Akwe Amosu: Hello and welcome to Strength&Solidarity. I’m Akwe Amosu, here with a brand new, fifth season of our podcast about the tools, tactics and strategies being used to defend human rights. And to kick things off –
A litigation strategy to defeat Uganda’s homophobic law – and the shadowy forces exerting influence behind the scenes
and in the Coda, a disability activist’s insistence on joy
Uganda has long been a frontline in Africa for LGTBQ rights. In the early years of the HIV/AIDS crisis there were some big battles against a demonizing of the queer community and some policy victories. But there have been periodic upsurges in homophobic attitudes, largely driven by the Christian evangelical constituency and supported by politicians seeking advantage at the polls. Ten years ago, some legislation titled the Anti-Homosexuality Act was passed in Uganda’s parliament, only to be reversed in the courts. This year though, that legislation reappeared, was passed in parliament and signed into law by President Yoweri Museveni in May. So why is this happening? Some claim that this is just a naturally conservative society pushing back against imported Western culture. Does that stand up? Who in Uganda has kept this effort energized for so long, and in whose interest? To get answers, I turned to Ugandan lawyer Nicholas Opiyo, who leads Chapter Four Uganda, a civil liberties and human rights organization. He’s also leading the litigation at the Ugandan Constitutional Court to nullify the Anti Homosexuality Act.
AA: Welcome, Nicholas.
Nicholas Opiyo: Thank you for having me. It’s an honor.
AA: So, this is not the first time that you’ve taken a case, uh, against homophobic legislation to Uganda’s constitutional court?
NO: No, unfortunately not. How I wish it was, uh, the first or last time. Over the last 15 years, we have been in several court battles. This perhaps is the second most high profile of them, which is a challenge to the Anti-Homosexuality law, a law that was first passed in 2014, nullified by the courts albeit on a procedural basis. And then, um, 10 years later, reenacted, and we are back again in court fighting the law.
AA: So, could you say something about that 2014 verdict? You say it was on a procedural basis that it was nullified. What happened?
NO: The case in 2014 was a case that had two sets of arguments. The first set of arguments were procedural and technical in nature, and the second set of arguments were substantive, arguing violations of fundamental rights and freedoms. The courts, in their wisdom, decided that they should hear us first on the technical and procedural arguments of the case. And when they did so, they held that the law itself was passed without following the requisite procedure in parliament. Namely that there was no requisite quorum to pass the law, which is two-thirds majority in parliament. And on that basis alone, the court nullified the entire act and decided that there was no need to go into the other substantive arguments because they would’ve been rendered moot by the findings of irregularity that they had made.
AA: Understood. So, for better or for worse, the arguments never got put about the fundamental questions of whether homosexuality should be illegal or not.
NO: I think the court took the easier and convenient route because it didn’t want to deal with, quote unquote, the elephant in the room, and so what was convenient for the court was to simply hide under technicality. Unfortunately, what that did was, it didn’t decide, once and for all, whether the equal protection of the law in Uganda applies to every member of our community, including the LGBTI community. And that is the reason we are back here. If the court had decided this question once and for all in 2014, we wouldn’t be where we are at today. But it is what it is. We must deal with it. We hope that this time the court will not shy away from its responsibility in making a pronouncement whether LGBTIQ Ugandans have equal rights as any other Ugandan living and working in this country.
AA: So, let’s come to this case. In what sense, if at all, does it differ from the situation in 2014?
NO: In terms of the text of the law, it is really a mirror image, and worse. In essence, the entire law in 2014 was reintroduced and certain provisions added to it, namely, the provisions requiring everybody to report anybody they think is, or they know as being a member of the LGBTI community. So, there’s a reporting obligation on everybody. You also have a sex register if you are convicted, your name is supposed to enter into a register. You also have a provision that prohibits you from public employment or occupying public office for a period of 10 years if you’re convicted under the law. Everything else is really the same, namely the prohibition of same sex conduct, the prohibition of what they call promotion of homosexuality, namely the work of other organizations working with the community. The death penalty is still maintained for what is called aggravated homosexuality, namely if somebody has carnal knowledge of a child, or a person with disability, or a relative.
AA: So very extreme and with huge potential impacts on anyone condemned under such a law. How do you anticipate this case will run at the Constitutional Court?
