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The United States Condemns Enactment of Ugandan Anti-homosexuality Act and Imposes Measures in Response

Published online by Cambridge University Press:  29 April 2024

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Abstract

Type
International Human Rights and Humanitarian Law
Copyright
Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of American Society of International Law

Three days after Ugandan President Yoweri Museveni signed the Anti-homosexuality Act (AHA) in May 2023,Footnote 1 President Joseph R. Biden, Jr. condemned the law as “a tragic violation of universal human rights—one that is not worthy of the Ugandan people, and one that jeopardizes the prospects of critical economic growth for the entire country.”Footnote 2 At President Biden's direction, the United States “evaluate[d] the implications of th[e] law on all aspects of U.S. engagement with Uganda”Footnote 3 and adopted a series of “actions to raise awareness of the threats posed by democratic backsliding in Uganda, promote accountability for human rights abuses, and curtail direct assistance to the government.”Footnote 4 These included visa restrictions, termination of eligibility under the African Growth and Opportunity Act (AGOA), reduction in foreign assistance, and issuance of business and travel advisories.Footnote 5 The measures were broader than those taken by the Obama administrationFootnote 6 following the enactment of an earlier version of the AHAFootnote 7 that was later struck down by a Ugandan court on procedural grounds.Footnote 8 Petitions challenging the current law, part of a legislative trend across Africa,Footnote 9 were substantially rejected in April 2024 by Uganda's Constitutional Court.Footnote 10

Outright International has described the AHA as “the world's worst, most draconian anti-LGBTQ legislation.”Footnote 11 Under Uganda's colonial-era penal code, certain sexual relationships, including when a person “permits a male person to have carnal knowledge of him . . . against the order of nature,” were criminalized as “unnatural offenses” liable to life imprisonment.Footnote 12 The AHA establishes “the offense of homosexuality”—defined as when “the person performs a sexual act or allows a person of the same sex to perform a sexual act on him or her”—subjecting persons convicted of the offense to life imprisonment.Footnote 13 The AHA also institutes the “offence of aggravated homosexuality,” which it defines as “commit[ting] the offence of homosexuality in any of [ten listed] circumstances,” including: when a person has sexual relations with a child, a disabled person, or a person aged seventy-five or above; when “the person against whom the offence is committed contracts a terminal illness as a result of the sexual act”; and when “the offender is a serial offender.”Footnote 14 The law provides that a person “who commits the offence of aggravated homosexuality . . . is liable, on conviction, to suffer death,”Footnote 15 making Uganda one of seven countries that impose the death sentence for consensual same-sex sexual acts.Footnote 16

But the AHA extends well beyond sexual acts and the persons engaged in them. It criminalizes “child grooming,” “knowingly allow[ing] any premises to be used by any person for homosexuality,” same-sex marriage (including “purport[ing] to contract a [same-sex] marriage,” presiding over a same-sex marriage ceremony, or attending a ceremony), and the “promotion of homosexuality.”Footnote 17 “Promotion,” the penalty for which is up to twenty years imprisonment (or, for a legal entity, a fine or suspension or cancellation of its license), includes “knowingly advertis[ing], publish[ing], print[ing], broadcast[ing], [or] distribut[ing] . . . any material promoting or encouraging homosexuality or the commission of an offence under [the AHA]” and “provid[ing] financial support . . . to facilitate activities that encourage homosexuality or the observance of normalisation of conduct prohibited under [the AHA].”Footnote 18 The AHA thus potentially criminalizes the work of people in organizations that support the LGBTQ+ community, including entities that provide services such as HIV and AIDS treatment, as well as day-to-day activities, such as renting property and attending weddings. Further, the AHA establishes a “duty to report acts of homosexuality or any other offence under th[e] Act” when “[a] person . . . knows or has a reasonable suspicion that a person has committed or intends to commit the offence.”Footnote 19 The AHA thus creates broad societal obligations that intentionally ostracize LGBTQ+ persons and spread fear in that community and in those persons and entities that seek to support it.

