The Implications of the Anti-Homosexuality Bill 2009 on Uganda’s Legal System

This paper analyses the contents of the Uganda’s Anti-Homosexuality Bill 2009 (AHB), traces its background and status as of the time of writing, analyses the legal issues that were likely to arise before it became law and the issues that did arise with the bill still in its pre-passed state and, finally, discusses some of the positive aspects of the bill. […]

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Then and now: limits to gender justice in Uganda

Ever since the inaugural celebrations of the International Women’s Day 110 years ago, humanity has been exhorted to challenge the status quo to actualise women’s empowerment and, ultimately, equitable benefit for all. Uganda too, in both its colonial and post-independence times, has not escaped this clarion call.

I argue that the pursuit of gender justice always intersects with the long arm of tradition, for better or for worse. Human agency enacted in the struggle for gender justice is hence often circumscribed, though not entirely determined, by institutional structure. In the latter, therefore, lie the real stakes for gender justice.

Social custom and the struggle for gender equality in colonial Uganda

Colonial Uganda offers us a myriad of cases showcasing how access to justice (or the lack thereof) is a profoundly gendered process. The ongoing doctoral research of Sauda Nabukenya—into litigation and the pursuit of justice in both Ganda native and British colonial courts in Uganda—recently unearthed an array of archival material from the basement of the historic Mengo Court. One case in particular stands out, namely Lukiko v. Simon Petero Wakiwugulu Kigozi. The stakes in this case made it travel from the Buganda native court at Mengo through the appellate British court of Judicial Advisor of Buganda to Her Majesty’s High Court of Uganda at Kampala.

In March 1941, Irene Drusilla Namaganda, widow of the King of Buganda, Kabaka Daudi Chwa, married Simon Peter Kigozi, a mukopi (Ganda commoner). Following their exchange of nuptial vows at St Luke’s Church of Kibuye, the couple proceeded to the Lubiri (the official residence estate of the Buganda king) for wedding celebrations. Thereafter, the couple moved to the Lusaka (the official palace of the Namasole, that is, Buganda Queen Mother) where they spent their first night as newly-weds. Soon after, Kigozi was sued by the Lukiko (Buganda legislative assembly) in the Principal Court of Buganda at Mengo and later convicted on two grounds of abomination, namely (i) marrying in the Lubiri and (ii) sleeping with the Namasole in the Lusaka, all supposedly in contravention of Ganda custom.

Plaintiffs from the Lukiko argued that the Lusaka belonged to the Kingdom. When the British colonial authorities, drawing on both the letter and spirit of the 1900 B(U)ganda Agreement, appeared to sympathise with the defendant, the Lukiko decided to prosecute Kigozi under a criminal rather than a civil suit. They particularly considered his sleeping with the Namasole in the Lusaka—however legally married to each other they might now be—to be “an unlawful use of the kingdom’s property” and a disturbance to the social peace of the kingdom. Kigozi’s acts were henceforth interpreted and prosecuted as a criminal offence against social order.

Deeply dissatisfied with the Mengo Court decision, Kigozi appealed to the British Judicial Advisor’s Court and later to Her Majesty’s High Court at Kampala. Kigozi’s appeal was lodged on the premise that no Buganda native court had any jurisdiction over the case given that his was a legal marriage under the British Protectorate law. In his series of appeals, Nabukenya tells us, Kigozi challenged the use of Ganda custom as the basis for convicting him criminally and decried his sentence as “repugnant to justice and morality”. The British judges nonetheless upheld the decision of the Ganda native court as Her Majesty’s Chief Justice ruled that native courts did have the power to define offences against social peace as they saw fit.

Customary practice and the fight for gender justice today

On 3 July 2020, His Lordship Justice Godfrey Namundi delivered a landmark ruling at the Family Division of the High Court of Uganda at Kampala. In a civil suit, the plaintiff (Herbert Kolya) sought (i) an order directing the defendant (Ekiriya Mawemuko Kolya) to provide an account of all the assets of the estate of the late Israel Kimomeko Kolya (who had died, testate, in 1997) and (ii) an order directing the defendant to distribute the property in the estate of her late husband in accordance with his will. The plaintiff was a paternal grandson of the late Israel Kikomeko Kolya and of his wife, the defendant.

