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Uganda’s nondiscrimination assurances won’t protect queer people from prosecution

Country’s president in May signed Anti-Homosexuality Act

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LGBTQ and intersex activists protest in front of the Ugandan Embassy in D.C. on April 25, 2023. (Washington Blade photos by Michael K. Lavers)

By NEELA GHOSHALĀ | Ugandaā€™s Anti-Homosexuality Act (AHA), enacted on May 30 by President Yoweri Museveni, enshrines discrimination in Ugandan law. The AHA includes the death sentence for some consensual same-sex acts, prohibits organizations from ā€œnormalizingā€ sexual diversity through inclusive programming and requires everyone in Uganda, including health workers, to report people who might be lesbian, gay, bisexual, transgender or queer (LGBTQ) to the police.

Can Ugandan LGBTQ people still access medical care and other basic services?

The Ministry of Health would like donors to think so. In aĀ June 5 circular, posted briefly online, shared with donors in PDF form, and then removed from the internet, the health ministry says its policy is to provide health services ā€œto all people in Uganda in their diversity without any form of discrimination,ā€ ā€œnot to discriminate or stigmatize any individual who seeks health care services, for any reason ā€” gender, religion, tribe, economic status, social status or sexual orientationā€ and to uphold ā€œconfidentiality, privacy [and] patient safety as stipulated in the Patient’s Charter.ā€

Pleasing words, but the law trumps health policies, even if they were enacted in earnest. Ugandaā€™s Patients’ Charter is clear: “Information concerning oneā€™s health, including information regarding treatment, may only be disclosed with informed consent, except when required by law.” Because the law, the Anti-Homosexuality Act, 2023, states that anyone who has information that a person has committed or intends to commit an offense “shall report the matter to the police for appropriate action,” health providers are still required by law to turn in LGBTQ patients. There is no client-provider privilege enshrined in the AHA for health providers.

The circular from the Ministry of Health is part of a pattern of two-faced communications from the government of Uganda regarding what the law actually states and how it will be implemented. On June 7, during hisĀ State of the NationĀ address, President Yoweri Museveni reiterated the claims in the health circular: ā€œTherefore, those who say that the homosexuals will be arrested if they go for medical care, etc., are wrong. The law now says that a homosexual will not be criminalized for merely being so if he/she keeps the being to oneself.ā€ What does this really mean in practice? If no one in the world ever finds out you are LGBTQ, including your health provider, you might be able to safely access health care, as long as that health care does not address any specific needs related to your sexual orientation or gender identity.

Meanwhile, during its University Periodic Review (UPR) process at the U.N. Human Rights Council in June, when questioned about the Anti-Homosexuality Act and the human rights violations it prescribes, the Deputy Permanent Representative of Uganda to the U.N. Office in Geneva, Arthur Kafeero, claimed that the act was a response to ā€œa widespread campaign to promote homosexuality amongst children in schools was discoveredā€ and that ā€œits methods and content too difficult and graphic to explain.ā€Ā He added that the government had ā€œsimply expanded the coverage of the [current] law to protect children.ā€

These statements make clear that the government of Uganda is not an honest broker in its engagement with the international community around the Anti-Homosexuality Act. Ugandan parliament membersā€™ intentions were clear and are reflected in the letter of the law. The Anti-Homosexuality Act is discriminatory on face value; worse, it seeks to erase the existence of queer Ugandans. 

Weā€™ve been through this before. In July 2014, five months after the enactment of the previous Anti-Homosexuality Act, Ugandaā€™s Ministry of Foreign Affairs issued a similar statement intended to appease donors. While not specific to health, it asserted that the AHA was ā€œmisinterpretedā€ by development partners, that it only intended to prevent the ā€œopen promotion of homosexuality, especially among children and vulnerable groupsā€; that ā€œno activities of individuals, groups, companies or organizationsā€ would be affected by the AHA; and that the government was committed to the provision of services to all in Uganda, without discrimination. 

