by Stephen Lewis, Co-Director of AIDS-Free World
Tuesday, November 24, 2009
Port of Spain, Trinidad and Tobago
This is a moment of truth for the Commonwealth. The anti-homosexuality Private Member’s Bill
introduced into the parliament of Uganda, and now proceeding through the normal legislative
process, puts the Commonwealth’s legitimacy and integrity to the test.
In a fashion unmistakable in both clarity and intent, the putative legislation declares war on
homosexuality. There are deeply offensive sodomy laws and homophobic statutes on the books
of many other Commonwealth countries, particularly here in the Caribbean. But nothing is as
stark, punitive and redolent of hate as the Bill in Uganda; nothing comes close to such an
omnibus violation of the human rights of sexual minorities. For some time now, Uganda has had
offensive anti-homosexual legislation on the books, but this variant, this inflammatory redesign
makes of the law a veritable charter of malice.
What is truly staggering about all of this is that not a peep of skepticism or incredulity has come
from President Museveni. And President Museveni is chairing the Commonwealth Heads of
Government summit. In so doing, he makes a mockery of Commonwealth principles.
One must remember that the last meeting of CHOGM was held in Uganda in 2007, and issued
what is called the “Munyonyo Statement of Respect and Understanding”. It asserted that the
Commonwealth “is a body well-placed to affirm the fundamental truth that diversity is one of
humanity’s greatest strengths”. It went on to say that “accepting diversity, respecting the dignity
of all human beings, and understanding the richness of our multiple identities have always been
fundamental to the Commonwealth’s principles and approach …”. President Museveni signed
the document. How in the world does he reconcile the affirmation then with the defamation now?
It is noteworthy that much of the strongest opposition to the Bill is coming from the courageous
Lesbian, Gay, Bisexual, and Transgender activists on the ground. LGBT activism always
commands admiration, but in this instance especially so, because their very lives hang in the
The proposed legislation actually mandates the death penalty for any HIV positive gay man who
has sex with another man or any HIV-positive lesbian who has sex with another woman. But
because it’s often hard to believe the sheer malignancy of language, let me quote directly from
the Bill itself. Section 2 of the Bill is titled, “The offence of homosexuality”.
It reads as follows:
Clause “(1) A person commits the offence of homosexuality if — (a) he penetrates the anus or
mouth of another person of the same sex with his penis or any other sexual contraption; (b) he or
she uses any object or sexual contraption to penetrate or stimulate the sexual organ of a person of the same sex; (c) he or she touches another person with the intention of committing the act of
Clause “(2) A person who commits an offence under this section shall be liable on conviction to
imprisonment for life”.
Where does the death penalty enter this twisted world of sexual paranoia? Let me quote the
applicable section and sub-section. Section 3 of the Bill is titled, “Aggravated homosexuality”.
It reads in part: “A person commits the offence of aggravated homosexuality where the …
offender is a person living with HIV”. “A person who commits the offence of aggravated
homosexuality shall be liable on conviction to suffer death”. And just in case there’s any
conjecture, we have this finale: “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”.
From whence do such sentiments arise? What dark corner of the soul is at work? The entire bill
In fact, the legislation has a powerfully Orwellian flavor. Section 14 has the title “Failure to
disclose the offence”. It requires everyone in the entire society to report on any evidence of
homosexuality and to do so within twenty-four hours. If it weren’t so extreme, so menacing, so
lunatic, it would be the stuff of theatrical parody. Parents, teachers, doctors, entrepreneurs,
preachers, landlords, community health workers, members of the media, civil society activists,
anyone who can identify a homosexual, gay or lesbian, or has reason to believe that
homosexuality is lurking, must report to the authorities or face a fine, or jail term of three to ten
years, or both. Can you imagine a father or a mother turning in a son or daughter? Can you
imagine a teacher ratting on a student? Can you imagine a physician who’s taken a Hippocratic
oath to tend to the sick betraying that trust because of a patient’s sexual orientation? But that’s
exactly what this law requires.
I’ve truly never seen its like before. Please forgive the harsh language, but this intended antihomosexual
statute has the taste of fascism.