In his will Israel Kikomeko Kolya bequeathed to the father of the plaintiff (the late Herbert Lukanga Kolya) his home at Kibuga, located in one of Kampala’s residential areas within the city centre, as well as other properties on the outskirts of the city. The plaintiff, being an administrator of the estate of the late Herbert Lukanga Kolya (the late Israel’s eldest son), claimed that on 5 April 2000 the defendant obtained letters of administration to the estate of the plaintiff’s grandfather from the Chief Magistrate’s Court of Mengo without annexing the will. Yet, the late Israel Kikomeko Kolya had made a will on 27 January 1997. The defendant filed a defence denying all allegations and averred that she was legally granted letters of administration of the estate of her late husband.

In his ruling, Justice Namundi specifically underscored that the land and home at Kibuga was a matrimonial property. Making reference to Articles 32 (1) (i.e. customs, cultures and traditions that are against the dignity, interests or welfare of women are prohibited) and 31 (1) (i.e. men and women are entitled to equal rights in marriage, during marriage and at its dissolution) of the Ugandan Constitution, Justice Namundi accordingly dismissed the plaintiff’s claim in the form it stood. In a society in which it has not been uncommon for matrimonial property to be held in the husband’s name and for the husband to bequeath it to the eldest son subject to the wife’s right to live there for life or until she remarries, this ruling appears revolutionary.

But progressive as Justice Namundi’s ruling looks to be, the enactment of gender justice here still relied on feedback from a gerontocratic customary practice: In an affidavit presented before court it was reported that upon the demise of both Israel Kikomeko Kolya and Herbert Lukanga Kolya, bereaved family members met as is customary of post-burial arrangements in Ganda society. A decision was reportedly made by older family members present in that meeting to dispense with the late Israel’s will, for the latter (in the wisdom of majority of older family members present) was defective. It was on the basis of that family decision that the Chief Magistrate Court of Mengo granted letters of administration of the estate of the late Israel Kikomeko to his widowed wife (the defendant) without annexing the will.

The judgement from the Family Division in the High Court of Uganda at Kampala (which heard the appeal) essentially rubber-stamped the decision of the Chief Magistrate Court made back in April 2000. The will in question was in itself an ostensibly patriarchal-conservative writ. Yet, the Court eventually stood with the defendant only through a recourse to another piece of evidence stemming from a gerontocratic customary practice. Differently put, on her very own, the defendant’s claims could not stand the test for gender justice.

The making or breaking power of tradition

Placing these two lawsuits on a historical continuum of struggle for gender justice shows how social custom in the 1940s was summoned to deny the widowed woman the right to take her newlywed husband ‘home’, whereas in the 2000s, thanks to a gerontocratic customary practice, the older woman’s rights as a widow overrode the patriarch’s will to bequeath the ‘matrimonial property’ to his grandson. That an older widowed woman is rendered justice in a lawsuit comprising a young man as plaintiff, and that a newlywed man was denied justice in a case involving a young widowed woman ensnared in patriarchal power also speaks volumes about the intersectionality deeply enmeshed in the struggle for gender justice.

Age, class, marital status, health status, legal status or pedigree, among other identity markers, can amplify gendered harms and further frustrate the pursuit of gender justice. To truly reckon with tradition as a force for gender justice would mean ensuring that justice for individual women is not the product of a gerontocratic system that is somehow viewed as ‘natural’ despite the fact that, in many regards, it disempowers women. It would also mean that peace among men is not pursued through resort to an entrenched regime of violence against women. Only then shall we contemplate the real dividends of gender equality.

The struggle for gender justice in Uganda

There are different critical junctures in Uganda’s history from which debates on gender justice, equality and women’s rights can be traced. One of these significant moments is the “guerrilla bush war” led by Yoweri Museveni between 1981-85. Many women participated in this war on different fronts which ultimately brought about a new regime in 1986.

