Speaking at a dinner hosted for delegates attending the ‘Governing Migration: 13th Conference of the International Association for the Study of Forced Migration,’ on 5 July 2011, in Kampala, Uganda, gender and sexuality expert, Dr Sylvia Tamale, gave various reasons why she is proud to be Ugandan but also painfully revealed why she is not happy to be associated with her country. Tamale’s unhappiness with her country stems from the persecution of people on the basis of their sexuality. Tamale, associate professor of Law at Makerere University and the editor of a new reader, ‘African Sexualities: A Reader’, said sexuality clearly fits into the conference theme as it is now a reason for Ugandans to flee. Tamale’s sentiments are shared by many, most especially sexual minorities i.e. lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, and human rights defenders.

In Uganda, sexual minorities remain amongst the most vulnerable groups of people facing state-sanctioned torture, community violence and exclusion in many spheres of life. Section 140 of Uganda’s Penal Code criminalises carnal knowledge against the order of nature with a maximum sentence of life imprisonment. This has generally been interpreted to mean that any homosexual behaviour is illegal. It is the basis for harassment of all LGBTI individuals in Uganda. Even with the existing legislation, the country is seeking to come up with a law that will make it impossible for sexual minorities, or even those who know about them to live within the country. Consequently this is going to lead to an increase in the number of people seeking asylum based on their sexual orientation.

Hon. David Bahati, Member of Parliament for Ndorwa County, introduced the Anti-Homosexuality Bill to the Ugandan Parliament on 14 October 2009, arguing that it will strengthen the nation’s capacity to deal with emerging internal and external threats to the traditional heterosexual family. If enacted, it will mandate the death penalty in some cases. It will also require anyone who is aware of an offence or an offender, including individuals, companies, media organisations, or non- governmental organisations that support LGBTI rights, to report the offender within 24 hours. If an individual does not do so he or she is also considered an offender and will be liable on conviction for imprisonment of up to three years.
These developments are despite the existence of many domestic and international instruments that guarantee the right to non-discrimination and protection of all individuals regardless of gender, race, nationality etc.

In a speech delivered at the launch of the 2009 UNDP Human Development and Migration Report on 17 December 2009, at the Serena Hotel in Kampala, Moses Chrispus Okello, a senior research advisor at the Refugee Law Project Kampala argued that the proposed anti-gay legislation is going to lead to a fairly massive exodus of people from Uganda. ‘If we go down this path, we can only expect people migration of professionals, doctors, teachers and peasants – and even Bahati’s children and grand-children.’

The United Nations High Commission for Refugees (UNHCR) 2008 Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, recognises that some LGBTI individuals have been compelled to flee their home countries and seek international protection abroad.

LGBTI individuals may be subjected by State authorities, their families or communities to physical, sexual and verbal abuse and discrimination, because of who they are or who they are perceived to be. This might be because of prevailing cultural and social norms, which result in intolerance and prejudice, or because of national laws, which reflect these attitudes.

The UN Refugee Agency acknowledges that an increasing number of LGBTI people have been able to obtain refugee status and start a new life in countries with better tolerance and respect for human rights.

Sections of the Ugandan press have published names, photos and addresses of suspected homosexuals accompanied with homophobic statements like “hang them". Due to the hostile environment at home, having the identities of these people revealed leaves many with no choice but to relocate to another country where they can find a safer haven.

LOOKING FOR GREENER PASTURES?

This state of affairs is also likely to be exploited by those who owing to extreme poverty resulting from bad government policies within the country find reason to seek asylum in more developed nations leading to loss of human capital.

During celebrations to mark World Refugee Day in 2004, I participated in a BBC online discussion about asylum claims in Europe and the developed North where I argued that most of the time, the actual people who need refugee status are left out because they don’t even know the process of claiming asylum. It is on record that there are people who have exploited situations, for instance the Rwanda genocide, to claim refugee status when they have never been to Rwanda. This group of people has access to information and resources that they use to beat the system. So with the prevailing poverty, lack of employment opportunities there are people who will do whatever it takes, call it ‘eyes on the prize’ to get asylum elsewhere if an opportunity like gay legislation presents itself.

LGBTI migration is international and so is perceived as following economic and social opportunities.

CONCLUSION

Government policy and legislation aiming to derive LGBTI persons out of Africa is not going to work. Development policy needs to tackle the root causes of forced migration, which is poverty and insecurity. Governments need to respect the principles and norms of human rights law to protect civilians. The anti-gay legislation challenges the foundation of human rights. Government is not paying attention to what extent anti-gay legislation currently and in the future is likely to trigger migration not only for LGBTI persons but individuals fleeing poverty. As the so-called developed nations tighten their border control policies, opportunists will use widespread homophobia against LGBTI people at home as a scapegoat seeking a better life outside their countries of origin.

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* Angella Nabwowe is a communications advisor with the Refugee Law Project, Faculty of Law, Makerere University.
* This article forms part of the 'IASFM13: Governing migration' special issue, produced in collaboration with the International Association for the Study of Forced Migration (IASFM) and the Refugee Law Project, Faculty of Law, Makerere University, Kampala.
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.