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Should the anti-homosexuality legislation in Uganda make the UK consider invoking greater conditions on aid?

5 March 2014

Dr Purna Sen, Prospective 2015 parliamentary candidate for Brighton Pavilion and Deputy Director of the Institute of Public Affairs, LSE

The past few months have seen several setbacks in the realisation of sexual rights in various parts of the world. From the Supreme Court in India upholding the penal code provision that criminalises same sex sexual activity, to the banning of gay marriage in Nigeria, to the anti-homosexuality legislation in Uganda and the undoing of gay marriage provisions in Australia – times seem bad for LGBT rights. There are other developments that are more positive (the passing of equal marriage for example) but here I want to address the option of invoking conditions for the giving of foreign aid – an option that has been raised in the context of an onslaught on LGBT rights.

Uganda has been in the eye of the storm for some time. I first spoke to the government about the anti-homosexuality legislation in 2009. As Head of Human Rights for the Commonwealth Secretariat, I was tasked with leading work that helped member states to uphold the organisation’s values, respecting and promoting rights among them. As a member state and the most recent chair, Uganda was no ordinary member but held a key leadership role. There was limited but growing international awareness of this Bill, which one diplomat described to me as ‘odious and vile’. At the time, it included the following: death penalty for aggravated homosexuality, jail sentences for anyone aware of someone’s homosexuality but not reporting this to the authorities and a commitment to withdrawal from all international human rights obligations.

Uganda was neither alone nor in a minority in the Commonwealth in terms of criminalisation – over 40 members of the Commonwealth and about another 30 outside that association have similar legal provisions. However, to consider Africa a homophobic continent was profoundly unfair. States such as Rwanda and South Africa were exemplary in their stated and legal commitment to equality. Mauritius too subsequently supported moves towards decriminalisation at the United Nations. And voices within countries with abusive laws were raised in opposition: the west had no monopoly of outrage.

Only in recent years have issues of sexuality and sexual orientation entered into development debates, and they remain marginal even now for many practitioners. To deny choice, the right to privacy and dignity are incontrovertibly constraints on the ability to participate in or benefit from development and, more fundamentally, at odds with any notion of social justice that might be associated with development.

In light of these concerns, questions are being asked as to the introduction of conditionality for aid. Indeed, the World Bank has declared a review of a health related funding steam for Uganda. But such options are replete with problems for example- which rights will be selected for such stipulations and what is the threshold to be reached for aid to be re-instated once withdrawn?

First, which rights will form the basis for conditions to be applied? LGBT rights have taken the front seat at the moment – their time has come. We recognize the outrage of homophobia, violence and indignity – and rightly so. I have been struck at the poisonous language of hate, the conceit of equating homosexuality with paedophilia or impaired masculinity, that I have seen and heard.

Human rights are universal – that means all rights for all people so selecting rights for conditionality is difficult. Why would there be conditionality for the violation of LGBT rights but not other rights? Let’s just stay in Uganda for a moment – an anti-pornography law (recently signed off by President Museveni) imposes a dress code on women which has led to harassment and women being stripped and abused in public. If the violation of rights is sufficient to stop aid then would this law count? If that is not grievous enough then how about the flogging of women – in Sudan or in Maldives? How about cutting off hands or other body parts? Stoning? Female genital mutilation, which the UN estimates affects 100-140 million girls across the world? Enslavement of children? Torture? I, and no doubt many others, could argue the case for each of these examples but there are many more.

Neither aid nor its conditional distribution sit free from the geo-political context. Relations between many of the aid givers and recipients come laden with a history of colonialism and that taints the nature of discussion around both development and its aid flows. The heavy hand of colonial relations, continue to contaminate contemporary relations and aid conditionality is felt by many in recipient countries as neo-colonialism.

Safety of activists is another critical issue. If aid is withdrawn for the violation of LGBT rights, then LGBT activists become easily identifiable targets for retribution. It may be unintended but it is a knowable risk that donor countries or agencies take. It is also avoidable.

While the relationship between rights and development is increasingly appreciated, the appropriateness of conditionality in the promotion of rights is extremely problematic.

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