COVID-19 Emergency Powers as a Weapon for Targeting LGBTIQ People in Uganda?
Keywords: African Law and Society; Gender and Sexuality; Discrimination; Human Rights; International Human Rights; Equality; Sexual Orientation
Uganda, like many other African countries, remains a heteronormative society with deeply rooted hostility towards its LGBTIQ community. The LGBTIQ community has long faced discrimination in Uganda, where consensual same-sex conduct is criminalized and the arbitrary arrest and targeting of sexual minorities is a frequent occurrence. In response to the unprecedented public health challenge posed by COVID-19, the government imposed restrictive measures to curb the spread of the virus, including stay-at-home orders and a ban on public gatherings. On March 21, 2020, President Museveni issued a detailed directive on preventative measures to address the COVID-19 virus.
While these new emergency powers are framed as a response to the pandemic, they have also been wielded by law enforcement to excessively target sexual minorities because of their real or perceived sexual orientation and gender identity. Under the thinly veiled guise of enforcing the presidential directive—and in violation of the constitutional prohibition on arbitrary detention—the Ugandan authorities raided a known LGBTIQ shelter and arrested twenty-three men on spurious charges of breaching the coronavirus restrictions. Though everyone bears the immediate impact of this unprecedented health crisis, this impact runs far deeper with sexual minorities, with some conservative African political and religious leaders using the pandemic as an opportunity to declare that COVID-19 “is a punishment from God,” and single out sexual minorities as vectors of disease.
Background to the Arrest and Detention
On March 29, 2020, the mayor of Nsangi Town Council, Hajji Abdul Kiyimba and officers of the Uganda Police Force raided the LGBTIQ shelter Children of the Sun Foundation (“COSF”). During the raid, the officers arrested twenty-three homeless gay, bisexual and transgender people with nineteen detained in custody and four released on health grounds. The nineteen individuals were charged with disobedience of a lawful order and breaching section 171 of the Penal Code which provides that:
Any person who unlawfully or negligently does any act which is and which he or she knows or has reason to believe to be likely to spread the infection of any disease dangerous to life commits an offence and is liable to imprisonment for seven years.
According to a statement made by the Ugandan Police Force, the nineteen were arrested for congregating within a house and therefore violating the directives and guidelines of observing social distancing. The Public Health (Control of COVID-19) Rules 2020 came into force on March 24, 2020 and prohibit activities, events, meetings, and public gatherings of more than ten people. However, the rules do not set limits on the number of people allowed to congregate in a private home or other accommodation. Of those detained, thirteen were shelter residents and the remaining six, although not residents, were in compliance with the law and maintained social distancing. The COVID-19 Rules do not prohibit dormitory-like facilities, and it is therefore unclear how the nineteen individuals committed an “unlawful” or “negligent” act.
While the initial police statement claimed that the arrests were in response to violations of the COVID-19 restrictions, reports later revealed that the authorities initially charged the accused with engaging in “carnal knowledge” in violation of the Penal Code. The police responded to community reports of homosexuals living together, but they did not witness anyone engaging in sexual relations at the time of the raid or find evidence to support the offence, suggesting that the charge was changed to take advantage of the government restrictions. Under section 145 of the Penal Code, anyone who “has carnal knowledge of any person against the order of nature” has committed an “unnatural offence.” Furthermore, section 148 prohibits any act of gross indecency committed in public or in private. While “carnal knowledge” is understood to entail penetration, the “gross indecency” provision is not defined, which results in broad interpretation and enables authorities to infer gross indecency from any activity deemed to be suspicious. The Human Rights Awareness and Promotion Forum (“HRAPF”) 2019 report, covering events in 2018, noted a total of sixty-nine human rights abuses and violations based on gender identity and sexual orientation. The Uganda Police Force accounted for twenty-nine of the violations, representing 42% of all violations reported, with LGBTIQ people often subjected to arbitrary arrest and prolonged detention before being brought before the court or being released.
The Constitution of the Republic of Uganda under article 23(1) sets out nine circumstances under which a person may be lawfully deprived of their liberty. For example, a person may be deprived of their liberty “for the purpose of preventing the spread of an infectious or contagious disease” or where they have been arrested and detained for the purposes of bringing them before the courts. The article also protects against prolonged detention by offering safeguards such as the right to reasonable access to a lawyer, and to apply to the court to be released on bail. The raid at the COSF echoes an October 2019 raid on another LGBTIQ shelter, where police arrested sixteen people after they were attacked by a mob, detained them, and subjected them to forced anal examinations. While the cases against the detained were withdrawn, this has not deterred further raids on shelters or premises frequented by LGBTIQ people.
