Akina Mama wa Afrika, joins the human rights fraternity and feminist collectives to express our consternation regarding the recent decision by the Parliament of Uganda to pass the Sexual Offences Bill, 2019 on 3rd May 2021. While we welcome specific clauses that speak to indecent assault, sextortion, child rape, sex tourism and trafficking, the lasting implications of clauses amended and added to the Bill mean that the true objective of the Bill as was first proposed will not be met.
The Sexual Offence Bill first drafted in 2000 and tabled as a Private Member’s Bill was envisioned as an instrument that would consolidate laws relating to sexual offences as well as address some of the gaps in existing legal frameworks in regard to sexual violations. Within that time, the Bill has undergone significant amendments, some of which have altered its very essence and further created room for the extension of criminalization of different groups of women and sexual minorities in Uganda.
In analyzing the Sexual Offences Bill as it currently is, it is essential that we factor in the lived realities and human rights concerns of all Ugandans, regardless of gender and sexual orientation, class, and other intersecting identities. In that regard therefore, the Bill as passed by Parliament violates principles of equality and non-discrimination that are core to the advancement of human rights for all in Uganda.
- The Bill provides a vague definition for what constitutes consent to sexual acts.
The Bill fails to distinguish between consent by will and consent by coercion. The pervasive nature of sexual abuse, manifesting in private and public spaces necessitates that we take a firmer approach to ending this violence. Appreciating that sexual violence, particularly in intimate spaces also occurs in the background of gendered power dynamics, the recommendation to withdraw Clause 36 on withdrawal of consent is a blowback to women’s rights organizing to end sexual violence against women. As such, re-situating consent as mandatory is essential. Consent should then be understood as continuous. Even in the context of African societies, it is crucial that we view spouses and partners as autonomous beings who are able to decide when and what happens to their bodies. By removing the provisions that would have clarified that consent may be withdrawn at any time before or during the performance of the sexual act, the Bill strips individuals the right to protect themselves from undisclosed facts by their sexual partner(s) including unwillingness to use protection.
- The Bill further criminalizes same sex relations.
The Sexual Offences Bill is a backdoor for reintroduction of the Anti-Homosexuality Act that was disallowed in 2013. It goes against the constitution of the Republic of Uganda that provides for equality and non-discrimination to all Ugandans. This Bill does not only worsen the already hostile environment towards LGBTQI persons, it also denies them their right to health and increases stigma.
The unjust recommendations and clauses in the Bill further criminalize consensual same sex acts and create avenues for further infringement on the rights of persons targeted under the guise of enforcing the law. Following the outlawing of the same sex relations in Uganda under the Anti-Homosexuality Act, and provisions in the Penal Code Act, thousands of Ugandans were reported to have sought refuge in other countries to protect themselves from persecution based on sexual orientation and identity. The introduction of extraterritorial jurisdiction further targeting consenting adults involved in same sex relation, even outside of Uganda’s territories is yet another violation of International Human rights law. The principles of non-refoulment guarantee that no one should be returned to a country where they would face torture, cruel, inhuman, and degrading treatment or punishment and other irreparable harm.
- The criminalization of sex-work.
We affirm that sex work, is work. Criminalizing sex work and related activities that directly or indirectly deny sex workers the very rights guaranteed under international and domestic law is a manifestation of archaic double and moral standards. The principle of bodily autonomy foregrounds the urgent demand to decriminalize sex work. The legal and economic barriers that push women and other persons into the sex industry should be central to understanding why all involved should be protected and safeguarded against further discrimination. Instead of criminalizing sex work, specific regulatory frameworks should be put in place to protect sex workers and grant them the same rights as any other laborer. Criminalizing sex work only contributes to a slew of sexual reproductive health challenges for sex workers.
- The Bill further criminalizes victims of Non-Consensual Image Distribution
Non-consensual image distribution, commonly referred to as “revenge porn”, facilitated by the evolving nature of the internet is on the rise in Uganda. As it stands now, victims of this abuse in Uganda, who are disproportionately women, continue to be punished for actions of perpetrators, often done without their consent. “This focus on the subjects of abuse adds another layer of violations: on top of the distribution of images, which is a total violation of privacy, it lays down a public trail for which the subjects are pre-judged as guilty – a further injustice to women who are already victimized.” The Bill continues the existing tradition in Uganda of punishing women based on skewed understandings of morality. The Bill puts victims of non-consensual image distribution at further risk of arrest, with a crackdown on the “circulation of pornographic” material.
- The Introduction of a Clause on False Allegations
The reality is that sexual violence crimes continue to go unreported, and even when they are, unpunished. The Uganda Police Crime Reports continue to speak to this. There is also no scientific or anecdotal evidence to back up claims that false allegations in relation to sexual violence are common or warrant public concern. If anything, the opposite is true as many victims of sexual violence are unable to seek justice because of deeply rooted systemic inequalities that trivialize abuse, stigmatize victims, and protect perpetrators. The emphasis of any just law must therefore be on ending this. The question of perjury and false allegations are already covered in the Penal Code Act and as such, the re-introduction of this clause only will only further intimidate victims of sexual violence.
- Continued criminalization of people living with HIV/AIDs.
The Bill continues to stigmatize people living with HIV in Uganda, by providing that where the sexual offender is infected with HIV or suffering from AIDS, it shall be deemed to be aggravated and the person so convicted is liable to suffer death. The inclusion of HIV status as an aggravating factor is rooted in stigma against HIV positive persons. This provision further criminalizes people living with HIV and is in further contradiction with Uganda’s various commitments to provision for equality before the law for all persons.
Recommendation and Conclusion
As such, we continue to appeal to legislators, the public and the President to reject the Bill as is and instruct parliament to present a revised Bill that takes into account the full spectrum of human rights protection in addressing sexual violence.
We implore the parliament of Uganda to make extensive consultations with all members of the community to ensure that diverse groups are protected by the Bill because if a law negates the needs and rights of one group in society, it is by that very nature discriminatory. Uganda as a signatory to the different international and regional human rights instruments, must reflect these promises and obligations in domestic law.
We therefore stand in solidarity with all Ugandan women, in all their diversities, LGBTQI persons and all those criminalized and affected by the Sexual Offenses Bill.