Silent danger in Anti-gay and Anti-Porn Bills

By Magelah Peter Gwayaka

Media freedoms could be curtailed and individual’s privacy abused by police

Recently Uganda Parliament passed two bills; the Anti-Homosexuality and the Anti-Pornography Bills, which purport to aim at protecting Uganda’s societal morals. However, what seems not to be in the debate is the fact that the two Bills will result into great media censure and we may see media houses being closed or harassed and journalists being imprisoned because of what they publish.

For example, Clause 13 of the Anti-Homosexuality Bill provides that;

“Any person who participates in production, procuring, marketing, broadcasting, disseminating, publishing pornographic materials for purposes of promoting homosexuality commits an offence and is liable to imprisonment for seven years and where that person is a cooperate body, that body shall be deregistered”.

The Bill does not define what amounts to “promoting homosexuality”. This makes it possible for any form of publication, broadcast e.t.c. with gay content to be considered as such. For example, publishing pictures of gay marriages in Uganda could be considered as promoting homosexuality.

The same can be said of pictures of demonstrations by gay people, or a film whose lead actors are gay. A big target for this would be the tabloid newspapers that recently pushed several stories and photos purporting to be of gay people having sex.

The two Bills provide that where an organisation is involved in publication of gay or pornographic content, that organisation will be deregistered on top of staff of that organisation facing imprisonment.

This targeting of the staff and the organisation directly defeats the legal principle of vicarious liability where an employee should not be punished for the acts done on behalf of his employer. The same provisions will result into double jeopardy; a principle that is against the provisions of the Uganda constitution.

The Anti-Homosexuality Bill will also kill investigative journalism especially in relation to homosexual acts. The Bill obliges any person with knowledge that acts of homosexuality are being committed to report to police within 24 hours failure of which is an offence.

Whereas ordinarily media houses investigate and publish their findings for the authorities to possibly take action, this time a media house will be under obligation to report to police as opposed to publishing their findings. It should also be noted that such investigations by media houses often take longer than the stipulated 24 hours.

Clause 6 provides that matters of investigating and prosecuting homosexuality should be confidential. It provides in part that any editor or publisher, reporter e.t.c., who publishes the names and personal circumstances or information tending to establish the victim’s identity without authority of court, commits an offence.

Whereas there is an attempt to separate a victim from an offender, this will be difficult where the acts of homosexuality among two consenting adults. It will thus make it easy to target anyone publishing such information.

On the other hand the Anti-Pornography Bill (the Miniskirt Bill) focuses on publication and distribution of pornographic materials. It defines pornography to mean any cultural practice, radio or television programme, writing, publication, advertisement, broadcast, upload on internet, display, entertainment, music, dance, picture, audio or video recording, e.t.c. that depicts a person engaged in explicit sexual activities or conduct, sexual parts of a person such as breasts, thighs, buttocks or genetalia, or any indecent act of behaviour tending to corrupt morals.

The above definition is very broad and can cover a lot of publications and kind of media. Whereas tabloid media in Uganda is the major target for this Bill, other media can easily be affected because of the broad nature of the difinition. For example playing a song/video with sexual content however small can be said to be pornography and a comission of an offence.

Clause 13 makes it an offence to produce, publish or broadcast pornogrpahic material. The clause is widely worded to cover everyone along the value chain of publication from editor to customer. It targets the editor/producer, vendor and anyone who takes part in distribution of material whose content can be said to be pornographic.

The Anti-Pornography Bill gives police powers to direct a newspaper publisher or broadcasters e.t.c. to stop publication or distribution of pornographic materials. This in effect gives police/government powers to determine the editorial content by directing what and what not to publish.

On the other hand the Bill requires an internet service provider to monitor internet content and remove any pornographic material posted on interent. This could be in form of pictures, videos, words e.t.c. In simple terms, the Bill provides for internet servaillance by internet service providers to be able to detect and remove pornographic content. One wonders if this will apply to emails and other personal communications.

Magelah Peter Gwayaka is a lawyer/researcher at the NGO, Advocates Coalition for Development and Environment (ACODE).