On 3 May 2021, Uganda’s Parliament passed the Sexual Offences Act, 2021. This Act – which has been 21 years in the making – can be applauded for increasing protection and redress to survivors of sex-related crimes. The majority of MPs supported the Bill and its core purpose of combating sexual violence and consolidating laws of sexual offences, providing for punishment of perpetrators of sexual offenses, providing for procedural and evidential requirements during trial of sexual offences and other related matters. Many of the MPs agreed that if passed the Bill would fill the gaps that exist in the current laws making the legal framework more adequate and aligned with the international human rights standards that Uganda ascribes to. However, the final version of the Bill which was passed falls short of these international standards for the protection of human rights – and the rights of women in particular – on various fronts, including in its limited definition of rape, its failure to recognise marital rape and the criminalisation of false sexual accusations.
A particular disappointment of the Act is the fact that the clause of the Bill which stated that consent can be withdrawn before or during sexual activities has not been included in the final Act. The MPs who debated the Sexual Offences Bill did not only vote against including the provision for withdrawal of consent, but expressed their arguments with laughter and mockery. Some of the vitriol thrown around the floor of Parliament included: “Consent is unclear, how shall we measure it?”;“Women say no when they mean yes”; “You’ve already invested in a woman and you get to the hotel and she says she cannot handle?” and “Some women change their minds after gifts, there should be a punishment for such women who extort money from men for sex.”
Ugandan Parliamentarians showed themselves unconcerned about the crisis of sexual and gender-based violence (SGBV) and the devastating culture of impunity of perpetrators of sexual crimes in the country. Instead, they had more concern about the odd chance that a person – usually a man – could be falsely accused of rape or that the boundaries of sexual assault can be framed in a way that does not perpetuate power imbalances between men and women.
In 2020 alone, 16 144 sex related crimes were reported to police victimising 15 952 females. These figures show that women and girls are by far the most vulnerable to sexual violence, while not even taking into account the many cases which go unreported. There are also low levels of conviction in cases of sexual crimes, which adds to the reluctance of victims to report the crimes and pursue prosecution. In order to address this situation, Ugandan women’s rights activists have advocated for the strengthening of legal provisions criminalising sexual violence through the adoption of a Sexual Offences Act. A key provision in the 2019 Sexual Offences Bill in this regard was the clause which provided that consent can be withdrawn at any time before or during sexual activity. Such a provision would place a much bigger burden on persons engaging in sex to ensure that their partners have consented and continue to consent to every part of the sexual act. The presumption expressed by the MPs – that a woman who has accepted a dinner invitation or a gift has automatically said yes to sex in whatever way or form – is a grave denial of human dignity and agency of women. The comments also do not take into account the wide-ranging circumstances and reasons why consent may be withdrawn: suppose a woman had agreed to have sex with a particular man, and she had assumed that he will use a condom, but somewhere along the line he expresses that he hates condoms and never uses them. Is this woman now prevented from withdrawing her consent? And even in situations where there is no particular reason for the woman to change her mind about consent, except that that is her decision, the law should protect her right to bodily integrity and self-autonomy at all times.
The statements and decision by the MPs to reject the consent clause enforces the culture of victim blaming that is already pervasive in Uganda. This culture was brought to the fore in 2020 when a senior police officer wrote an article which was published in the New Vision newspaper in which he blamed women for being victims of sexual violence. In this article the senior police officer likens men committing acts of sexual abuse to kite birds eating chickens, as is their natural behavior and refers to men being teased and tortured by women’s choice of attire and “attacked” by women who confront men for staring at them. With this in mind, it is disappointing that the MPs did not take up their mantels as forerunners in transforming harmful societal attitudes and beliefs.
It needs to be made clear that consent can be withdrawn at any point in interactions leading up to, as well as during sexual intercourse. It is only when we begin to appreciate and deliberately legislate on this issue, that more rapes will be reported to the authorities, and more rapists will actually be convicted of this crime. The Sexual Offences Act is a lost opportunity to strongly legislate on consent as a critical part of any sexual activity. To make matters worse, a provision was also included in the Act which criminalises false accusations of crimes of a sexual nature, which is enough to discourage the few brave women who would otherwise have been willing to seek justice. The Act as it stands perpetuates a toxic culture of victim blaming and impunity in Uganda.
By Elizabeth Kemigisha
2nd July 2021
First appeared on AfricaLaw Blog
Uganda’s new Sexual Offences Act fails to address the toxic culture of victim blaming | AfricLaw