Following the law's passage, many people in Uganda have been evicted, subjected to violence, discriminated against, and arrested, including on charges of “aggravated homosexuality.”Footnote 20 Many have gone into hiding, lost their jobs, or fled the country.Footnote 21 With one of the highest HIV infection rates in the world, an epidemic may result.Footnote 22 The economy has been hit, with foreign buyers canceling orders and tourists avoiding the country.Footnote 23 The act, the final version of which was approved by the Ugandan parliament with only one member voting againstFootnote 24 and despite international pressure on President Museveni to reject it,Footnote 25 is popular in Uganda, where anti-gay sentiments are deeply entrenched (with the help of U.S. religious groups), and anti-gay rhetoric has increased in recent years.Footnote 26

Following condemnation of the AHA by President Biden and Secretary of State Antony J. Blinken,Footnote 27 the United States’ initial response was to update, in June, its existing Level 3 travel advisory for Uganda “to reflect [the] recently enacted anti-LGBTQI+ legislation,” urging travelers to “[r]econsider travel to Uganda” in light of that legislation.Footnote 28 The update noted that the “May 2023 Anti-Homosexuality Act raises the risk that LGBTQI+ persons, and those perceived to be LGBTQI+, could be prosecuted and subjected to life imprisonment or death.”Footnote 29 It also noted that “[s]upporters of the dignity and human rights of LGBTQI+ persons . . . could be prosecuted and imprisoned.”Footnote 30 It explained further that “[s]ocial acceptance of homosexuality is very low” and “LGBTQI+ persons, or persons perceived to be LGBTQI+, could face harassment, imprisonment, blackmail, and violence.”Footnote 31

In October, the Departments of State, Labor, Health and Human Services, and Commerce, together with the U.S. Agency for International Development, issued a business advisory. It observed that “[t]he enactment of the [Anti-homosexuality Act] expands [existing business and investment] risks and creates additional opportunities for interference with business operations” due to, among other things, its mandatory reporting requirement and its prohibition of “promotion of homosexuality.”Footnote 32 The advisory explained that the act “increases . . . censorship risks by criminalizing a wide range of commercial activities that are of particular interest to media, broadcasters, the advertising industry, and related industries,” such as “prohibit[ing] and penaliz[ing] the printing, broadcast or distribution of ‘material promoting or encouraging homosexuality.’”Footnote 33 The advisory also warned that the AHA may establish conflicting obligations for U.S. businesses under Ugandan and U.S. law. The advisory pointed out, as an example, that “U.S. law prohibits discrimination based on sexual orientation and gender identity in federal contracting,” and thus “federal contracting agencies must include sexual orientation and gender identity as prohibited bases of discrimination” in certain contracts, including those for which work is performed in Uganda.Footnote 34

Also in October, President Biden announced his decision to terminate Uganda's designation as a beneficiary country under AGOA, effective January 1, 2024.Footnote 35 AGOA eliminates U.S. tariffs on 1,800 products imported from eligible African countries.Footnote 36 To be eligible, “countries must establish or make continual progress toward establishing a market-based economy, the rule of law, political pluralism, and the right to due process.”Footnote 37 Countries “must [also] eliminate barriers to U.S. trade and investment, enact policies to reduce poverty, combat corruption, and protect human rights.”Footnote 38 Uganda was designated an AGOA beneficiary country in 2000,Footnote 39 shortly after the statute's enactment.Footnote 40 President Biden determined that Uganda no longer satisfied AGOA's eligibility criteria because “the Government . . . has engaged in gross violations of internationally recognized human rights.”Footnote 41 “Despite intensive engagement between the United States . . . and Uganda,” the president noted, Uganda has “failed to address United States concerns about [its] non-compliance with the AGOA eligibility criteria.”Footnote 42 Ugandan exports to the United States, totaling $174 million in 2022, will likely decrease with the reimposition of pre-AGOA tariffs.Footnote 43 President Obama had not terminated Uganda's AGOA benefits when an earlier version of the AHA was enacted in 2014.