NO: Well, first of all, I think it’s important to make the point that many people have misconceived this law as only being about LGBTI folks. What is true is that the hatred being enacted in the law against LGBTI folks is extreme, but what is also true and that people are missing the point, is that this law is only about 40% about LGBTI folks. The rest is about civic space, free expression, access to essential services, and it has impact on research work. Anybody who is doing research work on African sexuality could easily be accused of promoting homosexuality. Anybody who is providing any service to LGBTI folks can easily be construed to be promoting homosexuality. So, the law is much broader in its impact, and it is much more dangerous to everybody else, over and above the LGBTI community. But in terms of the process, what we see about this case is that it is being treated differently with other similar cases in the courts because in the normal course of events, these kinds of cases take months, if not years in the court system. But this case is moving up the court system quite quickly.
AA: So what do you conclude from that?
NO: I think that over and above the impressive work of the petitioners and their lawyers, there are other external processes underway that is giving the impetus for the Court to resolve this case quickly. I think that the round condemnation of Uganda by international actors, the World Bank, the US government, the European Union; and the impact of this law on the economy, as well as the foreign policy implication of the law, have contrived to make it very, very inconvenient for the government of Uganda. I’m convinced that over and above our work in court, there are other processes happening behind the scenes that are purely political. And it is the only reason I have for why this case is moving up the docket very, very quickly.
AA: It must be an interesting situation for you, as the person leading the legal fight, to be aware that these other dynamics are playing out. You know, in, in some way, you are in a court of last resort. You are trying to resolve a question of law, finally, and on behalf of a population that needs justice. But from what you suggest, there’s a completely different set of calculations going on somewhere-else beyond the reach of the Court that might influence the outcome of this case. I wonder how you see that.
NO: Look, we’ve been here before. In 2014 a similar thing happened, I was excited when the Court gave us a judgment in our favor, but upon further reflection, I sort of felt used. I felt like I was a pawn in a wider game that I didn’t know. And what I’m seeing right now is that a similar situation is unfolding. And I also know that it is unfolding in two ways. It’s unfolding in the way, first, that there are those who are behind this law who have mobilized people across the country and created a sense, a false sense of moral outrage against the country’s LGBTI community. They have not relented, they have applied to join the case as parties. They’re involved in influencing judicial processes. But at the same time, I also know that the political leaders who have to live with this law and deal with it on a daily basis are also involved in behind-the-scene machinations. Um, it sort of makes me feel, um, a pawn in a wider game that I don’t know, but I derive satisfaction in the fact that I’ve kept away from those discussions. I have focused like a laser beam on putting before the court the best case that we can put and making the case so that either way, the court has the best it can get to arrive at a decision. And if this court does not give us a decision, we think we should get, we have a good ground to appeal this case to the Supreme Court. And so that is what my focus is. Uh, I’m, I’m aware of the other factors, but I don’t think it should concern me too much, as the case before me is much more important than those factors.
AA: A number of interesting reflections arise. and I suppose one is that as you yourself observed earlier about the 2014 case, the fact that it was not resolved in a way that made a definitive judgment on the issues at hand actually allowed for a refueling of the argument, a re-litigation of the process, because it was not resolved. So, in a way, what I’m hearing you say is that that could happen again.
NO: Precisely. If, if the court had not ducked away from its responsibility in 2014, we wouldn’t be here. Uh, we wouldn’t be here. I hope that the Court can do that now, but I’m also aware that the court decision may not be the final, uh, place to arbitrate the deeply seated hatred against the LGBTI community, because transphobia and homophobia has now been ingrained in the minds of many Ugandans. The court victory would be a great victory, but it would only be a beginning of a wider process of mind change, of a change of social attitudes, of a change of behavior and culture, that has taken a lot of time to be built up. So I hope that the court process turns up in our favor, but that once that is done, we shouldn’t rest on our laurels. We should get back to the wider work of rebuilding public trust and public confidence and public tolerance of the LGBTI community in, in this country.
AA: Yeah, that makes so much sense. especially in a world where courts and other institutions, often perceived as elite institutions, aren’t seen, or are not perceived to represent the consensus in a society. And this accusation of elitism often is made, in many countries now, against these institutions which were designed to resolve these questions or settle these questions. I noticed you used the word “rebuild” public tolerance and confidence. This deep-seated homophobia – are you saying it wasn’t always there?
NO: No, it wasn’t the case. Um, if you look back in time, 20 years ago, nobody cared about people’s sexual orientation or gender identity
AA: As recently as 20 years ago?