Denial of access to legal representation
Article 28 of the Ugandan Constitution guarantees the right to a fair hearing and identifies a number of basic rights that are inherent in the concept of a fair hearing. These are rights without which it would not be possible for a hearing to be fair. A relevant right that is of importance to the arrested individuals is access to legal counsel under article 28(3)(e). Following the arrests at Children of the Sun Foundation, the accused were remanded to prison and they instructed the HRAPF to represent them in their defense against the criminal charges and to make bail applications. However, upon attending the prison, HRAPF was informed that access to the accused could only be granted with express permission from the Commissioner General of Prisons (“Commissioner”). Despite sending a written request to the Commissioner on April 3, 2020 seeking permission to access the accused, a response was not received until April 22nd denying the request. According to the Commissioner, access to the accused had been denied due to the COVID-19 restrictions and HRAPF was advised to “be patient until the situation improves.” When HRAPF had still not been granted access by April 29th, an application was made to the High Court Civil Division for an order of grant of access. Counsel for HRAPF argued that there was an imminent threat and danger that the accused would suffer a miscarriage of justice, and the denial of legal representation was a violation of the fundamental rights guaranteed under the constitution, namely, protection of personal liberty, and the non-derogable right to a fair hearing.
In considering the merits of the application, the question for the High Court was whether the accused should be granted access to their legal representatives to enable them to prepare their defenses and make bail applications. In the judgment delivered on May 12, 2020, Hon. Justice Micheal Elubu, held that “the continued detention without right to Counsel is an infringement of the fair trial rights every person enjoys under Article 28 of the Constitution,” and that it is the duty of the Court to enforce its provisions. Therefore, “with all the necessary precautionary measures taken, the accused who are the subjection of this application should be granted access to legal representation to prepare for their trial and bail applications.”
Denial of the right to a fair hearing and the right to liberty
In a separate application decided on 15th June 2020, HRAPF sought a declaration from the High Court on three issues, namely whether:
- The actions of denying the accused access to their legal counsel violated their right to a fair hearing under article 28 of the Constitution;
- The denial of access to their legal counsel violated their right to liberty guaranteed under article 23 (5)(b); and
- The nineteen LGBTIQ individuals were entitled to any remedies.
Turning to the first issue, from the time of arrest until May 12th when the High Court granted an order of access, there was a nationwide lockdown which imposed restrictions on movement making it difficult for legal representatives to swiftly get to clients. In light of these circumstances, the High Court concluded that when interpreting the constitution with regards to fundamental rights:
[…] the most generous and purposive interpretation of the cited provision is that the framers aimed to ensure that the freedoms enshrined in Article 44 are inalienable whatever the circumstances. Fair trial rights remain inviolable.
Therefore, the court reaffirmed its May 12th decision and confirmed that despite the threat posed by the COVID-19 pandemic, a “blanket ban on access to Counsel” was never intended when the lockdown measures were implemented, and therefore, when the nineteen individuals were denied access to legal representation, this amounted to a violation of their rights as guaranteed in article 28(3) and article 44 (c) of the Constitution.
With regards to the second issue, HRAPF was informed that denial of access to counsel was a precaution by the prison authorities based on the threat posed by COVID-19. As the protection of fundamental rights is the primary objective of the constitution, these rights could only be limited in exceptional circumstances, as any derogation from the right to personal liberty must be as “a matter of unavoidable necessity,” and the limitation must be “temporary and not indefinite.” Therefore, while COVID-19 preventative measures must be taken in places of detention, all measures must respect human rights and ensure that legal representatives can speak with their clients confidentially. The High Court concluded that as the accused were unable to meet legal counsel for more than forty days, despite the pandemic, “the right to a fair trial remained inviolable” and therefore “denying access to counsel was unconscionable.” Due to the constant stream of information available on the safety measures that could be employed, the forty day delay was “unreasonable and unjustified.” Although the threat of a viral pandemic poses a real and present danger and was cited by the Commissioner as the reason for denying access to legal representation, the right to a fair trial is sacrosanct.
On the question of whether the nineteen individuals were entitled to any remedies, article 50(1) of the Constitution stipulates:
Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.
As the court had found violation of the right to a fair hearing and liberty, the accused were each awarded damages of UGX 5,000,000 (approximately USD$1,340) as a “measure of vindication.” After forty-nine days in prison, the Director of Public Prosecutions withdrew all the charges against the nineteen individuals and they were subsequently released from prison.
