Anti-homosexuality Debate food for thought….

Don’t kill the

messenger…Break A leg! Uganda.
By Isaac Christopher Lubogo
For further reading look at Strix Mythology Demystified (Jescho Publishers
2023)
"Because of this, God gave them over to shameful lusts. Even their women
exchanged natural sexual relations for unnatural ones. In the same way, the men
also abandoned natural relations with women and were inflamed with lust for one
another. Men committed shameful acts with other men, and received in themselves
the due penalty for their error." In Romans 1:26-27, Paul condemns lustful same-sex
behaviour between men, and likely between women as well.

Parliament unanimously passed the Anti-Homosexuality Bill, 2023 which will see
anyone engaging in acts of homosexuality facing 20 years in jail, the Bill if assented
to by the President also proposes a death penalty for anyone engaging in
aggravated homosexuality the Bill that was passed by Parliament on Tuesday, 21
March 2023, now awaits Presidential assent into law.

The previously introduced Anti-Homosexuality Bill in 2009 was passed by

Parliament in December 2013, assented to by the President in February 2014, and
later annulled by the Constitutional Court in August 2014 on grounds of lack of
quorum.
The Private Member's Bill was introduced by Bugiri Municipality Member of
Parliament, Hon. Asuman Basalirwa 09 March 2023, the provisions embedded in
the Bill seek to protect the traditional family by prohibiting any form of sexual
relations between persons of the same sex and the promotion of such acts.
The Bill also seeks to address the gaps of other laws in Uganda including the Penal
Code Act, Cap 120, as well as supplement provisions of the Constitution by
criminalizing same-sex acts.
While considering the Bill, legislators agreed to a penalty of shs1 billion imposed on
a legal entity convicted of promoting homosexuality.
✓ The Bill proposes a life sentence in prison for an individual convicted of
committing the offence of homosexuality, whereas an attempt to perform
the act would attract a seven-year prison term.
✓ The Bill provides for a three-year imprisonment for a child convicted of the
act of homosexuality which is in line with section 94(1) (g) of the Children
Act, Cap 120
✓ The bill proposes a death penalty for anyone engaging in aggravated
homosexuality.
✓ The provisions embedded in the Bill seek to protect the traditional family by
prohibiting any form of sexual relations between persons of the same sex
and the promotion of such acts.
✓ The Bill also seeks to address the gaps in other laws in Uganda including
the Penal Code Act, Cap 120, as well as supplement provisions of the
Constitution by criminalizing same-sex acts.
✓ While considering the Bill, legislators agreed to a penalty of shs1 billion
imposed on a legal entity convicted of promoting homosexuality.
✓ The Bill proposes a life sentence in prison for an individual convicted of
committing the offence of homosexuality, whereas an attempt to perform
the act would attract a seven-year prison term.
✓ The Bill provides for a three-year imprisonment for a child convicted of the
act of homosexuality which is in line with section 94(1) (g) of the Children
Act, Cap 120.
It is argued that Uganda is a signatory to international agreements that might be
interpreted to recognize sexual minorities, such agreements do not legally create
binding obligations on Uganda.
West Budama North East Member of Parliament, Hon. Fox Odoi Oywelowo
presented a minority report saying that the Bill is misconceived and did not have a
comprehensive provision catering to anti-homosexuality, Odoi said that the Bill was
a duplication of provisions that exist in other laws.
“It is therefore, the position of the minority that the provisions of the Bill, if passed
into law will infringe on the rights of Ugandans specifically freedom of expression,
association and liberty...” Odoi Oywelowo said.
Really……. Hon. Fox. Odoi wake up to the case of Nabagesera judgement of
justice Musota it is settled law

"Vox populi, vox Dei" is a Latin phrase that means "The voice of the people is
the voice of God".
The phrase suggests that the opinion of the majority should be considered as the
will of God or a divine voice. It implies that the popular or majority opinion is usually
the right one and that the voice of the people should be respected and heeded.
This phrase has been used in different contexts throughout history, including in
politics, religion, and social movements, to emphasize the importance of popular
opinion and the need for leaders to listen to the people they govern.
Speaker Anita Among said that the norms and aspirations of the people of Uganda
remain supreme and that the House legislates for the citizens.
“This House will continue to pass laws that recognize, protect and safeguard the
sovereignty, morals and cultures of this country,” Among said.
The Latin phrase "Salus populi suprema lex esto" means "The welfare of the
people is the supreme law."
This phrase suggests that the well-being and safety of the people should be the
highest priority for society or government and that all laws and actions should
ultimately serve that goal. It emphasizes that the welfare of the people is more
important than any individual or group’s interests and that the government should
be responsible for ensuring the well-being of its citizens.
This concept has been used in various forms of government, including democratic
and authoritarian systems, to justify policies and actions aimed at promoting the
welfare of the people. It is also reflected in the idea of a social contract, which
suggests that individuals give up some of their individual rights in exchange for the
protection and benefits provided by the government.
In summary, "Salus populi suprema lex esto" emphasizes the importance of
prioritizing the welfare and safety of the people above all else, and highlights the
responsibility of governments to act in the best interest of their citizens.

✓ The Bill also provides for penalties to prohibit acts that expose children to
acts of homosexuality by imposing a 10-year prison sentence on a person
found to recruit a child for the purpose of engaging the child in the act of
homosexuality.
✓ The Bill seeks to penalize an owner, occupier or manager of premises who
knowingly allows the premises to be used for acts of homosexuality with a
10-year prison sentence upon conviction.

✓ Where a person contracts a marriage with a person of the same sex,

presides over a same-sex marriage ceremony or knowingly participates in
the preparation of such a marriage is liable on conviction, to a 10-year
prison sentence.

According to Uganda’s Constitution, the president has to either give his assent to
the Bill, return it to Parliament for revisions, or inform the Speaker of Parliament that
he will veto it. The Bill may, however, pass into law without the President’s assent if
he returns it to Parliament twice.

✓ The Bill criminalizes those who ‘promote’ homosexuality or ‘attempt to

commit the offence of homosexuality’. It also imposes a duty on the people
of Uganda to report “acts of homosexuality” or else face a potential jail term
of up to six months. Moreover, it contains a provision on “aggravated
homosexuality”, in relation to circumstances where a person contracts a
 terminal illness because of a sexual act, which will likely deter individuals
from the LGBTI community living with HIV/AIDs from accessing health care
and medical services.

This raises the question of whether one can ever be criminalized for their sexual
orientation or gender identity,” “This Bill also flies in the face of a resolution on
protecting LGBTI people agreed by the African Commission on human and people’s
rights, while its callous recommendation of the death penalty for ‘aggravated
homosexuality’ makes it one of the most extreme anti-LGBTI laws in the world and
further violates international standards on the death penalty.”

This Bill flies in the face of a resolution on protecting LGBTI people agreed upon by
the African Commission on Human and People’s Rights.
The vague provisions in this legislation that criminalize the ‘promotion of
homosexuality’ or touching another person ‘with the intention of committing the act
of homosexuality’ will, in reality, institutionalize discrimination, hatred, and prejudice
against LGBTI people and block the legitimate work of civil society organizations.
The Ugandan authorities should protect their rights by aligning their laws with
international human rights laws and standards. Criminalizing consensual same-sex
conduct blatantly violates numerous human rights, including the right to dignity,
equality before the law, equal protection by the law, and non-discrimination.
More than 30 countries in Africa ban consensual same-sex conduct yet Uganda’s
proposed Anti-Homosexuality Bill is the first to outlaw anyone merely for “holding
out as a lesbian, gay, transgender, a queer, or any other sexual or gender identity
that is contrary to the binary categories of male and female,” with a punishment of
up to ten years in prison.
On 21 March 2023, the Ugandan Parliament passed the Anti-Homosexuality
Bill, with 387 out of 389 MPs voting in favour. For the Bill to pass into law,
however, President Yoweri Museveni must give his assent to the new
legislation.

On 2nd of May 2023, parliament voted the second time to pass the bill and
resend it to the president for assent, this means the president has only one
option to either pass the bill into law or send it back to parliament which
means that parliament on the basis of parliamentary supremacy has the right
to now pass it into law once sent back with or without the assent of the
president.

The issue of parliamentary supremacy and the power of the president to

assent to bills in Uganda is governed by the Constitution of Uganda, which is
the supreme law of the land.
Article 91(3) of the Constitution provides that when a bill is sent to the
President for assent, the President shall within 30 days (which may be
extended by Parliament) either assent to or refuse to assent to the bill. If the
President refuses to assent to the bill, he or she must return it to Parliament
with a memorandum indicating the reasons for the refusal.
Article 91(4) further provides that if the bill is returned to Parliament by the
President with a memorandum indicating the reasons for the refusal,
Parliament may reconsider the bill and if passed by a two-thirds majority of
all members of Parliament, the bill shall become law without the assent of the
President.
In light of these provisions, it is clear that Parliament has the power to pass a
bill into law without the assent of the President, provided that the bill is
reconsidered and passed by a two-thirds majority of all members of
Parliament.
There is also case law to support the notion of parliamentary supremacy in
Uganda. In the case of Attorney General v. Major General David Tinyefuza,
Constitutional Petition No. 1 of 1997, the Constitutional Court held that the
doctrine of parliamentary supremacy is a fundamental principle of the
Ugandan Constitution and that the courts must respect the decisions of
Parliament.
Furthermore, in the case of Constitutional Petition No. 2 of 2014, the
Constitutional Court held that once a bill has been passed by Parliament, it
becomes law unless it is vetoed by the President or is declared
unconstitutional by the courts.
In conclusion, the veracity of the statement that Parliament in Uganda has the
right to pass a bill into law once sent back with or without the assent of the
President, on the basis of parliamentary supremacy, is supported by the
provisions of the Constitution of Uganda and case law.

Bill includes the death penalty, and long jail terms, The US, EU, and UN have
condemned the law, and The President can sign the law, veto or send it back

Uganda's parliament has passed one of the world's strictest anti-LGBTQ bills
mostly unchanged, including provision for long jail terms and the death
penalty, after the president requested some parts of the original legislation be
toned down.
The new bill retains most of the harshest measures of the legislation adopted
in March, which drew condemnation from the United States, the European
Union, the United Nations and major corporations.
The provisions retained in the new bill allow for the death penalty in cases of
"aggravated homosexuality", a term used to describe actions including
having gay sex when HIV-positive.
It allows a 20-year sentence for promoting homosexuality, which activists say
could criminalise any advocacy for the rights of lesbian, gay, bisexual,
transgender and queer citizens.
The legislation now heads back to President Yoweri Museveni, who can sign
it, veto it or return it again to parliament.

Usually, Article 79 of the constitution pro-vides for the func-tion ar-eas that make
the parliament competent to make new laws, amend existing laws and re-peal old
laws. Laws normally come in the form of a bill. A Bill is a draft piece of pro-posed
legislation pre-sented to the House for discussion be-fore making it a law.

Rules of procedure of Par-lia-ment No 104 prescribe the form, publica-tion and

introduction of the bill to parliament as stipulated in article 94 of the constitution.
There are two types of bills, a government bill which is moved by a government
Minister and private members bill which is moved by any other mem-ber of
parliament. The only unique feature between the two bills is in the drafting of the
private mem-bers bill, where Rules of Procedure No 111(2) provides for legal
assistance by the Legal Department of Government.

Parliament rules require a certificate of financial implication signed by the Minister

of Finance showing specifically how it will be im-ple-mented to fit into the
government programs. It should also avail the source of financing, the to-tal cost
needed and how it will affect the existing budget.

In its progress, a bill un-der-goes a num-ber of stages before it be-comes an Act of

parliament. First and fore the first reading is mostly the introduction of the bill. A
mem-ber introduces a bill and in most cases pro-vides copies for easy ref-er-ence
by other mem-bers. The clerk then reads the ti-tle of the Bill as stipulated under rule
108 and the bill is considered read for the first time. The bill is then sent to the
appropriate committee for analysis before the second reading.

The committee responsible within a time frame of forty-five days from the day the
bill is read for the first time needs to report back to the house on the find-ings in
regards to the bill. Any pro-posal to amend or to in-clude new clauses shall be
presented before the committee will be scrutinized to-gether with the bill and come
up with a final report to the house.

The second reading is always moved by the Vice-President, Minister or private

Member. At this stage, the main principles, reasons and benefits of the bill, as well
as reviews of the most important clauses, are out-lined. The House will then proceed
to receive the committee report as well as the opposition re-sponse and the debate
is opened to other members and opposition parties.

When the house accepts and adopts the com-mit-tee report then the bill is
considered read for the second time. When a motion for a sec-ond read-ing is
adopted, the house pro-ceeds with the de-bate at the committee stage or fixes
another date for discussion. The Bill is examined in detail, considering one clause
or sub-clause at a time, agreed to, amended or rejected based on the majority votes
without altering the main principle of the bill.

This is when the speaker leaves the chair and assumes the chairmanship presiding
over the committee of the whole house which includes all other members. (Thus a
com-mit-tee of the whole house). The process of passing the Bill Rule 23(1) of the
Rules of Procedure of Parliament provides for the required quorum of parliament
which is one-third of all mem-bers of parliament entitled to vote.
In Sub-rule (2), it states that ‘The quorum prescribed in sub-Rule (1) shall only be
required at a time when Parliament is voting on any question’. One-third of all MPs
entitled to vote are 125 Members and therefore, in the case of passing of any bill a
decision relies on this Rule. When the committee of the whole house has concluded
its deliberations, it will report to the House that ‘the Committee has considered the
Bill referred to it and agreed to the same with (or with-out) amend-ment and
pro-ceeds to the Third read-ing of the bill upon a mo-tion.

The speaker will put a question that the Bill be read the Third time. Parliament at
the final stage passes the bill as an Act of Parliament, it is then sent to the president
for assent where it becomes an Act of Uganda.
Worth noting
President Yoweri Museveni returned the Anti-Homosexuality Bill, 2023 to the
House with proposals for reconsideration. The bill that criminalises acts and
promotion of homosexuality was passed on 22 March 2023 pending the President’s
assent. The President has, however, asked Parliament to reconsider some
provisions within the bill which he said needed clarity before its assent.
For instance, the president argued that the law should not criminalise the state of
one having a homosexual disposition but those who engage in and promote
homosexuality.
It was important to distinguish between being a homosexual and engaging in acts
of homosexuality, it is clear that Ugandan society does not support homosexual
conduct or actions. Therefore, the proposed law should be clear such that what is
sought to be criminalised is not the state of one having a deviant proclivity but rather
the actions of one acting on that deviant or promoting the same in any way.
Really ….is this not giving away your cake and at the same time wanting to
eat it…. say it as it is MR. President.
So what is having a deviant proclivity …. this is my answer
Having a deviant proclivity refers to having a tendency or inclination towards
behaviour that is considered abnormal, unusual, or outside of societal norms.
This can include a wide range of behaviours, from criminal activities to
unconventional sexual desires or preferences. It is important to note that not
all deviant behaviour is harmful or illegal, and individuals with such
proclivities may not necessarily act on them. However, those who do act on
their deviant proclivities can cause harm to themselves or others and may
face legal or social consequences.