And yet, that’s only the half of it. What is put at terrible risk here — beyond the threat of the
death penalty for HIV-positive homosexuals — is the entire apparatus of AIDS treatment,
prevention and care.
It’s profoundly ironic that the country that’s seen as emblematic of success in fighting the
pandemic is now contemplating such a decisive step backwards. The effect of this legislation
will inevitably be to demonize homosexuality even further, to intensify stigma, to drive gay men
and women underground, to terrify them in their everyday lives, to diminish dramatically the
prospect of counseling and testing to establish HIV status, to make it virtually impossible to
reach homosexuals with the knowledge and education and condoms that prevent the spread of
It’s equally ironic that this retreat into the dark ages of the virus comes at precisely the moment
when the world understands the overwhelming importance of dealing with high risk groups, be
they sex workers, or injecting drug users or men who have sex with men. Indeed, in Uganda
itself, as recently as last year, the Uganda AIDS Commission, in conjunction with UNAIDS,
called for a review of legal obstacles to the inclusion of most-at-risk populations, including
MSM, in the response to the pandemic. That review built logically on the introduction, by the Ministry of Health in 2008, of the “Most At Risk Populations’ Initiative” (MARPI) formulated to target specific groups, including homosexuals.
The new legislation thus eviscerates existing public policy. Is no one in the political apparatus of
Uganda alert to the destructiveness of it all? I am reminded of the remarkably sensible words of
Michael Kirby, former justice of the High Court of Australia: “… the fact remains that the
current approaches, particularly in Commonwealth countries in Africa, Asia and the Caribbean,
place an impediment in the way of tackling this major epidemic. Criminalize people and you
cannot reach out to their minds and effectively influence their conduct … that message is now
one of great importance for the Commonwealth of Nations where AIDS is definitely a priority
Indeed, there’s a very real crisis of conscience in the offing. Both the Presidential HIV/AIDS
Initiative in the United States — PEPFAR as it’s known — and the Global Fund to Fight AIDS,
Tuberculosis and Malaria, have invested huge sums in Uganda to subdue the pandemic. Last year
from PEPFAR alone, the amount was $283 million, and the Global Fund has a five-year
commitment of another $250 million. But both those organizations premise their support in part
on dealing with high-risk groups. What are they to do? This is no trifling matter. Members of
Congress have already written to the Secretary of State raising the dilemma of having PEPFAR’s
work on the ground in Uganda so dramatically compromised. More, under the recent revisions to
PEPFAR, the United States must now negotiate “Partnership Framework Agreements” with
recipient countries, and part of the agreement hinges on addressing target groups, including men
who have sex with men. How in the world is that to be negotiated in the face of the antihomosexuality
Moreover, under President Obama, American policy is clearly shifting. This is a very good thing.
Under the previous administration, the United States, through PEPFAR, forced countries like
Uganda into compliance with awful policies involving, for example, sex workers and
abstinence…; the United States used money, and withheld money, to serve a right-wing agenda.
In a sense, Obama is now involved in an act of redemption.
Just last March, the US administration declared its support for a UN declaration on sexual
orientation and gender identity. The declaration is strong: it calls on all countries to
decriminalize consensual homosexual conduct, and it condemns violence, discrimination,
exclusion and stigmatization based on sexual orientation and gender identity. It also condemns
killings and executions, arbitrary arrest and deprivation of economic, social and cultural rights on
those same grounds. The declaration is seen as a great victory for LGBT human rights. It has the
support of 67 member states. I note, with consternation, that Mauritius is the only African
Commonwealth country to have signed, and I note, with profound dismay, that not a single
Commonwealth country in the Caribbean has signaled support.
President Obama, on the other hand, is firmly on record for the protection of gay and lesbian
rights, and Hilary Clinton has said “…human rights is and always will be one of the pillars of our
foreign policy. In particular, persecution and discrimination against gays and lesbians is
something we take very seriously”. Dr. Eric Goosby, who heads PEPFAR, is even more firmly
on the record: “I look forward to working with field and headquarters staff, Congress and others
in the Administration to ensure that PEPFAR effectively targets the most-at-risk and vulnerable
populations — including LGBT populations — with culturally appropriate prevention, care and
The Government of Uganda and PEPFAR are on a collision course. President Museveni had best
wake up and smell the dollars.
