Is It Now Legal to Be Gay in Uganda?

The country's infamous anti-homosexuality law has been struck down -- but homophobia is still dangerously enshrined in the country's penal code.

When Uganda's Constitutional Court declared the notorious Anti-Homosexuality Act "null and void" on August 1, the country's lesbian, gay, bisexual, transgender, and intersex (LGBTI) community and human rights activists breathed a collective sigh of relief. Since President Yoweri Museveni promulgated the law in February, it had cast a long shadow. But the real fight is not over -- not in Uganda, nor in many other countries that have been passing anti-LGBTI measures into law.

After Uganda's parliament passed the law seven months ago, one of Africa's most vibrant and outspoken LGBTI communities experienced a notable increase in arbitrary arrests, police extortion, loss of employment, evictions, and homelessness. Health providers were forced to reduce essential services for LGBTI people, who sometimes were harassed or even arrested when seeking care. Scores sought asylum outside the country, trading the risk of arrest or harassment in Uganda for the difficulties of asylum procedures overseas or even in northern Kenya's barren Kakuma refugee camp. Others ended up on the run in Uganda, particularly those "outed" by unscrupulous tabloid newspapers in photo montages of "Uganda's Top Homos." They moved from neighborhood to neighborhood, house to house, to avoid vigilantes, extortion, or arrest. 

Even before the president signed the bill into law, however, lawyers and activists had begun drafting a constitutional challenge -- one that any independent court would have had a hard time rejecting. The petition raised concerns of procedure and substance.

It pointed out the myriad ways the Anti-Homosexuality Act violated well-enshrined rights to freedom of expression, assembly, and association, as well as privacy. The act criminalized the undefined "promotion of homosexuality." Its ambiguous phrasing and seven-year criminal sentence could be used to silence speech in support of rights or health services for LGBTI people. The law also banned "aiding and abetting homosexuality" and keeping any home, room, or place "for the purposes of homosexuality," provisions which led some Ugandan landlords to evict their LGBTI tenants.

The petition also noted that parliament passed the bill without a quorum. The parliamentary rules of procedure require at least one-third of all members to be present to pass a bill. During the vote on the Anti-Homosexuality Act, Rebecca Kadaga, the parliament speaker and one of the bill's biggest cheerleaders, flagrantly ignored objections from the prime minister and another legislator that there was no quorum. A violation of parliamentary rules, according to the constitution, renders a law null and void.

It was on these narrow procedural grounds that the Constitutional Court struck down the law last Friday.

While it was unfortunate that the court did not address the substantive concerns at stake, the ruling was remarkable. In Uganda many petitioners wait years for a hearing on a constitutional matter. In January 2009, activists filed a challenge to discriminatory aspects of the law establishing the Equal Opportunities Commission -- but the case did not have a hearing until October 2011, and the court still hasn't ruled in it. In short, that the court struck down the Anti-Homosexuality Act on the quorum issue was a victory in itself for the rule of law: Parliamentary procedure is frequently flouted, and lawmakers rarely see any consequences.

Understandably, human rights advocates applauded the ruling. "I am officially legal," gay activist Frank Mugisha, one of the petitioners in the court case, proclaimed on Twitter shortly after the ruling.

But in reality, this isn't entirely true. The Anti-Homosexuality Act did not make it illegal to be gay, but rather created a series of new "crimes" such as the ambiguous "promotion" of homosexuality. While those crimes are no longer enforceable, the law's nullification does not protect LGBTI people from ongoing discrimination, arrest, and prosecution, despite misleading international headlines to the contrary. In fact, penalties for same-sex conduct remain very much enshrined in Uganda's existing penal code. 

Article 145 of the code, on the books since British colonial days, criminalizes "carnal knowledge against the order of nature." That crime, too, can lead to a sentence of life in prison -- meaning Uganda retains one of the most severe penalties in the world for homosexual conduct. This provision has been rarely enforced, but there have been cases: An LGBTI activist, Sam Ganafa, is fighting charges filed in November under Article 145. Jackson M. and Kim M., two young people arrested on January 27 after they fled from a threatening mob, also face charges, as does a well-known sports figure, Chris Mubiru.

Article 145 has had far-reaching implications. It leaves Uganda's LGBTI people without access to effective remedies to abuse in the face of homophobic mobs and corrupt officials preying on vulnerability and fear. It was also the justification for the recent, deeply problematic High Court ruling in what became known as the "Lokodo" case. Activists filed a civil suit against Ethics and Integrity Minister Simon Lokodo after he and police forcibly dispersed a human rights and advocacy workshop in February 2012, organized by Freedom and Roam Uganda (FARUG), a lesbian, bisexual, and transgender women's organization.

The judge ruled that Lokodo had the right to shut down the workshop, alleging that participants, simply by talking about human rights for gay people, were "promoting" or "inciting" same-sex acts that were prohibited by Article 145. The judge even suggested that condom distribution to gay people could be unlawful -- a decision that is especially inflammatory given Uganda's high HIV rates and failure in recent years to make progress in tackling the spread of the virus. The Lokodo ruling set a dangerous precedent not only for LGBTI advocacy but for all human rights and governance advocacy; under the court's odd logic, educating people about any law would incite them to commit crimes, and thus be illegal.