The President added that any person who is believed to be homosexual but does
not engage in homosexuality act or its promotion commits no offence as stated
under sections 2 and 3 of the bill.
The president was concerned that clauses 14 and 15 of the bill when read together
appear to create unnecessary contradictions which may cause a challenge in the
implementation of the law.

✓ Clause 14 imposes a duty of one to report suspected cases of

homosexuality yet the bill under clause 15 makes it an offence for one to
make false allegations.
This contradiction could present challenges in the implementation of the law and
could be the source of conflicts in society. He, therefore, suggested that clause 14
be reviewed with the aim of removing it altogether or restricting it to apply for the
protection of children and vulnerable persons.

Museveni said he desired the bill to make provision for the rehabilitation of people
formerly engaged in homosexual acts.
This has to be argued perhaps with two theories the conversion theory and
the affirming theory
The conversion theory and the affirming theory are two main approaches to the
understanding and treatment of LGBTQ individuals.
The conversion theory, also known as reparative or ex-gay therapy, is based on the
belief that homosexuality is a mental disorder that can be cured or changed through
therapy or other interventions. Proponents of this theory argue that individuals can
overcome their same-sex attraction by addressing underlying psychological or
emotional issues, such as trauma or family dynamics. However, many mental health
professionals and LGBTQ advocates have criticized the conversion theory as
ineffective, unethical, and potentially harmful, as it can lead to stigma,
discrimination, and self-loathing.
On the other hand, the affirming theory, also known as the acceptance or identity
model, asserts that homosexuality is a natural variation of human sexuality and not
a disorder that needs to be cured or changed. Proponents of this theory advocate
for accepting and affirming LGBTQ individuals as they are, without attempting to
alter their sexual orientation or gender identity. The affirming theory is based on the
principles of equality, respect, and human rights, and seeks to promote social justice
and inclusion for all.
In terms of which option is better, the affirming theory has gained wider acceptance
and support among mental health professionals, researchers, and LGBTQ
communities. Many professional organizations, such as the American Psychological
Association and the World Health Organization, have rejected the conversion theory
and emphasized the importance of affirming and supporting LGBTQ individuals. The
affirming theory is also more aligned with the principles of human rights and social
justice and acknowledges the diversity and complexity of human sexuality and
gender identity.
In conclusion, while the conversion theory and the affirming theory represent two
distinct approaches to LGBTQ individuals, the affirming theory is generally
considered to be more ethical, effective, and socially just, as it promotes
acceptance, affirmation, and inclusion for all individuals, regardless of their sexual
orientation or gender identity.
The president was again of the view that the bill should include a provision that
facilitates those who have previously been involved in acts of homosexuality when
they present themselves to the relevant authority seeking help in cases where their
involvement in homosexuality was not of an aggravated kind, should not punishable.
Really……is there anything that could be of not an aggravated kind and
therefore not punishable

In 2014, the African Commission on Human and Peoples’ Rights adopted

Resolution 275, which condemns attacks by both state and non-state actors against
persons based on their assumed or real sexual orientation or gender identity. The
African Commission also called on governments to prevent violence and other
human rights violations against individuals based on their imputed or real sexual
orientation or gender identity.

On 20 April 2023, the European Parliament passed a resolution on the universal

decriminalization of homosexuality considering recent developments in Uganda,
which called on President Museveni not to give his assent to the Anti-Homosexuality
Bill or any other similar legislation in future.

Uganda’s Parliament passed a revised Anti-Homosexuality Bill on Tuesday 02 May

2023, retaining executions for certain same-sex activity and introducing harsher
penalties for some categories of ‘offences’.
The inclusion of the death penalty in particular would leave the bill open to legal
challenge in a country that has effectively ended the use of capital punishment,
wrote DAG Kaafuzi Jackson Kargaba in a letter to the president. On 2nd May 20123,
The Parliament passed the Anti homosexuality bill for the second time.
Parliament has voted to retain the death penalty for “aggravated homosexuality” –
defined as sex with a child or disabled person or while living with HIV. A 20-year
prison sentence for “knowingly promoting homosexuality” has also been retained.
However, the Bill no longer makes it a crime to simply identify as LGBTQ and
people are only obliged to report homosexual activity if a child is involved.
(SEE…. THIS IS WHAT I HAVE ALWAYS TOLD YOU ……)
THE BILL LACKED A GENERAL AND PURPOSIVE INTERPRETATION OF THE
WORD SEX AND SEXUAL ORIENTATION AND GENDER
The interpretation of the words "sex", "sexual orientation", and "gender" can have
significant legal implications in various contexts, including anti-discrimination laws,
criminal law, family law, and employment law.
In general, courts and legal authorities have adopted a broad and purposive
interpretation of these terms to ensure that they are inclusive and provide adequate
protection to all individuals, including those who may identify as LGBTQ+.
Regarding the term "sex", in many jurisdictions, it has been interpreted to include
both biological sex and gender identity. For instance, in the United States, Title VII
of the Civil Rights Act of 1964 has been interpreted by the Supreme Court to prohibit
discrimination based on both biological sex and gender identity. In Bostock v.
Clayton County (2020), the Court held that discrimination against an individual
because of their sexual orientation or gender identity is necessarily discrimination
because of sex.
Similarly, the term "sexual orientation" has been broadly interpreted to include all
forms of attraction and not limited to just heterosexual or homosexual orientation.
For instance, the European Court of Human Rights has held that sexual orientation
is a broad term that includes sexual attraction to persons of the same sex, opposite
sex, or both, as well as other characteristics related to sexuality.
Lastly, the term "gender" has also been interpreted to include both biological sex
and gender identity. In Canada, the Supreme Court has held that gender identity is
a protected ground under human rights legislation and that discrimination based on
gender identity is a form of sex discrimination. In other jurisdictions, such as
Australia and the United Kingdom, gender has also been interpreted to include
gender identity.
In conclusion, the interpretation of the words "sex", "sexual orientation", and
"gender" has been broad and purposive in many jurisdictions, in order to ensure that
they provide adequate protection to all individuals, including those who identify as
LGBTQ+. The specific references to laws and cases discussed above illustrate how
courts and legal authorities have interpreted these terms in various contexts,
including anti-discrimination laws and family law.

THE AFRICAN INTERPRETATION

The interpretation of the words "sex", "sexual orientation", and "gender" in African
law is a complex issue that varies depending on the jurisdiction and the specific
legal context. However, there are some provisions in African human rights
instruments and case law that shed light on how these terms have been interpreted
in the African context.
One example is the African Charter on Human and Peoples' Rights (ACHPR), which
guarantees the right to equality and non-discrimination on various grounds,
including sex and "other status". The African Commission on Human and Peoples'
Rights, which is the body responsible for interpreting and applying the ACHPR, has
held that "other status" includes sexual orientation and gender identity. In its
Resolution on Protection against Violence and other Human Rights Violations
against Persons on the basis of their Real or Imputed Sexual Orientation or Gender
Identity (2014), the Commission stated that discrimination based on sexual
orientation or gender identity is a violation of the right to equality and non-
discrimination.
Another example is the case of National Coalition for Gay and Lesbian Equality and
Another v Minister of Justice (1998) in South Africa. In this case, the Constitutional
Court of South Africa held that discrimination on the basis of sexual orientation is a
violation of the right to equality, human dignity, and freedom from unfair
discrimination. The Court also held that the term "sex" in the South African
Constitution should be interpreted to include gender identity, which means that
discrimination against transgender individuals is also prohibited.
However, it is worth noting that many African countries criminalize homosexuality
and transgender identities, and there is widespread social stigma and discrimination
against LGBTQ+ individuals in many African societies. In such contexts, the
interpretation of the terms "sex", "sexual orientation", and "gender" may be
contentious and subject to political and social factors.
In conclusion, while there are some provisions in African human rights instruments
and case law that support a broad and inclusive interpretation of the terms "sex",
"sexual orientation", and "gender", the implementation of these provisions is often
hindered by social and political factors. The interpretation of these terms in the
African context remains a contested issue that requires continued dialogue and
engagement with diverse stakeholders.
The Bill had the support of all but one of the MPs “Today Parliament has once again
gone into the history books of Uganda, Africa and the world and clearly brought up
the issue of homosexuality, the moral question, the future of children and protecting
families,” said Among, “We have a culture to protect. The Western world will not
come to rule Uganda,” she added.
Ironically, however, US conservative Christian groups such as the leaders of the US
Conservative Christian group Family Watch International travelled to Uganda to
encourage the passing of the bill, The Bill goes back to the president to be signed
into law amid intense pressure for him not to from the US and European Union in
particular.

The proposed Anti-Homosexuality Bill in Uganda is legislation that aims to

criminalize homosexuality and impose severe penalties on those who engaged in
homosexual acts. The bill will meet with significant opposition from the international
community, including human rights organizations and foreign governments, which
viewed it as a violation of basic human rights. Below are some of the weaknesses
of the proposed bill based on Ugandan statutory provisions, relevant case law, and
international law:
1. Criminalization of consensual sexual activity: The proposed bill seeks to
criminalize consensual sexual activity between individuals of the same sex,
including those in committed relationships. This provision is inconsistent
with the Ugandan Constitution, which guarantees the right to privacy and
freedom from discrimination on the basis of one's sexual orientation. It is
also a violation of international human rights law, which recognizes the right
to privacy and the right to be free from discrimination.
2. Extraterritorial application of the law: The bill seeks to apply Ugandan law
to Ugandan citizens who engage in homosexual acts outside of Uganda.
This provision is inconsistent with the principle of territoriality, which holds
that a state's laws only apply within its borders. It is also a violation of
international human rights law, which recognizes that individuals have the
right to freedom of movement and the right to seek asylum in other countries
if they are persecuted in their home country.
3. Harsh penalties: The proposed bill seeks to impose harsh penalties on
individuals who engage in homosexual acts, including life imprisonment and
even the death penalty in certain circumstances. Such penalties are
inconsistent with the principle of proportionality, which requires that the
punishment be commensurate with the crime. The harsh penalties also
violate international human rights law, which prohibits cruel, inhuman, and
degrading treatment or punishment.
4. Criminalization of advocacy: The proposed bill seeks to criminalize any form
of advocacy for LGBT rights, including the provision of information or
services to LGBT individuals. This provision is inconsistent with the right to
freedom of expression, which includes the right to express one's views on
matters of public interest, including issues related to sexual orientation. It is
also a violation of international human rights law, which recognizes the right
to freedom of expression and the right to seek and receive information.
5. Discrimination: The proposed bill seeks to discriminate against LGBT
individuals on the basis of their sexual orientation, which is a violation of the
Ugandan Constitution and international human rights law.
 The bill's provisions are inconsistent with the principle of equality before the
law and non-discrimination on the basis of one's sexual orientation.
The proposed Anti-Homosexuality Bill in Uganda contains numerous weaknesses
that are inconsistent with Ugandan statutory provisions, relevant case law, and
international human rights law. The bill seeks to criminalize consensual sexual
activity, apply extraterritorial jurisdiction, impose harsh penalties, criminalize
advocacy, and discriminate against LGBT individuals. These provisions are not only
unjust, but they also violate fundamental human rights principles and undermine
Uganda's standing in the international community.
The bill has several problematic provisions. Here are some of the specific sections
within the bill and their weaknesses, as well as relevant international provisions and
case law:
1. The definition of homosexuality as "any sexual relations between persons
of the same sex" is overly broad and could be used to criminalize not only
consensual sexual activity but also non-sexual behaviour between
individuals of the same sex.
2. The provision making it a crime to "promote" homosexuality is overly vague
and could be used to target individuals and organizations for expressing
their opinions or engaging in peaceful activism in support of LGBT rights.
3. The provision criminalizing "attempted homosexuality" is problematic
because it criminalizes not only consensual sexual activity but also non-
sexual conduct, such as holding hands or kissing.
4. The provision criminalizing "aiding and abetting" homosexuality is overly
broad and could be used to target individuals and organizations providing
health care, counselling, or other services to LGBT individuals.
5. The bill defines "homosexuality" broadly and vaguely to include same-sex
attraction, conduct, and relationships, without specifying any exceptions or
qualifications. This could lead to discrimination against individuals based
solely on their sexual orientation.
 6. Imposes life imprisonment for the offence of "aggravated homosexuality,"
which includes same-sex acts committed by a person living with HIV, or
same-sex acts committed by a person under 18 years of age. This penalty
is disproportionate and violates the prohibition against cruel, inhuman, and
degrading treatment or punishment.
7. Imposes a duty on Ugandans to report any information about homosexual
activities, which could lead to violations of privacy and freedom of
expression.
8. Criminalizes the promotion of homosexuality, including advocacy and
funding for LGBT rights. This violates the rights to freedom of expression
and association.
9. The Anti-Homosexuality Bill in Uganda is inconsistent with international law
and norms regarding non-discrimination, privacy, and freedom of
expression and association.
These provisions are problematic because they violate international human rights
standards, including the right to privacy, the right to freedom of expression, the right
to freedom of association, and the right to non-discrimination. For example:
1. The Universal Declaration of Human Rights (UDHR) affirms that all human
beings are born free and equal in dignity and rights and that everyone is
entitled to the rights and freedoms set forth in the Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political
or another opinion, national or social origin, property, birth or another status.
The UDHR also recognizes the right to privacy, the right to freedom of
thought, conscience and religion, the right to freedom of expression, and
the right to freedom of association.
2. The International Covenant on Civil and Political Rights (ICCPR)
recognizes the right to freedom of thought, conscience, and religion,
freedom of expression, and freedom of association. It also prohibits
discrimination on the basis of sex, among other grounds.
3. The Yogyakarta Principles, a set of principles on the application of
international human rights law in relation to sexual orientation and gender
identity, affirm that all human beings are entitled to enjoy all human rights
without discrimination and that states must take measures to combat
discrimination based on sexual orientation and gender identity.
4. The European Court of Human Rights has held that criminalization of
consensual same-sex sexual activity violates the right to respect for private
life and the right to freedom of expression.
5. The Inter-American Commission on Human Rights has held that laws
criminalizing consensual same-sex sexual activity violate the right to
privacy, family life, and freedom from discrimination.
6. Universal Declaration of Human Rights (UDHR): Article 2 states that
"everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or another opinion, national or social origin,
property, birth or another status." This means that all individuals are entitled
to the same rights and freedoms, regardless of their sexual orientation.
7. International Covenant on Civil and Political Rights (ICCPR): Article 2
prohibits discrimination on the basis of sexual orientation, among other
grounds. Article 17 recognizes the right to privacy, which includes the right
to engage in consensual sexual conduct without interference from the state.
8. African Charter on Human and Peoples' Rights: Article 2 prohibits
discrimination on the basis of sexual orientation, among other grounds.
Article 3 guarantees the right to equality before the law and equal protection
of the law without discrimination.
9. Yogyakarta Principles: Principle 2 affirms that "each person's self-defined
sexual orientation and gender identity is integral to their personality and is
one of the most basic aspects of self-determination, dignity and freedom."
10. Case law: In the case of the National Coalition for Gay and Lesbian Equality
v Minister of Justice, the Constitutional Court of South Africa held that
discrimination on the basis of sexual orientation violates the South African
Constitution's equality provisions.
11. Article 2 of the Universal Declaration of Human Rights (UDHR) states that
"everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status." This means that all individuals, regardless
of their sexual orientation, have the right to equal treatment and non-
discrimination under international law.
12. Article 17 of the International Covenant on Civil and Political Rights (ICCPR)
recognizes the right to privacy, which includes the right to engage in
consensual sexual conduct between adults. The United Nations Human
Rights Committee, which monitors state parties' compliance with the
ICCPR, has held that laws criminalizing homosexual conduct violate this
right to privacy.
13. The Yogyakarta Principles, a set of principles on the application of
international human rights law in relation to sexual orientation and gender
identity, affirms that "the right to privacy includes the right to choose a
partner, and the right to engage in consensual sexual acts."
14. In the case of the National Coalition for Gay and Lesbian Equality v. Minister
of Justice, the Constitutional Court of South Africa held that laws
criminalizing homosexual conduct violated the right to privacy and dignity,
and were therefore unconstitutional.
15. The European Court of Human Rights has also held in a number of cases
that laws criminalizing homosexual conduct violate the right to privacy and
the prohibition of discrimination under the European Convention on Human
Rights.
 16. The Inter-American Court of Human Rights has similarly held in a number
of cases that laws criminalizing homosexual conduct violate the right to
privacy and the prohibition of discrimination under the American Convention
on Human Rights.
These international provisions and decided cases support the arguments that the
Anti-Homosexuality Bill in Uganda, which seeks to criminalize homosexuality and
even impose the death penalty in some cases, violates fundamental human rights
principles under international law.

