Meet the attorney who got Uganda’s anti-gay law overturned

Nicholas Opiyo: Let me first state a fact: homosexuality has been in our community for as long as it has been. It is not an importation of Western society. At least we acknowledge that. Homosexuality as an orientation may have been frowned upon in some communities, but there were people who practiced that orientation in traditional African societies. That's very clear. But it was never a problem, precisely because in societies where it was frowned upon, social forces found way of dealing with it, and finding equilibrium. It's never been about Western culture. That has to be understood.

Secondly, outlawing intercourse between persons of the same sex was first introduced by the British. In 1950, the British passed the Penal Code Act in Uganda which provided for criminalization for the offense of sexual intercourse "against order of nature," which was then called "sodomy." So this was not an African idea — this was imposed upon us by colonials. That is clear.

Nicholas Opiyo: There's been misinformation about African culture and values. The narrative around this law was crafted in a way that suggested it was a contest between Uganda — and Africa, for that matter — and America. African nationalism became very popular and very permanent as a result. And because Western powers and developing partners in Uganda were calling for respect for the rights of the LGBTI community, the government was able to say, "Look! See! These are Western people, this is a Western idea."

Nicholas Opiyo: The reason this took a turn for the worse was precisely — and I can say this without fear — this was purely the handiwork of the American Pentecostal movement. In 2009, radical Christian preacher Scott Lively brought his campaign to Uganda. He was given unlimited access to legislators. He addressed Parliament, and religious leaders, and schools, and universities. He began to stalk hatred against persons with that orientation, peacefully pushing the idea that, "They are coming after your children. They're pedophiles! They have a lot of money, and are coming to recruit people to this practice. They're dangerous, and they're a threat to family values and African values." That discussion was what gave rise to this bill.

Now, up until the time the bill was tendered in Parliament, homosexuality wasn't an issue. People were concerned about broader human rights problems: poverty, unemployment, health services. People didn't care about homosexuality. It was a non-issue. They wanted food on the table, they wanted jobs … until your American pastors got over here, and began to start the flame of homophobia. And because that was picked up by both traditional churches — Catholics, Protestants, Muslims — and the Pentecostal movement, it just became wild. The Americans had very carefully-planned strategies of media campaigns, so their gospel of hatred became very popular, and politicians used that popularity to score political points.

In the political atmosphere of Uganda, anything that is popular, politicians will jump onto it. This law became an instrument of political power between people who were jostling for political office. In Uganda, that was the Speaker of Parliament and the Head of State. The Head of State was opposed to this law from the very beginning. But the Speaker of Parliament, sensing how popular this law was, and sensing she could have the chance of contesting for the presidency in 2016, what does she do? She takes this law and begins a personal campaign to promote it. President Museveni then sees that the law is quite popular, and what does he do? He jumps onto the bandwagon and signs this bill into law. So it was the convergence of American Pentecostalism with political infighting that gave rise to this law.

Nicholas Opiyo. (Courtesy of American Jewish World Service)

Nicholas Opiyo: I need to state very clearly: over the last ten years, the influence of the American Pentecostal gospel over Ugandan government policies has been growing. Look at HIV prevention. At the beginning, the message for HIV prevention was "Use condoms." When the president's wife, who is a staunch Pentecostal, got the message of the Pentecostal movement, it became "Abstinence!" The message for HIV prevention shifted from the use of condoms to abstinence and being faithful. As a result, HIV infection rates went up. The government now acknowledges that. So they have had an influence on the government agenda of our country, and, in many ways, have begun to moralize the debate in politics.

Their influence on the government agenda hadn't grown much until the HIV campaigns of the late '90s into 2000. That gave them a foothold. You now have the National Prayer Breakfast organized by the First Lady, American Pentecostal pastors getting free walks into the statehouse, and local Pentecostal pastors taking an active part in elective politics. At one point in 2006, one pastor suggested that one of the candidates would die. Well, not suggested — he actually "prophesied" that. But it never came to pass! (laughs.) That alone swayed a lot of votes. So their influence has been growing, and I think they're going to grow even bigger.

Nicholas Opiyo: When the law was passed, we filed a constitutional challenge in two areas. First, there was the procedural question. In the process of enacting the law, Parliament flouted its own rules of procedure and did not have the required quorum. Second, there was the legality of the act. Particularly, we made the point that the law was discriminatory — that it provided for discrimination on the basis purely of sexual orientation. Now this discrimination argument had other sub-arguments as well, such as, one, discrimination based on disability. Under the law, if any person who is disabled commits an offense, that offense becomes aggravated automatically on account that the person is disabled. The law also provided that if a person living with HIV commits an offense, that is automatically aggravated. So we argued that the law was discriminatory against persons living with HIV/AIDS, too.

Nicholas Opiyo: We argued that the law offended the principle of legality. The principle of legality is clear: for any act to be a criminal offense, it must be clearly defined. One, to allow an accused person to know exactly what conduct is outlawed. And two, to provide him with the fair chance of preparing a defense, which is his right to a fair hearing. So we argued that particular provision of the law offended the principle of legality because it provided for broad, sweeping terms that could mean anything, and that could be subject to abuse.

Let me give you an example. The act defines homosexuality to include touching a member of the same sex in a way that suggests intercourse. That was overly broad in our opinion. What is touching? What does it mean if I hold your hand, if I give you a hug? Will that amount to homosexuality, provided that a third party thinks perhaps I want to have intercourse?

The act also provided for the offense of the promotion of homosexuality. But the question is, what is promotion? Would a person offering legal or medical services to the LGBTI community be perceived to be promoting homosexuality?

