I’ve defended hundreds of LGBTI people arrested in Uganda. Our laws must change – but we need public acceptance too
We can fight for equal rights through the courts, but we need to do more – it’s ordinary citizens who murder LGBTI people, and we must reach them too.
On the night of 10 November 2019, we received a call from someone who had been arrested. They said the police had rounded people up at an LGBTI-friendly bar. They wanted legal representation.
I am the director of the access to justice programme at the Human Rights Awareness and Promotion Forum in Kampala, Uganda. Among other things we run a legal aid clinic for people who struggle to find legal representation, including LGBTI people.
Our organisation was the first in the country to provide legal services for LGBTI people. Now, most people know us for this work. Sometimes, we even get police officers calling us to say, “we have your people here. Come and give them legal representation”.
The morning after that call, we sent a legal team to Kampala’s central police station. There, they found a one-of-a-kind situation: overnight, not one but 125 people had been arrested!
Given the laws in our country that criminalise LGBTI lives, it’s no surprise then that many LGBTI people are arrested in Uganda each year. But 125 people in one night was unprecedented. It also happened amidst a surge of violent homophobic attacks.
In the last six months of 2019, we registered two murders, of a transgender woman and a gay man. A lesbian woman was beaten by a doctor who broke her arm, cracked her skull, and threw her out of a hospital. Two gay refugees were badly assaulted by a mob.
Sixteen members of Let's Walk Uganda, an LGBTI shelter and rights group, were arrested and charged with “carnal knowledge against the order of nature”. (They are now free; the charges didn't stick).
All of this also happened at a time when Uganda’s former and present ministers for ethics and integrity, Nsaba Butuuro and Simon Lokodo, were talking about re-introducing the anti-homosexuality act – emboldening the public to violate the rights of LGBTI people.
Our organisation’s approach to decriminalising the lives of LGBTI people has been incremental. But now I think the time has come that we challenge discrimination across the board and called for the total repeal of the anti-LGBTI sections of our penal code.
It’s also crucial to engage the public on ending homophobia. Those who murder LGBTI people are ordinary citizens with strong preconceptions that must be debunked for the situation to improve. This is difficult work, but we must do it now.
From colonial laws to the “Kill the Gays” bill
In Uganda, prevailing societal attitudes as well as our laws are homophobic and restrictive. Section 145 of our penal code criminalises consensual same sex relations as “carnal knowledge against the order of nature”, punishable by life imprisonment.
Meanwhile, if you’re prosecuted under Section 148 of the code for other “indecent practices” – interpreted as oral sex, anal sex and other sexual acts deemed to be outside traditional, perhaps Victorian, sexual expression – you can go to prison for up to seven years.
These are just the laws we inherited from colonial Britain. We also have other laws that have been used to target LGBTI people, including those against “idle and disorderly” conduct. Transgender people have also been arrested and charged with ‘impersonation’.
While the death penalty was removed in the version that passed, the law banned the ‘promotion’ of homosexuality, made it an imprisonable crime to not report LGBTI people to police, and imposed life sentences for other same-sex acts, including touching in public.
We successfully challenged this law at the constitutional court and it was nullified on a procedural technicality (there weren’t enough MPs in the room when it was voted on). But the context remains tense.
A new NGO Act, passed in 2016, has made it harder for human rights organisations to support LGBTI people, by forbidding groups that work on something that is deemed to be “illegal or against the public interest” from officially registering as NGOs.
We’ve already seen restrictions like this in action. For years our authorities have prevented the Sexual Minorities Uganda (SMUG) group from registering because of its name.
We challenged this in court but in 2018 a judge ruled against us, on the basis that it is ‘aiding and abetting an illegality’, as same-sex relationships are illegal. (We appealed this decision last year).
Worryingly, a sexual offences bill tabled last year reproduces the sections of the penal code that criminalise LGBTI relationships. It’s drafters – the Uganda Women Parliamentarians Association – have so far not heard our pleas to drop these provisions. (This is not entirely surprising; in Uganda, mainstream women's rights activism often excludes LGBTI people).
Authorities regularly raid and close gay events, though if arrests are made, they’re usually of 5-10 people, with the event organisers targeted. This is why November’s incident came as a massive shock.
Responding to these mass arrests was also particularly difficult. After the arrests, at the police station some people were released after a screening process – but 67 individuals were taken to court and charged with the offence of common nuisance.
Our legal team was completely denied access to them while in police custody. By the time I got to court on Tuesday 12 November to lead their defence, almost two full days after their arrests that Sunday evening, we hadn’t interviewed any of the accused: our clients!
They were all taken to court at 3pm, just a couple of hours before close of business. There wasn’t enough time for the court to hear and rule on their bail applications. In one courtroom, where more than 20 people waited, there was no state attorney to open the case.