I was part of a Human Rights Watch and Amnesty International team that investigated violence and discrimination in the wake of the Anti-Homosexuality Act. WeĀ foundĀ thatĀ  LGBTIQ people were facing arbitrary arrests, police abuse and extortion, loss of employment, evictions, homelessness, forced displacement, violence and denial of health services. The organization Sexual Minorities Uganda, which has now been forcibly shuttered by the government, wrote, at that time, ā€œthe full force of the State, particularly the legislative and executive branches of government, is being used to hunt down, expose, demean and suppress Ugandaā€™s LGBTI people.ā€Ā 

Similarly, the Ugandan non-governmental organization Human Rights Awareness and Promotion Forum, in the month following the lawā€™s enactment on May 30, has already documented, through its direct engagement with LGBTQ individuals seeking legal aid, 23 cases involving violence or threats of violence affecting 23 individuals; 19 cases of evictions from rented property affecting 20 individuals; and four cases of arrests on sexuality-related cases, affecting seven persons. HRAPFā€™s report is a litany of suffering inflicted on queer Ugandans as a result of the AHA: Police are actively responding to complaints from members of the public and arresting LGBTQ people, and they are being beaten, threatened with rape and lynching and rendered homeless by their landlords, families and local council members. Health care, housing and employment are all in the balance, as illustrated by these three cases:

ā€¢ June 10: Following the arrest of two gay men in his area, the client, who is a [key populations] coordinator at a government health facility, was threatened with violence by their colleagues at work and people in the community, who said he was responsible for the actions of the two who had been arrested because he was always the one supporting them and giving them treatment.

ā€¢ June 12: The client was outed as a lesbian when a friend of her partner wrote letters threatening to beat her and pinned them at her door as well as delivering a copy to her workplace. She was immediately terminated from employment and forced to move after the neighbors started insulting and threatening her.

ā€¢ June 14: A lesbian woman was attacked in her home and beaten by two men she did not know. This happened after she was warned to leave the village in May 2023 for her safety and was formally evicted by her landlord, but she had not yet left because she did not have the resources to afford the move. She suffered several cuts and bruises from the assault.

The true impact of the Anti-Homosexuality Act is clear. Development partners are only ā€œmisinterpretingā€ the Anti-Homosexuality Act if they take seriously the governmentā€™s assurances that the law will not be a vehicle for discrimination. Accessing health care, renting a room, and holding a job: these basic activities essential to life and livelihoods all carry the risk of being outed and facing imprisonment and death. There is no protection against this. Could anything be more discriminatory?

Neela Ghoshal (any pronouns) is Outright Internationalā€™s Senior Director of Law, Policy and Research, based in Washington, D.C. Neela oversees Outrightā€™s United Nations, Global Trans Rights, LBQ Connect, Queer Legal Futures, and Research programs, develops organizational priorities concerning legal and policy change, and ensures Outrightā€™s work aligns with international human rights law. She is the author of Outrightā€™s report on LGBTQ Lives in Conflict and Crisis and frequently speaks and writes about issues including repressive legislation, gender liberation, and peace, security and accountability for LGBTIQ people. Before joining Outright in 2021, Neela served as Associate LGBT Rights Director at Human Rights Watch, leading global initiatives on LGBTIQ rights and conducting research and advocacy on rights violations related to sexual orientation and gender identity around the world. She was also a researcher in the Africa Division at Human Rights Watch, based in Burundi and Kenya, where she covered political repression, police abuse, justice sector reform and transitional justice. Neela previously worked with the Network in Solidarity with the People of Guatemala, the Bronx Defenders, and the New York City public schools. Neela enjoys gardening, debating local and global politics and raising two feminist kids. Neela holds a bachelorā€™s degree in social justice studies from the University of Michigan and a masterā€™s degree in international relations from Yale University.

