If the President once again refuses to sign it, then Parliament is supposed to reconsider the Bill and if it passes the third time with a three-thirds majority, then the Speaker causes the Bill to be laid before Parliament and it becomes law without Presidential assent.
On the other hand if the President refuses to sign the Bill without requesting for reconsideration, then Parliament is again mandated to reconsider the Bill and if passed present it again to the President. If the President refuses to sign it the second time, then Parliament has to consider it for the third time and if it passes with a three-thirds majority, then the Speaker causes the Bill to be laid before Parliament and it becomes law without Presidential assent.
The third option is the President doing nothing about the Bill when presented before him. He neither signs it, nor returns it nor refuses to sign, within the required 30 days, then in that case the President shall be taken to have assented to the Bill and at the expiration of that period, the Speaker shall cause a copy of the bill to be laid before Parliament and the Bill shall become law without the assent of the President.
It is only when a bill has become law that it is gazetted as an Act of Parliament.
These three options should guide advocacy at the moment. We should know what we want to achieve and go for it. HRAPF has reservations about the President returning the Bill to Parliament with a request to amend only the provision on unnatural offences. This may be seen as an affront by Parliament and by anti-LGBT groups and since Parliament has the upper hand, the Bill may then be passed as it is despite the President's request for amendment.
I think the best way to engage now is to ask the President to refuse to assent to the Bill in its entirety. Already many concerned groups are protesting and calling for this - including pastors, and traditional healers and so LGBT groups and sex workers may be seen as being at the frontline of rejecting the law.
We also think we need a mix of loud protest and quiet diplomacy. Loud protest can be used on provisions concerning HIV, further criminalisation of sex work, removal of the withdrawal of consent provision and persecution of marginalised persons generally, while quiet diplomacy should be targeted at the President raising issues around unnatural offences, non-protection of men against rape and the principle that consensual same-sex relations among adults should not be criminalised.
From a legal perspective that is what HRAPF thinks would be the best way of getting the desired result - not having the law adopted in its current form, while courting as little public backlash as possible. The different affected groups have been sharing their own recommendations, and I am sure they will continue to give us further guidance.
It is only if the Bill becomes law without being changed in a way that protects marginalised persons that we should consider a court challenge especially to those provisions that are discriminatory, particularly around HIV/AIDS and status.