Attorney General, DPP Recommend Amendment of Existing Laws to Address Homosexuality

The Attorney General, Kiryowa Kiwanuka has asked Parliament to amend laws like the Penal Code Act to cater to proposals under the new Anti-Homosexuality Bill, 2023.

Kiwanuka on Saturday appeared before the Legal and Parliamentary Affairs Committee that is considering the Bill tabled before parliament by Bugiri Municipality MP, Asuman Basalirwa.

Kiwanuka cited that several clauses in the Bill are already catered for in the existing laws and that considering another special law could be tantamount to duplication.

He mentioned Clause 2 of the Bill that provides for the offense of homosexuality, saying that this is addressed by Section 145 of the Penal Code Act which penalizes unnatural offenses.

According to Section 145 (a) and (c) of the Penal Code Act, any person who has carnal knowledge of any person against the order of nature and any person who permits a male person to have carnal knowledge of him or her against the order of nature commits a crime and is liable to imprisonment for life.

Kiwanuka told the committee that the provision already criminalizes homosexuality as suggested in the new Bill.

“If clause 2 of the Bill is to stand, there may be a need to have a consequential amendment of the Penal Code Act. This is to bring clarity to the meaning of the phrase ‘against the order of nature’,” said the Attorney General.

He also pointed out Clause 3 (1) (b) of the Anti-Homosexuality Bill which proposes that a person commits the offense of aggravated homosexuality where an offender is a person living with HIV.

Kiwanuka said that this too, is addressed by Sections 41 and 43 of the HIV and AIDs Prevention and Control Act.

He also said that Clause 13 of the Bill gives a penalty of 10 years imprisonment to a person who contracts a marriage with a person of the same sex or conducts a marriage ceremony between persons of the same sex would be a duplication of the Marriage Act.

“The Marriage Act defines marriage and does not include same-sex marriage. In any case, the Constitution under Article 31(2) (a) prohibits same-sex marriages. It is important to avoid duplication,” Kiwanuka said.

James Owere, the Deputy Director of Public Prosecutions (DPP) emphasized the need to amend existing provisions in the law.

“The Penal Code Act is supposed to be the main penal law and if we legislate piecemeal, we would affect it. We recommend that we can overhaul existing laws to bring them in conformity with the current times,” he suggested.

In his Bill, Basalirwa emphasized the need to improve the Penal Code Act, which was enacted by British colonialists to prohibit recruitment, promotion, and funding of same-sex practices because the vice threatens the continuity of the family and the safety of children. This is the second attempt by Uganda to have stand-alone legislation against homosexuality.

In December 2013, Parliament passed the first Anti-Homosexuality Bill that was tabled by Ndorwa East MP, David Bahati and assented to by President Yoweri Museveni on February 24th February 2014. However, the Constitutional Court annulled the law on August 1st, 2014, on grounds that it had been passed without the requisite quorum.

In his address to Parliament on Thursday, President Yoweri Museveni reiterated his position against homosexuality, saying that the act is a deviation from normal.  He noted that sex in Uganda and maybe in other parts of Africa is confidential.