Editors' Note: Guest blogger Jim Burroway is editor of Box Turtle Bulletin, and has been following the situation closely in Uganda since breaking the story of the three American evangelicals who held an anti-gay conference in Kampala in March 2009. A compendium of those posts can be found here.
The new year opened with some very rare news for LGBT Ugandans. The High Court ruled that the tabloid Rolling Stone (no relation to the U.S. publication by the same name) was out of bounds when it launched a vicious vigilante campaign last October. The ruling by judge Musoke Kibuuka, signed on December 30 but released January 3, granted a permanent injunction against Rolling Stone from publishing the names and addresses of private LGBT people in Uganda.
On October 3, Rolling Stone published a two-page article announcing a four-part campaign to out 100 LGBT people, with a headline screaming "Hang Them!" That article outed a few dozen people, and a follow-on article a month later outed several more. LGBT advocates took Rolling Stone to court and asked for an injunction ordering a halt to this and any future vigilante "outing" campaigns.
The permanent injunction only applies to Rolling Stone (LGBT advocates would have to go back to court should another tabloid like the notorious Red Pepper decides to launch a campaign), but it establishes an important precedent for future court cases. Unfortunately, it may provide an additional impetus for those who insist that the Anti-Homosexuality Bill, which has been languishing in Parliament's Legal and Parliamentary Affairs Committee for more than a year, must be made the law of the land.
As the ruling stands now, it carries several important points, but the main point was that LGBT people are still Ugandan citizens, and they they are entitled to the same protections under the Ugandan constitution as everyone else:
Upon that objective test, court would easily conclude that by publishing the identities of the applicants and exposing their homes coupled with the explicit call to hang them because "they are after our kids", the respondents extracted the applicants from the other members of the community who are regarded as worthy, in equal measure, of human dignity and who ought to be treated as worthy of dignity and respect. Clearly the call to hang gays in dozens tends to tremendously threaten their right to human dignity. Death is the ultimate end of all that is known worldly to be good. If a person is only worthy of death, and arbitrarily, then that person's human dignity is placed at the lowest ebb. It is threatened to be abused or infringed.
It's rare to see a Ugandan official concerned with an LGBT person's human dignity. That alone makes this ruling is a breath of fresh air.
Court would, therefore, find that the impugned publication threatened the rights of the applicants to respect for human dignity and protection from inhuman treatment and the right to privacy of the person and home. Court would, upon that account issue the injunction sought by the applicants under the motion, restraining the respondents, their servants and agents, from any further publications of the identities of the persons and homes of the applicants and homosexuals generally.
The court also levied damages of 1,500,000 Ugandan shillings (US $650) plus court costs to each applicant as compensation. That fine may appear low, but it is about 20% to 50% higher than the annual per-capita income in Uganda.
While this ruling is cause for celebration, we must remain vigilant. Even without the proposed Anti-Homosexuality Bill, homosexuality is already against the law in Uganda (conviction can bring a life sentence, depending on how it is prosecuted). Rolling Stone's attorneys argued that because homosexuality was against the law, all they were doing was exposing LGBT people so that police could arrest them. The judge pointedly noted that no one who was outed by Rolling Stone was a criminal for one very important reason: none of them had been convicted in a court of law.
It must be noted that this application is not about homosexuality per se. it is about fundamental rights and freedoms. However, court not agrees that section 145, of the Penal Code Act renders every person who is gay a criminal under that section of the Penal Code Act. The scope of section 145 is narrower than gayism generally. One has to commit an act prohibited under section 145 in order to be regarded a criminal.
This point may be key for those who support the proposed Anti-Homosexuality Bill. Among the many reasons cited for the "need" for the bill, supporters argue that conviction is just too hard under the current law. The proposed bill would change that, dumbing down "homosexuality" to include two people merely coming into contact with each other, even if they are fully clothed.
Further the proposed law would give Rolling Stone carte blanche to out LGBT people. In fact, Rolling Stone could argue that it would be their duty to do so under the new law, which would require anyone discovering that someone is gay to report them to police or face imprisonment themselves. Granted, there is a difference between reporting to police and publishing names and photos in the paper, but it's not clear that a court in Uganda would reliably see the difference.
And if the proposed bill were passed, LGBT advocates would likely not even be able to bring a case like this to court. The bill would criminalize LGBT advocacy, with fines and imprisonment of between five to seven years. The bill is so broadly written that even the lawyers could run afoul of the law. Simply defending LGBT people and their advocates could also be taken as "promoting homosexuality," according to the very loose definitions provided in the bill.
Uganda is preparing for Parliamentary elections on February 18. Parliament will return for a lame duck session until the new Parliament is seated in May. There is talk that Parliament may take up the Anti-Homosexuality Bill when it returns for that session.