Escape route for Uganda

The Ugandan Constitution contains provisions that outline both non-derogable
rights, which cannot be suspended or limited even in times of emergency, and
derogable rights, which can be limited in certain circumstances.
Non-derogable rights are provided for under Article 44 of the Ugandan Constitution.
These include the right to life, freedom from torture, cruel, inhuman, or degrading
treatment, and slavery and servitude.
On the other hand, derogable rights are provided for under Article 43 of the
Constitution. These include the right to personal liberty, freedom of expression,
assembly, and association, and the right to property. However, these rights may be
limited in certain circumstances, including where necessary in a democratic society
for public order, morality, or national security.
The Constitution also provides for limitations on non-derogable rights. Under Article
43, any law that seeks to limit a non-derogable right must be reasonably justifiable
in a democratic society. This means that any limitation on a non-derogable right
must be necessary and proportionate to achieve a legitimate aim, such as protecting
public safety or preventing crime.
The limitations to non-derogable rights are found in Article 43 of the Ugandan
Constitution. Article 43 provides for the limitations on fundamental rights and
freedoms, while Article 45 provides for the non-derogable nature of certain rights.
In terms of Ugandan case law, the Constitutional Court has affirmed the importance
of non-derogable rights and the need for any limitations on these rights to be
justified. In the case of Susan Kigula & 417 Others v Attorney General
(Constitutional Petition No. 6 of 2003), the court held that the death penalty violates
the right to life, which is a non-derogable right under the Constitution. The court also
held that any limitations on non-derogable rights must be reasonable and justifiable
in a democratic society.
With regards to international case law, the African Commission on Human and
Peoples' Rights has emphasized the importance of non-derogable rights in its
decisions. In the case of Sudan Human Rights Organisation and Others v Sudan
(Communication No. 249/02), the Commission held that the right to life is a non-
derogable right that cannot be suspended or limited, even in times of emergency.
The Commission also held that any limitations on derogable rights must be
necessary and proportionate to achieve a legitimate aim.
The Ugandan Constitution provides for both non-derogable and derogable rights,
and any limitations on these rights must be reasonably justifiable in a democratic
society. Ugandan case law, such as the Susan Kigula case, has affirmed the
importance of non-derogable rights and the need for any limitations to be justified.
Similarly, international case law, such as the Sudan Human Rights Organisation
case, has emphasized the importance of non-derogable rights and the need for any
limitations on derogable rights to be necessary and proportionate to achieve a
legitimate aim.

✓ Presumption of Innocence: The right to be presumed innocent until proven

guilty is protected under Article 28(3)(a) of the Constitution of Uganda.
Additionally, Section 14 of the Criminal Procedure Code Act (Cap. 116)
provides for the presumption of innocence and places the burden of proof
on the prosecution to prove the guilt of the accused person beyond a
reasonable doubt.
✓ Freedom of Expression: The right to freedom of expression is guaranteed
under Article 29(1)(a) of the Constitution of Uganda. However, this right is
not absolute and may be limited in certain circumstances, such as in the
interest of national security, public order, or morality. Section 79 of the
Penal Code Act (Cap. 120) also criminalizes certain types of speech, such
as sedition, defamation, and promoting sectarianism.
✓ Derogable Rights: Derogable rights are those rights that can be limited or
suspended in certain circumstances, such as during a state of emergency.
In Uganda, some examples of derogable rights include the right to liberty,
the right to privacy, and the right to property. These rights can be limited in
accordance with the law and in a manner that is necessary and
proportionates to achieve a legitimate aim.
✓ Non-Derogable Rights: Non-derogable rights are those rights that cannot
be limited or suspended under any circumstances. In Uganda, some
examples of non-derogable rights include the right to life, the prohibition of
torture and cruel, inhuman, or degrading treatment or punishment, and the
prohibition of slavery and forced labour.
✓ Limitation of Derogable Rights: The limitation of derogable rights must be
done in accordance with the law and in a manner that is necessary and
proportionates to achieve a legitimate aim. The Constitution of Uganda sets
out certain conditions that must be met before derogable rights can be
limited, including that the limitation must be prescribed by law, it must
pursue a legitimate aim, and it must be necessary and proportionate to
achieve that aim. The Emergency Powers Act (Cap. 78) also sets out
procedures for the limitation of rights during a state of emergency.

✓ Nabagesera v Attorney General (Constitutional Petition No. 13 of 2019):

This case involved a challenge to the constitutionality of sections of the
Penal Code Act that criminalized homosexuality. The court held that the
provisions violated several constitutional rights, including the right to
privacy, the right to equality and non-discrimination, and the right to human
dignity.
 JACQUELINE KASHA NABAGESERA & ORS V AG & ANOR Miscellaneous
Cause 33 of 2012 (2014) UGHCCD 85.
The case was filed at the High Court before Justice Stephen Musota, the facts were
that Jacqueline Kasha Nabagesera and a group called Freedom and Roam Uganda
organized this workshop with the purpose of training LGBTQIA+ activists in project
planning, advocacy, and human rights. The Minister of Ethics and Integrity
intervened and ordered the closure of the workshop. He alleged that the workshop
was an illegal gathering of homosexuals prohibited by Section 145 of the Ugandan
Penal Code. The relevant issues with respect to this paper were:
1. Whether by organizing and attending the workshop at Imperial Resort
Beach Hotel, the applicants were engaging in illegal and unlawful activities.
2. Whether the applicants’ Constitutional rights were unlawfully infringed when
the second respondent closed down their workshop?

Consideration of Onyango v AG
The case of Charles Onyango Obbo v AG1 was cited and relied on by the applicants
to highlight that even if the Minister's assertion that the applicants were gathered to
promote homosexuality was correct, such a proposition would not justify any
infringement on the right to freely express one’s opinion that a person’s expression
is not excluded from Constitutional protection simply because it is thought by others
to be erroneous, controversial or unpleasant.
The court observed that protection of ‘unpleasant’ or controversial, false or wrong
speech does not extend to protecting the expression that promotes illegal acts which
in itself is prohibited and in fact amounts to the offence of incitement or conspiracy.
Regarding the right to political participation, learned counsel for the applicants relied
on Article 38(2) of the Constitution which guarantees persons the right to participate
in peaceful activities to influence the policies of government through civic
organizations; Court however found that exercise of such a right necessitates a
conduct in accordance with the law. If the exercise of this right is contrary to the law,
then it becomes prejudicial to the public interest.

1
Constitutional Appeal 2004 UGSC 81.
Key Issues from Court's Decision in the Case of Nabageresa.
Justice Stephen Musota delivered the opinion of the High Court of Uganda at
Kampala. He acknowledged that Article 43 of the Constitution of Uganda allows
certain constraints to be placed on human rights such as freedom of expression,
association, and speech among others in favour of the public interest if they don’t
fall within the category of non- derogable rights under Article 44 such as the right to
a fair trial and life. Therefore, the exercise of such rights (derogable) can be limited
in certain instances.
Furthermore, Justice Musota argued that these restrictions can be made as long as
they “do not amount to political persecution and [are] justifiable [and] acceptable in
a free democratic society”.
With respect to Article 21 (1) of the Constitution which provides that: “all persons
are equal before and under the law in all spheres of political, economic, social and
cultural life and in every other respect and shall enjoy equal protection of the law,
His Lordship held that the ordinary meaning of persons being equal before and
‘under the law’ in Article 21 is that all persons must always be equally subject to the
existing law even when exercising their rights.
“Where the law prohibits homosexual acts and persons knowingly promote those
acts, they are acting contrary to the law. Such persons cannot allege that the actions
taken to prevent their breach of the law amount to a denial of ‘equal protection’ of
the law because the law-abiding people were not equally restricted”.
Justice Musota determined that, even though the applicants had been exercising
their rights to freedom of expression, association, and assembly, they were, in fact,
promoting prohibited and illegal acts which were prejudicial to the public interest. It
is noteworthy that under Article 27 of the African Charter morality is recognized as
a legitimate interest justifying the restriction of rights.
He also established that the “promotion of morals is widely recognized as a
legitimate aspect of public interest which can justify restrictions”. Justice Musota
determined that the Ugandan laws prohibited their acts. For these reasons, he
determined that organizing the workshop was not a valid exercise of their rights and
thus constituted an act contrary to the public interest.
His Lordship added that Article 9 of the African Charter on Human Rights and
Peoples’ Rights states that the expression has to be exercised within the law, which
law has to be domestic. According to Justice Musota, the applicants had not
exercised their rights within the law because they promoted homosexual acts
prohibited by Section 145 of the Ugandan Penal Code. Also, Musota considered
that the protection of unpleasant, controversial, false, or wrong speech is not
extended to protecting the expression that promotes prohibited and illegal acts.
Therefore, he concluded that the closing of the workshop had not violated the
applicant’s right to freedom of expression.
The Court's decision also pointed to the doctrine of precedents simply used to
establish that The European Court's and other courts’ positions on allowing
homosexuality can't be binding on Ugandan Courts as their decisions are only
persuasive.

The doctrine of precedent is a legal principle that requires courts to follow the
decisions of higher courts in similar cases. It is a fundamental aspect of common
law legal systems, including in Uganda. However, the doctrine of precedent is not
an absolute rule, and courts may depart from previous decisions in certain
circumstances.
In the case mentioned, it appears that the court concluded that the European Court's
and other courts' positions on allowing homosexuality cannot be binding on
Ugandan courts. This may be because the legal systems in different countries may
have different laws, customs, and cultural values. Additionally, the court may have
considered the fact that Uganda is a sovereign state with its own legal system and
judiciary.
It is important to note that the doctrine of precedent is not the only factor that courts
consider when making decisions. Courts also consider the specific facts and
circumstances of each case, as well as relevant legal principles and statutes.
Therefore, even if a court decides that a previous decision is not binding, it may still
be persuasive and influence the court's decision-making process.
In summary, the doctrine of precedent is an important legal principle, but it is not an
absolute rule. Courts may depart from previous decisions in certain circumstances,
and they consider a variety of factors when making decisions.

It is important to note that the right to freedom of expression is not an absolute right,
and may be subject to certain limitations. Article 27 of the African Charter on Human
and Peoples' Rights recognizes that limitations on rights may be justified for reasons
such as morality and public order, among others.

✓ Kiggundu and Others v Attorney General and Others

(Constitutional Petition No. 1 of 2016): This case involved a
challenge to the constitutionality of the Public Order
Management Act (POMA). The court held that several
provisions of the POMA violated the right to freedom of
assembly and association and were therefore unconstitutional.

✓ Muwanga Kivumbi v Attorney General (Constitutional Petition

No. 9 of 2011): This case involved a challenge to the
constitutionality of the offence of criminal libel. The court held
that the offence violated the right to freedom of expression and
was therefore unconstitutional.

✓ Centre for Health, Human Rights and Development v Attorney

General (Constitutional Petition No. 16 of 2011): This case
involved a challenge to the constitutionality of the Anti-
Homosexuality Act, which criminalized homosexuality and
provided for severe penalties for those convicted. The court
held that the Act violated several constitutional rights, including
the right to privacy, the right to equality and non-discrimination,
and the right to human dignity.
 ✓ Oyango Obo v Attorney General (Constitutional Petition No. 1
of 2002) is an important case in Uganda that deals with the
right to freedom of expression and the limitation of derogable
rights. The petitioner in this case, Mr. Oyango Obo, was a
journalist who had been charged with sedition for publishing an
article critical of the government. He challenged the
constitutionality of the sedition laws, arguing that they violated
his right to freedom of expression.
The court in Oyango Obo held that the sedition laws were unconstitutional because
they violated the right to freedom of expression guaranteed by the Ugandan
Constitution. The court found that the laws were overbroad and vague, and that they
had a chilling effect on the exercise of free speech. The court also emphasized that
freedom of expression is a fundamental right that is essential to the functioning of a
democratic society.
The court also discussed the limitation of derogable rights in the context of freedom
of expression. Derogable rights are those that can be limited in certain
circumstances, such as during a state of emergency. The court held that the right to
freedom of expression is a derogable right, but that any limitation of this right must
be necessary and proportionate to the aim being pursued. The court emphasized
that any limitation on freedom of expression must be narrowly tailored and must not
be used to suppress dissent or criticism of the government.
Oyango Obo is an important case that highlights the importance of freedom of
expression as a fundamental right in a democratic society, and the need to ensure
that any limitations on this right are necessary and proportionate. The case also
emphasizes the importance of protecting the rights of journalists and other media
professionals to report on matters of public interest without fear of reprisal or
prosecution.
Let’s debate the logic and sense of Homosexuality
Sex in the Black’s Law Dictionary, 9th edition is defined as “the sum of the
peculiarities of structure and function that distinguish a male from a female
organism”. The Britannica Online Encyclopedia defines sex as “the sum of features
by which members of species can be divided into two groups—male and female—
that complement each other reproductively.”
The Black Dictionary defines sexual orientation as “a person’s predisposition or
inclination toward a particular type of sexual activity or behaviour; heterosexuality,
homosexuality or bisexuality.” While the Britannica Online Encyclopedia defines it
as “the enduring pattern of an individual’s emotional, sexual, and/or romantic
attraction. In science, sexual orientation is often divided into three components of
attraction, behaviour, and self-identification.
There are myriad ways to describe sexual orientation, but the most common include
heterosexual, being attracted to the opposite gender; homosexual, being attracted
to the same gender; and bisexual, being attracted to more than one gender.