In December, Secretary Blinken announced the expansion of Uganda-specific visa restrictions.Footnote 44 Adopted pursuant to Section 212(a)(3)(c) of the Immigration and Nationality Act,Footnote 45 Secretary Blinken first issued the policy after Uganda's 2021 elections to target “those believed to be responsible for, or complicit in, undermining the democratic process in Uganda.”Footnote 46 Blinken now extended the policy to restrict access to U.S. visas for those responsible for “policies or actions aimed at repressing members of marginalized or vulnerable populations,” including “environmental activists, human rights defenders, journalists, LGBTQI+ persons, and civil society organizers.”Footnote 47 In March 2024, Ugandan Member of Parliament Sarah Achieng Opendi, who while the AHA was being debated said that “These people should be castrated,” was denied a visa to enter the United States to attend the annual session of the UN Commission on the Status of Women.Footnote 48

In addition to these measures, the United States has also sought to curtail, redirect, and pause the funding of certain Ugandan government programs. The United States “advocated for” and “supported” the World Bank's decision, announced in August, not to present new public financing to Uganda to its Board until safeguards are put in place that “protect sexual and gender minorities from discrimination and exclusion in the projects [the Bank] finance[s].”Footnote 49 The Department of Defense temporarily halted $15 million in funding to Ugandan government ministries.Footnote 50 The United States has also diverted more than $5 million through the President's Emergency Action Plan for AIDS Relief (PEPFAR) from direct government channels to private organizations “due to concerns over how the AHA impacts the Government of Uganda's ability to deliver services in a non-discriminatory manner.”Footnote 51 These amounts are not significant, however, given the nearly $1 billion in U.S. government annual investment in Uganda.Footnote 52 The United States is continuing humanitarian and development assistance through international organizations and non-governmental organizations.Footnote 53 The White House also announced that “the Department of State and USAID have increased emergency assistance to LGBTQI+ Ugandan human rights defenders and organizations whose safety and security are at risk.”Footnote 54

References

2 White House Press Release, Statement from President Joe Biden on the Enactment of Uganda's Anti-homosexuality Act (May 29, 2023), at https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/29/statement-from-president-joe-biden-on-the-enactment-of-ugandas-anti-homosexuality-act [https://perma.cc/7EU4-WMCC] [hereinafter Biden Statement]. The AHA was widely condemned internationally. See Statement by the Equal Rights Coalition on the Anti-Homosexuality Act in Uganda (May 29, 2023), at https://www.diplomatie.gouv.fr/en/french-foreign-policy/human-rights/news/article/statement-by-the-equal-rights-coalition-on-the-anti-homosexuality-act-in-uganda [https://perma.cc/Q3CA-KHJD]; Office of the UN High Commissioner for Human Rights Press Release, Uganda: UN Experts Condemn Egregious Anti-LGBT Legislation (Mar. 29, 2023), at https://www.ohchr.org/en/press-releases/2023/03/uganda-un-experts-condemn-egregious-anti-lgbt-legislation.

3 Biden Statement, supra note 2.

4 See White House Press Release, Fact Sheet: The United States Response to Uganda's Anti-homosexuality Act and Persistent Human Rights Abuses (Dec. 11, 2023), at https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/11/fact-sheet-the-united-states-response-to-ugandas-anti-homosexuality-act-and-persistent-human-rights-abuses [https://perma.cc/E2WJ-D8LV] [hereinafter White House Fact Sheet].

5 See id.

6 See White House Press Release, Grant Harris & Stephen Pomper, Further U.S. Efforts to Protect Human Rights in Uganda (June 19, 2014), at https://obamawhitehouse.archives.gov/blog/2014/06/19/further-us-efforts-protect-human-rights-uganda [https://perma.cc/48LX-S2LM]; White House Press Release, Grant Harris & Stephen Pomper, Promoting Regional Security and Protecting Human Rights in Uganda (Mar. 24, 2014), at https://obamawhitehouse.archives.gov/blog/2014/03/24/promoting-regional-security-and-protecting-human-rights-uganda [https://perma.cc/6NMB-TJU8].

7 See Anti-homosexuality Act, 2014 (Feb. 24, 2014), at https://ulii.org/akn/ug/act/2014/4/eng@2014-03-10 [https://perma.cc/BS3Q-HF8Q].

