The Anti-Homosexuality Bill 2023, which has been read for the first time in parliament, has stirred up fierce debate, excitement and wild condemnations from within and abroad.
Local pastor Moses Solomon Male, leader of the National Coalition Against Homosexuality and Sexual Abuses in Uganda, has weighed in too with a 14,000-word letter to Speaker of Parliament Anita Among, Hon Leader of Opposition, Hon Asuman Basalirwa (promoter of the bill), and the Parliament of Uganda.
In this first installment of the letter, Male argues that the Anti - Homosexuality Bill 2009, which has been re-tabled and renamed the Anti-Homosexuality Bill 2023, is not necessary “because it is premised on lies: there are already better laws in the Penal Code." Read the excerpt below.
Friday, December 20, 2013, sparked off excitement in the country when the Parliament of Uganda passed the Anti-Homosexuality Bill 2009, which was renamed 2013. Many Ugandans, predominantly led by the clergy across all religious divides, not only rejoiced but proclaimed Parliament Speaker Rebecca Kadaga a heroine and her parliament brave.
Then they piled pressure on President Yoweri Tibuhaburwa Kaguta Museveni to assent to the bill, ‘believing’ it will magically address the challenge of homosexuality that continues to damage the lives of many Ugandans, especially youths and children, male and female, who get lured into it thinking it is a healthy alternative sex life.
Indeed, President Museveni assented to the bill because that is what the public wanted to see. As I had forewarned, homosexuals challenged the legislation in the Constitutional Court on the grounds that it infringed on their constitutionally enshrined rights, but good enough, Justice Stephen Kavuma and his team were more than sober enough to save this country by not tackling its content.
They dismissed it on the grounds that it was passed without a quorum of a two-thirds majority. With the current homosexuality frenzy, the Anti-Homosexuality Bill has been revived and renamed 2023. When you say the legislation is not necessary and is a dangerous trap, you are labeled a pro-homosexual, etc. Many lawmakers want it for political mileage after failing elsewhere to meet their electorates’ expectations.
Many are mired in scandals, and the legislation provides a good cover-up. And many people peddling it neither know its contents nor its implications. Others don’t want to know. Very few want to listen to voices of reason. Having spearheaded the nationwide campaign against homosexuality since 2002, I feel obliged to guide Ugandans through this critical moment so that we don’t regret the decisions taken.
I am not reacting to circumstances or making a U-turn, as the Daily Monitor of December 25, 2013, reported. I am reiterating my position, which is well stated in documents submitted to the Speaker of Parliament: the Report and Petition on Homosexuality in Uganda, dated September 30th, 2009, which spelled out the need for an inquiry, and my rebuttals of the Anti-Homosexuality Bill 2009, dated 7/7/2010 and 12/19/2012.
In 2009, I engaged the originator of the bill, Hon. David Bahati, at the Sheraton Hotel in vain. He understood my argument, but all he wanted was to have it passed, as it was very defective and gave homosexuals and homosexuality mileage. Much of our media covers what people are excited about and want to hear. Now that the public has been successfully deceived into believing that as a country we have no laws on homosexuality, all they want to hear is news about laws being made— nothing more and nothing less.
So, the media has all along covered the pro-law news. Most journalists don’t even know what the Anti-Homo Bill contains but have run stories based on its title. I also engaged the Inter-Religious Council in 2014 before President Museveni assented to the bill in vain.
It is important to note that the bill as it stands, unless a totally new one is written, is premised on lies, driven by populism, opportunism, and hypocrisy, and accepted by the masses because of ignorance. There are better laws in the Penal Code if they can only be enforced.
It breaches the Constitution and is a trap intended to culminate in the legalization of homosexuality. The bill is premised on the lie that there are no laws: Whereas there are very good laws in the Penal Code to ably contain the commission of the act of homosexuality and its promotion. The bill’s promoters deceived Ugandans into believing that there were no laws criminalizing it.
My efforts to write and inform legislators about better existing laws if only systems such as the police, judiciary, and directorate of public prosecutions could be cleaned up fell on deaf ears due to their disdain for dissenting views: the lies had already won them public applause, particularly among populist and opportunistic religious leaders, and they had the resources to promote the bill.
In its Principle 1.1, Paragraph 5, the Bill states: “There is also need to protect the children and youths of Uganda who are made vulnerable to sexual abuse and deviation as a result of cultural changes, uncensored information technologies, parentless child developmental settings, and increasing attempts by homosexuals to raise children in homosexual relationships through adoption, foster care, or otherwise.”
When talking about defects in existing law, 2.1, states, ‘This proposed legislation is designed to fill the gaps in the provisions of other laws in Uganda, e.g., the Penal Code Act, Cap. 120. The Penal Code Act (Cap.120) has no comprehensive provision catering to anti-homosexuality.