Nature v Nurture
understanding of the etiology of homosexuality is inclined to how one understands
the preposition of nature v nurture with nature arguing with respect to the
psychogenetics of homosexuality and nurture on the other side arguing the
environmental influence as the spruce of homosexuality.
This brings up the question of the source and etiology of homosexuality in both gay
men and lesbians, whether it’s found in nature or nurture, Nature meaning that
someone is born into it or nurture meaning that someone is raised up into it. The
debate as to the source of homosexuality being natural or nurtured has orbited the
issue area of human sexuality since studies into this area were delved into by
scholars like Benkert, Ellis, Kinsey, Ulrich and Hirschfield (McConaghy, 1987;
Edwards, 1994; Jenkins, 2006).
While some scholars posited that homosexuality was a natural predisposition in the
spectrum of sexual attraction, others asserted that homosexuality was a learned
behaviour and was subject to change and/or modification to date, this debate
regarding gender identity continues within the social science.
A study of Half of Americans in Gallup's 2018 Values and Beliefs poll found that
being gay or lesbian was a trait from birth, easily eclipsing the 30% who believed it
is a product of upbringing and environment.
 Accordingly, the perception that a person is born gay rather than it being the result
of upbringing or other factors has increased among all demographic and political
groups. But, according to a comparison of aggregated data from 2001 to 2003 vs.
2015 to 2018, the change in beliefs has been most pronounced among politically
left-leaning groups, including young adults (aged 18 to 34), college graduates,
Democrats, liberals and those who seldom or never attend weekly religious
services.
Various scholars have attributed the source of homosexuality to nature and have
argued that it was related to heritability, biology, hormones and genetics; in other
words that homosexuality was innate2 and that homosexuality had a high heritability
rate, which was partly genetic, It asserted that homosexuality was a genetically
heritable family trait and tentatively identified a region of the X chromosome as the
cause of same-sex sexual attraction. Other scholars had noted incidents of a high
heritability of homosexuality3 that implied that there was a biological/genetic
component to the same-sex sexual attractions of gay men4.
Besides heritability, arguments that homosexuality was formed biologically,
hormonally or genetically were put forward by various scholars such as Rice et al.,
2012) and Mondimore (1996) who posited specifically that the third interstitial nuclei
of the anterior hypothalamus (INAH3) brain functions and anterior commissure of
gay men differed from those of heterosexual men, therefore forming a biological
argument that attraction to men by homosexual men and heterosexual women was
biologically determined. A study conducted by Dr Swaab in the USA found that the
isthmus of the corpus callosum in homosexual men was greater than in
heterosexual men.
The isthmus of the corpus callosum was thought to determine sexual attraction, thus
again supporting the biological argument for homosexuality5.
Based on a study conducted across five nations, namely the USA, the UK, Canada,
Australia and New Zealand, It was suggested that exposure to the hormone
androgen during gestation caused same-sex sexual attraction in males6. While the

2
(Alanko et al., 2010; Jannini et al., 2010; Morgan, 2012). Bailey et al. (2013)
3
Bailey et al., 1991; Bailey & Bell, 1993; Bailey et al., 1999.
4
Blanchard et al., 1996) or hormonal (Schwartz et al., 2010; Blanchard, 2012; Alanko et al., 2013; Diamond, 2013
5
Witelson et al. (2008)
6
Lippa (2007)
 study by Lippa supports the argument for a hormonal cause of homosexuality,
research conducted by Turner (1995) hypothesised that homosexuality was
genetically determined by a gene at Xq28 of the human DNA structure.
On the other hand, scholars have asserted that homosexuality was learnt or
nurtured. Its asserted that sexual identity was defined by the meaning attributed to
it by an individual and as such, homosexuality was nurtured through attribution by
external sources such as media but not sourced from a natural predisposition within
homosexuals7.
More recently, studies by Bailey, Hoskins, Green and Ritchie (2014) asserted that
environment played a part in sexual inclination and behaviour in different social
contexts, and a study by Crowson and Goulding (2013) raised questions that
supported the need for socialisation to occur in order for homosexuality to be
manifested.

Article 14 of the European Convention. Human Rights Committee jurisprudence

includes sexual orientation under Article 26 of the ICCPR. A case in point is South
Africa where both the interim Constitution and the 1996 Constitution include sexual
orientation as a prohibited ground of discrimination, making South Africa the first
country in the world to include such a textual provision.

PUBLIC MORALITY VESUS PRIVATE MOLARITY DEBATE

During the Wolfenden Report, Lord Delven and Professor HLA Hart argued in
respect of public morality against the private morality that was propounded by John
Stuart Mills to the effect that allowing private morality would disintegrate society as
allowing different consensual sexual orientations such as homosexuality,
lesbianism, bestiality among others would create different sects in society.
Its noteworthy that when a constitutional right is infringed, courts engage in a similar
proportionality analysis of whether there is justification for the same as stated by

7
Vandenbosch & Eggermont, 2014)
 The Hong Kong Court of Appeal in Leung TC William Roy v Secretary for Justice
that “Any restriction on a constitutional right can only be justified if (a) it is rationally
connected to a legitimate purpose and (b) the means used to restrict that right must
be no more than is necessary to accomplish the legitimate purpose in question”.

INTERNATIONAL CONVENTIONS ON HOMOSEXUALITY.

International human rights laws and treaties provide a framework for protecting the
rights of homosexuals and promoting their equal dignity and freedoms. Some of the
key provisions that support homosexual rights include:
The European Convention on Human Rights`
The European Convention on Human Rights (ECHR) (formally the Convention for
the Protection of Human Rights and Fundamental Freedoms) is an international
treaty to protect human rights and fundamental freedoms in Europe.
Article 8 of the European Convention on Human Rights provides a right to respect
for one's "private and family life, his home and his correspondence", subject to
certain restrictions that are "in accordance with law" and "necessary in a democratic
society. This was considered in the case of Dudgeon v United Kingdom8 where The
European Commission on Human Rights concluded that the resulting interference
with Dudgeon’s private life was a disproportionate way of addressing the “pressing
social need” claimed for the criminal law in Northern Ireland. By a majority of 15 to
4, the Court concluded that: Mr. Dudgeon suffered unjustified interference with his
right to respect for his private life.

Universal Declaration of Human Rights (UDHR):

According to Article 2 of The Universal Declaration of Human Rights (UDHR), All
human beings are born free and equal in dignity and rights, this prohibits
discrimination on the basis of “race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.” These provisions
have been interpreted by the United Nations and other international bodies to

8
(1981)
 include sexual orientation and gender identity as protected grounds of
discrimination.
According to Article 19, Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without and to seek, receive
and impart information and ideas through any media and regardless of frontiers.
This extends to forming associations whether sexually-oriented or not, as such
LGBTQIA+ organs under this Article have a right to associate with the effect that
any limitation is legally struck at, A case in point is Zhdanov and Others vs. Russia9
where The European Court of Human Rights found that the Russian courts’
decisions refusing registration had interfered with the freedom of association of the
applicant organizations and their founders or presidents, the individual applicants.
The Court was not convinced that refusing to register the organizations had pursued
the legitimate aims of protecting morals, national security and public safety, and the
rights and freedoms of others. The only legitimate aim put forward by the authorities
for the interference, which the Court assumed to be relevant in the circumstances,
was the prevention of hatred and enmity, which could lead to disorder. In particular,
the authorities believed that the majority of Russians disapproved of homosexuality
and that therefore the applicants could become the victims of aggression.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

It guarantees the right to equality and non-discrimination, while Article 17 protects
the right to privacy, which includes the right to form consensual relationships with
other adults without interference from the state or society. The United Nations
Human Rights Committee has also stated that laws criminalizing homosexuality
violate the ICCPR.
A case in point is NAZ foundation v Govt. of NCT of Delhi where the gay’s right to
privacy in consideration of Article 17 of the ICCPR held that everyone was entitled
to a right of privacy in respect of his private life. Court noted that the sphere of
privacy allows persons to develop human relations without interference from the
outside community or from the State.

9
Application No. 12200/08, 35949/11 and 58282/12
 Article 2, paragraph 1, of The International Covenant on Civil and Political Rights
(ICCPR) obligates each State party to respect and ensure to all persons within its
territory and subject to its jurisdiction the rights recognized in the Covenant without
distinction of any kind, such as race, colour, sex, language, religion, political or
another opinion, national or social origin, property, birth, or another status. Article
26 of the ICCPR not only entitles all persons to equality before the law as well as
equal protection of the law but also prohibits any discrimination under the law and
guarantees to all persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political or another opinion,
national or social origin and property. This was applied by The Kenyan Supreme
Court in the case of NGO Coordination Board v Eric Giatari10 by finding that the
respondent was discriminated which was a breach of the cited legal instrument.
The burden of justifying limitation of rights.
According to the Siracusa Principles on the Limitation and Derogation Provision in
the International Covenant on Civil and Political Rights, clause 3 and 4 in the
General Interpretative principles relating to the justification of limitations section,
provides that “all limitations shall be interpreted strictly and in favour of the right
issue and in the light and context concerned.” The Supreme Court of Kenya in NGOs
CO-ORDINATION BOARD vs ERIC GITARI & 5 OTHERS11 also stated that the
burden of justifying a limitation upon a right guaranteed under ICCPR lies with the
State.
The African Charter on Human and People’s Rights
The Supreme Court in NGO Co-ordination Board v Eric Gitari (supra) cited Article 2
which provides that every person shall be entitled to the enjoyment of the rights and
freedoms recognized and guaranteed in the Charter without distinction of any kind
such as race, ethnic group, colour, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth, or another status. It was
accordingly held by the majority that LGBTQIA+ just like any other person is entitled
to these rights and protection.

10
SC Petition No.16 0f 2019.
11
SC PetitionNo.16 0f 2019.
 THE ONTARIO HUMAN RIGHTS COMMISSION
According to The Glossary of Human Rights Terms, Sexual orientation is defined
as the direction of one's sexual interest or attraction. It is a personal characteristic
that forms part of who one is. It covers the range of human sexuality from lesbian
and gay, to bisexual and heterosexual. The UK Equality Act 2010, in Section 12
defines sexual orientation to mean a person’s orientation towards persons of the
same sex, persons of the opposite sex, or persons of either sex. In relation to the
protected characteristic of sexual orientation, a reference to a person who has a
particular protected characteristic is a reference to a person who is of a particular
sexual orientation; or a reference to persons who share a protected characteristic is
a reference to persons who are of the same sexual orientation.
THE UNITED KINGDOM EQUALITY ACT.
Other than the UK Equality Act, most international legal instruments do not
expressly provide for the right not to be discriminated against on the basis of one’s
sexual orientation. However, in that regard, The European Court of Human Rights
in the case of Salgueiro da Silva Mouta v. Portugal, ruled that a person’s sexual
orientation is a concept which is undoubtedly covered under Article 14 of the
European Charter on Human Rights which provides for enjoyment of the rights set
forth in the Convention without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinions, national or social origin,
association with a national minority, property, birth, or another status.
Accordingly, The Human Rights Committee in Toonen v Australia12 observed that
the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including
sexual orientation’’.
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT):
The CAT prohibits torture and other forms of cruel, inhuman, or degrading treatment
or punishment, which include conversion therapy, forced sterilization, and other
forms of violence or discrimination based on sexual orientation or gender identity.

12
Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994),
The African Charter on Human and People’s Rights
The Supreme Court in NGO Co-ordination Board v Eric Gitari (supra) cited Article 2
which provides that every person shall be entitled to the enjoyment of the rights and
freedoms recognized and guaranteed in the Charter without distinction of any kind
such as race, ethnic group, colour, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth, or another status. It was
accordingly held by the majority that LGBTQIA+ just like any other person is entitled
to these rights and protection.

THE ONTARIO HUMAN RIGHTS COMMISSION

According to The Glossary of Human Rights Terms, Sexual orientation is defined
as the direction of one's sexual interest or attraction. It is a personal characteristic
that forms part of who one is. It covers the range of human sexuality from lesbian
and gay, to bisexual and heterosexual. The UK Equality Act 2010, in Section 12
defines sexual orientation to mean a person’s orientation towards persons of the
same sex, persons of the opposite sex, or persons of either sex. In relation to the
protected characteristic of sexual orientation, a reference to a person who has a
particular protected characteristic is a reference to a person who is of a particular
sexual orientation; or a reference to persons who share a protected characteristic is
a reference to persons who are of the same sexual orientation.
THE UNITED KINGDOM EQUALITY ACT.
Other than the UK Equality Act, most international legal instruments do not
expressly provide for the right not to be discriminated against on the basis of one’s
sexual orientation. However, in that regard, The European Court of Human Rights
in the case of Salgueiro da Silva Mouta v. Portugal, ruled that a person’s sexual
orientation is a concept which is undoubtedly covered under Article 14 of the
European Charter on Human Rights which provides for enjoyment of the rights set
forth in the Convention without discrimination on any ground such as sex, race,
colour, language, religion, political or another opinion, national or social origin,
association with a national minority, property, birth, or another status.
 Accordingly, The Human Rights Committee in Toonen v Australia13 observed that
the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including
sexual orientation’’.
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT):
The CAT prohibits torture and other forms of cruel, inhuman, or degrading treatment
or punishment, which include conversion therapy, forced sterilization, and other
forms of violence or discrimination based on sexual orientation or gender identity.
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)
This prohibits discrimination against women, including discrimination based on
sexual orientation and gender identity. The Committee on the Elimination of
Discrimination against Women has also recognized the intersectional discrimination
faced by LGBT+ women and girls.
Yogyakarta Principles:
The Yogyakarta Principles is a set of principles on the application of international
human rights law in relation to sexual orientation and gender identity. They outline
the obligations of states to protect, respect, and fulfil the rights of LGBT+ people,
including the right to non-discrimination, privacy, family, health, education, work,
and participation in public life.
These provisions and principles provide a legal and moral basis for protecting the
rights of LGBTQIA+ people and advancing their inclusion and equality in society.
However, their implementation and enforcement remain a challenge in many
countries, where LGBT+ people face discrimination, violence, and persecution.
Furthermore, there have been cases that support the claim of homosexuality as a
human right. In many countries, courts have interpreted national constitutions and
laws to protect the rights of LGBT+ people. For example, in India, the Supreme
Court struck down Section 377 of the Indian Penal Code, a colonial-era law that
criminalized homosexual activity, as unconstitutional in 2018, recognizing the right
to equality, privacy, and dignity of LGBT+ people.