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Commentary

LGBTQ people deserve freedom, a sense of home, and belonging

Latoya Nugent found refuge in Canada after fleeing Jamaica

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Latoya Nugent, center, at the March for LGBTQ+ Rights in Toronto on May 16, 2024. (Photo courtesy of Rainbow Railroad)

Seven years ago, my fight for queer liberation in notoriously homophobic Jamaica culminated in a violent and brutal unlawful arrest and detention. This was the peak of decades of persecution due to my sexual orientation and work as a queer human rights defender and activist. It completely broke me and silenced me. I suffered severe emotional trauma, from which I am still recovering years later. 

Following that life-threatening arrest, I became a shell of who I once was. I cut off communication with my community for several years, unable to face my fear of the police and the hostility of the world around me. 

In 2022, I was one of the 9,591 at-risk LGBTQI+ people who reached out to Rainbow Railroad for help. Through the organizationā€™s Emergency Travel Support (ETS) program, which relocates at-risk LGBTQI+ people and helps them make asylum claims in countries like the U.S., I resettled in Canada where Iā€™ve been living safely with dignity and pride. 

This Pride Month, Iā€™m reflecting on what it means to be safe. Who has access to safety and why others are excluded from it. What is our collective role and responsibility in expanding safety for our queer and trans communities, especially those in the over 60 countries that criminalize LGBTQI+ people? 

Safety means different things to different people depending on our experiences and journeys. For me, itā€™s the difference between suffering and thriving, feeling worthless and worthy, and feeling hopeless and hopeful. It is the difference between displacement and belonging. 

Rainbow Railroad recently released a report that examines the state of global LGBTQI+ persecution, drawing on data from 15,352 help requests spanning 100+ countries. This report is significant for several reasons, chief among them is the reality that no other organization or government captures the breadth and depth of data on LGBTQI+ forced displacement, perpetuating the invisibility of queer individuals in humanitarian responses. The report is an important contribution to the discourse on the intersection of queer identity, LGBTQI+ persecution, forced displacement, and humanitarian protection systems. 

Of all the data and insights uncovered in the report, I was most struck by one statistic ā€” 91 percent of at-risk LGBTQI+ individuals relocated through the ETS program reported an improved sense of personal safety. This statistic is particularly personal to me because ETS was the only relocation option accessible to me in 2022 when I reached out to Rainbow Railroad for help. 

I am in that 91 percent because I am now thriving. I feel worthy. I am hopeful about life. And I belong. 

Today, among the 120 million forcibly displaced people around the world, queer and trans individuals face compounded complications from homophobia and transphobia while trying to access protection and safety. And while the anti-gender movement continues to swell in some states, I firmly believe that the U.S. remains a global leader in refugee resettlement ā€” which is why the U.S. government must uphold its international obligations and reverse its recentĀ executive orderĀ that imposes severe restrictions on the right to seek asylum.Ā 

Queer and trans individuals deserve freedom, a sense of home, and belonging ā€” realities that flourish only when rooted in the bedrock of safety. 

There is a lot more work to be done. It’s challenging. It’s complex. It’s costly. But I have experienced firsthand what the transformative impact of Rainbow Railroadā€™s work has on someone’s life ā€” that ability to lift people out of danger into safety is something worth celebrating this Pride. 

Latoya Nugent is the head of engagement for Rainbow Railroad.

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Commentary

Reflecting on Center Faithā€™s Pride interfaith service

Much work to be done before welcoming the world in 2025

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(Photo by WINDCOLORS/Bigstock)

ā€œWe must not rest! We must not rest! We must not rest!ā€ These words rang out in Foundry Methodist Church during Center Faithā€™s recent 2024 Pride Interfaith Service. Rev. Cathy Alexander, associate pastor at the Metropolitan Community Church (MCC)-Washington, DC, implored everyone in attendance to keep fighting ā€œuntil the doors of churches and temples and houses of faith open wide in welcome to all people.ā€ She quoted Reverend Troy Perry, founder of the first MCC church in 1968, from the 2000 Millennium March for Equality. 

It was a moving reminder of the many LGBTQ elders who have passed on, who have fought for LGBTQ rights today and made this service, held in a rainbow draped church, possible. This was especially meaningful as this yearā€™s service also remembered Allan Armas ā€” co-founder of the Pride Interfaith Service ā€” who died this past October. 

