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Lesbians want protection
27 July 2007- Kampala, Uganda- Two years ago, a government official broke
into a home, seized property and detained one of the occupants without a
warrant. The case seems clear, but will the plaintiff's homosexuality affect the
verdict? The ruling, due next month in Uganda's Constitutional court, could set
a precedent for sub-Saharan Africa's reportedly conservative masses.
Two Ugandan lesbians are suing the government for trespassing, theft of
property, illegal arrest, and inhuman and degrading treatment. The case has been
in court since December 2006 and a verdict is expected when the court session
resumes in August.
Victor Mukasa, a 31-year-old gay rights activist and Yvonne Ooyo, a 24-year-old
Kenyan, claim that on July 20, 2005, LC1 Chairman John Lubega from Kireka Kamuli
zone illegally raided and searched and their home without a warrant and
proceeded to arbitrarily arrest Ms Ooyo who was alone in the house at the time.
The case is highly contentious, if only because of the complainant's sexuality.
Homosexuality is illegal in Uganda. Some religious leaders like born-again
Pastor Martin Sempa of the Makerere Community Church, advocate a path of
'redemption' rather than court trials.
"I know many people in my congregation who were lesbian but have turned around
and are living a straight life now," he says. "Victor will experience redemption
if she is given the right treatment and information," he adds.
This is the first case on legal rights of homosexual citizens in a Ugandan court
to receive a public hearing. In fact, aside from South Africa where
homosexuality is legal, it is the first case in Africa of a gay person seeking
affirmation of their constitutional rights.
Dr Nsaba Buturo, the minister of Ethics and Integrity, suggested that the
plaintiffs "suffered under the false notion that homosexuality can be a human
rights issue" and cautioned that "next time, they will say bestiality should be
a human right."
On her part, Dr Sylvia Tamale, dean of the Makerere Law School, disagrees.
"This is not really a case challenging the legality of homosexuality. It is
actually about rights to privacy and property," she says.
The case is filed as a violation of articles
contained in Chapter 4 of the Uganda Constitution which covers the protection of
fundamental rights which include the right to privacy, the right to property,
the right to protection from inhuman and degrading treatment as well as the
right to due process under the law.
These rights, by themselves, are a grey area for the law. Oscar Kihika, the
president of the Uganda Law Society, says there is a conflict between Uganda's
highly progressive constitutional law and residual laws from British colonial
rule and Idi Amin's reign.
"Technically, police are allowed to search your home and detain you for
questioning without a warrant at any time if they so much as suspect you are
breaking the law," says Mr Kihika. "This was not the case in the 1970s but Idi
Amin amended many laws to give police broader powers."
Since homosexuality is illegal, suspicion alone gives sufficient justification
for a police search and 'call for questioning.' However, Mr Kihika points out
that removing items from a residence without a warrant is still prohibited in
all circumstances. Furthermore, the person who entered the home was an LC1
chairman, not a police officer.
"We want people to see that what we suffer is similar to other oppressed
groups," says Ms Mukasa, who is the chairperson of Sexual Minorities Uganda, a
coalition of three gay rights advocacy organisations.
"We are not asking for the right to marry, we are asking for the same rights
that are guaranteed to all Ugandan citizens, even prisoners. My homosexuality
does not deprive me of my citizenship of Uganda. I am only exercising my
Constitutional rights," she says.
Background
On July 20, 2005, John Lubega, the LC1 chairman of Kireka Kamuli Zone, allegedly
raided Ms Mukasa's home without a warrant. Ms Mukasa was away at the time of the
raid and Ms Ooyo, a student at Makerere University, was alone in the house that
night. Police confiscated materials they described as advocating gay rights and
arrested Ms Ooyo for "idle and disorderly" conduct.
She was held in police cells for several hours where, she alleges, she was
interrogated and sexually harassed.
"They kept teasing me about whether I am a girl or a boy" she recounts. She says
the police officers did not believe her when she asserted to be female and asked
her to undress in front of an officer for a "thorough check".
The officer allegedly felt her private parts and pressed upon her breasts,
ostensibly to confirm her gender. "I know that she did this because she felt
that since I am a homosexual, I did not deserve any dignified treatment," claims
Ms Ooyo.
After the raid, both complainants claim they lived in fear of more attacks.
Amnesty International got involved and helped Ms Mukasa flee to South Africa on
the basis of the complaints. She only returned to Uganda for the first hearing
of the case.
The third and final hearing next month will therefore determine what fate awaits
her desire to be guaranteed normal rights, despite her sexuality.
Hostility to gays
Uganda does not permit homosexuality which is considered a crime under the
country's penal laws. Many Ugandans view homosexuality as a perverted practice.
"I have told the CID (Criminal Investigations Department) to look for
homosexuals, lock them up and charge them," said President Yoweri Museveni while
opening a reproductive health conference in Kampala in the late 90's. The
statement provoked diplomatic protests from, among others, the US State
Department.
Recently, after a split in the Anglican church of America over gay rights,
Ugandan churches stepped up to provide pastoral assistance to several dioceses
which were anti-gay. Gay rights activists like Sexual Minorities Uganda (SMU)
claim the atmosphere in Uganda is constantly hostile to them.
In October 2006, The Red Pepper tabloid published a list of names of suspected
gays and lesbians. The gay rights group says several people whose names appeared
on the list lost jobs and received harsh treatment from their family members.
Uganda is a signatory to the International Covenant of Civil and Political
Rights, which mandates the universal protection of civil and political rights
for oppressed groups regardless of political affiliation, race, religion,
gender, or sexual orientation. However, activists say this has had no apparent
effect on the way homosexuals are regarded.
Harassment reports
According to SMU, gays and lesbians in Uganda report that they have been
harassed by police, taxi drivers, and people on the street. Others reportedly
claim they are humiliated at school assemblies, forced to undress in church to
"remove male spirits," or raped to "prove" they are women. The group also says
most of these acts go unreported because gay people fear they will end up in
jail.
"This is not just a case of one lesbian woman seeking justice. It is a case of
every gay person in this country whose rights have been violated in one way or
another," says Ms Mukasa. It remains to see how the ruling will affect the way
gay people live in Uganda.
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