13
Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994),
 Similarly, in the United States, the Supreme Court has recognized the right to same-
sex marriage and struck down discriminatory laws against LGBT+ people in various
cases. In the case of Obergefell v. Hodges14, the U.S. Supreme Court recognized
the constitutional right to same-sex marriage, holding that the Constitution
guarantees the right to marry as a fundamental right.
The United Nations in 2011 through The United Nations High Commissioner for
Human Rights released a report titled “Discriminatory Laws and Practices and Acts
of Violence Against Individuals Based on Their Sexual Orientation and Gender
Identity,” which outlines the legal and moral arguments supporting the protection of
LGBT+ rights and provides recommendations for states and other actors to promote
and protect these rights.
In the European Union, the European Parliament adopted a resolution in 2019 on
the situation of LGBTI rights in the EU, which called on EU member states to adopt
laws that prohibit discrimination based on sexual orientation and gender identity, to
provide legal recognition and protection for same-sex relationships, and to combat
hate speech and violence against LGBT+ people.
In addition to international human rights treaties, many regions have their own
human rights systems that protect the rights of LGBT+ people. For example, in
Europe, the European Convention on Human Rights has been used to challenge
discrimination against LGBT+ people in various cases, such as Bayev and Others
v. Russia15, in which the European Court of Human Rights in 2017 held that Russia’s
“anti-propaganda law” violated the freedom of expression and non-discrimination
rights of LGBT+ individuals and activists.
In America, the Inter-American Commission on Human Rights has issued reports
and recommendations on the rights of LGBT+ people, such as its 2015 report on
“Violence against Lesbian, Gay, Bisexual, Trans, and Intersex Persons in the
Americas,” which calls on states to protect the rights of LGBT+ people and to
investigate and prosecute acts of violence and discrimination against them.
In Africa, the African Commission on Human and Peoples’ Rights has recognized
the rights of LGBT+ people in various decisions, such as the case of Toonen v.

14
576 U.S 644 (2015)
15
67667/09, 44092/12, and 56717/12.
 Australia, in which the commission held that criminalizing homosexual activity
violates the right to privacy and non-discrimination under the African Charter on
Human and Peoples’ Rights. However, many African countries still have laws that
criminalize homosexual activity and discriminate against LGBT+ people.
As such, there are still many circumstances where the law does not support
homosexuality as a human right. In many countries, homosexual activity is still
criminalized, often under colonial-era laws that have not been repealed. For
example, In Nigeria, same-sex sexual activity is illegal under the Same-Sex
Marriage (Prohibition) Act of 2013, which imposes penalties of up to 14 years in
prison for anyone who enters into a same-sex marriage or civil union, or who
“witnesses, abets or aids” a same-sex relationship. In Uganda, same-sex sexual
activity is illegal under Section 145 of the Penal Code Act Cap 120.
KENYAN CASE STUDY
The Kenyan Courts in a couple of cases have However recognized Gay rights with
dissenting judgments on the same as evident in the case of Eric Gitari v Non-
Governmental Organizations Co-ordination Board before High Court, Constitutional
Court and Supreme Court which where The LGBTQIA+ rights by majority decision
were recognized with dissenting judgments against the same as discussed below.16
SUPREME COURT DECISION.
The Kenyan Supreme Court recently on 24th Feb 2023 in the case of NGOs Co-
ordination Board v Eric17 ruled that its unconstitutional to limit the right to associate,
through denial of registration of an association, purely on the basis of the sexual
orientation of the applicants, It however maintained that homosexuality is illegal
under Section 162 of the Kenyan Penal Code.
The appellant contended that the Court of Appeal through its decision erred in law
in dismissing the appellant’s appeal against the decision of the High Court, The
Supreme Court raised three issues in the determination of the appeal, However, we
shall consider the issue 2 and 3 for purposes of sexual orientation as follows.
Issue 2: Whether the decision of the Executive Directive of the NGO Coordination
Board violated Article 36 of the Constitution,

16
EG v Non- Governmental Organisations Co-ordination Board & 4 others [2015] eKLR.
17
Petition No 16 of 2019.
 Issue 3: Whether the decision of the NGO Coordination Board was discriminatory
and contravened Article 27 of the Constitution
COURTS FINDINGS.
Before the determination of the issues, Court emphasized that the matter before it
was not about the legalization or decriminalization of LBGTIQ, or the morality of
same-sex marriage but revolved around the question of whether the refusal to
register an organization of persons who fall within the LGBTIQ contravened the
fundamental rights and freedom of association guaranteed in the Constitution and
whether the rights to freedom of association and freedom from discrimination of
those persons seeking to be registered were infringed upon.
Accordingly, Court proceeded to the issues as follows;
MAJORITY DECISION ON ISSUE 2
Court found that interference by the respondent with the petitioner’s right to freedom
of association did not pursue any legitimate aim such as national security or public
safety, the prevention of disorder or crime, the protection of health and morals and
the protection of the rights and freedom of others.
Accordingly, the majority held that it was their considered view that the appellant’s
limitation of the right to freedom of association was not proportionate to the aim
sought.
Court looked at case law relating to the freedom of association and registration of
LGBTIQ organizations and took note of jurisprudential standards applied elsewhere.
In the case of Gay Alliance of Students vs. Mathews18 the Court held that the
University’s refusal to register the Alliance hindered its efforts to recruit the new
members and denied to the Alliance the enjoyment of the University’s services,
which other registered student organizations was afforded, thereby violating their
freedom of association.
Court further considered the European Court of Human Rights in Zhdanov and
Others vs. Russia19 found that the Russian courts’ decision refusing registration had
interfered with the freedom of association of the applicant organizations and their

18
United States Court of Appeal [ 4th Cir. 1976.
19
Application No. 12200/08, 35949/11 and 58282/12
founders or presidents, the individual applicants. The Court was not convinced that
refusing to register the organizations had pursued the legitimate aims of protecting
morals, national security and public safety, and the rights and freedoms of others.
The only legitimate aim put forward by the authorities for the interference, which the
Court assumed to be relevant in the circumstances, was the prevention of hatred
and enmity, which could lead to disorder. In particular, the authorities believed that
the majority of Russians disapproved of homosexuality and that therefore the
applicants could become the victims of aggression.
Reference was made to The Kenyan Constitution which requires State organs,
State officers, and public officers to uphold national values and principles of
governance such as human dignity, equity, social justice, inclusiveness, equality,
human rights, non-discrimination, and protection of the marginalized. In addition,
the Constitution, in Article 21 (1) provides that it is a fundamental duty of the State
and every State organ to observe, respect, protect, promote and fulfil the rights and
fundamental freedoms in the Bill of Rights. Moreover, Article 21(3) imposes an
obligation on all State organs and all public officers to address the needs of
vulnerable groups within society including members of minorities and marginalized
communities.
Given that the right to freedom of association is a human right and vital to the
functioning of any democratic society as well as an essential prerequisite enjoyment
of other fundamental rights and freedoms, Court held that this right is inherent in
everyone irrespective of whether the views they are seeking to promote are popular
or not.
The Supreme Court was inclined to the aforementioned Constitutional provisions,
legal principles and case law, and held that it would be unconstitutional to limit the
right to associate, through denial of registration of an association, purely on the
basis of the sexual orientation of the applicants, as such, the respondent’s decision
was unreasonable and unjustified. The majority affirmed the decision of the Court
of Appeal and held that the appellant violated the 1st respondent’s right to freedom
of association under Article 36.
MAJORITY DECISION ON ISSUE 3
The appellant argued that sexual orientation is not among the prohibited grounds
contemplated under Article 27 (4) of the Constitution. Further, it faulted the majority
decision of the Court of Appeal which affirmed the High Court decision which
interpreted the term ‘including’ under Article 27(4) of the Constitution to give room
for including sexual orientation in the non-discrimination clause. Article 27(4) of the
Constitution provides as follows:
"The State shall not discriminate directly or indirectly against any person on any
ground, including race, sex, pregnancy, marital status, health status, ethnic or social
origin, colour, age, disability, religion, conscience, belief, culture, dress, language
or birth.”
Court However made reference to Article 2 (1) and Article 26, of the International
Covenant on Civil and Political Rights (ICCPR) which obligate each State party to
respect and ensure to all persons within its territory and subject to its jurisdiction the
rights recognized in the Covenant without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth, or other status. Regionally, Article 2 of the African Charter on Human
and People’s Rights provides that every person shall be entitled to the enjoyment of
the rights and freedoms recognized and guaranteed in the Charter without
distinction of any kind such as race, ethnic group, colour, sex, language, religion,
political or any other opinion, national and social origin, fortune, birth, or other status.
Further, according to the Ontario Human Rights Commission, the Glossary of
Human Rights Terms, Sexual orientation is defined as the direction of one's sexual
interest or attraction. It is a personal characteristic that forms part of who one is. It
covers the range of human sexuality from lesbian and gay, to bisexual and
heterosexual. The UK Equality Act 2010, at Section 12 defines sexual orientation to
mean a person’s orientation towards persons of the same sex, persons of the
opposite sex, or persons of either sex. In relation to the protected characteristic of
sexual orientation, a reference to a person who has a particular protected
characteristic is a reference to a person who is of a particular sexual orientation; or
a reference to persons who share a protected characteristic is a reference to
persons who are of the same sexual orientation.
 Court considered the European Court of Human Rights in the case of Salgueiro da
Silva Mouta v. Portugal20 ruled that a person’s sexual orientation is a concept which
is undoubtedly covered under Article 14 of the European Charter on Human Rights.
In that regard, Article 14 of the European Charter on Human Rights provides for the
enjoyment of the rights set forth in this Convention without discrimination on any
ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth, or other
status.
In Toonen v Australia21, the Human Rights Committee observed that ‘‘in its view
the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including
sexual orientation’ ’Guided by the foregoing legal instruments, comparative
analysis, and case law, The majority opinion was that the use of the word “sex”
under Article 27(4) does not connote the act of sex per se but refers to the sexual
orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise.
Further, the majority found that the word “including” under the same article was not
exhaustive, but only illustrative and would also comprise “freedom from
discrimination based on a person’s sexual orientation.”
Court agreed with the finding of the High Court on the interpretation of non-
discrimination which excludes people based on their sexual orientation would
conflict with the principles of human dignity, inclusiveness, equality, human rights
and non-discrimination. To put it another way, to allow discrimination based on
sexual orientation would be counter to these constitutional principles.’’ Therefore,
the appellant’s action of refusing to reserve the name of the 1st respondent’s
intended NGO on the ground that “Sections 162, 163 and 165 of the Penal Code
criminalizes Gay and Lesbian liaisons” was discriminatory in view of Article 27(4) of
the Constitution.
Consequently, the Court by majority gave a holistic interpretation of sex to include
sexual orientation and found that the 1st respondent’s right not to be discriminated
against directly or indirectly based on their sexual orientation was violated by the
appellant and the appeal failed.

20
judgment of 21 December 1999, Reports 1999-IX, p. 327, para. 28
21
Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994)
 MINORITY DECISION
The Kenyan Technical Working Committee felt that the definitions of sex should
consider the African culture and context, and further clarity on these and similar
concepts could eliminate controversy on an otherwise acceptable Bill of Rights, It
was deliberated and recommended that same-sex marriages and homosexuality
should be prohibited22.
The Kenyan Committee of Experts established in 2009, embarked on a
constitutional review process where Article 45(2) of the Constitution which provides
that “Every adult has the right to marry a person of the opposite sex, based on the
free consent of the parties.” was considered, His Lordship observed that The CKRC
Report must be read in the context that it reflects the intentions and
recommendations of the framers of the Constitution, informed by the views of
Kenyans within the context of the fact that it was prepared roughly eighteen (18)
years ago. He noted that Perhaps the views of Kenyans had since evolved but that
couldn’t be determined and considered in a single judgment as it’s a subject of a
referendum. What was evident was the contentious inclusion of sexual orientation
in the Bill of Rights during the CKRC report. His Lordship was of the view that it was
problematic to read sexual orientation as one of the grounds to be included in Article
27(4).
UGANDAN CASE STUDY.
President Yoweri Museveni has condemned Western countries for allegedly
attacking African culture, accusing them of attempting to give orders to African
leaders. His Excellence made the comments at the National Thanksgiving prayers
by the Inter-religious Council to celebrate the passing into law the Anti-
Homosexuality Bill23.
According to different cases, LBGTQIA+ in Uganda is illegal and prohibited by law,
A case study of the different versions of the case of Nabageresa Jacqline depicts
Ugandans’ harsh position towards homosexuality regardless of Court ruling that
discrimination and inhumane treatment of LGBTQIA+ people was unconstitutional,
their activities are against the law as their rights are only exercisable in as far as
they conform to public interest and policy. The two different versions however pose

22
On pages 436 and 437, the Technical Working Committee “B”
23
NTV Uganda, April 1 2014.
 a controversy in terms of protecting and condemning as elaborately discussed
below.
KASHA JACQUELINE, DAVID KATO KISULE AND ONZIEMA PATIENCE V.
ROLLING STONE LTD AND GILES MUHAME24.
The applicants filed a complaint to the High Court alleging that the publication of an
article by the respondents violated their constitutional right, the respondents were
the publishers of a newspaper called “Rolling Stone”. On 2 October 2010, an article
with the title “100 Pictures of Uganda’s top homos leak” was published in the
newspaper. The article accused the gay community of trying to recruit “very young
kids” and “brainwash them towards bisexual orientation”. It called on the
government to take a bold step against this threat by hanging dozens of
homosexuals. The key issue was whether the applicants’ rights to human dignity
and protection from inhuman treatment and to the privacy of person and home had
been violated
The Court found that the publication of the applicants’ identities and addresses,
coupled with the explicit call to hang gays by the dozen, tended to “tremendously
threaten” their right to human dignity.
Lastly, the Court addressed the criminalisation of homosexual acts and noted that,
under section 145 of the Penal Code Act, a person was not considered a criminal
for the sole fact of being gay. In order to be regarded as a criminal, one had to
commit an act prohibited under that provision. The Court thus distinguished between
being gay and sexual conduct.
The Court held that Rolling Stone threatened the applicants’ rights to human dignity
and protection from inhuman treatment, as well as their right to privacy of the person
and home. The Court issued the injunction sought by the applicants, restraining the
respondents from publishing more information about the identities and addresses of
Ugandan gays and lesbians.

24
High Court of Uganda at Kampala (30 December 2010)
 JACQUELINE KASHA NABAGESERA & ORS V AG & ANOR25
The case was filed at the High Court before Justice Stephen Musota, the facts were
that Jacqueline Kasha Nabagesera and a group called Freedom and Roam Uganda
organized this workshop with the purpose of training LGBTQIA+ activists in project
planning, advocacy, and human rights. The Minister of Ethics and Integrity
intervened and ordered the closure of the workshop. He alleged that the workshop
was an illegal gathering of homosexuals prohibited by Section 145 of the Ugandan
Penal Code. The relevant issues in respect to this paper were:
3. Whether by organizing and attending the workshop at Imperial Resort
Beach Hotel, the applicants were engaging in illegal and unlawful activities.
4. Whether the applicants’ Constitutional rights were unlawfully infringed when
the second respondent closed down their workshop?
Consideration of Onyango v AG
The case of Charles Onyango Obbo v AG26 was cited and relied on by the applicants
to highlight that even if the Minister's assertion that the applicants were gathered to
promote homosexuality was correct, such a proposition would not justify any
infringement on the right to freely express one’s opinion that a person’s expression
is not excluded from Constitutional protection simply because it is thought by others
to be erroneous, controversial or unpleasant.
Court observed that protection of ‘unpleasant’ or controversial, false or wrong
speech does not extend to protecting the expression that promotes illegal acts which
in itself is prohibited and in fact amounts to the offence of incitement or conspiracy.
Regarding the right to political participation, learned counsel for the applicants relied
on Article 38(2) of the Constitution which guarantees persons the right to participate
in peaceful activities to influence the policies of government through civic
organizations; Court however found that exercise of such a right necessitates a
conduct in accordance with the law. If the exercise of this right is contrary to the law,
then it becomes prejudicial to the public interest.
Key Issues from Court's Decision in the case of Nabageresa.