NO: Oh, yes. Oh, yes. The campaign to begin to enact a law against LGBTI folks in Uganda only became national concern, less than a decade and a half ago, precisely because, I think there were three factors that were in play. The first was a cultural war, playing out in the global west and being transplanted, in the backyards of countries that are viewed as allies of those global, western countries – in this case, the United States. The people who were involved in this were American Pentecostal groups who financed, who wrote the text of the law, who came to Uganda and began to mount campaigns that eventually led to the enactment of the law in 2014.
The second reason really is that you have a dangerous confluence between a decadent, repressive political system looking for a scapegoat. And what better scapegoat in a deeply Christian country than a campaign against the LGBTI community? Across the African continent countries that are facing problems, democratic credentials are questioned, uh, people have concerns about the way they’re being governed. Uh, you see, homophobic tendencies coming into confluence with these Christian fundamentalist views, against LGBTI folks. That has been the case in many African countries, whether it is Robert Mugabe in Zimbabwe, Goodluck Jonathan in Nigeria, Yoweri Museveni in Uganda, and many other countries that we’re now seeing. In Zambia and Mozambique, same question.
The third factor really has got to be what I see as the increasing challenging of the human rights normative frameworks. Uh, illiberal democracies are beginning to question the very rationale and foundation of civic rights. And, they have found the LGBTI community to be the easiest target. And this is the case in some parts of Europe, in some parts of the US, and then Uganda is, is no exception. Illiberal leaders tend to latch onto these kind of populist, issues and, and ride on it.
And then these three factors have really combined to lead us to where we are at. If you ask an ordinary Ugandan, my mother in the village, my grandfather in the village, there are more pressing issues that the parliament of Uganda should be confronting – of unemployment, of poverty, of lack of infrastructure in this country. LGBTI folks are not the biggest problems to many Ugandans, really, and yet they have been weaponized to think that they are.
AA: Well, you make a compelling case on all three of those points, but I suppose I should ask, whether it’s overstated. I mean, most of the countries on the continent have had law on the statute books against homosexuality for far longer than the period that we are talking about here, this recent period. You know, are you saying that those laws are not representative of, at least some kind of cultural, attitudes, that are, deeply implanted?
NO: So, in the case of Uganda, the sodomy laws are a relic of British colonial rule. They were introduced in this country in 1950. They were introduced because the British were appalled at what they called the sexual promiscuity in our society, uh, the sexual liberalism in the periods before the British came to this country. So, what is in fact introduced in this country is the criminalization of LGBTI, which is a foreign-introduced law. Many have argued that that was the basis for hatred, so hatred was imported into our cultures. Many African traditional societies had varieties of gender expressions and sexual identities. In Uganda, if you look at, you know, the anthropology of the Buganda Kingdom, uh, there’s a long history of same-sex conduct in the palace of the king. This is documented. So, while this law was in the books nobody really implemented it. Nobody cared about it. It became a key concern when this evangelical movement began to introduce their hate campaign on the continent. I’ve never seen a conviction under the 1950 law, precisely because the law was broadly worded as “sex against the order of nature” whatever that means. Uh, so there were no convictions. under that law.
AA: I, I mean, listening to you, there’s some irony in the fact that, you are saying these homophobic attitudes and initiatives are a foreign import, both the original laws and the recent expressions, and yet a lot of the international energy and support and advocacy for the LGBTIQ community and for, a challenge to this kind of homophobia is coming from those very countries from which you say the initiative to hate came. Because the queer communities in Western Europe, in the United States have been the most energized, fought hardest to change their laws. And I’m just reflecting on what seems like quite an irony – that the energy is coming from there in both cases.
NO: Yeah, I mean, those societies have progressed. Appreciation of individual freedoms and liberties have progressed over time. And there are many things that were introduced in our country, when foreign forces occupied our land, that those same foreign forces have walked away from. The question of same sex conduct is just one of them. But also you have a more robust community of queer activists in the West that over the last 50 years have grown in leaps and bounds, and they’re in a very advanced stage. But, but, but let, let me come back to this whole question about, you know, cultural identity that is used as a justification for this law, for this hatred. First, there’s no such thing as a uniform culture across the African continent, much less in the same ethnic group. There’s no such thing, even in terms of dialect, in terms of, you know, songs, in terms of, our culinary tastes. There’s no such thing as a uniform culture. This thing about culture has to be unpacked. We allow these arguments to pass because nobody has challenged it. But if you look carefully, the devil is in the detail, there’s no such thing as an African culture, uh, because Africa is not homogeneous. Uh, African communities are diverse both in language, uh, in sexual expressions, in gender identity, so many other areas. And so, we’ve got to debunk that argument.
