Monday, September 1, 2014

Anti-gay trials have started in Uganda — here's what we know so far

Kim Mukisa (R) and Jackson Mukasa (L) appear before the Uganda Chief Magistrates Court in Kampala, on May 7, 2014. ISAAC KASAMANI/AFP/Getty Images

On Wednesday, two LGBT Ugandans appeared in court for engaging in sexual activity. Jackson Mukasa, a 19-year-old trans woman, and Kim Mukisa, a 24-year-old gay man, were arrested earlier this year for violating section 145 of Uganda's Penal Code Act of 1950, which criminalizes sexual acts "against the order of nature." This is the first time anyone in Uganda has stood trial for this "crime" since the country's Anti Homosexuality Bill was signed into law in February.

According to Adrian Jjuuko, Executive Director of the Uganda-based Human Rights Awareness and Promotion Forum (HRAPF), no Ugandan has actually been convicted of consensual same-sex relations since the 1950 law was enacted. That makes this trial particularly significant. Neela Ghoshal, LGBT researcher on Uganda for Human Rights Watch, says this trial is "part of the antigay wave" sweeping through the country: "For the first time in Uganda and indeed for the first time in the entire East African region, the state has literally invaded the bedroom of two adults and dragged them into the courtroom for trial on charges of consensual sex."

If convicted, Mukasa and Mukisa face a maximum sentence of life in prison.

After speaking with Jjuuko, Ghoshal, Human Rights Watch, and others on the ground in Uganda and Tanzania, here is a chronology of the major events that have taken place so far in the case against Mukisa and Mukasa.

January 27 and 28, 2014

Mukisa and Mukasa were living together in Kampala, the capital city of Uganda. Local authorities had long suspected Mukisa was gay, and on January 27, they forced him out of his house "for being homosexual." Mukasa was also home, but managed to run away. It was then that an angry mob began to beat up Mukisa. (There is a great deal of hostility toward LGBT people in Uganda. A recent poll found that almost 9 out of 10 Ugandans think that homosexuality is morally unacceptable.)

After the scuffle, Mukisa and Mukasa were arrested separately — Mukisa for "having carnal knowledge of someone against the order of nature," and Mukasa for "permitting a male person" to have carnal knowledge of her. In other words, Mukisa was arrested for penetrating a man, and Muksasa was arrested for letting a man penetrate her. Even though Mukasa identifies as a trans woman, she is considered to be male in Uganda. According to Ugandan lawyer Silver Kayondo, "The essence of the homosexuality law is to draw a binary between the sexes, so I don't really see any prosecutor bringing a charge that calls a male a female."

Mukisa was subjected to an anal examination, an attempt to find empirical evidence that he'd had sex with another man. Here's how Ghoshal described the exam to me: "The examiner puts his finger in anus of the person, feels around, and comes up with some kind of quackery determination of whether the size of the anus indicates whether he received anal intercourse." Ghoshal described the medical report of the examination's findings as "really disturbing," noting that the exam is illegal under article 24 of Uganda's constitution. In fact, the United Nations has condemned such anal examinations as a form of torture.

February 3, 2014

Human Rights Awareness and Promotion Forum sent a letter to local police and the Uganda Human Rights Commission complaining that Mukisa and Mukasa's rights were being violated by their arrest. HRAPF also applied for the two to be released, at which time, said Jjuuko, "they were hurriedly taken to court." Mukisa and Mukasa then went back to prison until their next court appearance.

February 21, 2014

In their court appearance on February 21, Mukasa and Mukisa applied for bail. Mukasa's father was provided as a surety — a person who promises the court to take responsibility for the accused's debts, should he or she default. But the court ruled one surety wasn't enough. Bail for both parties was denied and court was adjourned.

According to Kayondo — who is part of the research team challenging Uganda's Anti Homosexuality Law — Ugandan courts have the responsibility to set "reasonable conditions" for the terms of bail. Kayondo cites two previous court cases that handed down rulings regarding how the court should set a detainee's terms of bail. The court, ruled the presiding judges, "should take into account the accused's ability to pay," and "should not impose such tough conditions that bail looks like a punishment to the accused." In the case of Uganda v. George Nduga, a bail of 2 million Ugandan shillings was deemed a "failure by the Lower Court to judiciously exercise its discretion."