25
Miscellaneous Cause 33 of 2012 (2014) UGHCCD 85.
26
Constitutional Appeal 2004 UGSC 81.
Justice Stephen Musota delivered the opinion of the High Court of Uganda at
Kampala. He acknowledged that Article 43 of the Constitution of Uganda allows
certain constraints to be placed on human rights such as freedom of expression,
association, speech among others in favor of the public interest if they don’t fall
within the category of non- derogable rights under Article 44 such as right to a fair
trial and life. Therefore, the exercise of such rights (derogable) can be limited in
certain instances.
Furthermore, Justice Musota argued that these restrictions can be made as long as
they “do not amount to political persecution and [are] justifiable [and] acceptable in
a free democratic society”.
In respect to Article 21 (1) of the Constitution which provides that: “all persons are
equal before and under the law in all spheres of political, economic, social and
cultural life and in every other respect and shall enjoy equal protection of the law,
His Lordship held that the ordinary meaning of persons being equal before and
‘under the law’ in Article 21 is that all persons must always be equally subject to the
existing law even when exercising their rights.
“Where the law prohibits homosexual acts and persons knowingly promote those
acts, they are acting contrary to the law. Such persons cannot allege that the actions
taken to prevent their breach of the law amount to a denial of ‘equal protection’ of
the law because the law-abiding people were not equally restricted”.
Justice Musota determined that, even though the applicants had been exercising
their rights to freedom of expression, association, and assembly, they were, in fact,
promoting prohibited and illegal acts which were prejudicial to the public interest. It
is noteworthy that under Article 27 of the African Charter morality is recognized as
a legitimate interest justifying the restriction of rights.
He also established that the “promotion of morals is widely recognized as a
legitimate aspect of public interest which can justify restrictions”. Justice Musota
determined that the Ugandan laws prohibited their acts. For these reasons, he
determined that organizing the workshop was not a valid exercise of their rights and
thus constituted an act contrary to the public interest.
His Lordship added that Article 9 of the African Charter on Human Rights and
Peoples’ Rights states that the expression has to be exercised within the law, which
law has to be domestic. According to Justice Musota, the applicants had not
exercised their rights within the law because they promoted homosexual acts
prohibited by Section 145 of the Ugandan Penal Code. Also, Musota considered
that the protection of unpleasant, controversial, false, or wrong speech is not
extended to protecting the expression that promotes prohibited and illegal acts.
Therefore, he concluded that the closing of the workshop had not violated the
applicant’s right to freedom of expression.
The Court's decision also pointed to the doctrine of precedents simply used to
establish that The European Court's and other courts’ positions on allowing
homosexuality can't be binding on Ugandan Courts as their decisions are only
persuasive.

The proposed Anti-Homosexuality Bill in Uganda is a controversial piece of

legislation that aims to criminalize homosexuality and impose severe penalties on
those who engaged in homosexual acts. The bill will meet with significant opposition
from the international community, including human rights organizations and foreign
governments, which viewed it as a violation of basic human rights. Below are some
of the weaknesses of the proposed bill based on Ugandan statutory provisions,
relevant case law, and international law:
✓ Criminalization of consensual sexual activity: The proposed bill seeks to
criminalize consensual sexual activity between individuals of the same sex,
including those in committed relationships. This provision is inconsistent
with the Ugandan Constitution, which guarantees the right to privacy and
freedom from discrimination on the basis of one's sexual orientation. It is
also a violation of international human rights law, which recognizes the right
to privacy and the right to be free from discrimination.
✓ Extraterritorial application of the law: The bill seeks to apply Ugandan law
to Ugandan citizens who engage in homosexual acts outside of Uganda.
This provision is inconsistent with the principle of territoriality, which holds
that a state's laws only apply within its borders. It is also a violation of
international human rights law, which recognizes that individuals have the
right to freedom of movement and the right to seek asylum in other countries
if they are persecuted in their home country.

✓ Harsh penalties: The proposed bill seeks to impose harsh penalties on

individuals who engage in homosexual acts, including life imprisonment and
even the death penalty in certain circumstances. Such penalties are
inconsistent with the principle of proportionality, which requires that the
punishment be commensurate with the crime. The harsh penalties also
violate international human rights law, which prohibits cruel, inhuman, and
degrading treatment or punishment.

✓ Criminalization of advocacy: The proposed bill seeks to criminalize any form

of advocacy for LGBT rights, including the provision of information or
services to LGBT individuals. This provision is inconsistent with the right to
freedom of expression, which includes the right to express one's views on
matters of public interest, including issues related to sexual orientation. It is
also a violation of international human rights law, which recognizes the right
to freedom of expression and the right to seek and receive information.

✓ Discrimination: The proposed bill seeks to discriminate against LGBT

individuals on the basis of their sexual orientation, which is a violation of the
Ugandan Constitution and international human rights law. The bill's
provisions are inconsistent with the principle of equality before the law and
non-discrimination on the basis of one's sexual orientation.
In conclusion, the proposed Anti-Homosexuality Bill in Uganda contains numerous
weaknesses that are inconsistent with Ugandan statutory provisions, relevant case
law, and international human rights law. The bill seeks to criminalize consensual
sexual activity, apply extraterritorial jurisdiction, impose harsh penalties, criminalize
advocacy, and discriminate against LGBT individuals. These provisions are not only
unjust, but they also violate fundamental human rights principles and undermine
Uganda's standing in the international community.
The bill has several problematic provisions. Here are some of the specific sections
within the bill and their weaknesses, as well as relevant international provisions and
case law:

✓ The definition of homosexuality as "any sexual relations between persons

of the same sex" is overly broad and could be used to criminalize not only
consensual sexual activity but also non-sexual behaviour between
individuals of the same sex.
✓ The provision making it a crime to "promote" homosexuality is overly vague
and could be used to target individuals and organizations for expressing
their opinions or engaging in peaceful activism in support of LGBT rights.
✓ The provision criminalizing "attempted homosexuality" is problematic
because it criminalizes not only consensual sexual activity but also non-
sexual conduct, such as holding hands or kissing.
✓ The provision criminalizing "aiding and abetting" homosexuality is overly
broad and could be used to target individuals and organizations providing
health care, counselling, or other services to LGBT individuals.
These provisions are problematic because they violate international human rights
standards, including the right to privacy, the right to freedom of expression, the right
to freedom of association, and the right to non-discrimination. For example:
✓ The Universal Declaration of Human Rights (UDHR) affirms that all
human beings are born free and equal in dignity and rights, and that
everyone is entitled to the rights and freedoms set forth in the Declaration,
without distinction of any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. The UDHR also recognizes the right to privacy, the right to freedom
of thought, conscience and religion, the right to freedom of expression, and
the right to freedom of association.
✓ The International Covenant on Civil and Political Rights (ICCPR)
recognizes the right to freedom of thought, conscience, and religion, the
freedom of expression, and om of association. It also prohibits
discrimination on the basis of sex, among other grounds.

✓ The Yogyakarta Principles, a set of principles on the application of

international human rights law in relation to sexual orientation and gender
identity, affirm that all human beings are entitled to enjoy all human rights
without discrimination and that states must take measures to combat
discrimination based on sexual orientation and gender identity.

✓ The European Court of Human Rights has held that criminalization of

consensual same-sex sexual activity violates the right to respect for private
life and the right to freedom of expression.

✓ The Inter-American Commission on Human Rights has held that laws

criminalizing consensual same-sex sexual activity violate the right to
privacy, family life, and freedom from discrimination.
 Specific provisions within the international laws and conventions that are
relevant to the weaknesses of the Anti-Homosexuality Bill in Uganda:

✓ Universal Declaration of Human Rights s (UDHR): Article 2

states that "everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as
race, colour, sex, language, religion, political or another opinion,
national or social origin, property, birth or other status." This means
that all individuals are entitled to the same rights and freedoms,
regardless of their sexual orientation.
✓ International Covenant on Civil and Political Rights (ICCPR):
Article 2 prohibits discrimination on the basis of sexual orientation,
among other grounds. Article 17 recognizes the right to privacy,
which includes the right to engage in consensual sexual conduct
without interference from the state.
✓ African Charter on Human and Peoples' Rights: Article 2
prohibits discrimination on the basis of sexual orientation, among
other grounds. Article 3 guarantees the right to equality before the
law and equal protection of the law without discrimination.
✓ Yogyakarta Principles: Principle 2 affirms that "each person's
self-defined sexual orientation and gender identity is integral to
their personality and is one of the most basic aspects of self-
determination, dignity and freedom."
✓ Case law: In the case of the National Coalition for Gay and Lesbian
Equality v Minister of Justice, the Constitutional Court of South
Africa held that discrimination on the basis of sexual orientation
violates the South African Constitution's equality provisions.
In terms of the weaknesses within the Anti-Homosexuality Bill in Uganda, the
provisions that are inconsistent with international law and norms include:
✓ Section which defines "homosexuality" broadly and vaguely to
include same-sex attraction, conduct, and relationships, without
specifying any exceptions or qualifications. This could lead to
discrimination against individuals based solely on their sexual
orientation.
 ✓ Section which imposes life imprisonment for the offence of
"aggravated homosexuality," which includes same-sex acts
committed by a person living with HIV, or same-sex acts committed
with a person under 18 years of age. This penalty is
disproportionate and violates the prohibition against cruel,
inhuman, and degrading treatment or punishment.
✓ Section which imposes a duty on Ugandans to report any
information about homosexual activities, which could lead to
violations of privacy and freedom of expression.
✓ Section which criminalizes the promotion of homosexuality,
including advocacy and funding for LGBT rights. This violates the
rights to freedom of expression and association.
The Anti-Homosexuality Bill in Uganda is inconsistent with international law and
norms regarding non-discrimination, privacy, and freedom of expression and
association.

some specific sections within international laws and decided cases that support the
arguments against the Anti-Homosexuality Bill in Uganda:
✓ Article 2 of the Universal Declaration of Human Rights (UDHR)
states that "everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status." This means
that all individuals, regardless of their sexual orientation, have the
right to equal treatment and non-discrimination under international
law.
✓ Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) recognizes the right to privacy, which includes the right to
engage in consensual sexual conduct between adults. The United
Nations Human Rights Committee, which monitors state parties'
compliance with the ICCPR, has held that laws criminalizing
homosexual conduct violate this right to privacy.
 ✓ The Yogyakarta Principles, a set of principles on the application of
international human rights law in relation to sexual orientation and
gender identity, affirms that "the right to privacy includes the right
to choose a partner, and the right to engage in consensual sexual
acts."
✓ In the case of National Coalition for Gay and Lesbian Equality v.
Minister of Justice, the Constitutional Court of South Africa held
that laws criminalizing homosexual conduct violated the right to
privacy and dignity, and were therefore unconstitutional.
✓ The European Court of Human Rights has also held in a number of
cases that laws criminalizing homosexual conduct violate the right
to privacy and the prohibition of discrimination under the European
Convention on Human Rights.
✓ The Inter-American Court of Human Rights has similarly held in a
number of cases that laws criminalizing homosexual conduct
violate the right to privacy and the prohibition of discrimination
under the American Convention on Human Rights.
These international provisions and decided cases support the arguments that the
Anti-Homosexuality Bill in Uganda, which seeks to criminalize homosexuality and
even impose the death penalty in some cases, violates fundamental human rights
principles under international law.

The proposed sections within the Anti-Homosexuality Bill can be evaluated for their
weaknesses and inconsistencies with Ugandan statutory provisions and relevant
case law. Section of the bill criminalizes same-sex relationships with a penalty of
life imprisonment. This section is inconsistent with the Ugandan Constitution, which
provides for the protection of fundamental human rights, including the right to
privacy and the right to be free from discrimination based on sexual orientation.
Additionally, the Section is inconsistent with international human rights law,
including the International Covenant on Civil and Political Rights (ICCPR), which
Uganda ratified in 1995. The ICCPR guarantees the right to privacy and the right to
be free from discrimination on the basis of sexual orientation.
A section of the bill criminalizes the promotion of homosexuality, including
advocacy, counselling, and funding for LGBTQ+ organizations. This section is
inconsistent with the Ugandan Constitution, which guarantees the right to freedom
of expression and association. Furthermore, this section is also inconsistent with
international human rights law, including the ICCPR and the Universal Declaration
of Human Rights (UDHR), which guarantee the right to freedom of expression and
association.
Section of the bill criminalizes the failure to report homosexual activity, with a penalty
of up to three years in prison. This section is inconsistent with the Ugandan
Constitution, which guarantees the right to remain silent and the right against self-
incrimination. Additionally, this section is inconsistent with international human
rights law, including the ICCPR and the UDHR, which guarantee the right against
self-incrimination.
Section of the bill criminalizes same-sex marriage with a penalty of up to seven
years in prison. This section is inconsistent with the Ugandan Constitution, which
defines marriage as a union between a man and a woman. However, this section is
not inconsistent with international human rights law, as the ICCPR and the UDHR
do not explicitly recognize same-sex marriage as a human right.
In conclusion, the Anti-Homosexuality Bill in Uganda contains several provisions
that are inconsistent with the Ugandan Constitution, international human rights law,
and relevant case law. The criminalization of same-sex relationships, the promotion
of homosexuality, the failure to report homosexual activity, and the criminalization
of same-sex marriage violate the fundamental human rights of LGBTQ+ individuals.
These provisions are dicey, and Uganda should ensure that its laws and policies
comply with its obligations under international human rights law when applicable.

