Opinions
The Anti-Homosexuality Bill 2009 is intended to protect offenders Part II
In the previous articles, I highlighted the sound laws Uganda has to ably deal with homosexuality if systems supposed to enforce the law and ensure justice and redress had the will to implement them.
I contend that with such laws, no diligent and rational leader would squander meager national resources to make another law without sorting out what has made such excellent laws useless unless the same has hidden motives.
The Bill enables Homosexuals to avoid prosecution under:
As a matter of fact, being the worst child sex abusers, homosexuals in Uganda were taken unaware and greatly shocked when Parliament passed and President Museveni assented to the 2007 amendment of section 129 of the Penal Code which defined death for pedophile offenders and life sentences for mere attempts. But rather than grieve, they strategized to create an escape route in the Penal Code, hence, the Anti-homosexuality Bill 2009 which muzzles the media, makes it more difficult to prosecute offenders, curtails freedom of conscience and the duty of confidentiality of counselors and medical personnel when handling victims, and, defines lighter sentences for offenders in homosexuality related cases.
The Bill deliberately muzzles the media:
Whereas Part ii section 6 of the Bill on Confidentiality is purportedly intended to protect children, Clause 2 gives court powers to block the media from court proceedings. Though confidentiality is important, I 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 us 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 which Uganda endorsed before the Constitution was made.
Clause 3 penalizes journalists for publishing ‘… names and personal circumstances or any other information tending to establish the victim’s identity without authority of court.’ It defines fine sentences not exceeding U Shs 5,000,000 (250 Currency points). It conflicts with both Uganda’s constitution and the Universal Declaration of Human Rights.
And considering the penalties involved, this clause will intimidate journalists to run stories no matter how much victims want them known and can be used to protect powerful homosexuality offenders while strangling the media to the disadvantage of victims and society, especially children.
There is need to understand that in most of the cases, victims have turned to the media as a last resort to counter frustration, harassment and framing by officers in the systems (Police, DPP and judiciary) in their attempts to pursue justice and redress. And the media has been our greatest partner in the campaign against homosexuality which Parliament determined to muzzle. Apparently, most offenders fear media exposure more than they fear prosecution through systems.
Many Pro-Bill Parliamentarians and Clerics support muzzling the media out of ignorance of facts while others do to revenge on the media which has exposed their nasty scandals sparked off by victims of their heinous acts ranging from fraud to spouse betrayals and snatching, sexual abuses, and others whose attempts to access justice and redress had been frustrated by systems: especially Police and judiciary.
The Bill is the only law which gives court explicit powers to lock out the media from proceedings.
The Bill makes it more difficult to prosecute offenders
Part iii section 9: on Procuring homosexuality by threats: Clause 2 provides: ‘A person shall not be convicted of homosexuality under this section upon the evidence of one witness only, unless corroborated in some material particular by evidence implicating the accused.’
Instead of making it easier to prove homosexuality, convict offenders and deliver justice and redress to victims, this clause makes it more difficult to do so. It is common sense that except in miraculous circumstances, no third parties can witness live homosexual activity because of its secretiveness as a sexual act.
Secondly, except for one time or amateur offenders, serial offenders may not be that foolish to attract witnesses or leave incriminating evidence. Even where they record videos, it is not easy accessing them.
Yet even where corroborative evidence exists, it is possible to compromise witnesses and the investigative machinery, including Police surgeons to kill cases. When on 21/4/2013 Kasolo Sulaiman reported case SD 11/21/04/2013 at Lugazi Police Station for being sodomized by a Pakistani national Shabash Muhammad, despite the terrible condition he was in with blood and feces oozing from his anus, he was arrested, charged for ‘Giving Police False Information,’ and detained till 29/04/2013 when Good Samaritans intervened. The Lugazi doctors released reports indicating no evidence of sodomy which were later disproved by Dr Kakembo (Police Surgeon) and Mulago Hospital medical team led by Dr Jombwe whose reports indicated evidence that Kasolo had been sodomized. The rest is a log story of Kasolo’s search for justice still ongoing in Mukono Court.
Experience with victims proves that it is possible to offend, traumatize and intimidate victims into silence that by the time they gain courage to seek help, verifiable evidence of the act is no more.
It ought to be understood that absence of evidence of homosexuality doesn’t mean the offence wasn’t committed, just as disappearance of physical signs of hurt doesn’t necessarily mean a victim’s total healing. It needs to be noted that emotional hurt is more damaging and lasting than physical hurt, is cause for many victims’ addiction to drugs and the very reason circumstantial evidence in sexual offenses is very important.
Therefore far from protecting children and easing justice and redress to victims, this clause gives pedophile and other offenders the green light to continue their practice more wisely and secretively without attracting incriminating witnesses and corroborative evidence.
The Bill curtails freedom of conscience and the duty of confidentiality and is a trap for people in authority:
Part iii section 14 of the Bill penalizes people in authority for Failure to disclose the offence within 24. Whereas it appears good on the surface, this clause lays a trap for virtually all adult Ugandans. It turns all well positioned Ugandans: clerics, counselors, medical professionals and others who owe their clientele duties of confidentiality into state informers.
It also turns desperate parents, guardians and household heads struggling with parenting and families matters into spies on members of their households.