In spite of these previous rulings, 2 million Ugandan shillings was the amount of sureties the court required before granting bail for Mukasa and Mukisa.

Kayondo told me in a phone interview that "there's a whole debate going on in East Africa now regarding the question of bail." He said Uganda's president, Yoweri Museveni, has "made arguments against bail in the past," and "thinks people should spend a certain number of days in jail" before being granted bail. Though Kayondo notes Museveni's comments on bail have mostly concentrated on those accused of capitol offenses, some have reported that the Ugandan president has proposed denying bail to those accused of sodomy.

March 10, 2014

Mukisa and Mukasa appeared in court again on March 10, and again were denied bail for lack of sureties. Mukasa's father was still the only surety they had. Jjuuko said that Ugandans are hesitant to stand as surety for an accused LGBT person because they could potentially face discrimination from their anti-gay communities.

March 25, 2014

Mukisa and Mukasa were initially granted bail because their lawyers were able to find a second surety. However, this second surety ended up going missing, and, according to Jjuuko, "refused to pick up calls" regarding the court case. It's possible that, as Jjuko suggested, the second surety was worried about the social ramifications for being a party to an accused LGBT person.

Their bail request also hit another obstacle. Defendants seeking bail are required to provide proof of residency. Mukisa and Mukasa's local council wrote a letter vouching for Mukasa but refused to do so for Mukisa because they "denied knowing him," said Jjuuko.

Mukisa and Mukasa were sent back to prison.

April 16, 2014

The state said they were ready to move forward, and gave a start date of May 7 for the trial. Mukasa and Mukisa's lawyers agreed to the date. The two remained in prison.

May 7, 2014

Ugandan LGBT activist Pepe Julian Onziema tweeted that the trial of Mukasa and Mukisa began Wednesday morning around 9:30 am local time.

The prosecution relied on two forms of evidence. (Of course, notes Ghoshal, these trials are relatively new to Uganda, and so there isn't really a precedent for trial procedure.)

The first form of evidence was medical, from the examination Mukisa was subjected to when he was arrested.

The second form of evidence the prosecution relied on was eyewitness testimony. According to Jjuuko, the witnesses were the local authorities who removed Mukisa from his house in January. However, these witnesses did not show up to court on May 7, and the trial was once again postponed. Jjuuko told me he isn't sure why the witnesses did not show up to court, and they had previously showed up for the bail hearing on February 21.

Mukasa was then finally released from prison on bail. Mukisa, however, was not granted bail because his council still refuses to write his letter of residency. A new bail hearing was scheduled for the next day.

May 8, 2014

Mukisa did not appear at his bail hearing on May 8. According to Jjuuko, the official reason prison officials gave to the court was that Mukisa was too sick to appear. However, Jjuuko claims one prison authority told him Mukisa didn't show up to his court hearing because prison officials prevented him from boarding the bus. If Mukisa was, in fact, prevented from appearing in court to request bail, then his rights were violated, as Kayondo explains: "Refusing to grant bail is one thing, but denying an accused the right to apply for bail is another and direct infringement and abuse to one's fundamental right to apply for bail."

Mukisa's bail hearing was re-scheduled for May 12. The trial for Mukisa and Mukasa is set to begin on June 12. However, says Maria Burnett of the Human Rights Watch, "There is a good chance that there will be a constitutional petition filed to the colonial era sodomy law, which would delay things substantially."

The trial of Mukasa and Mukisa does not bode well for the future of LGBT people in Uganda, says Ghoshal: "This trial constitutes a flagrant violation of two Ugandan citizens' rights to privacy."

Kayondo said that if the prosecution is successful, that will make it easier for subsequent convictions of other LGBT people in Uganda. "This case will give precedence for future sodomy cases — if the evidence is already there in the record, the court will say, 'Why not?' and prosecute them."

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