The United States Condemns Enactment of Ugandan Anti-homosexuality Act and Imposes Measures in Response

Three days after Ugandan President Yoweri Museveni signed the Anti-homosexuality Act (AHA) in May 2023,¹ President Joseph R. Biden, Jr. condemned the law as “a tragic violation of universal human rights—one that is not worthy of the Ugandan people, and one that jeopardizes the prospects of critical economic growth for the entire country.”² At President Biden's direction, the United States “evaluate[d] the implications of th[e] law on all aspects of U.S. engagement with Uganda”³ and adopted a series of “actions to raise awareness of the threats posed by democratic backsliding in Uganda, promote accountability for human rights abuses, and curtail direct assistance to the government.”⁴ These included visa restrictions, termination of eligibility under the African Growth and Opportunity Act (AGOA), reduction in foreign assistance, and issuance of business and travel advisories.⁵ The measures were broader than those taken by the Obama administration⁶ following the enactment of an earlier version of the AHA⁷ that was later struck down by a Ugandan court on procedural grounds.⁸ Petitions challenging the current law, part of a legislative trend across Africa,⁹ were substantially rejected in April 2024 by Uganda's Constitutional Court.¹⁰

Outright International has described the AHA as “the world's worst, most draconian anti-LGBTQ legislation.”¹¹ Under Uganda's colonial-era penal code, certain sexual relationships, including when a person “permits a male person to have carnal knowledge of him . . . against the order of nature,” were criminalized as “unnatural offenses” liable to life imprisonment.¹² The AHA establishes “the offense of homosexuality”—defined as when “the person performs a sexual act or allows a person of the same sex to perform a sexual act on him or her”—subjecting persons convicted of the offense to life imprisonment.¹³ The AHA also institutes the “offence of aggravated homosexuality,” which it defines as “commit[ting] the offence of homosexuality in any of [ten listed] circumstances,” including: when a person has sexual relations with a child, a disabled person, or a person aged seventy-five or above; when “the person against whom the offence is committed contracts a terminal illness as a result of the sexual act”; and when “the offender is a serial offender.”¹⁴ The law provides that a person “who commits the offence of aggravated homosexuality . . . is liable, on conviction, to suffer death,”¹⁵ making Uganda one of seven countries that impose the death sentence for consensual same-sex sexual acts.¹⁶

But the AHA extends well beyond sexual acts and the persons engaged in them. It criminalizes “child grooming,” “knowingly allow[ing] any premises to be used by any person for homosexuality,” same-sex marriage (including “purport[ing] to contract a [same-sex] marriage,” presiding over a same-sex marriage ceremony, or attending a ceremony), and the “promotion of homosexuality.”¹⁷ “Promotion,” the penalty for which is up to twenty years imprisonment (or, for a legal entity, a fine or suspension or cancellation of its license), includes “knowingly advertis[ing], publish[ing], print[ing], broadcast[ing], [or] distribut[ing] . . . any material promoting or encouraging homosexuality or the commission of an offence under [the AHA]” and “provid[ing] financial support . . . to facilitate activities that encourage homosexuality or the observance of normalisation of conduct prohibited under [the AHA].”¹⁸ The AHA thus potentially criminalizes the work of people in organizations that support the LGBTQ+ community, including entities that provide services such as HIV and AIDS treatment, as well as day-to-day activities, such as renting property and attending weddings. Further, the AHA establishes a “duty to report acts of homosexuality or any other offence under th[e] Act” when “[a] person . . . knows or has a reasonable suspicion that a person has committed or intends to commit the offence.”¹⁹ The AHA thus creates broad societal obligations that intentionally ostracize LGBTQ+ persons and spread fear in that community and in those persons and entities that seek to support it.

Following the law's passage, many people in Uganda have been evicted, subjected to violence, discriminated against, and arrested, including on charges of “aggravated homosexuality.”²⁰ Many have gone into hiding, lost their jobs, or fled the country.²¹ With one of the highest HIV infection rates in the world, an epidemic may result.²² The economy has been hit, with foreign buyers canceling orders and tourists avoiding the country.²³ The act, the final version of which was approved by the Ugandan parliament with only one member voting against²⁴ and despite international pressure on President Museveni to reject it,²⁵ is popular in Uganda, where anti-gay sentiments are deeply entrenched (with the help of U.S. religious groups), and anti-gay rhetoric has increased in recent years.²⁶