Ultimately, the Ugandan government could appeal the ruling against the Anti-Homosexuality Act to the country's Supreme Court. And certainly, the law could return as a new bill in parliament at any time. Given the controversy surrounding the law, the widespread international condemnation, and the cuts and diversions of aid money that resulted from its passage, it is unlikely to come back too quickly, but some parliamentarians are pushing for its rapid return. Clearly, anything is possible in the current climate, and activists will need to remain prepared and vigilant to fight the fight on the substantive grounds.

Thus, Ugandan LGBTI people still face a highly polarized and dangerous social and political environment. Speculations that the court decision was tailored to appease donors from the Global North -- in particular, U.S. President Barack Obama, whom Museveni is meeting at the U.S.-Africa Leaders Summit this week -- hardly help the cause of LGBTI Ugandans, given that the law's proponents scurrilously cast homosexuality as a "Western imposition." World leaders who condemned the Anti-Homosexuality Act, and in some cases withheld or redirected aid while assessing the law's impact, did the right thing -- but in failing to condemn other serious human rights abuses by Museveni's regime, such as torture by the police and military, the killings of unarmed protestors in 2009 and 2011, and ongoing threats to civil society, they leave the impression of prioritizing the rights of LGBTI people over other concerns. This inconsistent approach to rights violations ultimately leaves all Ugandans more vulnerable.

Sadly, LGBTI people in Uganda are not alone. A 2011 BBC documentary sensationally labeled Uganda "the world's worst place to be gay," but many LGBTI Ugandans reject that depiction as oversimplifying a complex local context in which activists have managed to hold hard-earned ground in the face of hostility. Certainly, there are plenty of other contenders for the moniker: Nigeria, despite having passed an equally egregious anti-gay law that criminalizes acts such as "the public show of same-sex amorous relationship directly or indirectly" has received only a fraction of the international condemnation directed at Uganda. In Cameroon, meanwhile, LGBTI people are frequently sentenced to prison on allegations of consensual sex, often after being subjected to forced anal exams that purport to "prove" homosexuality.

In Egypt -- the largest recipient of U.S. foreign assistance in Africa -- more and more reports have emerged of gay men being arrested on "debauchery" charges since the military's July 2013 ousting of Mohamed Morsi, without a peep of public objection from the United States. In Russia, too, gays must contend with brutality from vigilante groups while fighting legislation that prohibits making positive statements about homosexuality -- legislation that is spilling over into nearby countries, such as Kyrgyzstan, which has proposed even harsher laws against so-called gay "propaganda."

Successfully challenging homophobia and transphobia, in Uganda and beyond, requires an enduring commitment to working with local civil society activists to challenge myriad anti-LGBTI policies -- not simply fleeting attention to a one-off cause célèbre such as defeating Uganda's Anti-Homosexuality Act.



Tsar Vladimir the First

Putin isn’t trying to win the Cold War -- he’s refighting the battles of World War I.

World War I was not only one of the longest and bloodiest conflicts in history, but arguably the most seminal. The war was a catalyst for the Great Depression, the rise of the brutal ideologies of Nazism, Communism, and Fascism, numerous regional wars over scraps of bygone empires, and, of course, World War II. How Europe's leaders stumbled into the disastrous war remains one of the great unresolved puzzles in modern history. Mountains of books and articles have tried to explain how an assassin's bullet fired in Sarajevo ignited the great catastrophe of the 20th century.

The answers never seem satisfactory. Crude explanations designed to establish German guilt, popular until the 1990s, have gradually been replaced with a more nuanced picture, where the other belligerents, including Britain and France, share the burden of responsibility more equally for launching a war that killed more than 10 million people. But the focus on what happened in London, Paris, and Berlin has masked the importance of the events in the East. Russia, too, shares responsibility for the catastrophe in Europe. As the world remembers the start of the war 100 years ago this week, understanding Russia's strategic calculus at the time can help decode Moscow's recent behavior in Ukraine.

Russia's role in the prewar period is commonly believed to have been in providing imperial backbone to her little Slavic sister, Serbia, in the wake of a diplomatic onslaught by Vienna and Berlin following the assassination of Archduke Franz Ferdinand. But as Russia's archives gradually open to scholars after a century of censorship, it has become clear that protecting Serbia was not Russia's main objective. There was much more at stake for Russia than a small ally in the Balkans.

What drove Russia's prewar actions was the desire to control the straits of the Bosphorus and Dardanelles -- or at least to ensure they did not fall in the hands of adversaries like Germany. Access to year-round, ice-free sea lanes has always been a strategic priority for Moscow. For centuries, the Turkish Straits were essentially the Russian economy's umbilical cord. They were Russia's gateway to the Mediterranean and from there to the entire global market. But in the prewar period, the area around the straits became increasingly unstable.

