Laws on public order, gays and ‘miniskirts’ are birds of a feather

Written by prof JOE OLOKA ONYANGO

At a public lecture at Makerere University recently, senior law lecturer Prof Joe Oloka-Onyango made a keynote address.

Below is his paper that explores the deadly relationship that exists between three of the most recent pieces of legislation in Uganda.

There is an old African story about the mouse who found a trap in the farmer’s house, and how she went to various animals on the farm (including the chicken, the goat and the cow) informing them of the news and asking them to assist her to deal with this new enemy.

Each of them told her it was not their business; the very next night, the farmer’s wife was bitten by a snake caught by the trap.

Each of the animals the mouse had consulted – except the mouse for whom the trap was originally intended – was eventually slaughtered by the farmer: first the chicken to provide soup to nourish the farmer’s wife; then the goat to cater for the relatives, friends and in-laws who came to visit the ailing wife, and finally, the cow, who was sacrificed to cater for the mourners who came for the lumbe.

Drawing from this parable, my talk today is entitled Of Mice and Farmer’s Wives: Unveiling the Broader Picture behind Recent Legislation in Uganda. On the face of it, each of the laws under discussion in this public lecture today applies to different categories of people.

The Public Order and Management Act (POMA) ostensibly applies to dissidents, protestors and ‘hooligans,’ while the Anti-Pornography Act (APA) to porn-dealers, newspapers like Red Pepper and people who like to publicly expose their ‘kundis’ and other ‘private bodily parts.’

On its part, the Anti-Homosexuality Act (AHA) appears to focus on homosexuals who Ugandan society prefers to view as ‘deviants’ and ‘perverts.’

Two out of three of these laws refer to issues of morality and social order, which, we are told by Ethics minister, the former Reverend Father Simon Lokodo, have reached a stage of complete disintegration. Ironically, Lokodo is much less vigourous in carrying out his proper mandate of fighting graft and corruption, as well as promoting transparency and accountability in government.

The POMA is more directly political, but in my view it is intricately linked to the other two. My argument today is that each of these laws affects all of us, regardless of our political opinion or status; sexual preference or position; they affect us whether we wear shorts or trousers, burkas or saris, busutis or mushanana; kanzus or coats.

They apply to us whether or not we have ever watched a pornographic movie, and they should concern us whether or not we believe in human rights. Let me begin my analysis with the POMA.

The Public Order and Management Act

The short title to this Act stipulates that it is a law designed to “… provide for the regulation of public meetings; to provide for the duties and responsibilities of police, organizers and participants in relation to public meetings; [and] to prescribe measures for safeguarding public order.”

It is important to recall that the POMA was designed in the heat of the walk-to-work (W2W) protests led by opposition leader Kizza Besigye. In a broad sense, the law can therefore be referred to as the anti-Besigye Act or the ‘ABA’, as it was clearly designed to tighten the grip of the police and security forces in the wake of the W2W and For God and My Country (4GC) protests, which rocked the country in the aftermath of the 2011 election.

In its earlier manifestation – with provisions that barred three people from holding a meeting without police permission – it reflected a government in an extreme state of panic as the winds from the Arab Spring blew further South. Despite its professed noble intentions with regard to the maintenance of law and order, the ABA/POMA is fatally flawed for several reasons.

In the first instance, the Act reverses the basic premise on which the right to freedom of peaceful assembly is based. In other words, the ABA/POMA forces those who oppose the government of the day and want to translate such opposition into protest to justify why they should not be stopped from protesting.

The Act should, instead, be compelling the police to give sound reasons for refusing a protest to take place.  Secondly, the ABA/POMA places an inordinate degree of discretionary power in the police, and specifically in the Inspector General of Police. This is obviously problematic because it makes the IGP prosecutor and judge in his own cause, violating basic principles of natural justice.

Thirdly, the law gives lower-ranking police officers the perfect excuse for not taking action which supports human rights rather than curtails them. The first words out of the mouths of officers like Sam Omalla and Andrew Kaweesi are: “I’m [simply] acting on orders from above.”

Kivumbi VS AG

Aside from the contents of the Act, there is another dimension that is often lost in the discussion.  The case of Muwanga Kivumbi v. AG challenged the excessive powers of the police, especially those in Section 32 of the Police Act which allowed the Inspector General of Police to prohibit the convening of an assembly allegedly “on reasonable grounds.” Agreeing that this provision was unconstitutional, Justice Mpagi Bahegeine stated:

“Where individuals assemble, if the police entertain a ‘reasonable belief’ that some disturbances might occur during the assembly, all that can be done is to provide security and supervision in anticipation of disturbances.

It is the paramount duty of the police to maintain law and order but not to curtail people’s enshrined freedoms and liberties on mere anticipatory grounds which might turn out to be false. Lawful assemblies should not be dispersed under any circumstances. Most importantly, in such cases the conveners of the assemblies can be required to give an undertaking for good behaviour and in default face the law.”

But Section 3 of the ABA/POMA gives the IGP (or an authorized officer) the power to regulate the conduct of all public meetings in accordance with the law, effectively reintroducing S.32. The reintroduction of this provision of the law is in direct violation of Article 92 of the Constitution, which provides that “Parliament shall not pass any law to alter the decision or judgment of any court….”