Discrimination and harassment based on sexual orientation and gender identity continues to be pervasive throughout Uganda and impedes effective policing. It is clear that the pandemic has deepened and exposed the human rights violations to which the LGBTIQ community is already subjected. Furthermore, the COVID-19 pandemic is being used as a pretext for prejudice and when sexual minorities are persistently targeted, this leads to a lack of trust in the authorities and encourages hostile attitudes from the public. The disproportionate use of the COVID-19 restrictions points to a deeper problem of homophobia and transphobia in Uganda and rather than using the emergency powers to tackle the virus, the power to detain people during health emergencies is being used to target a marginalized group.
[*] Lecturer in law, Solicitor, School of Justice, University of Central Lancashire, UK.
 OutRight Action International, Vulnerability Amplified: The Impact of the COVID-19 Pandemic on LGBTIQ People, at 6 (2020) https://outrightinternational.org/sites/default/files/COVIDsReportDesign_FINAL_LR_0.pdf.
 Petition to United Nations Working Group on Arbitrary Detention, In the Matter of [Redacted] v. Government of the Republic of Uganda, at 11 (May 15, 2020) https://rfkhumanrights.org/assets/documents/UNWGAD_Uganda-19-LGBT.pdf.
 Penal Code Act 1950, § 117.
 Penal Code Act 1950, § 171.
 Wilfred Kamusiime, 23 People Picked by Security for Congesting in a House, Uganda Police Force (Mar. 30, 2020), https://www.upf.go.ug/23-people-picked-by-security-for-congesting-in-a-house/.
 The Public Health (Control of COVID-19) Rules 2020, art. 9, ¶ 1.
 Petition to UN Working Group on Arbitrary Detention, supra note 2 at 11.
 COVID-19: End Arbitrary Raids and Arrests on LGBTIQ Shelters, Sexual Minorities Uganda (Apr. 9, 2020), https://sexualminoritiesuganda.com/covid-19-end-arbitrary-raids-and-arrests-on-lgbtiq-shelters/.
 Statement on the Raid of the Children of the Sun Foundation Shelter for LGBT Youths in Uganda, Human Rights Awareness and Promotion Forum (Mar. 31, 2020), https://www.hrapf.org/index.php/resources/other-publications/131-20-03-31-hrapf-statement-on-the-arrests-at-the-cosf-lgbt-shelter-2-copy/file.
 Penal Code Act 1950, § 145.
 Human Rights Awareness and Promotion Forum, The Uganda Report of Human Rights Violations based on Sexual Orientation and Gender Identity 2018 at xii (Aug. 2019), https://www.hrapf.org/index.php/resources/violation-reports/118-the-uganda-report-on-human-rights-violations-based-on-sogi-2018/file.
 Id. at 15.
 See Constitution of the Republic of Uganda 1995, art. 23(1)(a)-(g).
 Id. at art. 23(1)(d).
 Id. at art. 23(1)(c).
 Id. at art. 23(5)(b).
 Id. at art. 23(6)(a).
 Uganda: Stop Police Harassment of LGBTIQ People, Human Rights Watch (Nov. 17, 2019) https://www.hrw.org/news/2019/11/17/uganda-stop-police-harassment-LGBTIQ-people.
 Constitution of the Republic of Uganda 1995, supra note 15, at art. 28.
 Human Rights Awareness and Promotion Forum v. Attorney General, Ruling (May 12, 2020) ¶¶ 2-7, https://www.hrapf.org/index.php/resources/court-judgements/143-20-05-13-ruling-on-hrapf-vs-ag-and-commissioner-general-of-prisons-copy/file.
 Id. at ¶ 8.
 Id. at ¶ 15.
 Constitution of the Republic of Uganda 1995, supra note 15, at art. 23.
 Article 44(c) Constitution of the Republic of Uganda 1995 provides that there shall be no derogation from enjoyment of freedom from torture and cruel, inhuman or degrading treatment or punishment; freedom from slavery or servitude; the right to a fair hearing; and the right to an order of habeas corpus. Id. at art. 44(c).
 Id. at art. 28.
 Human Rights Awareness and Promotion Forum, supra note 22 at 5.
 Id. at ¶ 5.
 Id. at 7.
 Human Rights Awareness and Promotion Forum v. Attorney General, Ruling at 4 (June 15, 2020).
 Id. at 7.
 Id. at 8.
 Id. at 9.
 Id. at 9–10.
 Id. at 10.
 Id. at 12.
 Good News: Uganda Government Drops Charges and Sets Free 19 Members of the LGBTIQ Community, Sexual Minorities Uganda (May 18, 2020), https://sexualminoritiesuganda.com/good-news-uganda-government-drops-charges-and-sets-free-19-members-of-the-lgbtiq-community/.