Break a leg!
HOLY SCRIPTURE DEBATE ON HOMOSEXUALITY

THE HOLY BIBLE DEBATE ON HOMOSEXUALITY

Sodom and Gomorrah (/ˈsɒdəm ... ɡəˈmɒrə/) were two legendary biblical cities

destroyed by God for their wickedness. Their story parallels the Genesis flood
narrative in its theme of God's anger provoked by man's sin (see Genesis 19:1–
28). They are mentioned frequently in the prophets and the New Testament as
symbols of human wickedness and divine retribution, and the Quran also contains
a version of the story about the two cities. The narrative of their destruction may
have a relation to the remains of third-millennium Bronze Age cities in the region,
and subsequent Late Bronze Age collapse.
The etymology of the names Sodom and Gomorrah is uncertain, and scholars
disagree about them. They are known in Hebrew as ‫סְ דֹ ם‬, Səḏōm and ‫עֲמֹ ָרה‬, 'Ămōrā.
In the Septuagint, these became Σόδομα, Sódoma and Γόμορρᾰ, Gómorrha; the
Hebrew ghayn was absorbed by ayin sometime after the Septuagint was
transcribed, it is still pronounced as a voiced uvular fricative in Mizrahi, which is
rendered in Greek by a gamma, a voiced velar stop). According to Burton
MacDonald, the Hebrew term for Gomorrah was based on the Semitic root ʿ-m-r,
which means "be deep", "copious (water)"

Sodom and Gomorrah are two of the five "cities of the plain" referred to in Genesis
13:12 and Genesis 19:29 subject to Chedorlaomer of Elam, which rebel against
him. At the Battle of Siddim, Chedorlaomer defeats them and takes many captives,
including Lot, the nephew of the Hebrew patriarch Abraham. Abraham gathers his
men, rescues Lot, and frees the cities.
Later, God gives advance notice to Abraham that Sodom had a reputation for
wickedness. Abraham asks God "Will you sweep away the righteous with the
wicked?" (Genesis 18:23). Starting at 50 people, Abraham negotiates with God to
spare Sodom if 10 righteous people could be found.
God sends two angels to destroy Sodom. Lot welcomes them into his home, but all
the men of the town surround the house and demand that he surrenders the visitors
so that they may "know" them. Lot offers the mob his virgin daughters to "do to them
as you please", but they refuse and threaten to do worse to Lot. The angels strike
the crowd blind.
The angels tell Lot "...the outcry against its people has become great before the
Lord, and the Lord has sent us to destroy it" (Genesis 19:13). The next morning,
because Lot had lingered, the angels take Lot, Lot, and his two daughters by the
hand and out of the city, and tell him to flee to the hills and not look back. Lot says
that the hills are too far away and asks to go to Zoar instead. Then God rains sulfur
and fire on Sodom and Gomorrah and all the Plain, and all the inhabitants of the
cities, and what grew on the ground (Genesis 19:24–25). Lot and his two daughters
are saved, but his wife disregards the angels' warning, looks back, and is turned
into a pillar of salt.

Sodom and Gomorrah" becomes a byword for destruction and desolation.

Deuteronomy 29:21–23 refers to the destruction of Sodom and Gomorrah:
And the generation to come, your children that shall rise up after you, and the
foreigner that shall come from a far land, shall say, when they see the plagues of
that land, and the sicknesses wherewith the LORD hath made it sick; and that the
whole land thereof is brimstone, and salt, and a burning, that it is not sown, nor
beareth, nor any grass groweth therein, like the overthrow of Sodom and Gomorrah,
Admah and Zeboiim, which the LORD overthrew in His anger, and in His wrath;
even all the nations shall say 'Wherefore hath the LORD done thus unto this land?
what meaneth the heat of this great anger?'
Deuteronomy 29:21–23
Isaiah 1:9–10, 3:9 and 13:19–22 address people as from Sodom and Gomorrah,
associates Sodom with shameless sinning and tells Babylon that it will end like those
two cities.
Jeremiah 23:14,49:17–18, 50:39–40 and Lamentations 4:6 associate Sodom and
Gomorrah with adultery and lies, prophesy the fate of Edom (south of the Dead
Sea), predict the fate of Babylon and use Sodom as a comparison.
Ezekiel 16:48–50 compares Jerusalem to Sodom, saying "As I live, saith the Lord
GOD, Sodom thy sister hath not done, she nor her daughters, as thou hast done,
thou and thy daughters. Behold, this was the iniquity of thy sister Sodom: pride,
fulness of bread, and careless ease was in her and in her daughters; neither did she
strengthen the hand of the poor and needy. And they were haughty, and committed
abomination before Me; therefore, I removed them when I saw it." He explains that
the sin of Sodom was that "thy sister, Sodom, pride, fulness of bread, and
abundance of idleness was in her and in her daughters, neither did she strengthen
the hand of the poor and needy. And they were haughty, and committed
abomination before me: therefore, I took them away as I saw good."
In Amos 4:1–11, God tells the Israelites that although he treated them like Sodom
and Gomorrah, they still did not repent.
In Zephaniah 2:9,Zephaniah tells Moab and Ammon that they will end up like
Sodom and Gomorrah.

Genesis19:1-11

That evening the two angels came to the entrance of the city of Sodom. Lot was
sitting there, and when he saw them, he stood up to meet them. Then he welcomed
them and bowed with his face to the ground. "My lords," he said, "come to my home
to wash your feet, and be my guests for the
 night. You may then get up early in the morning and be on your way again." "Oh
no," they replied. "We'll just spend the night out here in the city square." But Lot
insisted, so at last they went home with him. Lot prepared a feast for
them, complete with fresh bread made without yeast, and they ate. But before they
retired for the night, all the men of Sodom, young and old, came from all over the
city and surrounded the house. They shouted to Lot, "Where are the men who came
to spend the night with you? Bring them out to us so we can have sex
with them!" So Lot stepped outside to talk to them, shutting the door behind him.
"Please, my brothers," he begged, "don't do such a wicked thing. Look, I have two
virgin daughters. Let me bring them out to you, and you can do with them as you
wish. But please, leave these men alone, for they are my guests and are under my
protection." "Stand back!" they shouted. "This fellow came to town as an outsider,
and now he's acting like our judge! We'll treat you far worse than those other men!"
And they lunged toward Lot to break down the door. But the two angels reached
out, pulled Lot into the house, and bolted the door. Then they blinded all the men,
young and old, who were at the door of the house, so they gave up trying to get
inside.

Leviticus18:22

"Do not practice homosexuality, having sex with another man as with a woman. It is
a detestable sin."
(NLT)

Leviticus20:13

"If a man practices homosexuality, having sex with another man as with a woman,
both men have committed a detestable act. They must both be put to death, for they
are guilty of a capital offense." (NLT) Judges19:16-24 That evening an old man
came home from his work in the fields. He was from the hill country of
Ephraim, but he was living in Gibeah, where the people were from the tribe of
 Benjamin. When he saw the travelers sitting in the town square, he asked them
where they were from and where they were going. "We have been in Bethlehem in
Judah," the man replied. "We are on our way to a remote area in the hill
country of Ephraim, which is my home. I traveled to Bethlehem, and now I'm
returning home. But no one has taken us in for the night, even though we have
everything we need. We have straw and feed for our donkeys and plenty of bread
and wine for ourselves." "You are welcome to stay with me," the old man said.
"I will give you anything you might need. But whatever you do, don't spend the night
in the square." So he took them home with him and fed the donkeys. After they
washed their feet, they ate and drank together. While they were enjoying
themselves, a crowd of troublemakers from the town surrounded the house. They
began beating at the door and shouting to the old man, "Bring out the man who is
staying with you so we can have sex with him." The old man stepped outside to talk
to them. "No, my brothers, don't do such an evil thing. For this man is a guest in my
house, and such a thing would be shameful. Here, take my virgin daughter and this
man's concubine. I will bring them out to you, and you can abuse them and do
whatever you like. But don't do such a shameful thing to this man."1 Kings 14:24
And there were also male cult prostitutes in the land. They did according to all the
abominations of the nations that the LORD drove out before the people of Israel.
1 Kings 15:12 He put away the male cult prostitutes out of the land and removed
all the idols that his fathers had made. 2 Kings 23:7 He also tore down the living
quarters of the male and female shrine prostitutes that were inside the Temple of
the LORD, where the women wove coverings for the Asherah pole.
Romans 1:18 32 But God shows his anger from heaven against all sinful, wicked
people who suppress the truth by their wickedness.... Yes, they knew God, but they
wouldn't worship him as God or even give him thanks. And they began to think up
foolish ideas of what God was like. As a result, their minds became dark and
confused. Claiming to be wise, they instead became utter fools. And instead of
worshiping the glorious, ever-living God, they worshiped idols made to look like
mere people and birds and animals and reptiles.
So God abandoned them to do whatever shameful things their hearts desired. As a
 result, they did vile anddegrading things with each other's bodies. They traded the
truth about God for a lie. So they worshiped and served the things God created
instead of the Creator himself, who is worthy of eternal praise! Amen.
That is why God abandoned them to their shameful desires. Even the women turned
against the natural way to have sex and instead indulged in sex with each other.
And the men, instead of having normal sexual relations with women, burned with
lust for each other. Men did shameful things with other men,
and as a result of this sin, they suffered within themselves the penalty they
deserved. Since they thought it foolish to acknowledge God, he abandoned them to
their foolish thinking and let them do things that should never be done. Their lives
became full of every kind of wickedness, sin, greed, hate, envy, murder, quarreling,
deception, malicious behavior, and gossip. They are backstabbers, haters of God,
insolent, proud, and boastful. They invent new ways of sinning, and they disobey
their parents. They refuse to understand, break their promises, are heartless, and
have no mercy. They know God's justice requires that those who do these things
deserve to die, yet they do them anyway. Worse yet, they encourage others to do
them, too.
1 Corinthians 6:9-11 Don't you realize that those who do wrong will not inherit the
Kingdom of God? Don't fool yourselves. Those who indulge in sexual sin, or who
worship idols, or commit adultery, or are male prostitutes, or practice homosexuality,
or are thieves, or greedy people, or drunkards, or are abusive, or cheat people-
none of these will inherit the Kingdom of God. Some of you were once like that. But
you were cleansed; you were made holy; you were made right with God by calling
on the name of the Lord Jesus Christ and by the Spirit of our God.
1 Timothy 1:8-10 Now we know that the law is good, if one uses it lawfully,
understanding this, that the law is not laid down for the just but for the lawless and
disobedient, for the ungodly and sinners, for the unholy and profane, for those who
strike their fathers and mothers, for murderers, the sexually immoral, men who
practice homosexuality, enslavers, liars, perjurers, and whatever else is contrary to
sound doctrine ....
Jude 7 And don't forget Sodom and Gomorrah and their neighboring towns, which
were filled with immorality and every kind of sexual perversion. Those cities were
destroyed by fire and serve
 as a warning of the
eternal fire of God's judgment.
.
Paul describes lustful behaviour and not loving relationships, he uses the terms
“natural,” “unnatural,” and “shameful” to describe same-sex couples. That in effect
would imply that all same-sex relationships are sinful, regardless of how loving and
committed the partners are.
Paul uses the Greek words in Romans 1. Even today the terms “nature”
(physis) and “disgrace” (atimia) as described by Paul in no uncertain terms
describes what is happening today.

HOLY QUR'AN, HADITH AND SCHOLARS DEBATE ON HOMOSEXUALITY

The practice of homosexual sex and relationships is roundly condemned in the

Islamic tradition, which sees these acts as unnatural and stemming from the
wickedness of the people of Lut. Men who act effeminate or blatantly break gender
norms are also condemned both by the tradition and the scholars.

Qur'an
If two men among you are guilty of lewdness, punish them both. If they repent and
amend, leave them alone; for Allah is Oft-returning, Most Merciful.
Quran 4:16 (also see Tafsirs of this verse below)
We also (sent) Lut: He said to his people: "Do ye commit lewdness such as no
people in creation (ever) committed before you? For ye practice your lusts on men
in preference to women: ye are indeed a people transgressing beyond bounds. And
his people gave no answer but this: they said, "Drive them out of your city: these
are indeed men who want to be clean and pure!" But we saved him and his family,
except his wife: she was of those who legged behind. And we rained down on them
a shower (of brimstone): Then see what was the end of those who indulged in sin
and crime!
Quran 7:80-83
"Of all the creatures in the world, will ye approach males, and leave those whom
Allah has created for you to be your mates? Nay, ye are a people transgressing (all
limits)!" They said: "If thou desist not, O Lut! thou wilt assuredly be cast out!" He
said: "I do detest your doings. O, my Lord! deliver me and my family from such things
as they do!" So We delivered him and his family, - all Except an old woman who
lingered behind. Then afterwards We destroyed the others. We rained down on
them a shower (of brimstone): and evil was the shower on those who were
admonished (but heeded not)!
Quran 26:165-173
(We also sent) Lut (as a messenger): behold, He said to his people, "Do ye do what
is shameful though ye see (its iniquity)? Would ye really approach men in your lusts
rather than women? Nay, ye are a people (grossly) ignorant! But his people gave
no other answer but this: they said, "Drive out the followers of Lut from your city:
these are indeed men who want to be clean and pure!" Then We saved him and his
household save his wife; We destined her to be of those who stayed behind. And
We rained down on them a shower (of brimstone): and evil was the shower on those
who were admonished (but heeded not)!

Quran 27:54-58
And (remember) Lut: behold, he said to his people: "Ye do commit lewdness, such
as no people in Creation (ever) committed before you. "Do ye indeed approach men,
and cut off the highway? - and practice wickedness (even) in your councils?" But
his people gave no answer but this: they said: "Bring us the Wrath of Allah if thou
 tellest the truth." He said: "O my Lord! help Thou me against people who do
mischief!" When Our Messengers came to Abraham with the good news, they said:
"We are indeed going to destroy the people of this township: for truly they are
(addicted to) crime."
Quran 29:28-31

