Wednesday, December 30, 2009

Debunking lies: Aggravated Homosexuality equals Aggravated Defilement

Woke up feeling good, with my lover in my hands. It is a wonderful thing, this thing we call love.
No, I don’t plan that this ecstasy is denied me. Not in any way. Not by the law, not by the constitution, not by anyone. I am a simple, normal human being, and love is my right. One of those simple human rights…!

Inalienable rights of human beings. Please laugh with me….

[Glare] You don’t?

But, to more serious stuff. From Dr Tamale, here is the relevant section of the Uganda Penal Code that has been refered to again and again in the making of the Bahati Bill. It is in connection with ‘aggravated homosexuality’- the one that leads to the death penalty.

I got it from Dr Tamale.

Here's Section 129(3) and (4) of the Penal Code in full:

Any person who performs a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.

The circumstances referred to in subsection (3) are as follows-
(a) where the person against whom the offence is committed is below the age of fourteen years;
(b) where the offender is infected with the Human Immunodeficiency Virus (HIV);
(c) Where the offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed;
(d) where the victim of the offence is a person with a disability; or,
(e) where the offender is a serial offender

And, in comparison to the Bahati, Anti-Homosexuality Bill of 2009, Here is the comparable quote. The text of the Bahati Bill is here.

3. Aggravated homosexuality.
(1) A person commits the offense of aggravated homosexuality where the
(a) person against whom the offence is committed is below the age of 18 years;
(b) offender is a person living with HIV;
(c) offender is a parent or guardian of the person against whom the offence is committed;
(d) offender is a person in authority over the person against whom the offence is committed;
(e) victim of the offence is a person with disability;
(f) offender is a serial offender, or
(g) offender applies, administers or causes to be used by any man or woman any drug, matter or thing with intent to stupefy overpower him or her so as to there by  enable any person to have unlawful carnal connection with any person of the same sex,
(2) A person who commits the offence of aggravated homosexuality shall be liable on conviction to suffer death.
(3) Where a person is charged with the offence under this section, that person shall undergo a medical examination to ascertain his or her HIV status.

Now, Hon. Bahati says that no, you have taken him out of context. That, he does not plan to kill gay people. He says that the section on aggravated homosexuality deals with only that sex with minors. And, that it is completely in accordance with the Penal Code. The existing law in Uganda.

I beg to differ.

I really beg to differ. It seems as if there are some superficial similarities. I am sure Bahati did read this part of the Penal Code as he was drafting the bill.

But, there are some major changes to what Bahati is suggesting, and Ssempa and other supporters of the bill are suggesting. They decided to 'improve' on this part of the penal code which very, very specifically deals with sex with minors.

Check out these things, which he must have considered. Remember, this is his document. (The text is here) These are his thoughts.

  • For aggravated defilement, the Penal Code specifically refers to minors, those under 18 for the aggravated defilement clause. It is very, very specific.

    The Bahati bill, for aggravated homosexuality, for which the penalty is death, expands from sex with a minor, to include consensual acts of sex amongst legal adults. Legal language is pretty specific. 

  • Check out the instances when adults having consensual gay sex would be liable to death, when you compare with the penal code.

    • When one of them is HIV positive

    • When one of them is disabled in any way.

    • When one has had a previous conviction for any homosexuality related offence. (as a ‘serial offender’, which again is well defined in the Bahati Bill.

    • When one of them is ‘parent’ or ‘guardian’

    • When  one is in ‘authority’ over the other.

In my view, and, I remind you, I am a Ugandan, this is not an issue with the language. With English. The Penal Code very, very specifically restricts the provisions for sex with a minor, defined in Uganda as one under 18 years. The Bahati Bill also clearly sidesteps and expands the issue ‘aggravated homosexuality’ to include consenting adults. No, it is no mistake. At least, I don’t believe it is.

There are other differences, which you may note. I have chosen to deal with this alone this time.


For now, I am not commenting about the fact that sex with minors is adequately catered for in this section of the penal code. I mean, the issue of equal protection of the ‘boy’ and ‘girl’ child. I have dealt with that elsewhere.

For now, I am debunking the ‘Aggravated defilement’ is Equal to ‘Aggravated Homosexuality’ lie. It is a lie.


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