In the end, all of the 67 people charged were sent to jail for at least a week, even though they were accused of a petty offence (being a common nuisance). To those who applied for bail, the state attorney objected and the judge adjourned the case, postponing his rulings.
Was this their plan, to deny bail that day? Send these people to jail so they could taste the wrath of our system? The police officers who arrested them knew that it was an LGBTI-friendly bar they raided, having received information about a birthday party happening there, and thus the likelihood of a larger group of people to round up.
They had also brought the media with them – with the arrests immediately making the news rounds. People who may have been in the closet were outed. Everyone who watched the news now knew.
Over the following weeks, bail applications for the 67 were heard, and accepted, but for a few individuals at a time. Though all were eventually released, significant harm was done. People were denied legal representation. Some lost their jobs while in jail. Families rejected those who had been in the closet, and were now outed.
"People were denied legal representation. Some lost their jobs while in jail. Families rejected those who had been in the closet"
The reactions of some parents at the court were really awful. I was the lead lawyer for the defendents and the parents seemed to believe that we were responsible for 'recruiting' their children into homosexuality; that we were spoiling society.
One parent, who had agreed to be responsible for their child, while they were out on bail, gave me his ID as part of this process and later demanded that I return it to him. I could not, because it was with the court. He became angry and seemed ready to physically attack me.
LGBTI people and allies who came to court in solidarity with the people arrested stepped in. After a scuffle, court officials ordered the rowdy parents to leave the premises.
Though they now are out on bail, the children of such parents have sought refuge in shelters. Even spending a week in prison can cause psychological trauma, especially if everyone knows your sexual orientation – both inside and outside the jail.
We didn’t get any reports of torture but we heard a lot about verbal insults and humiliation from the people behind bars.
While this case is unique because of its scale, the way the law and our judicial process were used against LGBTI people was familiar. Having done this work for close to a decade, I recognise the patterns.
We often handle cases where people have been charged with unnatural offences, common nuisance and idle and disorderly behaviour – but we know that the goal is to intimidate LGBTI people, to ‘teach them a lesson’, and show them they’re not accepted.
The actual proceedings of a case isn’t the only thing that matters. The rejection and violations people suffer in the aftermath of arrests can be worse than a conviction. Even when cases are ultimately dropped, people go through a lot in short periods of time.
"This isn’t easy work. You have to be resilient and have the heart to serve"
Sigh… The struggle for human rights for all people must and will continue, but this isn’t easy work. You have to be resilient and have the heart to serve. Often it feels like our efforts are in vain, though we have had some successes including through the courts.
In a case filed in 2009 by Adrian Jjuuko, our executive director, we successfully challenged a provision in the Equal Opportunities Act that said if most people consider you immoral and socially unacceptable, you can’t access the Equal Opportunities Commission.
This commission exists to ensure there is no discrimination but the very act that established it was discriminating against LGBTI people. In 2016 the court agreed with us and said it was unconstitutional. Now anyone can access this commission regardless of their perceived ‘morality’, including sex workers and LGBTI people.
In response to our advocacy and outreach to government ministries, police and policymakers, some have become more inclusive. The health ministry’s programmes in particular have been responsive to including LGBTI people, which wasn’t the case before.
When a police officer calls us to say, “we have your people here, come and give them legal representation” we see that they are at least trying to understand that this community requires support.
This is not a justification for daily violence against LGBTI people at the hands of the police. Though police officers are in tricky positions. They often say that they only uphold the law as it is written, and that it is up to us to go to court and fight the law if we disagree with it.
"I hope I live to see true acceptance"
Our organisation has focused for years on opportunities for strategic litigation to ensure that LGBTI people can enjoy the same rights as anyone else. But what we need is total decriminalisation.
We must also do more to engage with ordinary citizens to challenge misinformation, miscommunication and myths.
This is difficult work but we need to do it. Once conversations begin you often start to see some kind of acceptance. I saw this at court, with the parents who came with such negative attitudes and views.
I sat down with some of them, listened and tried to talk to them. Even this little awareness can make some LGBTI lives in Uganda better.
I hope I live to see true acceptance, but at the moment our work is contentious and intimidation keeps happening. Our offices have been broken into twice, in 2017 and 2018. Staff homes too. Last year, someone broke into my home and took my work laptop and phone.
One morning in 2017, I received a call from a strange number. The caller said, “okay, I can see you are leaving home”. It happened twice. When I logged into Facebook, I saw other LGBTI activists and allies saying that the same number had called them too.
Perhaps someone had got an attendance list from a workshop and were hoping to blackmail and extort us. Maybe they just guessed I would leave my home at that time. I didn’t see anyone, but you never know. Though intimidating things keep happening, we are resilient.
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