Inspired by women’s participation in the liberation war and international norms towards women’s rights, the post-war programming introduced practical steps towards promoting gender equality. These included creating “mandatory seats for women in all levels of the grassroots people’s resistance councils and the National Legislative Council (NRC) – the interim national legislature” in 1989, creating a ministry responsible for women’s affairs among other pro-women rights initiative. Feminist scholars argue that “women [often gain] greater visibility during and after war because institutional changes open up opportunities for them to demand women’s rights’ and representation in the context of peace talks, constitutional changes, truth and reconciliation processes and electoral reforms, …”

Institutional changes open up opportunities … to demand women’s rights’ and representation in the context of peace talks, constitutional changes, truth and reconciliation processes and electoral reforms,”

Post-war recovery ushered in a new political dispensation and opened avenues for gender equity reforms e.g. constitutional reforms of 1989-1995 in which women activists and women’s rights organisations (WROs) participated in, a new gender sensitive constitution, resurgence of autonomous WROs. The 1995 constitution particularly named women as citizens of an equal worth with men. The constitution committed the state to protect women and their rights, provided affirmative action measures in favour groups marginalised on the basis of gender, age, disability, and prohibited laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status.

Covert resistance to implementing gender equality

While, these permissive moments created a greater momentum and a sense of optimism in promotion of gender justice, equality and women’s rights, the institutionalisation of gender equality generated diverse forms of resistance especially as WROs moved to translate constitutional promises into reality.

Three years after a gender sensitive constitution came into effect; the WROs registered a loss in pursuit of what came to be known as the Spousal Co-ownership “lost clause” within the 1998 Land Act. Miriam Matembe a women’s rights activist and legislator, who spearheaded mobilisation for the reform calling for wives to co-own property with their husbands – described the loss as “a moment of truth”. This is because women’s lobby realised that the great optimism derived from the formal constitution was not enough to deliver such a far-reaching gender equity change as women co-owning land with their spouses in a marriage arrangement. The experience revealed a systematic bureaucratic resistance to the translation of the constitutional provisions on women’s rights into action.

These covert forms of state resistance influenced future WROs ways of mobilising for gender change. Ten years after the lost clause, WROs drew on formal and informal networks, formed coalitions with government departments, male legislators, religious leaders and traditional leaders to promote a law on domestic violence out of the long-resisted Domestic Relations bill. Drawing on the experiences of backlash from the past, WROs mapped existing forms of resistance to gender equality and negotiated directly with key actors to enable passage of reforms.

We are looking to understand which WROs strategic manoeuvres led to the framing and passage of Domestic Violence Bill (2009) along with the prohibition of Female Genital Mutilation in 2009. We are also focusing on a class-related policy – Uganda Women Entrepreneurship Programme (UWEP) – government – top-down programme. UWEP was introduced in 2015 under the Ministry of Gender, Labour and Social Development to strengthen the capacity of Women entrepreneurs, provide affordable credit to women groups for enterprise development and spur local economic development.

Contemporary backlashes

A closer analysis of these cases reveals differences in interests and ideas that motivated these policy reforms, as well as varying forms of backlash against them. Notably, strategic negotiations in framing, debates, passage and implementation of gender equality and women’s rights reforms are not without effect. Certain compromises in law reform processes are seen to water down some of the feminist provisions, as actors struggle to make laws “acceptable” to opposition e.g. men, powerful political elites, traditional and religious leaders. A case in point is the fact that the Domestic Violence bill was stripped of provisions on marital rape. There are cases of active stalling of gender reforms, with some reform programmes featuring as government’s unfunded priorities.

In communities where reforms impact on men and women’s everyday lives, there are social tensions emerging from disrupted gender division of labour e.g. in cases where women entrepreneur groups are seen as a threat to men’s social and economic power in households. Other backlashes manifest in form of what Sylvia Tamale has characterised as the conceptual dilemma in feminist conversations that constructs ‘rights’ and ‘culture’ as opposed to each other.

Tamale argues, “[m]ainstream feminists often present the two concepts of “culture” and “rights” as distinct, invariably opposed and antagonistic. Citing the passage of the FGM law, Tamale argues that when government attempted to outlaw the practice, omitting possibilities to harness positive cultural attributes, it created a severe backlash by pushing it underground with vigilante groups consisting of youthful males hunting down “defectors” and forcibly subjecting them to the knife.

These backlashes (and perhaps many other forms) are often exacerbated by neoliberal and neo-conservative politics with a strong emphasis on individual rights, and privileging economic gains, which, in some cases influences the nature of WROs. Some WROs are motivated by personal economic gains rather than transforming societies experiencing gender inequalities. Coupled with increasing government tight control of nongovernmental organisations work, these global and national contexts continue to depoliticise the women’s movement. We are here to reclaim gender justice.