Held on a drizzly evening, the service began with an opening drum call to gather by members of the Unity Fellowship Church of Washington, D.C., and a procession of all presenters. Church Elder and Unity Fellowship Pastor Akosua McCray offered a libation to the ancestors, like Armas, who won many of the rights that LGBTQ individuals have today. ā€œLet us together call out their names and invite their spirit here today,ā€ McCray shared. ā€œCarlton Smith,ā€ an attendee shouted from the back. ā€œAllan Armus,ā€ said another. ā€œMarsha P. Johnson.ā€ ā€œBishop Thomas Gumbleton.ā€ With each name, McCray filled a red vase with water in their honor. 

Thus commenced the 41st annual Pride Interfaith Service, focused on the radical past, present, and future of LGBTQ interfaith action in the nationā€™s capital. The three-part service resonated with Capital Prideā€™s theme of ā€œTotally Radical!ā€ and included representatives from the DC LGBTQ+ Community Center and Mayorā€™s Office of LGBTQ Affairs. McCrayā€™s Libation was the first part of the creation and blessing of a sacred space, featuring a call to the elements, directions and divine by Jonathan White of Stone Circle Wicca, a call to prayer by Nabeel Kirmani and translated by Sister Michelle Munson of Muslims for Progressive Values, and an opening prayer by Rev. Thomas Wieczorek from the National Catholic Church, among others. 

GenOut Chorus, the youth chorus for the Gay Menā€™s Chorus of Washington, D.C., provided music, opening with Philip Silveyā€™s ā€œAlways a Place for You.ā€ Their song began a reflection on the radical origins of the Pride Interfaith Service all the way back to the 1960s. Reverend Elder Robert ā€œMichaelā€ Vanzant, a Doctor of Theology at the Faith Temple and one of the pioneers of the Pride Interfaith Service, recounted his own journey from a fundamentalist rural Southern community all the way to the steps of the Temple Church of God in Christ on Sunday, Sept. 19, 1982. 

Together, he and 16 others ā€œembraced being same-gender loving and created a gathering of predominantly people of color, called a Third World gathering, to create a community for our sacred selves.ā€ They gathered with signs, his reading ā€œMy house shall be called a house of prayer for all peopleā€ (Isaiah 56:&, Mark 11:17), after a Church elder Dr. James Tenney was told by the Bishop that by including LGBTQ+ individuals at All Souls Church DC, he had excommunicated himself from the Church. The bishop warned that Tenneyā€™s problem was that he had no shame so the group gathered that Sunday morning before and after church ā€œbearing witchess that we lived our lives without shame.ā€ Thus Faith Temple was born. 

Rev. Cathy Alexander reflected on MCCā€™s own history, followed by Rev. Eric Eldrith, Pagan clergy with Circle Sanctuary, Kirmani, Jonathan White, myself, and Armasā€™s best friend cellist John Kaboff sharing fond memories and words of love and life about Armas. Eldritch spoke to Armasā€™s radical welcome of him as an ex-ex-gay fundamentalist to a Radical Faerie to Pagan clergy at Circle Sanctuary. This tribute spoke to the importance of all including faith communities beyond Abrahamic traditions. Pagan, Wiccan, and folk magic communities have for centuries been places of belonging and acceptance for LGBTQ+ people but are normally excluded from LGBTQ+ religious historical narratives. Armas challenged this exclusion. 

ā€œHis deeply held Jewish faith,ā€ White explained, ā€œled him to care passionately about justice and liberation for all people, especially LGBTQ+ people, and to pursue justice as part of his own spiritual journey. He was humane, kind, thoughtful–he was a mensch. May his memory be a blessing.ā€ He led his community surrounded by elders until he himself became one; one of the far too few LGBTQ+ elders who see the realization of their efforts. White celebrated this queer elderhood in Armasā€™s faith community, of bringing his experiences and wisdom to the community he helped to create. Kaboff played a Jewish funeral piece–one performed at an annual memorial service Armas founded, and Rabbi Jake Beilin-Singer blew the shofar, an instrument sounded during High Holy Day services, in recognition of his leadership. 