It focuses on unnatural offenses under Section 145 and lacks provisions for penalizing the procurement, promotion, and dissemination of literature and other pornographic materials concerning the offense of homosexuality, hence the need for legislation to provide for charging, investigating, prosecuting, convicting, and sentencing offenders. This legislation comes to complement and supplement the provisions of the Constitution of Uganda and the Penal Code Act, Cap 120, by not only criminalizing same-sex marriages but also same-sex sexual acts and other related acts.”
These lies were told at campaign rallies, on religious platforms, and through the non-analytical media, which also refused to carry the credible argument that the country has excellent laws that just need enforcement. The problem is that the systems supposed to enforce them are infiltrated by seasoned lawbreakers. The surprising thing is that most Ugandans, even when educated, hate reading.
Even lawyers who are supposed to be knowledgeable in law read only what they feel is relevant to the cases they handle, and many don’t know that very good laws exist in the Penal Code. Those who know never paid attention until it was passed.
When it comes to clerics, it is even worse. Whereas some are preoccupied with the spiritual needs of their followers, most, because of the commercialization of religion, prove to be more like religious merchants who cannot read what they cannot use to make money from their desperate followers. So, when the bill was tabled, all believed the lies that there were no laws to adequately deal with homosexuality and its promotion; hence, my obligation to uncover the lies beneath the bill.
The Penal Code Act (Cap 120) already handles the vice of homosexuality: Its Section 145 on unnatural sex offenses criminalizes homosexual sex activity. It specifically says: “Any person who: (a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature; commits an offence and is liable to imprisonment for life.”
The language used is so polite as not to offend anyone, but the message is very clear: sex must not be unnatural. In the Bible, Romans 1:26–27 says: “For this cause God gave them up unto vile affections; for even their women did change the natural use into that which is against nature. And likewise also the men, leaving the natural use of the woman, burned in their lust toward other men, working that which is unseemly, and receiving in themselves that recompense of their error”
Against the order of nature means, the sexual organs are not used in the way they were naturally intended to be used: the man’s penis only penetrating the woman’s vagina, not the man’s penis penetrating the anus or mouth of a person, the vagina being penetrated by anything other than the penis, a person having sexual intercourse with an animal, etc.
‘Carnal knowledge’ is a legal euphemism for sexual intercourse (activity), doesn’t discriminate between male and female, and is derived from the Biblical usage of the word know/knew as seen in Genesis 4.1, “And Adam knew Eve his wife; and she conceived, and bore Cain, and said, I have gotten a man from the LORD.” (King James Version.) So, when the Penal Code says carnal knowledge, it means sexual intercourse. This section indiscriminately criminalizes such sexual activity and prescribes sentences of life in jail, and under it, cases are prosecuted.
Under this law, His Worship Byaruhanga Jesse R, Chief Magistrate Luwero, was convicted on his own plea of guilty and sentenced one Kavuma Sadique Fahad, a teacher at Zakayo Musisi Memorial Primary School, Luwero, to three years on each of the two counts of sodomizing two of his primary 7 pupils in Criminal Case No. 458 of 2010 and Criminal Case No. 459 of 2010.
Though because of the ages of the victims, this offender would have been more appropriately charged under The Penal Code Amendment Act 2007, Section 129, the police and state attorney inappropriately charged him here, where the sentence is life in jail, because under Section 129 of the Penal Code, he would have faced a death sentence.
Circumstances tell a story. When the victims told their parents and the matter was reported to Luwero Police, instead of the police arresting the offender and investigating the complaints, it helped him to flee and then turned to extorting money from them until they came to me.
I immediately took up the matter with Assistant Inspector General of Police (AIGP) Assan Kasingye, then head of community policing, who called DPC Luwero. The receiver said wrong number. When he called the OC CID, he gave him the same number. When Kasingye called again, he denied having received any call from his boss.
Even instructions to apprehend Kavuma fell on deaf ears till we opted for an expose well handled by WBS TV investigative program, Vumbula (available), which compelled them into action, and he was arrested from Katosi, Buikwe District. On the day of court, the investigating officer brought another young boy to tell the court that the two victims were actually lying, Kavuma hadn’t sodomized them. When the Luwero Resident State Attorney intervened on my request, called the file, and interrogated the boy, he gathered that the boy had been told to lie by the police.
He decided to seek an adjournment to amend the charge sheet and charge him under Section 129 of the Penal Code: of aggravated defilement (which carries a death sentence) and defilement (which carries a life sentence in jail).
The magistrate granted the application for an adjournment, and the victims, their parents, and I left court as the accused was returned to the cells. Later that day, I was surprised by the phone call from the Resident State Attorney telling me that after we had left court, the accused was returned to court in the afternoon, charges were read for him again, he admitted them, and he was summarily sentenced to three years on each count, a total of six years, not running concurrently! (The rest is another long story of abuse of systems to prevent justice.).
Clearly, this was not a lack of laws in this case but connivance within the justice system to deny justice to the victims. If there is no law, under which law was he prosecuted, convicted, and sentenced since the law is not retrospective? Our children and youths are better protected against homosexuality by existing laws: Since my first statement against the revived Anti-Homosexuality Bill, I have received criticism from pro-Bill fanatic Christians obsessed with convincing the masses that they are the champions of the cause against homosexuality.
