Bahati says law is silent about defilement of boys; 2007 law says otherwise

There seems to be confusion among Uganda parliamentarians about what their law says regarding defilement of children.

Speaking about the perceived need for the Anti-Homosexuality Bill, David Bahati is quoted in the Independent as saying the following:

Trying to justify the necessity of passing the bill into law he added, “In the Defilement Act 2009, the law says that if someone (man) defiles a minor (girl child), the maximum punishment is death, but if a man defiles a boy, the law is silent about it.”

I can find no mention of a “Defilement Act 2009” on the website of the Ugandan Parliament or in any news reports. However, note this 2007 report of a bill passed in Uganda which covers boys and girls.

KAMPALA, 19 April 2007 (PlusNews) – According to a new law passed by Uganda’s parliament on Wednesday, an HIV-positive person who wilfully infects a minor through sexual intercourse will face the death penalty.

According to the new Penal Code Amendment Bill, an individual who is aware of their HIV-positive status and has sex with a child under the age of 14, with or without their consent, is guilty of “aggravated defilement” and, on conviction in the High Court, “liable to suffer death”. The crime of defilement is defined as sex with a person under the age of 14.

Parliament unanimously passed the bill, first tabled in August 2006, but parliamentary spokeswoman Helen Kawesa said it needed presidential assent to become law, which usually takes about 30 days.

The proposed legislation seeks to amend the existing penal code, which has been criticised for being too lenient with HIV-positive people who rape children. Capital punishment has been the penalty for anyone found guilty of rape or defilement since 1996, but has never been implemented.

This article seems to be referring to the passage of the same law referred to here in these April 18 minutes of the Ugandan Parliament.

THE MINISTER OF STATE, JUSTICE (Mr Fred Ruhindi): Madam Speaker, I beg to move that the Bill entitled the Penal Code (Amendment) Bill, 2007 be read for the third time and do pass.

(Question put and agreed to.)

A Bill for an Act entitled “The Penal Code (Amendment) Act, 2007”

There is a lengthy discussion of the bill which references a Parliament committee report making clear that the bill refers to both boys and girls.

2.     Defilement: 

a)   The proposed amendment on section 129 defines a sexual act to involve the offence on either a male and a female child.  The offence of defilement is a felony and an offence punishable by life imprisonment and therefore triable and bailable by Chief Magistrate. 

The amendment intends to punish persons for sexual acts committed against all children – both male and female.

Indeed, as far as I can tell from the Parliament’s minutes, the amendments remained intact and the law covers both male and female children.

To those in the know in Uganda: Which is it? We have been hearing for months from proponents of the bill that the boy child was not covered but this law passed by Parliament appears to include both males and females. The 2007 law is on the books and should be quite sufficient, if I read it corrently, to cover any defilement of minors.

UPDATE: In this document published by the Refugee Law Project, I located the text of the Penal Code Amendment Act.

THE PENAL CODE (AMENDMENT) ACT, 2006 (2007)

An Act to amend the Penal Code Act 

BE IT ENACTED by Parliament as follows:

1. Abolition of corporal punishment

(1) Corporal punishment is abolished and accordingly, all references to corporal punishment in the Penal Code Act in this Act referred to as the principal Act, are repealed.

(2) Without prejudice to the general effect of subsection (1) of this section, Section 125, subsection (2) of section 129 and section 205 of the Penal Code Act, are amended by the repeal of the words “with or without corporal punishment”.

2. Section 129 of the Penal Code Act replaced

The principal Act is amended by substituting for section 129 the following new sections—

Defilement of persons under eighteen years of age

129. (1) Any person who performs a sexual act with another person who is below the age of eighteen years, commits a felony known as defilement and is on conviction liable to life imprisonment.

(2) Any person who attempts to perform a sexual act with another person who is below the age of eighteen years commits an offence and is on conviction, liable to imprisonment not exceeding eighteen years.

(3) Any person who attempts to perform a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defilement and is, on conviction by the High Court, liable to suffer death.

(4) The circumstances referred to in subsection (3) are as follows—

(a) where the person against whom the offence is committed is below the age of fourteen years;

(b) where the offender to his or her knowledge, is infected with Human Immunodeficiency Virus (HIV), Acquired Immune Deficiency Syndrome(AIDS);

(c) where the offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed; or

(d) where the offender is a serial offender.

(5) Any person who attempts to perform a sexual act with another person below the age of eighteen years in any of the circumstances specified in subsection (4), commits an offence and is liable on conviction, to imprisonment for life.

(6) In this section unless the context otherwise requires—

“serial offender” means a person who has a previous conviction for the offence of defilement or aggravated defilement;

“sexual act” means penetration of the vagina, mouth, or anus, however slight, of any person by a sexual organ or the use of any object or organ by a person on another person’s sexual organ

“sexual organ” includes a vagina or penis.