8 See Oloka-Onyango v. Att'y Gen., Const. Pet. No. 8 of 2014, [2014] UGCC 14 (Const. Ct. Uganda Aug. 1, 2014), at https://old.ulii.org/ug/judgment/supreme-court-uganda/2014/14 [https://perma.cc/3JBB-RU7J]; Jeffrey Gettleman, Uganda Anti-gay Law Struck Down by Court, N.Y. Times (Aug. 1, 2014), at https://www.nytimes.com/2014/08/02/world/africa/uganda-anti-gay-law-struck-down-by-court.html; Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 108 AJIL 516, 544 (2014)CrossRefGoogle Scholar.

9 See Maclean, Ruth & Peltier, Elian, Ghana's Parliament Passes Anti-gay Bill with Jail Terms, N.Y. Times (Feb. 28, 2024)Google Scholar, at https://www.nytimes.com/2024/02/28/world/africa/ghana-anti-gay-bill.html.

10 See Samuel Okiror, Activists in Uganda Finalise Appeal to Overturn Draconian Anti-Gay Law, Guardian (Dec. 11, 2023), at https://www.theguardian.com/global-development/2023/dec/11/activists-in-uganda-finalise-appeal-against-draconian-anti-gay-law; Odoi-Oywelowo v. Att'y Gen., Const. Pets. Nos. 14. 15. 16 & 85 of 2023, [2024] UGCC 10 (Const. Ct. Uganda Apr. 3, 2024), at https://ulii.org/akn/ug/judgment/ugcc/2024/10/eng@2024-04-03/source.pdf [https://perma.cc/3XC4-JT7B]. Four provisions of the AHA were struck down. These included the prohibitions on allowing premises to be used “for the purposes of homosexuality” and on leasing houses or establishments “for the purpose of undertaking activities that encourage homosexuality,” as well as the provision establishing a “duty to report acts of homosexuality.” National Security Advisor Jake Sullivan said that the Constitutional Court's “decision to uphold most aspects of the Anti-Homosexuality Act is deeply disappointing, imperils human rights, and jeopardizes economic prosperity for all Ugandans” and “the United States continues to assess implications of the AHA on all aspects of U.S. engagement with the Government of Uganda.” White House Press Release, Statement from National Security Advisor Jake Sullivan on Ugandan Court Upholding the Anti-Homosexuality Act (Apr. 4, 2024), at https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/04/statement-from-national-security-advisor-jake-sullivan-on-ugandan-court-upholding-the-anti-homosexuality-act [https://perma.cc/3LCR-4V46].

11 Neela Ghoshal, What Does Uganda's Anti-Homosexuality Bill Mean for Humanitarians, Development Partners and the Private Sector?, Outright Int'l (Mar. 29, 2023), at https://outrightinternational.org/humanitarian-response-to-uganda [https://perma.cc/F4ZV-KHTY].

12 See Penal Code Act, 1950, Ch. 120, Sec. 145 (Uganda), at https://ulii.org/akn/ug/act/ord/1950/12/eng@2014-05-09 [https://perma.cc/74KX-A3WL]. Persons convicted of attempt may be penalized up to seven years imprisonment. See id., Sec. 146.

13 AHA, supra note 1, Sec. 2. Persons convicted of attempt may be penalized up to ten years imprisonment. See id.

14 Id., Sec. 3.

15 Id., Sec. 3(1).

16 ILGA World Database, Legal Frameworks | Criminalisation of Consensual Same-Sex Sexual Acts, at https://database.ilga.org/criminalisation-consensual-same-sex-sexual-acts.

17 AHA, supra note 1, Secs. 8–11.

18 Id., Sec. 11.

19 Id., Sec. 14(1).

20 See Emma Bubola, Uganda Arrests Man on Antigay Charge Punishable by Death, N.Y. Times (Aug. 29, 2023), at https://www.nytimes.com/2023/08/29/world/africa/uganda-anti-lgbtq-law-charges.html.