HADITH
Sahih Bukhari
Narrated Ibn 'Abbas: The Prophet cursed effeminate men; those men who are in the
similitude (assume the manners of women) and those women who assume the
manners of men, and he said, "Turn them out of your houses." The Prophet turned
out such-and-such man, and 'Umar turned out such-and-such woman.
Sahih Bukhari 7:72:774
Narrated Ibn 'Abbas: The Prophet cursed effeminate men and those women who
assume the similitude (manners) of men. He also said, "Turn them out of your
houses." He turned out such-and-such person out, and 'Umar turned out such-and-
such person.
Sahih Bukhari 8:82:820
Abu Dawud
Narated by Abdullah ibn Abbas: The Prophet (peace be upon him) said: If you find
anyone doing as Lot's people did, kill the one who does it, and the one to whom it
is done.
Sunan Abu Dawud 38:4447
Narated by Abdullah ibn Abbas: If a man who is not married is seized committing
sodomy, he will be stoned to death.
Sunan Abu Dawud 38:4448
Narrated AbuSa'id al-Khudri: The Prophet (peace be upon him) said: A man should
not look at the private parts of another man, and a woman should not look at the
private parts of another woman. A man should not lie with another man without
wearing a lower garment under one cover, and a woman should not lie with another
woman without wearing a lower garment under one cover.
Sunan Abu Dawud 31:4007
Narrated AbuHurayrah: The Prophet (peace be upon him) said: A man should not
lie with another man and a woman should not lie with another woman without
covering their private parts except a child or a father. He also mentioned a third thing
which I forgot.
Sunan Abu Dawud 31:4008
AbuDawud said: From here I remembered this tradition from Mu'ammil and Musa:
Beware! No man should lie with another man, no woman should lie with another
woman except with one's child or father. He also mentioned a third which I have
forgotten...
Sunan Abu Dawud 11:2169
Narrated AbuHurayrah: The Apostle of Allah (peace be upon him) cursed the man
who dressed like a woman and the woman who dressed like a man.
Sunan Abu Dawud 32:4087
Narrated Aisha, Ummul Mu'minin: Ibn AbuMulaykah told that when someone
remarked to Aisha that a woman was wearing sandals, she replied: The Apostle of
Allah (peace be upon him) cursed mannish women.
Sunan Abu Dawud 32:4088
Al Tirmidhi
Narrated Ibn 'Abbas: That the Messenger of Allah said: "Whomever you find doing
the actions of the people of Lut then kill the one doing it, and the one it is done to."
Jami` at-Tirmidhi 3:15:1456 (Hasan)
It was narrated by Jaabir (may Allah be pleased with him): "The Prophet (peace and
blessings of Allah be upon him) said: 'There is nothing I fear for my ummah more
than the deed of the people of Loot.'"
Tirmidhi 3:5:1457 (Da'if)
Ibn Majah
It was narrated from Abu Hurairah: that the Messenger of Allah cursed women who
imitate men and men who imitate women. (Sahih)
Sunan Ibn Majah 3:9:1903
It was narrated from Ibn 'Abbas: that the Prophet cursed men who imitate women
and woman who imitate men. (Sahih)
Sunan Ibn Majah 3:9:1904
It was narrated from Ibn`Abbas that the Messenger of Allah said: “Whoever you find
doing the action of the people of Lut, kill the one who does it, and the one to whom
it is done.” (Hasan)
Sunan Ibn Majah 3:20:2561
It was narrated from Abu Hurairah that the Prophet said concerning those who do
the action of the people of Lut: “Stone the upper and the lower, stone them both.”
(Hasan)
Sunan Ibn Majah 3:20:2562
Al Muwatta
Malik related to me that he asked Ibn Shihab about someone who committed
sodomy. Ibn Shihab said, "He is to be stoned, whether or not he is muhsan."
Al-Muwatta 41:11
Miscellaneous
It was narrated that Ibn Abbaas said: “The Prophet Muhammed (peace and
blessings of Allah be upon him) said: "... cursed is the one who has intercourse with
an animal, cursed is the one who does the action of the people of Loot."
Narrated by Ahmad, 1878: Classed as saheeh by Shaykh al-Albaani in Saheeh al-
Jaami’, no. 5891
Ibn Abbas and Abu Huraira reported God's messenger as saying, 'Accursed is he
who does what Lot's people did.' In a version...on the authority of Ibn Abbas it says
that Ali [Muhammad's cousin and son-in-law] had two people “burned” and that Abu
Bakr [Muhammad's chief companion] had a wall thrown down on them. (Mishkat,
vol. 1, p. 765, Prescribed Punishments)

Islamic Scholars say the following

Al Jalalayn
And when two of you (read wa’lladhāni or wa’lladhānni) men, commit it, that is, a
lewd act, adultery or homosexual intercourse, punish them both, with insults and
beatings with sandals; but if they repent, of this [lewd act], and make amends,
through [good] action, then leave them be, and do not harm them. God ever turns
[relenting], to those who repent, and is Merciful, to them. This [verse] is abrogated
by the prescribed punishment if adultery is meant [by the lewd act], and similarly if
homosexual intercourse is meant, according to al-Shāfi‘ī; but according to him, the
person who is the object of the [penetrative] act is not stoned, even if he be married;
rather, he is flogged and banished. Judging by the dual person pronoun, it seems
more obvious that homosexual fornication is meant [by this verse], even though the
former [sc. al-Shāfi‘ī] was of the opinion that it referred to an adulterer and an
adulteress; but this [opinion of his] may be countered by the fact that [the reference
to] the two [men] becomes clear on account of the particle min being attached to a
masculine pronoun [minkum, ‘of you’], and by the fact that they suffer the same
 punishment, [both effect the action of] repentance and [are both granted] that they
be left alone [thereafter], [all of] which applies specifically to men, given that for
women detention is stipulated, as was stated before. “Surah (archived)

Feras Hamza (trans.), Royal Aal al-Bayt Institute for Islamic Thought, Tafsir al-
Jalalayn. Ibn Kathir
[‫] َواللَّذَانََ يَأ ْ ِتيَـ ِنهَا مِ ن ُك َْم َفـَاذُوهُ َما‬

(And the two persons among you who commit illegal sexual intercourse, punish
them both. [Qur'an 4:16]) Ibn `Abbas and Sa`id bin Jubayr said that this punishment
includes cursing, shaming them and beating them with sandals. This was the ruling
until Allah abrogated it with flogging or stoning, as we stated. Mujahid said, "It was
revealed about the case of two men who do it." As if he was referring to the actions
of the people of Lut, and Allah knows best.
The collectors of Sunan recorded that Ibn `Abbas said that the Messenger of
Allah said, «‫ َفا ْقتُلُوا ا ْلفَا ِع ََل َوا ْل َم ْفعُو ََل بِه‬، ٍ‫ع َم ََل َق ْو َِم لُوط‬
َ ‫ن َرأ َ ْيت ُ ُموهَُ يَ ْع َم َُل‬
َْ ‫( » َم‬Whomever you
catch committing the act of the people of Lut (homosexuality), then kill both
parties to the act.)
"The Adulteress is Confined in her House; A Command Later Abrogated"
(archived)
Tafsir Ibn Kathir.
[ََ‫ن أَ َح ٍَد ِ ِّمن ا ْلعَـلَمِ ين‬ َ ‫]أَتَأْت ُونََ ا ْلفَـحِ شَةََ َما‬
َْ ِ‫سبَقَ ُك َْم ِبهَا م‬
َ ِّ‫ُون الن‬
‫سآء‬ َِ ‫شه َْوةَ ِّمن د‬ ِّ ََ‫]إِنَّ ُك َْم لَتَأْت ُون‬
َ ‫الرجَا ََل‬
("Do you commit lewdness such as none preceding you has committed in all of the
nation’s Verily, you practice your lusts on men instead of women.") meaning, you
left women whom Allah created for you and instead had sex with men Indeed, this
behavior is evil and ignorant because you have placed things in their improper
places.
The Story of Prophet Lut, upon Him be Peace, and His People Tafsir 'Ibn Kathir
Ibn Al Qayyim
Both of them – fornication and homosexuality – involve immorality that goes against
the wisdom of Allaah’s creation and commandment. For homosexuality involves
innumerable evil and harms, and the one to whom it is done would be better off
being killed than having this done to him, because after that he will become so evil
and so corrupt that there can be no hope of his being reformed, and all good is lost
for him, and he will no longer feel any shame before Allaah or before His creation.
The semen of the one who did that to him will act as a poison on his body and soul.
The scholars differed as to whether the one to whom it is done will ever enter
Paradise. There are two opinions which I heard Shaykh al-Islam (may Allaah have
mercy on him) narrate.” Ibn al-Qayyim: Ad-Dā'i wa Dawā, p. 115

Modern scholars
Al Munajjid
The crime of homosexuality is one of the greatest of crimes, the worst of sins and
the most abhorrent of deeds, and Allaah punished those who did it in a way that He
did not punish other nations. It is indicative of violation of the fitrah, total
misguidance, weak intellect and lack of religious commitment, and it is a sign of
doom and deprivation of the mercy of Allaah. We ask Allaah to keep us safe and
sound. The punishment for homosexuality Islam Q&A, Fatwa No. 38622
The spread of homosexuality has caused man diseases which neither the east nor
the west can deny exist because of them. Even if the only result of this perversion
was AIDS – which attacks the immune system in humans – that would be enough.
Why does Islam forbid lesbianism and homosexuality? Sheikh Muhammed Salih Al-
Munajjid, Islam Q&A, Fatwa No. 10050 Praise be to Allaah
Undoubtedly the sin of homosexuality is one of the worst sins; indeed, it is one of
the major sins (kabaa’ir) that Allaah has forbidden. Allaah destroyed the people of
Loot (peace be upon him) with the most terrifying kinds of punishment because they
 persisted in their sin and made this evil action commonplace and acceptable among
themselves. Allaah says (interpretation of the meaning): [Quotes Quran 11:82-83,
Quran 11:83, and Quran 54:37] [...]
Imaam Ibn al-Qayyim (may Allaah have mercy on him) said: It was reported that the
Prophet (peace and blessings of Allaah be upon him) said: “Kill the one who does it
and the one to whom it is done.” (Reported by the four authors of Sunan. Its isnaad
is saheeh. At-Tirmidhi said it is a hasan hadeeth).
Abu Bakr al-Siddeeq judged in accordance with this, and he wrote instructions to
this effect to Khaalid, after consulting with the Sahaabah. ‘Ali was the strictest of
them with regard to that. Ibn al-Qasaar and our shaykh said: The Sahaabah agreed
that [the person who does homosexual acts] should be killed, but they differed as to
how he should be killed. Abu Bakr al-Siddeeq said that he should be thrown down
from a cliff. ‘Ali (may Allaah be pleased with him) said that a wall should be made to
collapse on him. Ibn ‘Abbaas said, they should be killed by stoning. This shows that
there was consensus among them that [the person who does homosexual acts]
should be killed, but they differed as to how he should be executed. This is similar
to the ruling of the Prophet (peace and blessings of Allaah be upon him) concerning
the person who has intercourse with a woman who is his mahram [incest], because
in both cases intercourse is not permitted under any circumstances. Hence the
connection was made in the hadeeth of Ibn ‘Abbaas (may Allaah be pleased with
him) who reported that the Prophet (peace and blessings of Allaah be upon him)
said, “Whoever you find doing the deed of the people of Loot, kill them.” And it was
also reported that he (peace and blessings of Allaah be upon him) said: “Whoever
has intercourse with a woman who is his mahram, kill him.” And according to another
hadeeth with the same isnaad, “Whoever has intercourse with an animal, kill him
and kill the animal with him.” (Narrated by Ahmad, 2420; Abu Dawood, 4464; al-
Tirmidhi, 1454; al-Haakim, 4/355).
This ruling is in accordance with the ruling of sharee’ah, because the worse the
haraam action is, the more severe the punishment for it. Having intercourse in a
manner that is not permissible under any circumstances is worse than having
intercourse in a manner which may be permitted in some circumstances, so its
punishment is more severe. This was stated by Ahmad in one of the two reports
narrated from him. (Zaad al-Ma’aad, part 5, p. 40-41).
The same applies to the sin of lesbianism. There is no doubt among the fuqahaa’
that lesbianism is haraam and is a major sin, as stated by al-Haafiz Ibn Hajar (may
Allaah have mercy on him). (Al-Mawsoo’ah al-Fiqhiyyah, part 24, p. 251).
With regard to the specific type of punishment mentioned in the question – stoning
to death – this kind of punishment is for the adulterer who is married. The shar’i
punishment for the crime of homosexuality is execution – by the sword, according
to the most correct view – as was narrated in the discussion above about the
differences among the scholars as to how this execution should be carried out. As
far as lesbianism is concerned, there is no hadd for it, but it is subject to ta’zeer
[unspecified punishment to be determined at the discretion of the qaadi]. (al-
Mawsoo’ah al-Fiqhiyyah, part 24, p. 253).
Can those who have committed homosexual acts be forgiven, and is it permissible
for such a person to get married? Sheikh Muhammed Salih Al-Munajjid, Islam Q&A,
Fatwa No. 5177 Bakrin
Homosexuality is one of the worst crimes against creation, nature, religion and
human existence. Its implications on the individuals and the society at large are
manifold. Dr Muhammed, in his book entitled “Islam and Medicine” lists these
implications to include:
(1) Aversion for women. Those who practise homosexuality usually don’t have
desire for women. This negates one of the essence of marriage, procreation, which
can only occur through cohabitation between men and women. Where individuals
are compelled to have same sex wives or husbands, such people are deprived of
love, mercy and tranquillity, which are the targets of marriage.
(2) Negative impacts on the nerves. This habit is injurious to the soul as it impacts
negatively on the soul. This results into attack of psychological reflex in the character
of the individual. He thinks that he ought not to have been created as a male. That
is why you see gays dressing like women, especially those who occupy the portion
of ‘wives’ in this animalistic tendency.
(3) Negative impacts on the brain. It causes great disorder in the equilibrium level
of human intellect. His perception of issue is thus affected.There is a strong
 relationship between homosexuality and the proper function of the brain.
Homosexuality: The Islamic viewpoint Imam Sirajudeen Bakrin, Nigerian Tribune,
December 30, 2011 ... fight against homosexual act is not only religious, it is a
natural obligation on lovers of human dignity and human rights activists.
A look at the nature of man exposes him as being disposed to varying indications.
Some of this indication is good, while others are evil, bad and injurious to human
existence. Therefore, there is the need for a restriction to human defiance which can
result from bad inclination as it affects the society negatively.
Allah has narrated to us the story of Prophet Lut and his people and the punishment
meted to them when they first came with this evil act. The Quran says. “And
remember Lut, when he said to his people.
‘Do you commit the worst sin such as none preceding you has committed in the
Alamin (mankind and .....) Verily, you practise your lusts on man instead of women.
Nay, but you are a people transgressing beyond bounds by committing great sins.
And the answer of his people was only that they said ‘Drive them out of your town,
these are indeed men who want to be pure from sins. Then, we saved him and his
family except his wife, she was of those who remained behind in the torment. And
we rained down on them a rain of stones. Then see what was the end of the
Mujrimun (sinners)” (Suratul A’raf: 80-84).
In suratul Hud, Allah says: “So when our commandment came, we turned the towns
of Sodom upside down and rained on them stones of baked day piled up. Marked
from your lord and they are not ever far from the Zalimun (evil doers)” (Hud: 82-83).
From the aforementioned verses of the Quran, it is obvious that Allah destroyed the
first set of people to embark on this act by turning their towns upside down while
they were thereafter pelted with stones.
Since this act is one of the most criminal acts in Islam, equally its punishment is one
of the greatest. All Muslim scholars agreed that death is the basic judgement such
individuals deserve. This is in line with the saying of Prophet Muhammad as
reported by Ibn Abbas: “If anyone is caught committing the act of the people of Lut,
kill both the committer and the person with whom the act is committed” (Abu
Dawud).
However, there is a divergence of opinions on the methodology to be used in
executing the punishment. While some scholars such as Abu bakr [the first Rightly-
Guided Caliph] and Ali [Muhammad's son-in-law and the fourth Rightly-Guided
Caliph] were of the view that such a person should be beheaded and set on fire
thereafter, Umar [the second Rightly-Guided Caliph] and Uthman [the third Rightly-
Guided Caliph] thought the wall should be fell on him. To Ibn Abbas [Muhammad's
cousin], he should be taken to the tallest building in the town, thrown upside down
while some men stand on the ground waiting to meet him with stone in replication
of the destruction done to the people of Lut by Allah. Homosexuality: The Islamic
viewpoint (2) Imam Sirajudeen Bakrin, Nigerian Tribune, December 30,2011
THE END