Uganda's Anti-Homosexuality Bill: Is the death penalty off the table or not?

Earlier today, I received a report from a source in Uganda which appears to be the report from the Legal and Parliamentary Affairs committee on the AHB. I did not write about it because I could not confirm that the report was indeed a final report from that committee. Given the time in Kampala, I won’t be able to confirm it until tomorrow. However, if the report is the committee’s final report then the death penalty may not be off the table. Let me add that the report looks like other committee reports I have seen and matches up with what I have heard it contains with the exception of the claims about the death penalty.

For now, I am going to focus on section three of the report which is where the death penalty can be found. Here is section 3 from the bill:

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.

Note especially #2 above and then read the recommendation for section three in the committee report:

1.   Clause 3 (2) is amended by substituting for the words “…suffer death’’ with words “…the penalty provided for aggravated defilement under Section 129 of the Penal Code Act”.

The justification for this change is given as follows:

Justification

To harmonise the provision with the penalty under the Penal Code Act

Now at issue is “the penalty provided for aggravated defilement under Section 129 of the Penal Code Act.” What is it? Here is Section 129 of the Penal Code Act. Read this and find the penalty:

Defilement of persons under eighteen years of age

129. (1) Any person who performs a sexual act with another person who is below the age of eighteen years, commits a felony known as defilement and is on conviction liable to life imprisonment.

(2) Any person who attempts to perform a sexual act with another person who is below the age of eighteen years commits an offence and is on conviction, liable to imprisonment not exceeding eighteen years.

(3) Any person who attempts to perform 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.

(4) 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 to his or her knowledge, is infected with Human Immunodeficiency Virus (HIV), Acquired Immune Deficiency Syndrome(AIDS);

(c) where the offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed; or

(d) where the offender is a serial offender.

(5) Any person who attempts to perform a sexual act with another person below the age of eighteen years in any of the circumstances specified in subsection (4), commits an offence and is liable on conviction, to imprisonment for life.

(6) In this section unless the context otherwise requires—

“serial offender” means a person who has a previous conviction for the offence of defilement or aggravated defilement;

“sexual act” means penetration of the vagina, mouth, or anus, however slight, of any person by a sexual organ or the use of any object or organ by a person on another person’s sexual organ

“sexual organ” includes a vagina or penis.

Note that the penalty for “aggravated defilement” (underlined in bold above) is death. Now note that the AHB only refers to the penalty for aggravated defilement and not any of the offenses. The recommendation does not seem to be a substitution of defilement laws (which by the way covers both boys and girls), but rather is simply another way of wording the death penalty.

Those who are saying the death penalty has been removed have some explaining to do. No one should accept those claims after reviewing this report.

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