During the Italo-Turkish War of 1911 to 1912, the Ottomans rattled Russia by closing the straits. Russia's export revenues, primarily from grains, dropped by one third. Next came the two Balkan Wars of 1912 to 1913, throughout which Russia was on high alert for additional closures. In the end no disruption occurred, but Russia's trade balance plummeted so badly due to panic that its foreign exchange reserves were almost exhausted. As it became clear that the Ottoman Empire was nearing collapse, preventing one of the other major European powers from inheriting the straits became Russia's foremost strategic objective. As Russia's Foreign Minister Sergey Sazonov wrote to Tsar Nicholas II in December 1913: "The state which possesses the Straits will hold in its hands not only the key to the Black Sea and Mediterranean but also that of penetration into Asia Minor and the sure means of hegemony in the Balkans."

Russia's concern was aggravated by Germany's prewar maneuvers. Prior to the war, German officials worked hard to befriend the Young Turks who ruled the Ottoman Empire. The German emperor advanced a railway project to connect Berlin with Baghdad via Constantinople, and German intelligence spread rumors throughout the Muslim world that the Kaiser, who became known as Hajj Wilhelm, had been secretly converted to Islam and made a secret pilgrimage to Mecca.

On the eve of the war in 1914, Berlin sent two battleships to Constantinople in an effort to solidify the German-Ottoman alliance. Russia's concern over Germany's courtship of the Ottomans intensified further in the autumn of 1913 when it became known that Berlin had sent Gen. Otto Liman von Sanders to command and modernize the Turkish First Army Corps, the division responsible for guarding Constantinople and the Turkish Straits. For the Russians, a German-Ottoman alliance meant that were they to ever attempt to take over the straits they would come up against a modernized opponent, which would be hard to beat.

When Europe's armies mobilized after the assassination in Sarajevo, Russia found itself in a dilemma. They could let Austria-Hungary defeat Serbia and thereby give Vienna a launching pad toward the Aegean Sea and, from there, the Turkish Straits. Or, Russia could mobilize its army of 5 million soldiers to attack Germany, which it hoped would spur Berlin to push forward on the western front, where the Kaiser thought he'd have a better chance of taking out the French than digging in against the Russians.

Russia chose the latter. The course of the war -- and world -- changed forever.

Of course, this plan did not work out as the Russians had hoped. Within a month of entering the war, Russia's army suffered serious setbacks in the eastern front, the most painful of which was the annihilation of its Second Army by the Germans in the Battle of Tannenberg in late August. Beaten and weakened, Russia was no longer in a position to take over the straits. The pursuit of Russia's primary objective had been thwarted.

In 1915, as the war entered its second year, Russia could only sit on the sidelines watching its allies, Britain and France, trying and failing to take over the straits in the Gallipoli campaign. Then the Communist Revolution started and Russia withdrew from the war. After its end, the Treaty of Sevres designated the straits an international territory under the control of the League of Nations. Russia's dream of controlling the passage was shelved for good.

Fast-forward 100 years. Russia's position in the Black Sea was again challenged, at least in the eyes of Vladimir Putin, as the 2014 Ukrainian revolution ousted a Kremlin ally from power and gave rise to a pro-Western government. At risk this time was not the Turkish Straits but another important warm water outlet, Crimea's Sevastopol. Sevastopol, home of the Russian Black Sea Fleet, belonged to Russia since the 18th century. The Soviets had transferred the Crimean Peninsula to Ukraine in 1954, but the naval base at Sevastopol remained under Russian control. The change of leadership in Kiev, however, raised fears in Moscow akin to those of tsarist Russia on the eve of World War I. For Putin, Sevastopol falling into unfriendly hands -- or worse, NATO's -- presented as big a challenge as the possibility of the Turkish Straits coming under German control a century earlier.

The world has changed dramatically since 1914. But some traits of the international system, particularly those having to do with geography, are eternal. Russia's craving for year-round access to maritime trade is one of them.

Because of Russia's geographical disadvantage, its necessity for access to warm waters, the Black Sea matters much more to Moscow than the Caribbean Sea to Washington or the South China Sea to Beijing. The United States had the Monroe Doctrine to protect its hemispheric waters, while today China defines its sea as "blue national soil." Russia has never articulated its Black Sea doctrine, but make no mistake: it has one. Any attempt -- real or perceived -- to challenge Russia's maritime interests in the Black Sea will face a stark response.

This absence of a stated Russian doctrine may explain the West's interpretation of the takeover of Crimea as the beginning of an attempt to restore a bygone empire. But as European and American leaders contemplate what to do next with Russia, it is worth remembering that Putin's takeover of Crimea has much more in common with Tsar Nicholas's concerns in the Black Sea in 1914 than Leonid Brezhnev's in Czechoslovakia in 1968. Putin's takeover was an act in defense of Russia's national interest, fully consistent with the country's geopolitical DNA, rather than one of sheer, blind aggression.

The European great power system of a century ago was characterized by opaque international politics and secret entanglements. Since then, foreign policy has come much more into the open; only Russia has remained as enigmatic as it once was. As policymakers try to make sense of the Kremlin's latest moves, rereading some World War I history could be essential to ensure that, this time around, Moscow's misunderstood geopolitical ambitions do not lead the world to sleepwalk into war.

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