It similarly turns employers: directors, managers, supervisors, etc; into spies on the sexual lives of their employees and subordinates.
It makes silence a criminal offence just as speaking out can prove to be a grave unwritten offence because of high corruption and abuse of the Police, Directorate of Public Prosecutions and judicial systems. When you report and the suspects deny or Police deliberately kills evidence, you can be accused of Giving Police False Information. It proves a trap for people in authority.
It dismantles all ethical codes of conduct with regard to confidentiality, scares people from confidentiality and kills the spirit of love, care and concern for others that has characterized the traditions of the people in Uganda and religious fiber, and contravenes the spirit of nationalism that formed the core and fiber of the National Resistance Armed struggle.
I believe that whereas you may counsel victims to overcome pain, fears and stigma, and file complaints, you can’t compel them or their offenders to recount what really happened.
There is even no guarantee that victims who file complaints will maintain their statements, either because of harassments or compromising offers given them, or trauma which curtails memory power.
During 2008 and 2009, under The National Coalition Against Homosexuality and Sexual Abuses in Uganda, I and my colleagues helped some young men accusing Pr Robert Kayanja of sodomizing / sexually abusing them. After being compromised, the Police CID killed the cases, framed, persecuted and harassed us to intimidate into silence other victims that may have contemplated breaking silence.
Then I (Moses Solomon Male) Pr Sempa, Pr Kyazze, Pr Kaira, Deborah Kyomuhendo and David Mukalazi whose complaint was never investigated were prosecuted, denied our right to defend ourselves, wrongly convicted and sentenced with all impunity on tramped up conspiracy to tarnish Pr. Robert Kayanja’s reputation. I witnessed systems used and abused, Police officers concoct / falsify / ignore evidence and lie on oath; and judicial officers deliberately misinterpret laws with impunity!
The systemic rot in Police, DPP and Judiciary is sufficient to convince me that justice and redress for victims must still be a mere dream without a system clean-up no matter how tough the laws may be.
In summary, Part iii section 14 conflicts with Article 29 of Uganda’s Constitution which protects the freedom of conscience and speech for every Ugandan. A person can write or speak out on anything if certain that no trouble beyond what can be managed shall arise. If I choose silence, it is my constitutional right. And if my work ethics require me to keep secrets, it is my right to do so.
You can’t compel clerics, medics, counselors and other professionals to breach confidentiality of their devotees, patients or clients who open up to them. It not only contravenes the Constitution but also their work ethics. It can compel both victims and those struggling to quit the vice never to open up or seek medical or emotional counsel; and can compel clerics, medics, counselors and others to discriminate sodomy victims in service delivery to avoid reporting.
This clause can be abused by people who want to destroy others:
Enemies, rivals or competitors of people in authority may use it, secretly plant homosexuals then report them (people in authority) for not reporting the offence, just to hurt or cripple them.
If legislators keenly want people to report, they should have amended the Penal Code to penalize Police, DPP and Judicial officers who conspire to kill cases. It is so unrealistic and unfair to penalize those who don’t report offences yet leave those who kill cases reported.
Killing cases not only destroys people’s trust in the investigative and judicial processes but provokes MOB JUSTICE. So, rather than use reprimands to compel people to report, people who volunteer information on homosexuality activities must be protected from use and abuse of systems and any miscarriage of justice to encourage others to report.
The Bill defines lighter and unreasonable sentences for homosexuality related offenses:
It imposes a parallel sentencing regime whose sentences for homosexuality related offenses are lighter than those imposed by already existing laws:
For sexual acts where victims are children below 18 years old, whereas Section 129 of the Penal Code on aggravated defilement imposes a death penalty on offenders aged 18 and above where victims are below 14 years or have disabilities, or offenders have HIV, or are parents or guardians of or in authority over the victims, or are serial defilers or aggravated defilers, Section 3 of the Anti-Homosexuality Bill 2009 imposes maximum of life in jail for offenders under similar circumstances.
Whereas under Section 145 of the Penal Code the penalty is life in jail for sodomy acts, under the Anti-Homosexuality Bill, penalty is less than the life in jail imposed for aggravated homosexuality.
Whereas Section 13 of the Anti-Pornography Bill passed on 19th December 2013 to replace Section 166 of the Penal Code imposes a maximum fine of 500 currency points (U Shs 10,000,000) or jail term not exceeding 10 years or both for production, publishing and trafficking of adult pornography (heterosexual and homosexual); and Section 14 imposes 750 currency points (U Shs 15,000,000), or imprisonment not exceeding 15 years or both where pornography depicts images of children; Section 13 of the Anti-Homosexuality Bill passed on 20th December 2013 imposes 5,000 currency points (U Shs 100,000,000), or 5-7 years of imprisonment or both for homo pornography.
If some clauses of the Anti-Homosexuality Bill deliberately contravene the Constitution and render it challengeable in the Constitutional Court, and its custodial sentences which people fear most prove lighter than those prescribed for similar offenses by Sections 145, 129 and the amended section 166 of the Penal Code, would I be wrong to conclude that probably, its promoters could be having a hidden agenda to not only protect homosexuality offenders but to advance it?
To be continued.
Pr. Moses Solomon Male: msmalearch@gmail.com: 0772479386 / 0702196511
Leader, National Coalition Against Homosexuality & Sexual Abuses in Uganda
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