I would never wish to counsel financial penalties, but it’s a real conundrum. Worse, the
employees of the non-governmental community-based organizations that receive the money
would be subject to risk of imprisonment if they continued to work with homosexuals. I was
struck by a letter written to the American Ambassador in Uganda, from a group of Foundations
that do HIV/AIDS programming in the country, asking him to “take appropriately stern action to
oppose the bill …” They were agitated and vehement in their condemnation of the Bill, noting
that it put their local and international employees and consultants at risk of criminal charges.
They felt, in fact, that the Bill has already applied a chill to human rights and civil liberties in
Uganda and is an unrelievedly nasty piece of work. They observed, somewhat sardonically, that
the Ambassador has diplomatic immunity, but their collective staff in the projects they funded
have no such protection.
And the complications abound.
The new Executive Director of UNAIDS (and ironically, a former UNICEF Representative in
Uganda who knows Museveni well) has staked a good part of his growing reputation on
deploring homophobic legislation, valiantly fighting for the human rights of the gay community
and speaking unequivocally about his revulsion at punitive anti-homosexual behavior. As a
matter of fact, Michel Sidibe is on record in a way that speaks directly to the import of the
Ugandan Bill. He is reliably reported to have said (and it certainly rings true): “It pains me that
80 countries have laws which criminalize same-sex sex, and it outrages me that seven countries
can invoke the death sentence for homosexual practice”.
Well, now it verges on eight countries, and the death sentence is directly linked with HIV positive
gay men. So what, I ask, does Michel Sidibe do now? Does he communicate that
outrage directly and publically to President Museveni? Does he enlist the intervention of the UN
Secretary-General? Does he write to the Secretary-General of the Commonwealth and ask that
Uganda be suspended in the event that the legislation passes in its present form? What counsel
does he give to the Global Fund and PEPFAR? These are not idle questions: the Executive
Director of UNAIDS is an influential figure who cannot allow his outrage to be but sound and
fury ending in capitulation.
Furthermore, what’s going on with the legislation is not simply confined to the egregious
sections that I’ve quoted. There are several additional odious sections; the erosion of human
rights has few limits. One other clause of the Bill purports to extend the arm of the state into the
bedrooms of the world. Using what is called “extraterritoriality”, the legislation decrees that any
Ugandan engaging in homosexual acts outside of Uganda is equally culpable, and will be
arrested and charged accordingly. Thus, homosexuality joins terrorism and treason in the
pantheon of extraterritorial jurisdiction to be exercised by Uganda. How this would be enforced
is not immediately apparent, and of course the clause is ridiculous, but the ridiculous has a habit
of becoming national jurisprudence if it’s driven by hatred.
The evidence of just how foolhardy and crazed the legislation is, lies in its most extreme feature:
the Bill asserts that where any of its provisions is in conflict with any international human rights
instrument that Uganda has ratified, the content of the Bill will prevail over international law.
This is palpable nonsense, and simply not possible. But it is a fascinating glimpse into the
twisted cerebral calculus that fashioned the legislation.
Naturally, the protagonists of the legislation are mounting arguments in its defense. The
arguments are unsustainable.
We are reminded that this is a Private Member’s Bill, and the Government is simply following
legislative practice in allowing it to be debated. That’s just a clever ruse. I sat in a
Commonwealth parliament for more than fifteen years, and where a Private Member’s Bill
threatens to dominate public debate and the parliamentary session, the government always makes
clear where it stands. In this instance, the defenders point out that President Museveni has not yet
spoken. He has found time, since the Bill was tabled on October 14th last, to make some
disparaging remarks about homosexuals at a recent youth event in Kampala, but it’s true that he
hasn’t yet definitively pronounced on the Bill itself. But ominously, one of his senior cabinet
ministers has: Mr. James Nsaba Buturo, Minister of Ethics and Integrity heralded the legislation
with apparent enthusiasm. InterPress News quotes him as saying “It is with joy we see that
everyone is interested in what Uganda is doing, and it is an opportunity for Uganda to provide
leadership where it matters most. So we are here to see a piece of legislation that will not only
define what the country stands for, but actually provide leadership around the world.”
