Fox Odoi: why the anti-gay law is illegal

Fox Odoi, the West Budama North MP, is in the news for leading the legal challenge against the controversial Anti-Homosexuality Act.

In this interview, he explains to Sulaiman Kakaire why the law, which is hugely popular at home and harshly criticised abroad, is unconstitutional.

Close to two weeks ago you filed a Constitutional court petition challenging the Anti-Homosexuality Act, what are the major grounds?

We argue, under the first ground of our petition, that Parliament was not legally constituted to deal with and pass this legislation. The problem is that if you do not have sufficient quorum, you do not have Parliament to deliberate on any matter.

The rationale is if we have a very important issue that binds us as a country, it should as much as possible have all shades of opinion that represent the country. So, if you allow Parliament to pass a law without quorum, it will make it permissible for two people sitting to make a decision or law or constitutional amendment that will bind the whole country.

I was not in Parliament that afternoon but I know for a fact that the Rt Hon Prime Minister Amama Mbabazi raised the question of quorum and I know that when the issue of quorum is raised, the presiding officer is supposed to call the register to ascertain by carrying out a head count. This was not done.

You know a register is at no material time indicative of a member in the House.  So, when the question is raised you do the head count and if the quorum is not realised the rules provide that the speaker stands the proceedings and a bell is rung for members to attend proceedings and if the quorum is raised the proceedings continue. Where it is not raised, the voting on such a matter is stayed.

Is this the only ground you cite in the petition?

No. We are also contending that by the law criminalising consensual same sex among adults, it contravenes equal protection before the law  and is discriminatory and as such in violation of Article 21. What happens between two consenting adults should not be a concern to their neighbour.

We also argue that criminalising touching of same sex is overly too broad. You know that [anti-gay] law even criminalises touching of the same sex. How can you have a law that prohibits touching of the same sex? Does every touching end up in a sexual relationship?

We further argue that criminalising this particular sexual orientation in which one person is living with HIV/AIDS is in contravention of Article 21 of the Constitution. Our argument is this: you have not criminalised heterosexuals where one lives with HIV/Aids but you have criminalised the same sex partners living with HIV/Aids. This is discriminatory.

The law also creates the offence of aggravated homosexuality by providing a penalty for same sex with a person with disabilities. This is discriminatory and in violation of Article 21 of the Constitution. Whereas among heterosexuals it is okay to have sex with a person with disability, it is criminal for same-sex couples.

Finally, we argue that section 4(2) which imposes a life sentence for attempted homosexuality violates an individual’s right to dignity and will be subjecting homosexuals to cruel, inhuman or degrading treatment or punishment and as such violates Articles 24 and 44 of the Constitution. Even if you argue that homosexuality is criminal, what is it really?

It is an act of love between two consenting adults; should you impose such a sentence that is disproportionate? It is extreme. How can a state define who you should enjoy love with and at the same time hate someone for their sex orientation.

Lastly, I wanted to comment that by this law, the state is trying to institutionalise homophobia, promote hatred and [it] constitutes subjecting homosexuals to torture, cruelty and degrading treatment which is also in contravention of Articles 24 and 44.

You see, for four complete years the people of Uganda have been told lies by Hon [David] Bahati for whom I have respect for as a colleague, that the objective of the bill is to protect the traditional family as conceived in the African sense. My argument would be that I don’t know for a fact what a traditional African family looks like as defined in this context.

I do not think there is anything left of the traditional family. Since the coming into force of the 1995 Constitution, whatever human behaviour it is, it is subject to the Constitution ….two adults have a right to find a family that is the family that I know; not a traditional family that Bahati is saying …from 1995 you could no longer plead culture...it was in contravention of the Constitution if it is repugnant. So, you don’t pick it from the street, but you see the Constitution.

Among the Luo, a man and woman cannot enjoy equal rights, the man is supreme but under the Constitution that is not permissible. If we assumed that there is something known as the traditional family, then the greatest threat to that family is not homosexuality …I have done research by looking at divorce cases since 1990 and not one of them has homosexuality been a ground for it. It is adultery and cruelty. Adultery almost occurs in all them; so, the greatest threat is adultery with heterosexuals.

You claim that homosexuality is a right but some Ugandans disagree…

You see again if we use the 1995 Constitution as our guiding beacon on human rights it says that human rights, are inherent and not granted by the state. What that means is that every human, being is born with a right. We are born equal and these rights accrue to us as human beings and are not granted by the state.

Once you accept that I am human, you do not have to subject me to a scientific process to determine whether I should enjoy the rights that are guaranteed by the Constitution. So, I think even subjecting the rights of homosexuals to a study is in itself unconstitutional because that suggests that they are inhuman; so, let us subject them to this discriminatory test.

I thought that this practice had stopped with Nazi Germans who believed that Jews were not human but I am shocked that in 2014 we are subjecting humans to such studies. To argue science it will be arguing that homosexuals are cousins to chimpanzees. I found this offending but we need to continue engaging.  

How do you connect homosexuality to a human right?

This is freedom of choice, if you cannot choose who you love and you cannot choose who you hate, you certainly have no choice left. Love is a matter that occurs in every human being. Actually it is a matter that determines humanity. Our relationship in society is determined based on love for one another. So, if you cannot allow me to choose who I am to love, then you are denying me a fundamental right.

But you know there are some other rights here like the right to sex. Of course I have heard that sex is only intended for procreation. This is another myth. The right to sex is a right that must occur to every human being. It is a right that occurs to even animals and in different jurisdictions this has been modified to a right to sex for prisoners and Uganda is moving towards that direction.