Armasā€™s radical welcome has made LGBTQ faith experiences possible, from radical living as interfaith families, to radical justice through collective liberation, to radical presents through living as authentic selves, and radical leadership through DCā€™s LGBTQ+ religious leaders including the first lesbian rabbi, Julie Spitzer, at the Baltimore Hebrew Congregation in 1987. Even radical pride from that first Pride Interfaith Service in 1983. 

During this time when over 500 anti-LGBTQ bills have been introduced in state legislatures across the country, lay member of Sunstone Chapel Ebony C. Peace called us to remember, ā€œhatred continues to come our way in full force because our liberation threatens their control. The liberation of all people threatens them. They are coming at us strong because we ourselves have become stronger.ā€ It is only through love, Peace shared, that we can drive out hatred. This was especially true when two protestors interrupted the service, and were met with all attendees singing ā€œThis Little Light of Mineā€ to drown out their voices as ushers escorted them outside. 

The service ended by envisioning this future of love, including radical inclusive love in faith communities and interfaith relationships that imagine a future of collaboration with newly established groups like Queerly Gathered, introduced by Presbyterian minister Matt Nabinger and Cali Bronkema. 

Richmond looked ahead toward World Pride to be held in D.C. in 2025. Just as attendees committed this yearā€™s service to ā€œdemonstrating the breath, depth, and sincerity of our faith, exposing the lie that anti-gay fundamentalists have a monopoly on faith and religion,ā€ Pride Interfaith Service planner Jonah Richmond shared, next yearā€™s service will include people from around the world remembering their LGBTQ religious histories, celebrating their presents, and pushing for LGBTQ+ religious liberation and community. It will celebrate LGBTQ elders of faith from around the world. As Alexander said, we must not rest! There is much work to be done before welcoming the world at the next service on June 3, 2025.Ā 

Emma Cieslik served as a historian for this yearā€™s Pride Interfaith Service.

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Commentary

To comply or not to comply is not the question

Implementation of pro-LGBTQI+ rulings in Botswana and Namibia is unsatisfactory

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(Washington Blade photo by Michael Key)

Over the past five years, the highest courts in Namibia and Botswana have made significant decisions in favor of minority groupsā€™ human rights through favorable judgments and court orders. However, the implementation of these orders related to the rights of LGBTQI+ in Botswana and Namibia has not been satisfactory so far. 

In 2016, the Botswana Court of Appeal ordered the Registrar of Societies to register the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) after they had been denied registration based on the criminalization of same-sex sexual conduct. In 2017, the High Court of Botswana pronounced that denying a transgender man legal gender recognition undermines their dignity and humanity and ordered the Ministry of Home Affairs to change his identity documents from female to male. In 2021, the Court of Appeal in Botswana decriminalized consensual same-sex sexual conduct. In May 2023, the Supreme Court of Namibia ordered the government to recognize same-sex unions concluded outside Namibia, where same-sex marriages are legal in terms of the Immigration Act. While all these cases constitute landmark cases in securing and guaranteeing the rights of LGBTIQ persons, there is a growing trend of non-implementation when it comes to such judgements.

Government officials have partially or selectively implemented or completely disregarded the court decisions. In the LEGABIBO registration case, the Botswana Court of Appeal found that it is unconstitutional to deny registration under the assumption that LGBTQI+ are not recognized in the Bill of Rights and will offend the morality of the nation. The court found that LGBTQI+, like any other citizen or group of people in Botswana, have the right to freedom of association, expression and assembly, and issued an order for LEGABIBO to be registered, an order that was fulfilled promptly. However, seven years later, in March 2024, an LBQ groupā€™s efforts to register are met with sentiments similar to those before the LEGABIBO jurisprudence. Senior public officials resisted the highest court decision to register this new group. Although their reasons are not stated as clearly as LEGABIBO rejection, government officials are still surreptitiously blocking the registration of LGBTQI+ organizations. 

