When the old fox walks the tightrope

Despite a petition from a group of activists and legal experts, Uganda’s Constitutional Court recently made the decision to uphold the Anti-Homosexuality Act, one of the most oppressive anti-LGBTQ+ laws in the world. A few parts of the Act were struck out, including the “duty to report acts of homosexuality”, and the restrictions on publishing “material promoting or encouraging homosexuality”, but the rest remains strong. In our summer 2023 magazine, just as the Act was passing, Danson Kahyana and Stella Nyanzi discussed the implications for free speech, and what the petition from activists would mean for President Yoweri Museveni’s balancing act where this law was concerned.

To a chorus of outrage at the end of May 2023, Uganda’s President Yoweri Museveni signed the Anti-Homosexual Bill into law, which can apply the death penalty.

When Museveni returned the bill to parliament for “strengthening” soon after it had been passed in March, it was clear that the old fox who has ruled Uganda since 1986 with an iron hand and “pretensions to the trapping of democracy” – as political scientist Aili Mari Tripp calls it – was in a fix.

On the one hand, his populist self loves the passion that the framing of homosexuality as a Western import and a corrupter of African morality arouses, so signing the bill into law gives him a new lease of political life.

Styling himself as the champion of African values, Museveni believes norms and morals can easily translate into political support at the next presidential and parliamentary elections in 2026, given the influential groups in support of the bill (the Muslim fraternity, some Christian denominations and traditionalists). This support is priceless, considering the populace’s increasing anger at his regime, which has received unflattering labels including an “empty autocracy” (Yusuf Serunkuma) and “vampire state” (Allan Tacca).

On the other hand, the regime survives partly (if not mostly) because of the economic and political support it receives from Western governments such as those in the USA, Canada and some in the European Union.

These “partners” have, over the decades, closed one eye to his political excesses (rigging elections and brutalising members of opposition political parties, for example) and bankrolled him in different ways – the most obvious ones being budget support and providing large sums of money to enable Uganda’s participation in continental and regional missions. Signing the bill into law could spell doom for his hold on power, since these Western governments have warned of political and economic consequences, which the USA has already made good on by revoking the visa of Anita Among, Uganda’s speaker of parliament.

This is the tightrope he had to walk – but not for the first time. He did the same in 2014 when he signed the 2013 Anti-Homosexuality Bill into law. That time, what saved him from serious reprisals from the West was the Uganda Constitutional Court which, later that year, quashed the law on technical grounds. (It had been passed in parliament without the required quorum, thereby rendering it null and void). His saving grace now could be a petition from 11 activists, including lecturers, journalists and an MP, to block the implementation of the law.

Before May’s developments, I asked Dr Stella Nyanzi, Uganda’s leading and celebrated researcher on sexualities, what was new with this 2023 bill compared with the bill of 2013, and she said that as far as she was concerned there was nothing substantially new.

Both bills were enacted in the spirit of criminalising sexualities that were considered alien and wayward in order to protect so-called African values – a claim that is absurd given that it is colonial in origin.

“Before colonialism,” Nyanzi told Index, “Africa embraced different sexualities like polygyny, polygamy and polyandry, to mention but a few. The view that Africa has always had one form of sexuality is ahistorical and a figment of the imagination.”

There is something new, however.

“While the 2013 Anti-Homosexuality Bill was proposed by a Pentecostal Christian with very strong support from the US Evangelical churches, this time round the proposer of the bill is a Muslim man, with a strong backing of the Islamic faith in Uganda,” she said. “He is a Member of Parliament who belongs to an opposition political party, unlike the proposer of the 2013 bill who belonged (and still belongs) to the ruling party.”

Besides the pretensions to African morality that motivated this act, there is a more serious threat at stake – the government’s desire to have total control over the bodies of its citizens.

Nyanzi said: “For this reason, the bill should be seen in the context of other repressive laws that the Museveni regime has passed – for instance, the Public Order Management Act (2013), the Computer Misuse Act (2011), the Anti-Pornography Act (2014), the Non-Governmental Organisations Act (2016) and the Computer Misuse (Amendment) Act (2022), among others.

“The Anti-Homosexuality Bill should be seen in the spirit of all the above laws – criminalising dissent, even in sexual matters.”

Even before it was signed into law, the bill sent tremors through Uganda.

Some people fled the country, as evidenced by what is happening at welcome centres in Kenya and South Africa, to mention just two countries.
“[It] will have far-reaching effects,” Nyanzi warned.

“It will be criminal, for instance, to offer certain kinds of sex education, provide certain kinds of medical services, report certain kinds of news, write certain kinds of scholarly work or works of fiction, produce certain kinds of movies, make certain kinds of speeches, and to rent your premises to – or even employ – certain kinds of people, because you could be accused of promoting homosexuality, and therefore contravening Section 14 of the bill.”

This means that the law will not only stifle the lives and work of the people who identify as homosexual but also affect the lives and work of all Ugandans.

Even the very people who pushed for the legislation will not be safe. A religious leader could, for instance, be dragged to court for having someone who identifies as homosexual enter his or her church or mosque for prayers or for a service.

After the bill passed in parliament, Museveni found himself in a dilemma. If he did not sign it into law he would have risked alienating the pretentious, self-righteous, politically powerful Christian, Muslim and other morality crusaders who were pushing for the legislation.

And by passing it, he could at last be losing the support of his beloved Western partners who have stuck with him even as he brutalised Ugandans who do not toe his line.

And in the time before the bill became law, he might have been facing another challenge in the background.

“The people at the helm of Uganda’s parliament – [speaker] Anita Annet Among and her deputy, Thomas Tayeebwa – might want to assert their independence from the executive arm of government in a move aimed to show how powerful they are. So, while President Museveni is known to control what happens in parliament because his party has an overwhelming majority there, this time round he might find it hard to have his way to the letter.”

But this being the skilled manipulator that he is, I believe that we should not underestimate him: he could still have his cake and eat it.

How? He signed it into law and waited for others to petition the Constitutional Court, as has been done by the group of 11 activists, so that the judiciary pronounces itself on the constitutionality of the new law. If the court upholds it, he will say he has nothing to do because his regime is law-abiding.

However, if the court annuls it in its entirety (as it did in 2014) or some sections of it, the West will be satisfied, to a certain degree, that Uganda’s courts have a modicum of independence.

Museveni will be in his usual element. He will have survived yet another dilemma.