Why was Uganda’s anti-homosexuality law struck down?

What began as legislation against sex could restructure government-donor relations for the long-term

The Anti-Homosexuality Act was struck down by Uganda's Constitutional Court in early August [EPA]

The August 1 ruling by Uganda’s constitutional court that the country’s Anti-Homosexuality Act, otherwise known as AHA, was illegal prompted scenes of jubilation by members of the gay community and their supporters. Meanwhile, among anti-gay groups and individuals who see homosexuality as an abomination and a threat to the family and society in general, it provoked much anger. The anger has led to a renewed campaign by anti-gay MPs to get the law passed again, this time in line with the rules governing the functioning of parliament. 

Uganda punished over anti-gay law

The court nullified the law because in December 2013, parliament passed it without the necessary quorum as required by law. The anomaly had been brought to the attention of the speaker of parliament. She, nonetheless, ignored those who were raising the objection and went on to ensure that the bill was passed.

While the speaker’s behaviour may surprise those who are not familiar with how Uganda works, those who are would have not even paused to reflect on it.

It was not the first time that a bill went through parliament without the necessary quorum and was subsequently signed into law. The Public Order Management Act that restricts the right of assembly, making it illegal for public meetings to take place without permission from the police, which it often withholds, is one such law. Therefore in ignoring the common-sense objections of those who saw risks in passing a law without quorum, the speaker must have been guided by past practice and comforted by accumulated experience. If past illegalities could stand, why not this one, she must have reasoned.

Equally significant is why a substantial number of members of parliament would have chosen to be absent on the day the bill was due to be passed. There is no denying that the bill was very popular and that, in signing it into law, President Yoweri Museveni would have drawn inspiration, at least in part, from the outpouring of support it got from the general public.

So were the absent members of parliament deliberately staying away to ensure it did not pass, or were they away for other reasons? It is possible some of them sought to avoid the wrath of their constituents by not being seen to block it and by implication being seen to support what members of the public consider to be immorality. 

It is also true, however, that Uganda’s MPs are notorious for skipping parliamentary sessions because they are busy with personal pursuits. Whatever their reasons for voting with their feet and staying away, these new developments have ignited processes whose consequences may stretch beyond what happened following President Museveni’s assent to the previous law.

Threats of dire consequnces

It is important to recall that for a long time following its first tabling in parliament in 2009, President Museveni was not keen on the law. He is even on record urging its sponsors to go slow in their efforts to criminalise homosexuality, a phenomenon he has confessed to having been aware of from as early as his childhood, which he spent deep in rural Uganda, where attitudes are at their most conservative.

Some have claimed that his decision to back the law eventually was driven by considerations connected to his supposed decision to run for office again in 2016. Knowing that the bill was popular, the argument goes, it became an easy way to secure support for his continuing presidential ambitions.

That, however, seriously disregards the extent to which he would have been influenced not by the opinion of Ugandan scientists who claimed homosexuality was not genetic, as he claimed prior to signing it, but by the strident reactions of the donor community who threatened dire consequences were he to assent to it.

Keen observers of the Ugandan political scene and of Museveni’s tenure in office know well that he is a stubborn man whose stubbornness goes a few notches up whenever anyone tries to influence his conduct by issuing threats. It was clear from his bellicose pronouncements about “western cultural imperialism” after signing the bill into law that the way donors had behaved had played a significant role in pushing his hand.

Since then, several donors have suspended or redirected aid away from the government to non-governmental organisations. Reports suggest that these decisions have inflicted ample damage on Uganda’s economy, and that this may have had something to do with the seemingly hasty decision by the Supreme Court to strike down the law just before Museveni travelled to the United States whose government was among the most strident in their condemnation of the law.

If indeed that was the case and the ruling was intended to protect Museveni from “harassment” while attending the US-Africa Summit, its effect can only be temporary, as all indications are, next time parliament sits, if the bill finds a place on the parliamentary order paper, it will be passed again. Were that to happen, given its popularity and the almost predictable negative reaction of donors, Museveni will likely sign it into law again. That would set off a new round of rows with donors, and possibly stiffer economic measures by them, intended to drive a much tougher message than previously, with dire consequences for the economy.

For the donors, the consequences of renewed bad blood with the Museveni government would take a little longer to manifest, but they would not walk away unscathed. Museveni is on record declaring his government’s intention to wean itself off aid. This, of course, is easier said than done given the country’s inability to raise all the money it needs.

The use by donors of aid as a tool for manipulating and arm-twisting him, however, is a strong motivation for seeking ways of reducing Uganda’s aid-dependency. It is also important to note that currently aid accounts for only about 20 percent of the country’s budget, and that sometime in the near future Uganda is set to become an oil producing and exporting country. Without aid to use as a lever to influence its behaviour, the Museveni government will become an increasingly difficult customer.

And so while the anti-gay law was originally intended to “protect” the country’s cultural and moral values from what they conceive of as corruption by Western cultural imperialism, it might, just might, have consequences far beyond what anyone preoccupied simply with the permissibility or not of gay sex in a backward and conservative society would have envisaged or predicted.   

Dr Frederick Golooba-Mutebi is a Kampala- and Kigali-based independent researcher, analyst and columnist. He was educated at Makerere University in Uganda and at the London School of Economics and Political Science in the UK.