21 See Nicholas Bariyo & Gabriele Steinhauser, Biden Urges Uganda to Repeal Drastic New Anti-LGBT Law, Wall St. J. (May 29, 2023), at https://www.wsj.com/articles/ugandan-president-signs-drastic-anti-lgbt-law-3a6a09e1; Abdi Latif Dahir, “We Will Hunt You’” Ugandans Flee Ahead of Harsh Anti-gay Law, N.Y. Times (Apr. 20, 2023), at https://www.nytimes.com/2023/04/20/world/africa/uganda-anti-gay-bill-lgbtq.html; The Strategic Response Team – the SRT Uganda, Lives at Risk: A Report on Documented Human Rights Violations and Abuses of Lesbian, Gay, Bisexual, Transgender, Intersex and Queer Plus Persons (LGBTIQ+) in Uganda (Sept. 2023), at https://www.kuchutimes.com/wp-content/uploads/2023/09/20230927_LIVES-AT-RISK.Final-min.pdf [https://perma.cc/8A9B-J7DF].

22 See Apoorva Mandavilli, With Harsh Anti-L.G.B.T.Q. Law, Uganda Risks a Health Crisis, N.Y. Times (Jan. 19, 2024), at https://www.nytimes.com/2024/01/19/health/uganda-lgbtq-hiv.html; U.S. Embassy in Uganda, Remarks by Ambassador William W. Popp for the 2023 National HIV/AIDS Symposium (Nov. 14, 2023), at https://ug.usembassy.gov/remarks-by-ambassador-william-w-popp-for-the-2023-national-hiv-aids-symposium-november-14-2023 [https://perma.cc/N8CB-JBEM]. According to a joint statement by the Global Fund to Fight AIDS, Tuberculosis and Malaria, the Joint United Nations Programme on HIV/AIDS, and the U.S. President's Emergency Plan for AIDS Relief (PEFFAR), the new law could put the country's AIDS response, which had been making significant progress, “in grave jeopardy.” Joint Statement by the Leaders of the Global Fund, UNAIDS and PEPFAR on Uganda's Anti-homosexuality Act 2023 (May 29, 2023), at https://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2023/may/20230529_uganda-anti-homosexuality-act [https://perma.cc/VA35-CB9Y].

23 See David Segal, An Anti-L.G.B.T.Q. Law in Uganda Is Hurting the Economy, N.Y. Times (Dec. 19, 2023), at https://www.nytimes.com/2023/12/19/business/uganda-lgbtq-law-economy.html.

24 See Parliament of Uganda, Parliamentary Debates (Hansard), 11th Parliament, 8422 (May 2, 2023), at https://www.parliament.go.ug/cmis/views/41e94136-18fe-42ca-b4c5-a1c50bcd1d2a%253B1.0 [https://perma.cc/BG78-HTRS].

25 See Okiror, Samuel, Uganda's Parliament Passes Mostly Unchanged Anti-LGBTQ Bill, Guardian (May 2, 2023)Google Scholar, at https://www.theguardian.com/world/2023/may/02/uganda-parliament-passes-anti-lgbtq-bill.

26 Dahir, Abdi Latif, Ugandan President Signs Anti-Gay Law That Includes Death Penalty as Punishment, N.Y. Times (May 29, 2023)Google Scholar, at https://www.nytimes.com/2023/05/29/world/africa/uganda-anti-gay-bill.html; Tom Perkins, US Religious Right at Center of Anti-LGBTQ+ Message Pushed Around the World, Guardian (July 9, 2023), at https://www.theguardian.com/world/2023/jul/09/us-religious-right-lgbtq-global-culture-fronts.

27 See Biden Statement, supra note 2; U.S. Dep't of State Press Release, On the Enactment of Uganda's Anti-homosexuality Act (May 29, 2023), at https://www.state.gov/on-the-enactment-of-ugandas-anti-homosexuality-act [https://perma.cc/7J8Q-5HNC].

28 U.S. Embassy in Uganda, Travel Advisory: Uganda (June 12, 2023), at https://ug.usembassy.gov/travel-advisory-uganda [https://perma.cc/2945-YASS].

29 Id.

30 Id.

31 Id.

32 See U.S. Department of State, Uganda Business Advisory – Risks and Considerations for Business in Uganda (Oct. 23, 2023), at https://www.state.gov/uganda-business-advisory [https://perma.cc/P8DZ-VZAC].

