The 1995 Constitution of Uganda and Sexual Minorities
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Introduction

 

This article aims at clarifying on the position of sexual minorities in the 1995 Constitution of Uganda.

This however came after an observance of the gross human rights abuses suffered by the Lesbian, Gay, Bisexual and Transgender (LGBT) people in Uganda. Although the constitution talks about minority rights, little has been done to protect the rights of LGBT people in Uganda.

The article concludes that LGBT people should be included among the people to enjoy minority rights as laid down in the Ugandan Constitution.

 

Definition of “Minority”

In relation to the above, it is here noted that there is a problem in reaching a conclusive definition of who a ‘minority’ is. In relation to Uganda, questions such as; who defines a ‘minority’, who are the beneficiaries of minority rights, have met challenges from many corners of our society today. Consequently, there appears to be two major problems in defining ‘minorities’, not generally in the entire African context, but Uganda in particular

 

On many occasions, cultural, materialistic and other tendencies have been pointed out to create biases towards predetermined rather than objective definitions.

On the other hand, the definitions of ‘minorities’ often lack objectivity because they are, to a great extent, made by those people who are neither minorities nor closely connected to minorities, and who, therefore, lack experiential knowledge of the situation of minorities. Taking the above into consideration, it is evident that defining a ‘minority’ in relation to the Ugandan context is complex.

 

Despite the lack of a universally acceptable definition, it is crucial to note that any disempowered group, regardless of its numerical size, should be considered a minority. Any quantitative ceiling would, for example, have prevented the classification of disempowered women, who are the majority of the Ugandan population or the Black South Africans, as a minority during the apartheid era; a situation that would have been morally unjustifiable and would have lent credence to the behaviour of the White South African regime as a majority race.

 

What is essential in Uganda today, however, is to establish whether a particular group of people, say, LGBTs, has historically suffered disempowerment or discrimination on social, political and cultural grounds. The failure to define homosexuals as a minority people to enjoy the Ugandan Constitutional rights has led to the violation of human rights of these people without redress.

 

 

 

 

 

SEXUAL MINORITIES AND THE 1995 CONSTITUTION OF UGANDA

 

The 1995 Constitution of Uganda neither defines ‘sexual minorities’ nor does it define the broader concept of ‘minorities’ although it states under article 36 that;

“Minorities have a right to participate in decision making process and their views and interests shall be taken into account in the making of national plans and programmes.’

The foregoing, one may ask; How far have the sexual minorities of Uganda participated in the decisions affecting the respect of their fundamental rights?

 

The articles immediately preceding the above article 36 provide for affirmative action to minorities. Article 33 states the rights of women, article 34 the rights of children and the rights of people with disabilities in article 35.This, however, indicates that the framers of the Uganda Constitution had a limited view of minorities. They missed out to affirm that homosexuals in Uganda are part and parcel of minorities and that they are entitled to the minority rights laid down in the constitution.

 

Despite this, however, article 32 is very progressive. It places a mandatory duty on the state parties to take affirmative action in favour of groups which have been historically disadvantaged and discriminated against on grounds of gender, culture, race, religion or any other reason created by history, tradition or custom.

This provision, while primarily designed or envisaged to deal with historically disadvantaged people such as children, women and people with disabilities, should form the basic legal source of affirmative action in favour of sexual minorities in Uganda.LGBTs in Uganda can now stand on this constitutional provision to claim for their long awaited human rights (of minorities) laid down in the Uganda Constitution.

LGBT rights groups should therefore be equipped and financed to deal with such human rights issues pertaining to their dignity and livelihood.

 

Despite a vibrant human rights culture in Uganda, sexual minorities still suffer arbitrary arrests, persecutions, stigmatization and a general lack of access to political and social rights without any one influentially lifting a finger.

 

Measures that can be invoked to protect and support sexual minorities in Uganda.

 

Legislation

 

State parties are the primary subjects of the international law and therefore have a duty and responsibility for the observance and implementation of minority and other rights in their domestic laws. In Uganda, measures to protect and support sexual minorities should be connected to four areas; treaties and legislation, the related policy of affirmative action, the establishment of new legislative institutions and financial support for human rights organizations spearheading the struggle for LGBT rights in Uganda.

Although Uganda is a party to the International Covenant on Civil and Political Rights (ICCPR), which it ratified in 1987,it has not yet put a framework in place to implement international human rights provisions for the protection of sexual minorities. This lack of a supportive framework to implement the inspirations of international conventions and declarations for the protection of LGBTs in Uganda, hampers the task of harmonizing constitutional rights of sexual minorities with international standards, and makes the enforcement and monitoring of of those rights more difficult.

While the promulgation of the 1995 Uganda Constitution was appositive step in the recognition of the rights of minorities, the provision, however, falls short of international standards in relation to LGBT rights.

 

To protect sexual minorities in Uganda, general provisions of the constitution such as article 32(1) and (2) have to be resorted to, which guarantee affirmative action in favour of groups that have historically been discriminated against on the basis of culture, religion, gender or any other ground created by history or tradition in order to redress their existing disadvantages and to give them equal opportunities.