To make matters worse, the definitions of places of assembly and the types of prohibited meetings are so broad as to cover any kind of gathering and to subject them wholly to the subjective belief of the police and not to any objective standard of oversight.

This explains the so-called ‘preventative arrest’ that the police subject Besigye and Erias Lukwago to on a daily basis. It is also why the government can claim to be against corruption, but whenever Bishop Zac [Niringiye]’s Black Monday Movement simply distributes flyers about the vice, they arrest him.

In Burundi over the weekend, the police stopped a group of opposition politicians from jogging around Bujumbura, detaining several and sentencing a number of them to prison terms extending up to a life sentence. Now the police there have introduced new regulations as to where people can jog in the city!

On Sunday, police in Soroti blocked opposition leaders from gathering for lunch. Are we next going to receive guidelines of where opposition politicians can eat?  While this may seem like the epitome of ridiculousness, it demonstrates that the only direction in which a state can go once it begins to restrict freedoms is downwards. The ABA/POMA thus introduces a slippery slope of growing infractions, and is a perfect representation of that downward slide.

The Anti-Ponography Act

Of all the three laws under consideration, the APA has produced the most immediate and vocal reaction from the public, particularly from women human rights activists. The provisions in the Act most responsible for this development are the definition of the term ‘pornography’ and section 13 of the same which outlines the penalty for the offence.

The passing of the Act was met by vigilante acts of undressing women by street mobs, of police officers stopping women in the street and ordering them to return home and change their clothes, and even the case of a judicial officer in Bukomansimbi summarily sentencing the parties in her courtroom to three-hour imprisonment for wearing miniskirts.

It is this upsurge in sexual harassment and the imposition of a de facto dress code on women that is most problematic from a legal and human rights point of view. Although the government – represented on this issue by ministers Mary Karooro Okurut and Lokodo – have been at pains to claim that the law neither imposes a dress code nor is it addressed to women, the above actions point to the opposite.

Indeed, the language of the Act opens it up to ‘unrestrained interpretation,’ such that not only is such interpretation available to anybody regardless of whether or not they are a government official, but also to all kinds of actions that such a person deems fit in the circumstances.

Although Karooro and Lokodo have been at pains to claim that the Act is gender-neutral and has only been ‘misunderstood’ by the public, one needs to query why it is only women who have been targeted by the mobs, and not men. Secondly, why is it only the APA which has caused such confusion in terms of interpretation and enforcement?  Thirdly, how come the police and the Judiciary are also part of this confusion?

Finally, how did such a discriminatory law escape the attention of not only the attorney general, but also of the many women representatives in the House?

Quite clearly, if a law needs so much additional explanation and clarification, then there is something fundamentally wrong with it. There can be little doubt that the law is in fact inherently discriminatory and amounts to an attack on women’s personal autonomy and expression. But worse, according to Stella Mukasa,

“The Anti-Pornography Act clearly set the stage for a rollback of women’s personhood and autonomy as upheld by our constitutional guarantees on equality before and under the law, including laws that protect women from sexual and gender-based violence, intimate partner violence, and female genital mutilation, to mention a few.”

It is, nevertheless, naïve to view the passing of the APA in isolation. Rather, its enactment must be married to the broader attack on the rights of women and the failure of the state to effectively ensure that issues concerning women’s security, autonomy and well-being are better protected. It is part and parcel of the traditional attempts of the patriarchal state to regulate and control women’s sexuality and reproductive capacities.

Hence, the NRM government has still failed to enact a progressive law on Marriage and Divorce and has instead reverted to passing laws which undermine, marginalize and directly discriminate against women.

The Karooro/Lokodo condemnation of the reported unlawful acts by the public based on this law is too little, too late and only a smokescreen to protect a regime that has abandoned the cause of the protection of women’s rights. Ironically – and to underscore the interconnectedness between the laws under discussion – the police invoked the ABA/POMA in order to prevent women human rights activists from protesting the APA!

The Anti-Homosexuality Act

The AHA quite clearly contravenes several articles of the Constitution, specifically Articles 2(1) & (2) on the supremacy of the Constitution; 21 (1) & (2) on equality and freedom from discrimination, and 27 on the right to privacy. To make matters worse, the criminalizing of touching by a person of the same sex creates an offence that is overly broad and inconsistent with Articles 28 (1), (3) (b), 28 (12), 42 and 44 (c).

Questions are also raised about the criminalization of consensual same sex/gender sexual activity among adults in which one is a person living with HIV or in which one is a person with disability (Art.35) as is the compulsory HIV test.

Finally, by criminalising so-called aiding, abetting, counselling, procuring and promotion of homosexuality, the AHA creates offences that are overly wide. It also penalises legitimate debate and professional counsel in direct contravention of the principle of legality, the freedoms of expression, thought, assembly and association, academic freedom and the right to civic participation.

The Act goes over the top in classifying houses or rooms as brothels merely on the basis of occupation by homosexuals. It basically creates victimless crimes against people who are otherwise law-abiding citizens of society.

