On May 31, 2021, fourty-four people were arrested at an LGBTQ shelter in Nansana, Wakiso District, Uganda. Following their arrest, three detainees were released on bail, while others were detained for days until the matter was heard in the Chief Magistrate Court, in which thirty-nine people were granted bail. At the time of submission of this blog post, the details of the remaining two detainees were not available. The Ugandan police have kept the arrest of the people unrelated to their sexual orientation and charged them for violating Section 171 of the Penal Code Act that is “negligence that could spread the disease.”
While the police statement claimed that the arrests were made in response to violations of COVID-19 restrictions, reports revealed that the police authorities initially charged the accused for engaging in carnal intercourse under Section 145 of the Uganda Penal Code. However, the police did not identify anyone involved in the act of sexual intercourse at the time of the raid neither found any evidence to support the case, suggesting that the charge was changed to take advantage of government restrictions. In addition, activists and human rights groups reported that 17 of those arrested and detained underwent “anal tests” to determine whether their sexual orientation. Such tests are absurd and violate human rights, privacy, and the right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment.
Violation of international human rights standards
The criminalisation of the LGBTQ community in Uganda and applying the COVID-19 emergency measures to arbitrary arrest the LGBTQ community violates Article 9 of the International Convention on Civil and Political Rights (ICCPR), which stipulates that no person shall be subjected to arbitrary arrest and detention. The UN Human Rights Committee, in the case of Toonen v Australia (1992) under Paragraph 6.7, interpreted Article 26 of the ICCPR, which guarantees the right to equal protection to all persons before the law despite their sexual orientation.
The police have denied the connection between the arrests and the sexual orientation of the detainees. However, subjecting detainees to forced anal examinations points to the connection between the arrests and sexual orientation. However, such tests have no scientific or medical value. Similar contention can be drawn from a judgment of the neighbouring country Kenya, where the Court of Appeals in the case of COI & another v Chief Magistrate Ukunda Law Courts & 4 others (2018), rejected the evidentiary value of such examinations and found them to be unreasonable, unnecessary and unconstitutional. This act of the police authorities also violates Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 17 of the International Covenant on Civil and Political Rights, 1976, read together with General Comment No. 16, further protects an individual from arbitrary or unlawful interference with his or her privacy. Uganda’s stringent criminalisation of the LGBTQ community clearly violates these international human rights standards.
Anti-LGBTQ sentiment, right to health and the COVID-19 emergency
Since the beginning of the COVID-19 pandemic, violence against the LGBTQ people in Uganda has increased significantly. As per the reports, there have been increased levels of violence and discrimination against the LGBTQ community. Last year on March 29, in Kyengera, the police authorities raided the LGBTQ shelter based on the perceived sexual orientation of the people who were later charged for non-compliance with the COVID-19 emergency measures.
The Ugandan police are using COVID-19 emergency measures as camouflage to arbitrarily detain the LGBTQ community, thereby hampering the Universal Right to Health of LGBTQ people amid the pandemic. Article 25 of the Universal Declaration of Human Rights, 1948 mentions health as part of the right to an adequate standard of living, which is also recognized in Article 12 (c) of the International Covenant on Economic, Social and Cultural Rights (ICCPR). According to the UN Expert Committee report on protection against violence and discrimination based on sexual orientation and gender identity, the LGBTQ community is unequally represented in the ranks of the poor, homeless and lacking health care. Earlier, when the police authorities detained 19 LGBTQ people, some reported malaria and typhoid symptoms in the detention facility. At the same time, some of them were HIV-positive and were not given treatment and medication. Moreover, the arbitrary arrests by the police authorities of the LGBTQ people and the overcrowded detention facilities in Uganda make them more prone to being affected by the COVID-19 pandemic than the rest of the population, thereby violating their right to health.
Pride Month or Prejudiced Month?
Pride Month is a month of celebration and encouragement of people belonging to the LGBTQ community worldwide. In Uganda, however, this has become a prejudiced month against the LGBTQ community that has only amplified homophobia. Earlier, despite the peaceful ceremony outside Kampala to avoid crowded areas, the police disrupted the pride event and arrested several participants. Uganda’s Minister of Ethics has even threatened to arrest LGBTQ community members if they hold or participate in Pride events.
On the one hand, the world began to celebrate and commemorate Pride Month, while on the other, the Ugandan authorities, got down to harass, detain, and subject LGBTQ people to inhumane treatment, including anal testing. The anti-LGBTQ sentiment and actions of the Ugandan government do not seem to be mitigated, despite what the Ugandan MP Fox Oda-Oivelowo recently said in his opinion.
In view of the Pride Month, the Ugandan government should take measures to decriminalise consensual same-sex acts and repeal the relevant provisions of its Penal Code. In doing so, it would uphold its commitment under its Constitution and international human rights obligations to protect everyone under its jurisdiction from discrimination and inequality before the law.
Unequal use of COVID-19 restrictions points to a significant problem of homophobia and transphobia in Uganda. These violations often go unreported and unpunished, because the political and social system of the country refuses to recognise the rights of sexual and gender minorities. Discrimination and harassment based on sexual orientation and gender identity continue to spread throughout Uganda which further undermines the legitimacy of the police investigation process. The pandemic has deepened and exposed the human rights violations that the LGBTQ community is already facing. Using the COVID-19 pandemic as an excuse for discrimination undermines people’s faith in the authorities and promotes hostile sentiments in the community.
Mohd Ayan is a second-year law undergraduate at the Faculty of Law, Jamia Millia Islamia, New Delhi. His interests include International Humanitarian Law, Public Policy and Constitutional Law.