Similarly, we have observed the selective application technique unfolding in legal gender recognition cases. In this case, the government officials have interpreted this as a single order that only applies to the applicants and not ā€œall persons.ā€ According to anecdotal evidence based on the experiences of individuals who sought legal gender recognition, they are instructed to acquire individualized court orders, a complete misinterpretation of the courtā€™s instructions, burdening the courts to issue duplicate orders. This selective interpretation is a covert move by government officials to undermine judicial decisions and transfer the responsibility and burden of implementation to resource-constrained individuals, limiting access to justice. What is also curious is why the court system does not address repeat applications on the same issue.Ā 

With the decriminalization court order, the attorney general acted in contempt of the judgment when he, instead of scrapping Sections 164 (a) and (c), blatantly ignored the court order and put a bill before parliament for debate. The highest court in Botswana had made a carefully considered decision to decriminalize, as indicated by a statement from SALC (Southern Africa Litigation Center) and by many contributors to this issue; there is no need to debate; the court has decided.

In Namibiaā€™s case, compliance with the court order means recognizing foreign partners in same-sex marriages with their Namibian partners as spouses, thereby issuing them an immigration status that allows them to reside and work in Namibia. Despite the commitment by the Ministry of Home Affairs to comply, government Officials still refuse to respect the Supreme Court ruling, as indicated by Mr. Digashuā€™s experience: 

ā€œIn one of my many visits to the immigration offices, the officer informed me that the court order was only meant for the couples directly engaged in the court case, unaware that I was one of those couples. I got the impression that the immigration officials have adopted a dishonest tactic to deter other same-sex couples, letting them believe that the judgement does not protect them.ā€

One of the most significant contributors to non-compliance is the media. The media reports on the Supreme Court decision on the Digashu/Seiller-lilies matter ran with the sensationalĀ headlineĀ ā€œSupreme Court gives legal status to same-sex marriages,ā€ misinforming the public and fueling negativity. Misinformation affects not only the litigants and community members but also feeds the already hostile public attitudes towards LGBTQI+ persons. Members of parliament and religious communities put pressure on government officials. Unfortunately, parliamentĀ responded with a marriage bill that contradicted the judgment, Instead of clarifying what the ruling means and whom it affects. Public officials reflect legislatorsā€™ sentiments, disregarding principles of democracy, the rule of law, and justice for all, which are clearly stated in the constitution, and further undermining the independence of the judiciary.Ā 

These are only a few of the many court orders that government officials have disregarded to the disadvantage and inconvenience of the minority who went to court to seek redress. For example, in the case of Mr. Daniel Digashu, he is given a visitorā€™s visa every time he leaves the country, which means he is forced to exit the country at its expiration date or face the wrath of the law. The cost of frequent travel and the personal emotional toll on himself and his family is insurmountable. Let alone constant dealings with questions, often followed by ridicule from immigration officials.

The question, therefore, is, what must happen to government officials who disregard court orders? 

The chief justice in Kenya offers a solution to this conundrum. Recently, the chief justice observed that senior government officials are guilty of defying court orders and suggested remedies such as impeachment of individual officers responsible. Botswana and Namibia must take a leaf out of that book.   

Of great concern is also that government officials are not transparent about the limitations of the court orders to enable the litigants and beneficiaries to seek clarification from the courts, nor are they open to engaging with civil society and affected communities to improve compliance. Are the court orders vague and, therefore, challenging to implement? Being transparent about implementation constraints will go a long way in guiding civil society on how they can support the government. Even in their resource-constrained status, CSOs must continue to monitor compliance and return to the courts for enforcement, including publicizing non-compliance in the media for public engagement. 

In conclusion, the rule of law requires that all court decisions be implemented promptly, thoroughly and effectively. The government has no choice whether to execute or not execute the court orders. 

The authors are consultants at the Southern Africa Litigation Center (SALC). SALC promotes and advances human rights and the rule of law in Southern Africa, primarily through strategic litigation and capacity-strengthening support to lawyers and grassroots organizations.

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