Although there is no indication that the government is involved in David’s brutal killing, it must accept its
role in allowing a culture of violent homophobia to develop. The government could have done much more to prevent violent acts against sexual minorities, including this murder. The government failed to
unequivocally condemn the publication of hate speech and incitement to violence directed at members of the community and failed to prosecute the perpetrators for incitement to violence under the Penal Code Act, Cap 120. Through its failure, the government disregarded its own Constitution, which guarantees to every one the right to life (in article 22), respect for human dignity (in article 24), the right to privacy (in article 27), and freedom from discrimination (in article 21). Uganda has ratified the International Covenant on Civil and Political Rights, in terms of which sexual orientation is recognized as a ground for nondiscrimination.

In the absence of government action, it was left to persons affected by the publication to bring a court case to stop the publication of their names and personal details. In its decision of 31 December 2010, the Uganda High Court concluded that the publication exposing the identities and homes of the applicants, coupled with the call to “hang gays in dozens”, threatened to deprive the complainants of their right to human dignity, right to life and privacy of the person. David was one of the persons who approached the court. However, the court’s injunction and the amount of compensation awarded to him are of no consequence now.

• Click here to download the Uganda High Court Ruling on Injunction of Rolling Stone

Ugandan anti-discrimination legislation also does not protect LBGTI persons. The Ugandan Equal Opportunities Commission Act, 2007, established the Equal Opportunities Commission (EOC). The EOC is mandated to monitor the programmes, policies and activities of all public and private bodies to ensure that they are in compliance with ‘equal opportunities and affirmative action in favour of groups marginalized on the basis of sex, race … gender … or any other reason created by history, tradition or custom’. However, the Commission is not allowed to ‘investigate any matter involving behaviour which is considered to be immoral or socially harmful, or unacceptable by the majority of the cultural and social communities in Uganda’. This provision is clearly at odds with the very premise of the Act, namely the protection of marginalised minority ‘communities’. The context in which this amendment was inserted shows that its inclusion was aimed primarily at excluding sexual minorities from the ambit of the Act’s protection. The exclusion of sexual minorities from the scope of this Act further left them marginalized and without protection. The constitutionality of the offending provision was challenged in the Constitutional Court (Jjuuko Adrian v The Attorney General, Constitutional Petition No 1 of 2009) but no judgment has been rendered to date.

The Centre calls upon the government of Uganda:

• to unequivocally condemn the killing of David Kato, and any form of violence against sexual minorities;
• to conduct a thorough and speedy investigation into the murder of David Kato and bring the perpetrator(s) to justice;
• to diligently investigate allegations about and prosecute all persons involved in public incitement to violence against sexual minorities;
• to withdraw the Anti-Homosexuality Bill;
• to amend its anti-discrimination legislation to explicitly cover discrimination against persons on the basis of their sexual orientation or gender identity;
• to adopt legislation criminalizing hate speech and incitement to violence on the basis of sexual orientation and gender identity;
• to repeal the existing penal provisions criminalizing sexual acts between consenting adult men in private;
• and to ensure the Constitutional Petition challenging the discriminatory provisions under the Equal Opportunities Commission Act is expedited.

The government of Uganda is reminded that respect for human rights and dignity of all persons is essential for realising a culture of tolerance and respect for humanity that is demanded by the international community, of which Uganda is part.

For more information, please contact:

Prof Frans Viljoen
Director, Centre for Human Rights, University of Pretoria
Tel: +27 (0) 12 420 3228
Email: [email protected]
Website: www.chr.up.ac.za