Following condemnation of the AHA by President Biden and Secretary of State Antony J. Blinken,²⁷ the United States’ initial response was to update, in June, its existing Level 3 travel advisory for Uganda “to reflect [the] recently enacted anti-LGBTQI+ legislation,” urging travelers to “[r]econsider travel to Uganda” in light of that legislation.²⁸ The update noted that the “May 2023 Anti-Homosexuality Act raises the risk that LGBTQI+ persons, and those perceived to be LGBTQI+, could be prosecuted and subjected to life imprisonment or death.”²⁹ It also noted that “[s]upporters of the dignity and human rights of LGBTQI+ persons . . . could be prosecuted and imprisoned.”³⁰ It explained further that “[s]ocial acceptance of homosexuality is very low” and “LGBTQI+ persons, or persons perceived to be LGBTQI+, could face harassment, imprisonment, blackmail, and violence.”³¹

In October, the Departments of State, Labor, Health and Human Services, and Commerce, together with the U.S. Agency for International Development, issued a business advisory. It observed that “[t]he enactment of the [Anti-homosexuality Act] expands [existing business and investment] risks and creates additional opportunities for interference with business operations” due to, among other things, its mandatory reporting requirement and its prohibition of “promotion of homosexuality.”³² The advisory explained that the act “increases . . . censorship risks by criminalizing a wide range of commercial activities that are of particular interest to media, broadcasters, the advertising industry, and related industries,” such as “prohibit[ing] and penaliz[ing] the printing, broadcast or distribution of ‘material promoting or encouraging homosexuality.’”³³ The advisory also warned that the AHA may establish conflicting obligations for U.S. businesses under Ugandan and U.S. law. The advisory pointed out, as an example, that “U.S. law prohibits discrimination based on sexual orientation and gender identity in federal contracting,” and thus “federal contracting agencies must include sexual orientation and gender identity as prohibited bases of discrimination” in certain contracts, including those for which work is performed in Uganda.³⁴

Also in October, President Biden announced his decision to terminate Uganda's designation as a beneficiary country under AGOA, effective January 1, 2024.³⁵ AGOA eliminates U.S. tariffs on 1,800 products imported from eligible African countries.³⁶ To be eligible, “countries must establish or make continual progress toward establishing a market-based economy, the rule of law, political pluralism, and the right to due process.”³⁷ Countries “must [also] eliminate barriers to U.S. trade and investment, enact policies to reduce poverty, combat corruption, and protect human rights.”³⁸ Uganda was designated an AGOA beneficiary country in 2000,³⁹ shortly after the statute's enactment.⁴⁰ President Biden determined that Uganda no longer satisfied AGOA's eligibility criteria because “the Government . . . has engaged in gross violations of internationally recognized human rights.”⁴¹ “Despite intensive engagement between the United States . . . and Uganda,” the president noted, Uganda has “failed to address United States concerns about [its] non-compliance with the AGOA eligibility criteria.”⁴² Ugandan exports to the United States, totaling $174 million in 2022, will likely decrease with the reimposition of pre-AGOA tariffs.⁴³ President Obama had not terminated Uganda's AGOA benefits when an earlier version of the AHA was enacted in 2014.

In December, Secretary Blinken announced the expansion of Uganda-specific visa restrictions.⁴⁴ Adopted pursuant to Section 212(a)(3)(c) of the Immigration and Nationality Act,⁴⁵ Secretary Blinken first issued the policy after Uganda's 2021 elections to target “those believed to be responsible for, or complicit in, undermining the democratic process in Uganda.”⁴⁶ Blinken now extended the policy to restrict access to U.S. visas for those responsible for “policies or actions aimed at repressing members of marginalized or vulnerable populations,” including “environmental activists, human rights defenders, journalists, LGBTQI+ persons, and civil society organizers.”⁴⁷ In March 2024, Ugandan Member of Parliament Sarah Achieng Opendi, who while the AHA was being debated said that “These people should be castrated,” was denied a visa to enter the United States to attend the annual session of the UN Commission on the Status of Women.⁴⁸

In addition to these measures, the United States has also sought to curtail, redirect, and pause the funding of certain Ugandan government programs. The United States “advocated for” and “supported” the World Bank's decision, announced in August, not to present new public financing to Uganda to its Board until safeguards are put in place that “protect sexual and gender minorities from discrimination and exclusion in the projects [the Bank] finance[s].”⁴⁹ The Department of Defense temporarily halted $15 million in funding to Ugandan government ministries.⁵⁰ The United States has also diverted more than $5 million through the President's Emergency Action Plan for AIDS Relief (PEPFAR) from direct government channels to private organizations “due to concerns over how the AHA impacts the Government of Uganda's ability to deliver services in a non-discriminatory manner.”⁵¹ These amounts are not significant, however, given the nearly $1 billion in U.S. government annual investment in Uganda.⁵² The United States is continuing humanitarian and development assistance through international organizations and non-governmental organizations.⁵³ The White House also announced that “the Department of State and USAID have increased emergency assistance to LGBTQI+ Ugandan human rights defenders and organizations whose safety and security are at risk.”⁵⁴