I don’t mind what they say so long as I tell people the truth because Jesus Christ, my mentor, said, ‘You will know the truth, and the truth will set you free.’ John 8:32.
In my previous article, I showed how Section 145 of Uganda’s Penal Code already outlaws acts of homosexuality and penalizes their commission with a life sentence. I proved that Kavuma Sadique Fahad was prosecuted, convicted, and sentenced using that law.
That said, for attempts to commit unnatural sex offenses, Section 146 of the Penal Code clearly says, “Any person who attempts to commit any of the offenses specified in Section 145 commits a felony and is liable to imprisonment for seven years.”
Sadly, despite having such a law, to the best of my knowledge, none of the cases reported under this section have ever been prosecuted since, in every sexual offense, the police require a victim to be examined for traces of injury in the anal-rectal canal and/or sexual organ, and if none exist, then the accused is simply disregarded as a liar or charged with giving police false information.
It needs to be known that Uganda’s criminal investigation department lacks investigative skills and many times disregards vital circumstantial evidence, which renders attempts unprosecutable despite a clear law of the Penal Code.
Our youths and children of non-consensual age are better covered by existing laws: In 2007, having been thoroughly discussed and passed by Parliament, The Penal Code (Amendment) Act, 2007, was assented to by H.E. President Yoweri TIbuhaburwa Kaguta Museveni. I got a copy from the Directorate of Public Prosecutions in 2009, and it is available for anyone who wants to peruse it. President Museveni’s signature of assent is evident for all who doubt the authenticity of my evidence. It is now fully incorporated in newly published Penal Code copies.
In case it is not authentic, then let the police arrest and charge me for forgery and uttering a false document. This law was made to give equal protection to male and female children aged below 18 years whom it deems lacking capacity to bargain for and consent to sex, against sexual abuse and exploitation. It redefined defilement, hitherto restricted to female children, to cover both male and female children aged below 18 years.
Section 2 of this Act replaced Section 129 of the Penal Code and specifically says: “The Principal Act is amended by substituting for Section the following new sections: 129. ‘Defilement of persons under eighteen years of age: 1. Any person who performs a sexual act with another per- son who is below the age of eighteen years commits a felony known as defilement and is, upon conviction, liable to life imprisonment.
2. Any person who attempts to perform a sexual act with another per- son who is under the age of eighteen years commits an offense and is, upon conviction, liable to imprisonment not exceeding eighteen years.
3. Any person who performs a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection 4 commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.
4. The circumstances re- ferred to in subsection 3 are as follows: a) Where the person against whom the offense is committed is under the age of fourteen years; b) Where the offender is infected with the Human Immunodeficiency Virus (HIV); c) Where the offender is a parent or guardian of or a person in authority over the person against whom the offense is committed; d) Where the victim of the offense is a person with a disability; or e) Where the offender is a serial offender.
5. Any person who attempts to perform a sexual act with another person below the age of eighteen years in any of the circumstances specified in subsection 4 commits an offense and is liable on conviction to imprisonment for life.
6. Where a person is charged with the offense under this section, that person shall undergo a medical examination as to his or her human immunodeficiency virus (HIV) status.
7. In this section: “disability” means a substantial functional limitation of daily life activities caused by physical, mental, or sensory impairment and environment barriers resulting in limited participation; “serial offender” means a person who has a previous conviction for the offense of defilement or aggravated defilement; “sexual act” means: a) Penetration of the vagina, mouth, or anus, however slight, of any person by a sexual organ; b) The unlawful use of any object or organ by a person on another person’s sexual organ; “sexual organ” means a vagina or a penis: Child-to-child sex: 1. Where the offender in the case of any offense under Section 129 is a child under the age of twelve years, the matter shall be dealt with as required by Part V of the Children Act 2.
Where an offense under section 129 is committed by a male and a female child upon each other when each is not below the age of twelve, each of the offenders shall be dealt with by Part X of the Children Act. 129 B: Payment of compensation to victims of defilement: 1. Where a person is convicted of defilement or aggravated defilement under Section 129, the court may, in addition to any sentence imposed on the offender, order that the victim of the offense be paid compensation by the offender for any physical, sexual, and psychological harm caused to the victim by the offense.
2. The amount of compensation shall be determined by the court, and the court shall consider the extent of harm suffered by the victim of the offense, the degree of force used by the offender, and medical and other expenses incurred by the victim because of the offense.”
Summarized, this law criminalizes any sexual activity with a person below the age of 18 and mandates life in jail for offenders. Any attempt to do so carries 18 years in jail. It created the offense of aggravated defilement,” which carries a death sentence, if the victim is under 14 years old or is disabled, or if the defiler has HIV, has authority over the victim, is a serial defiler, or is a “aggravated defiler. It mandates that in cases of mere attempts at aggravated defilement, the sentence is life in jail. It clearly defined disability as having limited participation in the act caused by physical, mental, or sensual limitation
To be continued...