Recontextualizing the threat of death penalty for homosexuality in Uganda
On Tuesday March 21, the Ugandan parliament passed a law that severely criminalizes people who have consensual same-sex relations. At the end of April, the law had still not been validated by the President Museveni. Among a range of harsh penalties, the law would allow the death penalty for the crime of « aggravated homosexuality ».
By « aggravated homosexuality,» the lawmakers refer to any situation where the a person who committed the offence is living with HIV, is a parent, guardian, or has authority or control over the person against whom the offence is committed is a serial offender, applies, administers or uses any drug, material or thing with intent to stupefy or subdue the person against whom the offense is committed, if the victim is under the age of 18 years or has a disability.
In Uganda, this is not the first time that the parliament has passed a law criminalizing same-sex relationships and where the death penalty is among the penalties being considered. The bill, known as the « Kill the Gay Act », was first proposed in 2009 and then passed in 2013 by parliament before being rejected in 2014 by the Constitutional Court for procedural reasons. In 2013, the law initially envisaged the death penalty for « aggravated homosexuality » before being replaced by life imprisonment. In 2019, this bill was again discussed before being dropped.
The international community has reacted strongly to each of these bills, pointing out Uganda’s obligations under international law. Uganda is a state party to the International Covenant on Civil and Political Rights (ICCPR), which guarantees, among other things, the prohibition of discrimination (Article 2(1)), the right to privacy (Article 17), equality before the law and equal protection of the law (Article 26) and restricts the use of the death penalty to the « most serious crimes » (Article 6). Similarly, the African Commission on Human and Peoples’ Rights (ACHPR) has also noted that laws criminalizing homosexuality are likely to result in violence against individuals based on their actual or perceived sexual orientation and has encouraged states to enact and enforce appropriate laws prohibiting and punishing violence against individuals based on their perceived or actual sexual orientation or gender identity.
Uganda is not the only country to consider using the death penalty for consensual same-sex relationships. In 2021, in 11 of the 84 countries that retain the death penalty, sex between consenting adults of the same sex was considered an offense that could result in a death sentence. These countries are Afghanistan, Brunei, Iran, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, the United Arab Emirates and Yemen. In six of these countries, the death penalty is the prescribed punishment for sexual relations between consenting adults of the same sex, and in five, it is a potential punishment.
International human rights law is clear about limiting the use of the death penalty. For states that have not yet abolished capital punishment, the use of the death penalty, according to Article 6 of the ICCPR, is restricted to the « most serious crimes, and only in the most exceptional cases and within the strictest limits » and « in a non-arbitrary manner. » In 2017, the UN Human Rights Council adopted a resolution condemning the use of the death penalty for same-sex consensual relations and urging member states to ensure that it not be carried out « based on discriminatory laws or as a result of discriminatory or arbitrary application of the law. » Several UN Treaty Bodies and Special Procedures of the UN Human Rights Council have also warned about the criminalization of same-sex conduct. Among other things, they have warned of the risk of increased discrimination and violence against people of the LGBTQIA+ community as a result of laws criminalizing them. The Yogyakarta Principles Plus 10, which provide an authoritative interpretation of the applicability of international human rights law to issues of sexual orientation, gender identity and expression, and sexual characteristics, specifically prohibit the criminalization of consensual sexual relations between adults of the same sex.