Makerere University Law School Dean, Sylvia Tamale, refers to these amendments in this analysis of the Anti-Homosexuality Bill.

Sexual crimes against children are already criminalised under Ugandan law. Section 129 of the Ugandan penal code provides that ‘any person who performs a sexual act with another person who is below the age of 18 years, commits a felony known as defilement and is on conviction liable to life imprisonment.’24 This section also provides for the offence of ‘aggravated defilement’ punishable by death.[25]

Existing provisions on ‘defilement’ and ‘aggravated defilement’ under the penal code do not differentiate between same-sex and heterosexual sexual abuse. Hence it is not clear what the proposed offence of ‘aggravated homosexuality’ under the Anti-Homosexuality bill aims to achieve.

Not clear, indeed. When David Bahati and Martin Ssempa says that the Anti-Homosexuality Bill aims to extend existing protections to the “boy child,” I can only assume that they are unaware of the Penal Code Amendment Act of 2007. The stated reason for the Anti-Homosexuality Bill disappears when one examines the current law.

More on this:

Other sources refer to The Penal Code Amendment Act of 2007 as being a part of an overall effort to prosecute the growing problem of child sexual molestation in Uganda, the majority of it being girls molested by men. On Page 8 of this United Nations report on violence against women, the Ugandan Section 129 is reproduced as I have it above. And then in this July, 2008 report filed by the Ugandan chapter of the African Network for Prevention and Protection against Child Abuse and Neglect (ANPPCAN), the Penal Code Amendment Bill is referred to.

Thus in 2007, Parliament passed the Penal Code Amendment Bill and the Magistrates Courts Amendments Bill…The new amendments took effect two months ago and the judiciary is currently transferring case files from the high court to the magistrates’ courts.

Thus, according to this source, the Penal Code Amendment Act took effect at least by the Spring of 2008. I suspect it was in force earlier as indicated by this August 1, 2007 statement by Uganda’s Deputy Attorney General Fred Ruhindi (“recently we passed the Penal Code (Amendment) Bill. I believe that by now that Bill may already be assented to.”), although awareness of the law might not have been great. Thus, complaints that current Ugandan law does not cover abuser of “the boy child” seem to be incorrect.

Jan Mickelson Show WHO on at 11:00am

I will be on the Jan Mickelson Show WHO Des Moines at 11:00am (est). We will be discussing Uganda Anti-Homosexuality Bill 2009. You can listen live here. If that doesn’t work, go to Mickelson’s website and click the Listen Live link.

Church of Uganda releases statement on Anti-Homosexuality Bill

Christianity Today has a statement from the Church of Uganda regarding what they like and what they don’t like about the bill.

Actually, the only thing they want to change is the reporting requirement. They want to

Ensure that the law protects the confidentiality of medical, pastoral and counseling relationships, including those that disclose homosexual practice in accordance with the relevant professional codes of ethics.

Other than that, they want to make it more clear that homosexuality is against the law. The CT piece mentions a longer document but gives no link to it. If I can find it, I will post that as well. For opponents of the bill, this is not encouraging.

Another group wants to recriminalize homosexuality

US groups calling for criminalization of homosexuality did not help write the Anti-Homosexuality Bill in Uganda, but they may help provide cover for it to become law.

Add another to the group: The Michigan branch of the American Family Association.  According to the Michigan Messenger:

Gary Glenn, president of the American Family Association of Michigan, has added his voice to a growing course of American leaders calling for the re-criminalization of homosexuality in the U.S.

In an e-mail to Michigan Messenger, here’s how Glenn responded when asked if he supported the criminalization move proposed by the Family Research Council’s Peter Sprigg’s comments last week on Hardball:

“The short answer to your question is yes, we believe that states should be free to regulate and prohibit behavior that’s a violation of community standards and a proven threat to public health and safety — including, as most of the United States did throughout its history, homosexual behavior.”

I suspect we may see more of these declarations in the coming days in a sad attempt to support the Ugandan bill.

Paul Kengor on President Obama’s National Prayer Breakfast speech

My friend and Director of the Center for Vision and Values, Paul Kengor, wrote an analysis of President Obama’s National Prayer Breakfast speech. As I listened to Obama’s speech, I was distracted in a positive way by his reference to Uganda’s Anti-Homosexuality Bill. However, I also noted the President’s references to civility and hope he means it as more than rhetoric. And like Paul, I loved the reference to the Imago Dei – seeing the Face of God in each other.

