Wednesday, December 23, 2009

What is "Illegal"?

Disclaimer - this is the author's opinion on what the law is, not what the law should be ...

Amnesty International on the Uganda "Bahati" or "Round 'em, put 'em in a field ..." Bill:

"Certain provisions in this bill are illegal; they are also immoral," said Kate Sheill, Amnesty International's expert on sexual rights. "They criminalize a sector of society for being who they are, when what the government should be doing instead is protecting them from discrimination and abuse."

Okay - there is only one word in that that I disagree - obvious from the title - and that is "illegal". I happen to think that both the Bahati Bill and the current position in Ugandan law (under Section 140 of the Uganda Penal Code) is certainly arguably dodgy law under Articles 21(1) and 32(1) of the Ugandan Constitution, although readers will note that Article 21(2) of the Constitution expressly does not mention "sexual preference" and, in fact, Article 31(2a) explicitly discriminates against homosexuals - although no more than the UK or the USA (the latter federal) do - in denying 'marriage' - (Ed notes: he is trying hard not to do a Princess Bride / Peter Cook thing here ...) But I don't think that is Amnesty's point - I think they are talking about "International Human Rights Law", here:

The final section of the bill provides for Uganda to nullify any of its international or regional commitments that it deems "contradictory to the spirit and provisions enshrined in this Act." As both the African Commission and the UN Human Rights Committee have held, a state cannot, through its domestic law, negate its international human rights obligations.

But a state can withdraw from or otherwise abrogate those treaties it has freely entered into and anyway, a reasonably careful search of the UN doesn't actually show any treaty or covenant explicitly requiring equal treatment on the basis of sexual preference. Nope, not explicitly. You do have the International Covenant on Civil and Political Rights - to which Uganda is a State Party without reservation (since 21 June 1995). Now, Article 2(1) states (my bold):

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present 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.

Which you could read, for the States Parties, that they agree not to discriminate against people with the 'other status' of fancying or bonking people of their own sex. But this is not settled law - never mind that Article 23 of the Covenant itself seems to imply marriage being specifically between man & woman - the mere existence of the "UN Declaration on Sexual Orientation and Gender Identity" and the opposing Arab League sponsored declaration (with nearly as many signatories - 57 compared to 67) shows that, despite the completely non-binding Yogyakarta Principles.

There are aspects of the Bahati Bill, regardless of your opinion on the core issue of homosexual rights, that are utterly distasteful (and probably even more easily corallable as illegal under Uganda's Constitution or international obligations):

  • The death penalty. Although Uganda are not a signatory to the 2nd Optional Protocol to the Convenant, the Article 6(2) of the Convenant restricts the death penalty accordingly: "sentence of death may be imposed only for the most serious crimes". As s3(1)(b), just for example, of the Bill would impose the death penalty for consensual, protected homosexual acts for adults with HIV, I am fairly sure it would fall foul of this (whereas s3(1)(a) - homosexual paedophile acts might not?)
  • The restrictions on free speech.
  • The requirement (under penalty of prison) to inform on your friends, colleagues or mere acquaintances.
  • The explicit extension of the Stasi clause to ministers of religion with, at least as far as the Christian ones are concerned, the consequent violation of the sacrament of confession (thus possibly breaching the Article 18 rights on freedom of religion, although the qualification in 18(3) for morals is noted. And this is, fundamentally, an argument about opposing morals.)
So, I don't think the Bahati Bill would be "illegal". It might require amendment of the Ugandan constitution, it might (although I don't think it does) require Uganda to withdraw from some treaties currently binding it. Doesn't make it right, I know, but just saying ...

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