He could better be called the Minister of Fear and Loathing.
I know that the views I am expressing on behalf of the organization I represent, AIDS-Free
World, will seem tough and harsh to some. But let me tell you what we feel.
We don’t think that this piece of legislation deserves a careful parsing of its clauses, invoking all
of the international human rights instruments that Uganda has endorsed, from the Universal
Declaration of Human Rights to the Covenant on Civil and Political Rights, attempting to show
where the Bill is in conflict with human rights principles. That just gives far too much credibility
to the proposed legislation. On its face, without more than a simple glance at the substance, the
Bill is revealed as an unbridled attack on the human rights of sexual minorities. There is no
overall clause worthy of retention. There are phrases here or there (like the prohibition of sex
with a minor) that any sentient human being can agree with. But the Bill cannot possibly be
salvaged. It must be expunged in total from the parliamentary record. And for those who believe
in conspiracy theories, let me say that the fundamentalist hand of the religious right in the United
States is not difficult to discern.
Nor do we think that we need treat this issue with respect. We don’t believe that we have to
‘respectfully submit’ our arguments to anyone, or seek to ‘respectfully influence’ the powersthat-
be. There are some moments in life where defining issues are indelibly joined. I remember
sitting behind my then Canadian Prime Minister, Brian Mulroney, at the Commonwealth meeting
in Vancouver in 1987. The issue was apartheid. The contest was between Margaret Thatcher and
Mulroney, and Mulroney let her have it. There was no respectful pretense. He didn’t parse the
pass laws, he didn’t invoke the clauses of international covenants, he just lacerated Prime
Minister Thatcher for defending apartheid, and he decried it for what it was: a totalitarian regime
rooted in racism and the savage decimation of human rights. It’s worth noting that he was joined
by Sir Shridath Ramphal, then the Secretary-General of the Commonwealth, who was slightly
more restrained but unmistakable of tone and purpose. That was a time when the Commonwealth
stood for something.
The analogy with apartheid is not a stretch. In 1998, the Constitutional Court of South Africa
ruled on a case involving the National Coalition for Gay and Lesbian Equality. The court held
that “the constitutional protection of dignity requires us to acknowledge the value and worth of
all individuals as members of our society.” The court then concluded with the words, “Just as
apartheid legislation rendered the lives of couples of different racial groups perpetually at risk,
the sodomy offence builds insecurity and vulnerability into the daily lives of gay men. There can
be no doubt that the existence of a law which punishes a form of sexual expression for gay men
degrades and devalues gay men in our broader society. As such it is a palpable invasion of their
dignity and a breach of the Constitution.”
It’s no accident that the recent judgment of the High Court of Delhi in India in July of this year
similarly struck down a provision of the Indian Penal Code that criminalized consensual same
sex conduct, finding that it was a violation of the right to live in privacy and dignity, which
privacy and dignity were constitutionally protected.
In other words, on every conceivable front the anti-homosexuality legislation has not a statutory
leg to stand on.
Yet President Museveni is permitting it to proceed. And at the meeting of Heads of the
Commonwealth, he will, sadly enough, find a throaty gaggle of like-minded colleagues.
It would not surprise us if the Prime Minister of Jamaica were particularly thrilled. Jamaica is, as
everyone knows, a hot-bed of homophobia, more pronounced than anywhere else in the
Caribbean. And while Jamaica would never introduce a bill akin to that of Uganda, the political
leadership in general, and the Prime Minister in particular are willing to sustain a rabidly hostile
environment for all lesbian, gay, bisexual and transgendered people. I visited Jamaica not so long
ago for the precise purpose of examining the relationship between the criminalization of
homosexuality on the one hand and HIV/AIDS on the other. The connection is indisputable. I
met with several of the sexual minority groups, and the stories of hatred and beatings and
harassment and prejudice make the blood run cold.