God and Man at the National Prayer Breakfast

By Dr. Paul Kengor 

President Obama spoke yesterday at the National Prayer Breakfast. I’ve long studied the sitting president’s remarks at these breakfasts, particularly President George W. Bush, President Bill Clinton, and President Ronald Reagan. I note this to hopefully lend a little credibility in putting my observations into historical context, while also not avoiding the current political climate—as Obama certainly did not. Continue reading “Paul Kengor on President Obama’s National Prayer Breakfast speech”

Uganda criminalization debate comes to the USA

I suppose it was bound to happen. The Uganda Anti-Homosexuality Bill has brought out some of the schisms among social conservatives over homosexuality. Christianity Today notes just two examples: Peter Sprigg’s comment on Chris Matthews and Bryan Fischer’s misuse of I Timothy 1.

On Tuesday, MSNBC’s Chris Matthews interviewed Peter Sprigg of the Family Research Council about the U.S. military’s “Don’t Ask Don’t Tell” policy (DADT). Sprigg, FRC’s senior fellow for policy studies, said he would support banning all gays or lesbians from serving in the military. At the end of the discussion, Matthews asked Sprigg his view of homosexuality in civilian life:

MATTHEWS: Do you think we should outlaw gay behavior?

SPRIGG: Well, I think it’s certainly defensible.

MATTHEWS: I’m just asking you, should we outlaw gay behavior?

SPRIGG: I think that the Supreme Court decision in Lawrence v. Texas, which overturned the sodomy laws in this country, was wrongly decided. I think there would be a place for criminal sanctions against homosexual behavior.

MATTHEWS: So we should outlaw gay behavior.

SPRIGG: Yes.

And then:

Bryan Fischer of the American Family Association agreed with Sprigg. Citing policies and findings of the Federal Drug Administration and the Centers for Disease Control, Fischer concluded that homosexual behavior should be criminalized because it “represents an enormous threat to public health.”

“It’s a simple matter of common sense, sound public policy, and a concern for public health. … Whatever we think we should do to curtail injection drug use are the same sorts of things we should pursue to curtail homosexual conduct,” said Fischer, AFA’s director of issue analysis.

Fischer further justified his view by claiming that 1 Timothy 1:8-11 says “those ‘who practice homosexuality’ should come under the purview of the law just as much as those who take people captive in order to sell them into slavery.”

I addressed Fischer’s misuse of I Timothy 1 last Sunday.

One contributor to the mischief is Mr. Fischer’s misreading of the word law in I Timothy. Paul is writing Timothy to warn him about false teachers who want the Mosaic law applied to the followers of Jesus. Elsewhere Paul taught that the law was a “schoolmaster” which demonstrated the need for the good news of the gospel of redemption by belief in Christ. Mr. Fischer needs to spend some quality time reading Galatians chapters 1-4.

Paul is giving Timothy religious instructions and not saying that the civil law is given to prosecute various actions at odds with Christian teaching.

Fischer has a new column out titled, “If homosexuality were against the law.” He is not even concerned that such a law would be practically unenforceable. In his opinion, just having a statute on the books would prevent gay marriage, school based gay clubs, and gays in the military. How?

This list could actually be extended, but you get the point. Laws not only curb dangerous and risky behavior, they keep such behavior from being normalized, sanctioned and endorsed by the rest of society, and as such render an enormous benefit to a healthy culture.

Laws exist in Mr. Fischer’s view to enforce a moral view on the rest of society. Even if the law is a sham, it acts like moral code imposed by the state. 

And every student of history knows how well that has worked.

When laws are made but ignored the effect has been to disrespect law and resent the formality and residual control over personal conscience. Prohibition comes to mind as an example of the unintended consequences of using law to coerce conscience and behavior. As Fischer notes, sodomy was widely illegal until 2003, but with none of the effects he proposes.

Other social conservatives are encouraging the Ugandan supporters of harsher criminalization. Cliff Kincaid says Ugandan Parliamentary Research Service staffer Charles Tuhaise is concerned about why more conservatives here are not supporting the Anti-Homosexuality Bill.

A leading pro-family activist in Uganda says that Christians in that East African country need help resisting the schemes of the international homosexual lobby. Charles Tuhaise tells AIM that he is also disturbed by the general silence of conservatives in the U.S. to stand up for Uganda and its emerging Christian culture. 

The issue is consideration of a piece of legislation to discourage homosexual practices in Uganda.

“Many Ugandans are shocked at the reaction to this bill and the extent to which homosexual activists can intimidate everyone to silence,” Tuhaise said. “This is a bill written to control a problem that has largely gotten out of hand in western society and is now spreading tentacles worldwide. Perhaps Uganda has helped to highlight the danger that the homosexual movement poses to the world.”