Ninety-nine per cent of sex even amongst heterosexuals is for recreation, not procreation. You can sleep with your wife for a year and she will not conceive simply because God never intended any sexual intercourse to end up in a pregnancy. Out of the 28 days in a month for a woman, she can probably conceive in four days; so, the rest of the [sex] along the way is for recreation.

So, then that introduces another right for homosexuals, the right [whether to] or not to have children because once you go into a homosexual relationship you know that you are incapable of having children; so, you have made another choice. Even that is another right they want to deny them.

Some Ugandans think that for a right to be enjoyable it has to be in accordance with good conscience and in the context of this, sex is being abused...

I have had some people arguing that sex is for procreation and that is why they qualify such as good conscience, but, how many heterosexual marriages do not produce children? So, must we lock up these couples on account of low sperm counts, barrenness, etc.

Anyway, who determines good conscience? It is not universal. What is good conscience to me is not conscience to you; that is why the Constitution says that every person shall have a right to conscience.

Most Ugandans are saying this conscience must be generally acceptable after all it will be easy to protect the enjoyment of such a right...

That is wrong. I think society has a high duty to protect those we don’t agree with and to protect those we think are weird. If they argue like that, it means that I should only protect those who I agree with.

Besides, that perception presupposes that human rights should accrue to humans as a community. That is contrary to what the Constitution says. Rights accrue to us as individuals.  

But majority have decided that let’s limit the enjoyment of this right...

Again the Constitution sets the yardstick on limitation. The only limitation acceptable must be demonstrably justifiable in a free and democratic society and that is what Article 43 provides. Meaning by way of evidence you must show that the limitation is justified in a free and democratic society…it cannot be by way of sentiment.

What are the implications of limiting the enjoyment of this particular right?

You know rights are so connected. I belong to a school of thought that argues that human rights are not separable that you can enjoy this bit but you cannot enjoy the other bit and my belief goes back to what I said: I do not have to prove to anyone that I am human to enjoy a right.

I am born with them. So, the implication is that if we limit the enjoyment to choice to sexual orientation, it affects an individual’s right to conscience, opinion and speech which similar rights define the enjoyment of other rights.

You have been passionate about this more than the known homosexuals, is it possible that you are a homosexual yourself?

(Laughter) I am not. I am happily married and blessed with children like you can see them. Actually I will never contemplate being a homosexual but I will defend the rights of a homosexual just like I will defend the rights of heterosexuals. I do not think that I need to agree with you to defend your rights. That is unreasonable and selfish.

Similar laws that abuse human rights have been passed by Parliament but you have not fought them, which makes some people think that your passionate drive is influenced by inducements from the homosexual lobbyists; are you paid?

I want you to know that that is blackmail also intended to intimidate people who defend justice. I have been involved in many cases to defend rights. This is not the first. There is no amount of money that can be paid to champion a cause that is unpopular like this one…the price I am paying cannot be quantified.

Every person you meet they think you are insane, which I am not. This is an easy route they have taken. I am not paid by anyone; we are going to look for money to pay our lawyers…of course there are those that are doing pro bono services and those that are paid. We shall go out there and look for the money to pay.

Of course we shall contribute individually and seek for some help from friends. Besides, you should know that I come from a minority Japadhola tribe and I am also an Independent MP. So, if a minority group is being hunted down, I know that I am a possible target.

But some people think that in promoting the homosexuals’ rights you are seeking favours from the West...

I joined Parliament on my own right. I am an advocate on my own right. I am not poor by any standards, neither are my colleagues. I am sufficiently propertied and belong to the middle- class of Uganda.

The people seeking favours are not in this petition...Prof Joe Oloka-Onyango is a renowned professor of law, Prof Morris Ogenga-Latigo is a farmer and professor, Andrew Mwenda is not a pauper, he has an empire of his own. So such an argument does not arise. This drive is individual conviction.

But, by the West resorting to aid cuts and threats, don’t you think it is them that have resorted to threats instead of dialogue?

What rights do you have to their money? What makes you think that they should forever keep on picking up your bills?

Even when you are doing ludicrous things like not protecting your own, these homosexuals are not whites, they are black, Luo, Banyankore, Baganda…You cannot protect them yet you want those fellows to continue giving you aid. And, you don’t want to hear their opinions; what hypocrisy is that? I think it is misplaced arrogance.

But the money they are withdrawing still benefits the poor...

I know for a fact that the US is providing about $480m for HIV/Aids…As MPs we should have known that we have 1.2 million people on ARVs. As an MP I know for a fact that at least 3,000 of my people are on ARVs. I know the bill is picked by society that respects rights of sexual minorities. I have been told that I will lose politically but I will go back and explain to them that these people don’t care a damn whether you get ARVs or not.

The law is popular amongst Ugandans including your electorate, hasn’t this politically affected you?

It has. The other day the Uganda Joint Christian Council held a massive thanksgiving for the president, in my district. Of course they are saying that they are taking the fight to my backyard but we shall continue to fight…ultimately.

I have been in Parliament for only two and a half years meaning I had a life before Parliament and will have a life after. The only thing they cannot take away is the fact that I am a good human rights lawyer.

Is it possible to enforce this law?

No. It is not possible in light of the 1995 Constitution; maybe if they abolish it. Besides, what I know is that it will be abused, you see if I hate you, I will just report that you are a homosexual and you know the stigma that accusation carries.

We had a similar law in the penal code and it has been hard to convict anyone under it despite existing for more than five decades.  

skakaire@observer.ug