And so the situation becomes a breeding ground for AIDS. Let it be understood: it’s not
homosexuality that spreads AIDS; it’s the culture that brutalizes gay men and forces them
underground that spreads AIDS. The prevalence rate in the general population of Jamaica is
barely 1.5%. The prevalence rate amongst the community of MSM is over 31%. The HIVpositive
gay men become what UNAIDS calls the classic bridging population … to show that
they’re ‘real’ men and protect themselves from the wrath of society, they marry or take women
as lovers so that their acquired heterosexuality is firmly on display. And then the women get
infected. The cloistered gay sexual behavior, driven by fear and the sodomy laws, keeps them
away from testing and health care and education that would diminish HIV infection. It’s a crazy
equation. But the Prime Minister of Jamaica pays no heed. One can almost imagine President
Museveni and Prime Minister Golding cozying up together around the Commonwealth table as
they share dismissive laughter about the woes of the gay community, while simultaneously
signing the latest Commonwealth declaration on universal human rights.
The trouble is: it’s no laughing matter. Of the 53 countries in the Commonwealth, 40 have
sodomy laws. A majority of states in the Commonwealth Caribbean have a sodomy law: it’s a
sure recipe for the gradual, ineluctable spread of the virus. In a recent report on AIDS, UNAIDS
points out that whereas “ … HIV prevalence is less than 1% among the general population of most countries in the region, it may be between 5 and 20 times higher among men who have sex
with men.” In its Epidemic Update for 2009, issued just today, UNAIDS re-emphasizes the
alarming rates of transmission amongst the MSM populations in the Caribbean. By way of direct
comparison with the Caribbean, every single country in Latin America has removed punitive
legislation directed at homosexuals, making the prevention and treatment of AIDS vastly more
Africa is another throw-back. We’ve finally reached the point where the epidemiologists are
chronicling the spread of AIDS within the homosexual population of the continent. Until now,
the subject was taboo … the possibility of gayness was rejected out of hand. But UNAIDS
provides this disturbing quote: “A recent literature review of HIV infection among men who
have sex with men in Africa identified 19 surveys published through May 2009 from 13
countries, in addition to several unpublished works, highlighting the expansion of available data.
For each country, the HIV prevalence among men who have sex with men was higher than
among the adult male population.” In today’s newly-released Epidemic Update for 2009 to
which I’ve referred, UNAIDS, for the first time ever, devotes a lengthy section to the increasing
evidence of elevated transmission of the virus amongst the MSM population.
In this context, it’s positively criminal to table a parliamentary bill like that of Uganda. It’s one
thing to talk about the promotion of the ‘traditional family’ as the author of the Bill does ad
nauseam; it’s quite another thing to incite the promotion of disease and murder. Gays and
lesbians don’t challenge traditional families; their private sexual practices don’t invade the
sanctity of family life. The accusation is a vile canard. People who plead the supremacy of
family values over other human values have one of two motives: either they’re biblical
fundamentalists whose religiosity has gone haywire, or they’re so steeped in irrational fear of
different sexual orientation that human rights have no meaning.
Ultimately, the Commonwealth has a severe crisis on its hands. It may seem a fortuitous
distraction to focus on the financial downturn and climate change. To be sure, they’re both
important. But roiling just beneath the surface of calm deliberation is this immense civil
libertarian struggle. We know we’ll win the struggle. It’s just a matter of time. It always is. But
in the process, intense pain will be felt, lives will be ruined, people will die. That’s what is too
much to bear. A terrible price is always paid on the incremental road to social justice … in this
case, an entire community held to the ransom of predatory fear.
President Museveni is no fool. He’ll figure a way out before fatal damage is done to his
reputation. But if we want that to come sooner than later, the Commonwealth must put Uganda’s
anti-homosexuality law on its agenda. Someone has to raise it; perhaps Prime Minister Gordon
Brown. It should be collectively agreed that if the law passes, Uganda will be suspended from
the Commonwealth. The credibility of the Commonwealth is hanging by a spider’s thread. The
member states take it less and less seriously. Climate change will be resolved at Copenhagen
next month or Bonn or Mexico City in 2010; nothing will be resolved here at Port of Spain. The
financial crisis will be dealt with by the G8 and G20 in Canada in 2010; nothing will be resolved
here at Port of Spain. If the once-upon-a-time civilized values of the post-colonial
Commonwealth are to be restored, then the monstrous war on homosexuality is the place to start
Uganda makes a perfect beginning.