 

Same Sex Rights Education

 

Such affirmative action should include the sensitization of the general society about the existence of LGBT rights in the international culture of human rights. In relation to Africa, Uganda in particular, education in this area suffers an acute lack of access. It is absurd to note here that, despite the vibrant human rights culture in Uganda, virtually no human rights organization has come out to openly support and educate the public about LGBT rights. This ignorance about LGBT rights has also discouraged many LGBT people from coming out to advocate for their human rights and dignity due to fear of stigmatization and imprisonment.

 

Health

 

Although Uganda is among the countries with the poorest medical and social services in the world, affirmative action in health care and issues of LGBTs is highly needed. LGBT’s access to health care in Uganda is very limited; AIDS and other Sexually Transmitted Infections have become rampant in the LGBT communities.

Pressure and stigmatization from society have also led to a lot of psychological torture among LGBTs, thus, pointing to the need for accessibility to counseling services.

In summation of the above tragedy, it is noted here that, there ought to be a specific health programme for LGBTs in Uganda. This will bring confidence and trust, LGBTs will then be proud to go with their sexual partners to health care treatment programmes.

In general, sexual minorities are often not planned for in the public health system, mainly because of lack of effective representation.

 

Human Rights Organizations and LGBT Rights Support

 

Although Uganda boasts of a multitude of human rights organizations, most of them are shy to advocate for LGBT rights in the country. The few, which have been established specifically for the plight of LGBT rights, are to a great extent lacking organizational ability, manpower and financial muscle to wage a meaningful campaign toward the respect of LGBT rights. Many of them are not only lacking physical addresses, but have also failed to register thus lacking legal existence within the country.

 

With the formation of Sexual Minorities Uganda (SMUG) an umbrella organization of LGBT organizations, it is hoped that a lot is going to change for the better. A lot is expected from SMUG and some of its activities  include putting pressure for law reforms, carrying out research and documentations, organizing debates as a way of sensitizing about LGBT rights.

 

The challenges and expectations of SMUG are too high but with support, can be reached.

THE UGANDA HUMAN RIGHTS COMMISSION (UHRC) AND LGBT RIGHTS

 

The Uganda Human Rights Commission (UHRC) is the body responsible for investigating any kind of human rights abuses in Uganda. When such abuses come to its attention, the UHRC has the mandate to initiate general and individual measures to remedy such abuses.

 

Despite the above, it is sad to note that most of the commissioners at the UHRC have been of less help. They feel ashamed to give support to LGBT rights movements.

The UHRC should therefore be sensitized about LGBT rights such that LGBTs in Uganda can seek redress from it.

 

Once the UHRC has become LGBT rights sensitive, under article 52(1) and (2) it will be able to prepare reports to the Parliament regarding LGBTs in Uganda. Then the Parliament can make resolutions concerning sexual minorities and the promotion of their fundamental human rights. While the UHRC is supposed to continuously assess the situation of minorities and the implementation of their rights, in practice, the poor understanding of minority rights has greatly hampered its function in this area.

The same challenges have further hindered the UHRC from harmonizing the implementation of the 1948 Universal Declaration of Human Rights visions related to sexual minorities. Similarly, there is no continuous interaction between the UHRC and the representatives of LGBT organizations in Uganda.

Therefore, there is a failure in planning and implementation of appropriate institutional measures to prevent the violation of the rights of sexual minorities.

 

CONCLUSION

 The study has sought to show that the failure to respect same sex rights and consequently to deal with the problems faced by LGBT people, have been among the key factors that have led to the failure of Uganda to follow the universally acceptable human rights culture. The situation of sexual minorities has deliberately been ignored by most human rights organizations but left to be dealt with from the religious and cultural arenas. It is evident that there is an urgent need to sensitize the Ugandan policy makers and the public about the broadness of the scope of human rights and also to take measures for the social, economic and political integration of LGBT people in Uganda.

 

A consequence of the failure to protect sexual minorities in Uganda is the inability to preserve minority identity in the country. Protection of identity here means, not only, that the state shall abstain from policies that negatively impact on LGBT people, but also embark on those that shall protect them against activities of the society which tantamount to human rights violations. There is, therefore, a need to strengthen the political commitment to LGBT rights in Uganda, thus, a continuous dialog to improve Uganda’s social cohesion.

 

SPECIFIC RECOMMENDATIONS

  1.The Government of Uganda is hereby recommended to support

      and encourage local organizations that promote the rights of

     sexual minorities. The Government should therefore encourage understanding and reconciliation between homosexuals and heterosexuals.

 

2.The Government of Uganda should take urgent steps to promote peaceful co-existence of LGBTs and heterosexuals in order to eradicate discrimination and persecution of LGBTs.In this regard, the Government of Uganda should offer appropriate compensation to those whose rights have been historically abused at it’s hands and enact remedial policies.

 

3.The Government is further recommended to take immediate steps to implement the international human rights standards relating to LGBTs in its domestic laws. In particular, the Government, the police and non-state actors should be made accountable for the violation of such human rights standards.

 

4.International donor agencies and Non-Governmental Organizations are also encouraged to put pressure on the Government of Uganda to incorporate the respect of LGBT rights in Uganda. They are also encouraged to carry out specific assessments on the impact of proposed governmental changes in relation to LGBT rights issues.