The second thing is this thing about religion, about the African family. Uh, the African family really is a quite different family setting from the Western family. My own father had 69 children and four wives, and countless mistresses. You can’t say that is the same conception of the family that these Christian groups are seeking to defend or, to use as a basis for, their campaign against the LGBTIQ community in Uganda. So, we must challenge this argument, I think, and unpack them and show how deceptive they are.
The third thing in Uganda and that they have used is that there is a big threat against children, that the gay community is recruiting in schools. The argument is broad without a singular iota of evidence. In fact, government’s own reporting show that sexual abuse and exploitation is a far bigger and pervasive problem among the heterosexual community. In Uganda, for example, last year there were only eight reported cases in government statistics, of people who are members of the LGBTI community accused of abusing children, but over 80,000 cases… And so the thing about recruitment and a threat to children is also a lie that we’ve got to challenge and unpack.
AA: Okay, Nicholas, let’s just say you win at the Court. As you say, there’s still this bigger question of the culture that needs to be addressed. And I remember the case of David Kato who got killed after he won a case of this kind in 2011. And I imagine that just because you win, the potential backlash, the intensity of anger about that verdict will make people feel less safe, not more safe. So, can you say something about how you think the work goes on from here to try and reestablish a connection with the tolerance that you are convinced is there in the roots of your society?
NO: Yeah, I mean, first of all, we’ve got to take this as a long-term effort, not a short-term effort. It’s gonna require careful long-term planning in, changing mindsets. These are deeply rooted feelings and attitudes. Our focus has to be long term and incremental. It has to do with understanding crowd mentality and providing accurate information to unpack the lies that have been used or pedaled to justify this legislation. And that has to focus really on young people. This country is a youthful country, 78% of the population is below the age of 35. These young people have traveled. They are educated, have access to new media, social media, and are much more amenable to new information and accurate information. My experience in Uganda in small ways, has shown me that a lot of the hatred is really about ignorance. People have not encountered gay people. They have this caricature of who they are. Uh, they think of them as alien. But once you encounter the community and recognize that they’re human beings like me and you, and asking for no special rights, but the rights all of us enjoy, we begin to have a change of attitude. So we must humanize the community. We must give them a platform and show to people that they are well-meaning members of our community who are simply seeking equal protection under the law. But it is also going to require a lot of investment in organizing communities. The LGBTI community has been fractured because of this law. People have fled the country. Leaders are feeling frustrated. So we’ve got to go back to movement-building and empowering individuals who are in this country, who are brave enough to stand up and defend their own communities. We must create ally-ship for them. And I think that what we’re doing at Chapter Four is to create also new voices. We now have mothers of gay kids speaking up in support of their kids. It’s the first time it’s happening in this country. So we must create avenues for other actors like mothers, relatives, siblings of gay people to say, this is my brother, this is my sister, this is who they are, and we love them the way they are. And to ask people not to hate them, it’s difficult to discount a mother’s voice to say, that’s my daughter, and I love her the way she is. But lastly, I think that there is a political angle to this. Development allies of Uganda must put their money where their mouth is. Oftentimes, we speak in very lofty terms about respect for the rights of every Ugandan, but we are very quick to sacrifice that on the altar of political convenience; because the regime is an ally in the fight against terror, we don’t hold them to the same values that we profess. So there has to be, I think, for me, better commitment to living by the values that these countries express in their relations with Uganda. If Uganda passes a law such as this and they say there will be consequences, let there be consequences! Don’t threaten what you cannot do. Uh, and I think that we’ve got to make that point that in their development cooperation with Uganda, we have to make the rule of law, equality of every Ugandan, the center in these relations.
AA: Thank you, Nicholas.
NO: Thank you very much. It’s an honor. I really appreciate the opportunity to share my views and to share experiences. We go to court ever so hopeful. Um, it’s difficult. It’s a difficult task. It’s an emotionally draining task. Um, in my case, my social media is full of insults. Um, but I, I take it as a compliment and, and fight through this hatred. But I’m also aware that my plight as privileged human rights lawyer pales in comparison to the pain and suffering of individual LGBTI folks in this country who every single day have to encounter discrimination in ways that are unspeakable, in ways that sometimes are unreported, but every single day, every single hour have to contend with widespread hatred. So I’m privileged and my struggles really pale in comparison to their own. And I’m, I’m, I’m happy to be at the forefront of this fight in helping, to ensure equality for every single Ugandan, regardless of their sexual orientation or gender identity.
AA: Well, I think every human rights advocate and activist will salute that solidarity. Thank you.
NO: Thank you very much. I appreciate it.