I have exchanged numerous emails with Mr. Tuhaise. In them, he asserts that homosexuality can be spread though social acceptance. We have had civil dialogue about the research and science surrounding sexual orientation. Thus, I was surprised to read this statement he made to Accuracy in Media’s Cliff Kincaid:

“I am a Ugandan and I’m writing to thank you for your bravery,” Tuhaise said in his message to AIM. “The articles you’ve written in support of the right of Ugandans to exercise self-determination on the issue of homosexuality have thrown fresh light on the American scene [and show] that not every American is scared of the loud-mouthed homosexual lobby.”

He added, “Please continue to help Uganda by educating Americans about the bill and countering the lies. The American people should wake up and reclaim America from a dangerous subculture that is destroying their children and youth under the guise of liberty and human rights.”

Mr. Tuhaise surely knows that my opposition has nothing to do with the homosexual lobby, loud mouthed or not. He also knows that I am not spreading lies about the bill by simply printing the contents of it and letting people read it for themselves. He, himself, recently confirmed the purpose of the bill in an email to me:

…you have read the Bill and know that its object is to outlaw all same-sex sexual conduct. The question of “consenting adults” therefore does not arise. All same-sex sexual conduct is proscribed under the Bill.

Those who are supporting this position are, whether they realize it or not, advocating for the position that homosexuals are not competent to consent to private behavior. The bill, as written, makes giving such consent an illegal act. Furthermore, the bill, as currently written, makes any same-sex conduct among people with HIV, whether consensual or not, punishable by death.

Inexplicably, Tuhaise continues to say conservative opponents here have made critical statements of the bill without checking it. Not so of this conservative and I am confident Rick Warren read the bill before he wrote about it. If you are reading this and don’t know what to believe, go read the document.

Ugandan reaction mixed to comments from Obama, Clinton

Yesterday morning at the National Prayer Breakfast, keynote speaker, Hillary Clinton criticized the Anti-Homosexuality Bill and President Barack Obama called the bill “odious.” The reaction from leaders in Uganda and Ugandans attending the National Prayer Breakfast has been mixed.

Immediately Minister of Ethics and Integrity Nsaba Buturo reacted with defiance.

Buturo, one of the main Ugandan proponents of the bill which would further criminalise homosexuality and even gay rights advocacy, vowed that Ugandan MPs would not be swayed by US or any outside criticism.

“We cannot tell the Senate what to do. We cannot tell Congress what to do. So why do they feel that they can tell us what we should do in the interest of our people?” he asked.

“It is totally unacceptable,” Buturo added, in reference to any attempt by some of Uganda’s partners to reverse the adoption of the bill.

However, a bit later Minister of Foreign Affairs, Henry Okello Oryem said the bill will be changed.

“I am sure the bill will take a different form when it is tabled on the floor in parliament,” Mr Oryem told the BBC’s Network Africa programme.

However, he also pointed out that it was a Private Member’s Bill and so the government did not have the powers to alter it at this stage.

“Homosexuality is not a top priority for the people of Uganda,” he deputy minister said.

“Our priority is to make sure there is food on the table of our people – that we deal with the issue of disease.”

Ugandan delegates to the National Prayer Breakfast speaking to me anonymously agreed that the bill would almost certainly be changed, perhaps dramatically. One source told me that the section imposing death on a HIV positive person for “touching” should be changed to reflect an offense of knowingly spreading HIV without the consent of the other person. Others made it clear that they believe the aggravated homosexuality section of the bill should only relate to child abuse and rape of vulnerable people. None of those I spoke with believed that private conduct should be criminalized.

However, the delegates differed on their views of criminalization on public homosexual conduct. Some believed that homosexuality could be spread via societal acceptance, whereas others believed homosexuals should be respected as free agents to choose their own actions, even in public. All agreed that homosexuality is not socially acceptable in Uganda.

Some were concerned that Americans critical of the bill are not respecting the autonomy of Uganda. “You must respect our democratic process,” one delegate said. “The bill is only a proposal at this point, there are many chances for it to be amended,” he added. One delegate said emphatically that all input would be considered but that those who are critical should respect the right of Ugandans to govern themselves.

One Ugandan delegate who would only speak on condition of anonymity said that the rumor that people associated with the Fellowship had any influence on the writing of the bill were “totally untrue.” He said Bahati did not ask for advice on the bill and added, “This is not the kind of thing the Fellowship would support.”

Hillary Clinton keynotes National Prayer Breakfast; Clinton and Obama condemn Uganda’s Anti-Homosexuality Bill

The headline says it all. There can be little doubt that the Fellowship Foundation condemns the bill. They provided one of the most powerful platforms possible to offer specific condemnations of the bill.

In Clinton’s keynote address and Obama’s prepared remarks, they both condemned the bill.