33 Id.

34 Id.

35 See Proclamation 10692 of December 29, 2023, 89 Fed. Reg. 437 (Jan. 4, 2024); Office of the U.S. Trade Representative Press Release Tai, Statement from Ambassador Katherine Tai on the African Growth and Opportunity Act Eligibility Review (Oct. 31, 2023), at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2023/october/statement-ambassador-katherine-tai-african-growth-and-opportunity-act-eligibility-review [https://perma.cc/Z42N-GBTU].

36 See Office of the U.S. Trade Representative, African Growth and Opportunity Act (AGOA), at https://ustr.gov/issue-areas/trade-development/preference-programs/african-growth-and-opportunity-act-agoa [https://perma.cc/6DPP-Z3DB].

37 Id.

38 Id. The eligibility requirements are set out in 19 U.S.C. § 3703.

39 Proclamation 7350 of October 2, 2000, 65 Fed. Reg. 59,321 (2000).

40 Pub. L. 106–200, Tit. 1, 114 Stat. 251 (2000).

41 White House Press Release, Letters to the Speaker of the House and President of the Senate on Intent to Terminate the Designation of the Central African Republic, the Gabonese Republic, Niger, and the Republic of Uganda as Beneficiary Sub-Saharan African Countries Under the African Growth and Opportunity Act (Oct. 30, 2023), at https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/letters-to-the-speaker-of-the-house-and-president-of-the-senate-on-intent-to-terminate-the-designation-of-the-central-african-republic-the-gabonese-republic-niger-and-the-republic-of-uganda-as-bene [https://perma.cc/WR42-6JRE] [hereinafter Letter to the Speaker]. The president is quoting the eligibility criteria in 19 U.S.C. § 3703(3).

42 Id.

43 See Office of the U.S. Trade Representative, Uganda, at https://ustr.gov/countries-regions/africa/east-africa/uganda [https://perma.cc/7KUR-JVZN].

44 U.S. Dep't of State Press Release, Taking Steps to Impose Visa Restrictions for Undermining Democracy and for Repression in Uganda (Dec. 4, 2023), at https://www.state.gov/taking-steps-to-impose-visa-restrictions-for-undermining-democracy-and-for-repression-in-uganda [https://perma.cc/A4NK-6GRW] [hereinafter Taking Steps to Impose Visa Restrictions]; The Department had announced in June that it was “taking steps to impose visa restrictions.” U.S. Dep't of State Press Release, Visa Restrictions for Undermining the Democratic Process in Uganda (June 16, 2023), at https://www.state.gov/visa-restrictions-for-undermining-the-democratic-process-in-uganda [https://perma.cc/V3QG-EPD4].

45 See 8 U.S.C. § 212(a)(3)(c).

46 U.S. Dep't of State Press Release, Imposing Visa Restrictions on Ugandans for Undermining the Democratic Process (Apr. 16, 2021), at https://www.state.gov/imposing-visa-restrictions-on-ugandans-for-undermining-the-democratic-process [https://perma.cc/5V7K-ZKBA].

47 Taking Steps to Impose Visa Restrictions, supra note 44.

48 Okiror, Samuel, US Denies Visa to Ugandan MP Who Called for Homosexual Castration, Guardian (Mar. 6, 2024)Google Scholar, at https://www.theguardian.com/global-development/2024/mar/06/us-denies-visa-to-ugandan-mp-who-called-for-homosexual-castration; Parliament of Uganda, Parliamentary Debates (Hansard) 11th Parliament, 7651 (Mar. 21, 2023), at https://www.parliament.go.ug/cmis/views/e53d4d5a-1dc0-4066-8f72-2215a52ed330%253B1.0 [https://perma.cc/CP26-46V8].

49 White House Fact Sheet, supra note 4; World Bank Press Release, World Bank Group Statement on Uganda (Aug. 8, 2023), at https://www.worldbank.org/en/news/statement/2023/08/08/world-bank-group-statement-on-uganda [https://perma.cc/M47X-BJ9A].

50 White House Fact Sheet, supra note 4.

51 Id.

52 See U.S. Embassy in Uganda, Our Relationship, at https://ug.usembassy.gov/our-relationship [https://perma.cc/2EEB-3KEC].

53 White House Fact Sheet, supra note 4.

54 Id.