AA: Nicholas Opiyo is the lawyer leading litigation at Uganda’s Constitutional Court to turn back the Anti-Homosexuality law. He leads Chapter Four Uganda and is also currently a fellow of the Carr Center for Human Rights Policy at Harvard’s Kennedy School. They, by the way, have a terrific podcast called Justice Matters – it just returned from a break with an in-depth conversation with former Human Rights Watch president, Ken Roth. We’ll post the link on our podcast page, where you will also find a transcript of my conversation with Nicholas and suggestions for further reading.
AA: As regular listeners will know, we like to end the show with a Coda – an opportunity to hear a human rights defender reflect on what gives them energy and inspiration. And this time, we’re hearing from Mexican disability activist, Maryangel Garcia-Ramos who leads an organization called Women Enabled International. And she wanted to tell us about an extraordinary film. It’s called Crip Camp and it tells the story of a summer camp for disabled kids in the 1970’s whose participants went on to transform US society through activism and courage. We’ll start with a clip from the film:
Maryangel Garcia-Ramos: Ok, so this is from the Film Crip Camp. It is a documentary that was basically the story of how the disabled community came together in the United States as a movement for their civil rights and their rights in general. And it all started with a camp. It’s a camp for people who were disabled, and then the connections made there led into amazing leaders. The work that they did is still impacting everyone around the disability community around the world.
MGR: I was really emotional the very first time I saw it, and I cried a lot. But also it left me with a feeling that, like I said, you are not alone. Because I am a disabled woman, I have a physical disability and I use a wheelchair, it’s just like great to, to know that you’re part of this community and that you’re proud of being disabled not because how your body is, how your body works, how your mind works, but how we find ourselves in this community.
MGR: We’ve always been seen like these broken, disposable beings. And when we talk about diversity, we’re not even in the mix. So, seeing this movie and the power that it had, it reminded me of first my own power and secondly, the power of movements and how they usually are not born through, you know, big, deep discussions. They’re usually born through connecting through your own experiences or your own, you know, marginalized experiences, but also through joy. And I think that’s something that is really key around that, um, documentary, is that we’re telling a story that is a story of survival. Like how people are fighting to change the law in a system, that sees disabled people at disposable. That it is your fault that you’re like that and nobody cares about it. And it’s about survival, but also the tone of the movie and the tone of the ways that they interact has a lot of humor in it, because joy is also part of resistance. We’re not expected to be joyful in the bodies that we live in.
MGR: So, Crip Camp is something that inspired me in, in a way that I think narrative is key for everything. For years people have told these stories about us without us. Uh, they’ve told us that we don’t belong in particular places. We don’t belong in politics. We don’t belong in fashion, we don’t belong in art. We don’t belong as actors and actresses in movies. We don’t belong in sports. And I think this movie had a very culture, immense cultural impact
MGR: Sometimes we think that the only ways of doing advocacy has to do with doing lobbying, has to do with doing legal work and most of the time the advocacy’s been done in the content. It’s been done with the people, it’s been done in social media. To me, content and storytelling is something that moves me a lot. And I think it’s a, a core part of the work that I do, leading an organization that works for the intersection of gender and disability with a global focus and also doing it in the ground in Mexico. But to me it’s something that, how could we start using the storytelling and content as part of our core work?
MGR: You know, we’ve worked towards putting women with disabilities in the cover of Elle Magazine all wearing Gucci because we weren’t allowed to be in that space. And we tried and we made it happen. Now we have models with disabilities. We started doing this series of disability talks in our sites, in our content, talking about sex and talking about different issues that women with disabilities encounter. And we actually did this – instead of a, a standup comedy, we did like the sitdown comedy thing, which did four editions of it in which women with disabilities would tell stories about, mostly about our relationships and how we encounter the world and what people tell us. So I think this part of pop culture and narrative and storytelling is really important and it’s a really crucial part of the work that we do and I think sometimes we don’t necessarily notice that.
AA: Thank you, Maryangel Garcia-Ramos. She leads Women Enabled International and lives in Mexico. And I have to add, Crip Camp is a remarkable watch and it’s now freely available on Youtube – if you haven’t seen it, please get yourself some popcorn sometime and watch. You won’t regret it. The link will be on our podcast page.
AA: And that’s Episode 37! So nice to be back. As always, if you have feedback or suggestions, we really want to hear from you. You can write to firstname.lastname@example.org, now or any time you like. We’ll be back in three weeks, but for now, from producer Peter Coccoma and me, Akwe Amosu, thanks for listening.