But the AHA is more problematic at a broader level in that it institutionalizes homophobia and thereby promotes a culture of hatred and clearly violates the right to human dignity. Like the ABA/POMA and the APA, the AHA is motivated by hatred, discriminatory impulses and by the over-arching desire to suppress and dominate political and civil society.

In this respect, we have to turn from only looking at the law to a critical examination of the politics that led to the passing of the Act. According to President Museveni, in deciding whether or not to sign the Act, he chose science over emotion in trying to resolve the matter even though such action was itself inherently discriminatory and inhumane.

But what exactly did the scientists commissioned by the president say?

a) There is no definitive gene responsible for homosexuality;
b) Homosexuality is not a disease;
c) Homosexuality is not an abnormality;
d) In every society, there is a small number of people with homosexual tendencies;
e) Homosexuality can be influenced by environmental factors (e.g. culture, religion, information, peer pressure);
f) The practice needs regulation like any other human behaviour, especially to protect the vulnerable, and
g) There is a need for studies to address sexualities in the African context.

And yet, the presidential statement in relaying his decision to sign the bill concluded: “Homosexuality is not a disease but merely an abnormal behaviour which may be learnt through experiences in life.”

What did this mean? First of all, the president deliberately distorted the message which the scientists had given him.

Secondly, the president clearly abandoned the key message being sent by the scientists both about the multiplicity of explanations for homosexuality and about the need for more sobriety on the issue than the legal/punitive approach, and substituted it with a political one, i.e. a populist message that would earn him political points against his two main rivals for the presidency.

The first of these was House Speaker Rebecca Kadaga who he had previously lambasted for passing the Bill without quorum, and who – going into the meeting of the NRM caucus at Kyankwanzi – was riding high in political ratings.

More importantly, it was necessary to trump the ambitions of Prime Minister Amama Mbabazi who had been supported with chants of “Our Man” in the early days of Kyankwanzi. The Mbabazi phenomenon troubled the president from that time onwards, and continues to haunt him today.

Thus, although the debate about the APA and the AHA has been mainly about sex, in my view that is not the real issue at stake. Rather, the focus on sex serves the single purpose of justifying discrimination against LGBTI people and against women. It also serves as a major point of distraction from more important issues of governance and democracy.

After all, how much time do we spend having sex, even for those who do it on a daily basis? But by focusing on sex – especially when it is represented as ‘deviant’ or ‘abnormal’ as the president has done – helps us to find a scapegoat for the larger problems of governance and democratic failing that we are faced with in contemporary Uganda.

As Sylvia Tamale points out:

“Intensive scrutiny, regulation and control of non-conforming sexualities and gender identities reflect both a deep historical connection to colonial structures of governance and marginalization, and to more contemporary attempts to control the body. In this way, sexuality is deployed as a tool for perpetuating patriarchy, inequality, and injustice and to consolidate the process of othering.”

Focusing on sex also provides an escape route for a president who after 28 years in power is finding himself increasingly backed into a corner by rivals within his own NRM party who are asking the question: Why not me? Why can’t I also be President of Uganda?

Indeed, given the panic that the challenges presented by Kadaga and Mbabazi represented, it is of no surprise that even thinking about succeeding the President has now been equated to a criminal offence.

Finally, the AHA fits precisely into what has been described as the ‘Anwar Ibrahim Syndrome,’ i.e. the use of sexually-oriented legislation to penalize legitimate forms of political opposition. It is only a short step away for those who oppose president Museveni – male or female – from being charged with aggravated homosexual rape.

Conclusion

We live in a time of legal gymnastics, a time when the law is being openly used as a mechanism to consolidate and perpetuate dictatorship and autocracy and where there is a need for lawyers, activists and intellectuals of all shades of political opinion to come together and speak out against this legal autocracy.

We are witnessing the legalization of mob injustice; the granting of a licence to do anything to people who have done nothing but express their dissenting opinions and their different sexuality. The acts I have discussed today represent the very essence of the problem we are confronted with in Uganda today; namely, growing impunity, autocracy and neglect of the rule of law, accompanied by increasing nonchalance on the part of the public.

Although the preceding analysis has largely looked at the individual aspects of each of these laws, there is a larger picture.  In other words, by focusing on the individual Acts, we could fail to see the forest for the trees. Taken together, the enactment of these laws reveals a definite and clear pattern.

It is not surprising that such desperation has culminated in the proposals for a Patriotism Bill which will simply add to the arsenal against political opponents.

Nor is it surprising that the NRM is making nearly 50 proposals for constitutional amendment, while seriously resisting any serious discussion on reforming the Electoral Commission, or why it wants to change the rules on the election of a speaker and her/his deputy or why it fought so hard to get the ‘rebel’ MPs expelled from the House.

And don’t be surprised if the alleged ‘rumour’ about a bill to extend the term of Parliament and the president turn out to be bitter fact; for stranger things have transpired in this country.

The spate of legislative action being recently pursued by the NRM government is not accidental; it simply represents the final stage of total dictatorship. So the next time you hear of legislation being passed that does not appear to affect or concern you; do not act like the chicken, the goat and the cow.  Remember that when the least [known] of us is threatened, we are all at risk