There was another argument to be made about a person's right to access health services. The law essentially made it criminal for LGBT persons to go to the hospital. It provided that doctors could not only be prosecuted, but compelled to provide information about patients' sexual orientation.

Members of Uganda's gay community and gay rights activists react as the constitutional court overturns anti-gay laws in Kampala on August 1, 2014. (ISAAC KASAMANI/AFP/Getty)

Nicholas Opiyo: In the courtroom, there was always a tense atmosphere. There was always an exchange of words, nearly boiling into confrontation. But it never did until the last day of judgment.

Here's why. The court told us to turn up at 9 a.m. on Friday, so we turn up at 8:30 and take our seats. By 10, the judges hadn't come. So they call us into their chambers and tell us, "Look, we are typing up the judgment, please come back at noon." But instead of leaving the courthouse, we said, "Two hours is nothing, let's wait." While we were sitting in the courthouse, the numbers began to build. There were cameras, and about 100 journalists were there seeking to interview everyone in the room.

Now the pastors that mobilized people, they were also in the courtroom, and outside. Pastor Martin Ssempa came into the courthouse and began to preach and do his thing. And he began to pray, "God come upon them ... " He then went and confronted the petitioners, and [Ugandan journalist] Andrew Mwenda was there. They had an exchange, and everything was fairly friendly until Ssempa goes to confront Kasha Jacqueline, who is a known lesbian woman in town. At that point, the tension began to build, and there were counter-demonstrations inside the courthouse. The police had to intervene and restore calm. Even outside of the courtroom, there were people holding placards, and the demonstrators had to be restrained by police.

So the judges walk in, and you could hear a pin drop. There was absolute silence as we listened to the ruling of the judges. I was very pensive, I didn't know what to expect. And bam! When the law was declared unconstitutional, there was jubilation on our side. People got out flags, began to wave them, and began to hug the lawyers and themselves. But there was anger on the side where the pastors were sitting; they were distraught. There were more demonstrations and encounters. I didn't watch all of it. But there was pushing, and I'm told there were threats. After the press conference, I just drove away.

Nicholas Opiyo: More anti-gay people.

Nicholas Opiyo: A lot more. The pastors had mobilized young people, and they were all over the courthouse. They were all over the courthouse.

Nicholas Opiyo: I keep telling people this. You're not going to see public flogging of gay people in the streets. That would be a rarity, and even if it occurs, because of the nature of our media, it's not going to get reported widely. What, however, happens is persistent, consistent, daily discrimination of the smallest nature possible. The shopkeeper at the kiosk next to your house, the boda boda guy, they keep heckling at you. People keep telling your family and brothers about you. They tell your family they will not come to your burials. People sneering at you, saying negative things to you. People pointing at your back: you cannot go to public places without being pointed at.

There is also the blackmail and extortion by police and security forces. If the police know that somebody is gay, they will deliberately frame a charge against you, arrest you, and give you a police bond. A police bond is temporary freedom while your case is being investigated. If they know you are gay, they keep extorting money from you in exchange for your freedom. They say, "Oh, we've got evidence against you. We're going to take you to court, so give us money."

That is what kills the spirits, the hearts, the minds of gay people in Uganda. The insane discrimination. The insane segregation, and the sense of exclusion that happens every single day in every single place for gay men and lesbian women in Uganda. Just going to the hospital and getting treatment. Going to buy lubricant — you might not even find a place to buy lubricant, to buy condoms. If you have a particular problem, you may never get treatment because of the fear that people are going to keep pointing at you [points], "That one. That one!"

That is what is killing gay people in our country.

Ugandan anti-gay activists led by controversial Pastor Martin Ssempa (C) speak to the press after the constitutional court overturned anti-gay laws in Kampala on August 1, 2014. (ISAAC KASAMANI/AFP/Getty)

Nicholas Opiyo: That possibility is open. Somebody will do that, or somebody will attempt to do that. The question is, will the government of Uganda allow that to happen, having witnessed firsthand the impact of such a law on this country?

They might make this law a political hot potato in the coming election, so that the politicians who are seen not to support this law will find it difficult to win. So Members of Parliament are going to suffer the implication of this law, especially the MPs who went to court with us. The journalists, too, and the activists who went to court with us will suffer. You have to suffer if you are a public advocate [for the LGBTI community]. I suffered myself: in March of this year, I was booted out of my law society because of my opposition to this law.

Nicholas Opiyo: Ten years ago, this matter would not even have been discussed in public. People would have spoken about it in hushed tones in their houses. Now this issue has gotten away from houses to mainstream debate. Ten years ago, people would never come out in Uganda and say, "I'm a gay man." Now they do. They do it and live in Uganda! They do it and address the press and speak on television and radio. So we've come a long way as far as confronting the issue is concerned. LGBTI people are coming out. They've said, "I'm here."

But I tell my friends, this is not the time to celebrate this ruling, as good as it is. And the ruling is good! Many people were arrested and charged under the AHA. All those gays are going to go free. The organizations whose activities were suspended under this law, those organizations are going to open. In that sense, the ruling is significant.

But in the broader picture of solving the problems of discrimination and exclusion, that is far from over. The bigger work of ensuring inclusion and equality still lies ahead. Because the seeds of hatred planted in the process of enacting this law have been watered every single day by priests, pastors, and imams, who take to their pulpits to preach this gospel. There is also lots of blackmail going on right now. My Facebook page and Twitter page are full of insults. But I can take that. But how about that person who cannot take that? Some weaker gay person who perhaps may not be as privileged as I am to speak to you? Or who cannot even speak to others? Who cannot defend themselves? We must focus on that problem.