Acquittal, but bad news, in Uganda consensual sex case

Colin Stewart is a 45-year journalism veteran living in Southern…

Chris Mubiru (Photo courtesy of news.ugo.co.ug)

Contrary to earlier impressions, no helpful precedent was set by the Sept. 8 acquittal of Ugandan sports celebrity Chris Mubiru in a case involving consensual same-sex relations, a new legal analysis concludes.

Mubiru’s acquittal was accompanied by his conviction on Sept. 8 for forced sodomy, which seemed to suggest that Ugandan courts in the future might penalize homosexual assaults but not consensual sex.

However, in examining the official record of the case, Uganda’s Human Rights Awareness and Promotion Forum (HRAPF) found that Mubiru was not acquitted because the sex was consensual but because Magistrate Flavia Nabakooza concluded that evidence from his consensual sex partner could not be trusted. In fact, Nabakooza suggested that the partner also could have been prosecuted for willingly violating a law against same-sex relations.

Section 145 of the Ugandan Penal Code, governing “Unnatural Offenses,” provides for a life sentence for anyone who “has carnal knowledge of any person against the order of nature” [Section 145(a)] or who “permits a male person to have carnal knowledge of him or her against the order of nature” [Section 145(c)].

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“The magistrate in our opinion does not actually make the distinction between consensual and non consensual same-sex relations,” said Adrian Jjuuko, executive director of HRAPF. “Instead she even suggests the use of Section 145(c) for those who permit others to have carnal knowledge of them ‘against the order of nature.’ ”

On the basis of newspaper coverage of the verdicts, Jjuuko previously had reached a different conclusion, adding:

“The acquittal where the sex was consensual is very welcome, because there should be no criminal sanctions for same-sex relations between consenting adults.”

Now, however, HRAPF’s legal analysis of the case states:

“The main reason why the accused was not convicted on the second count was that he did not present himself as a credible witness. The facts that: he took so long to report; he had admitted to having same-sex relations with many other men other than the accused and yet he had not reported any of them; and the contradictions in the dates when he had ‘reformed’ and reported the homosexuality allegations all proved him unreliable as a witness. …

“[The judgment] seems to confirm the position that consent is not a defence under Section 145.

Adrian Jjuuko, executive director of the Human Rights Awareness and Promotion Forum (HRAPF)

On a positive note, HRAPF was hopeful that the court judgment might persuade police investigators in homosexuality cases to stop ordering anal examinations, which not only have been shown to have no value as evidence but also lead to accusations of human rights violations. HRAPF stated:

“Anal examinations have been discredited as being in violation of the right to freedom from inhuman and degrading treatment under Article 24 of the Constitution and of the right to privacy under Article 27 of the Constitution, and also for being of no evidential value. This case does not discuss the human rights implications of these examinations, but points to the fact that they are not reliable as evidence upon which to base a conviction more especially when they are done a long period after the incident.

“The magistrate refused to rely on any of the medical reports and stated that in the circumstances, they were inconclusive as to whether sexual intercourse took place. The medical examination of the two complainants and the accused were rejected. That of the first complainant was rendered inconclusive because of the lapse of time between the occurrence of the incident and the examining of the complainant while that of the second complainant was rejected because since the sex was consensual and lubricants were used to ease penetration, it was improbable that there would be any signs of injury or scars that are consistent with forced anal penetration.
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“This observation is very instructive because the Police usually subjects persons that are arrested on suspicion of being ‘homosexuals’ to anal examinations. Although the Magistrate’s conclusion on anal examinations is restricted to the specific facts of this case and does not exclusively rule them out as evidence, it is the first of its kind and can go a long way in challenging the actions of the police in subjecting almost all suspected ‘homosexuals’ to anal examinations and to discredit such evidence during trial.”

HRAPF repeated LGBTI rights activists’ endorsement of legal action against people engaging in sexual assaults:

“Persons who have sex with persons who are underage and those who stupefy other people in order to have sex with them should be punished. It is immaterial whether the acts were between persons of the same sex or between persons of the opposite sex since sexual abuse is sexual abuse.”

The analysis noted disapprovingly that Ugandan law enforcement often treats abusers of girls differently from abusers of boys:

“Defilement of girl children by men is a very common occurrence in Uganda and not a lot of attention is paid to it. However, where boys are concerned, there is usually a lot of condemnation and allegations of ‘recruitment’ of children into homosexuality.”