By Alex T. Bahaburana
Following a publication of article titled ignorance; the cloud that forms rains of ideas that inform African homophobia, I was invited to attend a debate on the same bill this time focusing on how President Yoweri Museveni would survive criticism from both the Local and International communities depending on card he chooses to play.
On Mr. Museveni’s table apparently are two cards; the first card is assenting to the bill now that Parliament has thrown the ball into his court and all eyes are on him. This involves him signing to approve that the bill is good intentioned for populace and therefore he has no objections or consultations usually done within a period of 30 days for Anglo-phones.
Alternatively, he can choose to “Veto” the bill. Veto – Latin for “I forbid” – is the power (used by an officer of the state, for example) to unilaterally stop an official action, especially the enactment of legislation. A veto can be absolute, as for instance in the United Nations Security Council, whose permanent members (China, France, Russia, United Kingdom, United States of America) can block any resolution. Or it can be limited, as in the legislative process of the United States, where a two-thirds vote in both the House and Senate may override a Presidential veto of legislation. A veto only gives power to stop changes, not to adopt them (except for the rare “amendatory veto”). Thus a veto allows its holder to protect the status quo.
In Australia for example; when a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name or that he withholds assent, or that he reserves the law for the Queen’s pleasure. The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.
In India, the president has three veto powers i.e. absolute, suspension & pocket. The president can send the bill back to parliament for changes, which constitutes a limited veto that can be overridden by a simple majority. The president can also take no action indefinitely on a bill, sometimes referred to as a pocket veto. The president can refuse to assent, which constitutes an absolute veto.
The Parliament later may then forward the same bill back to the President’s office either in the current state or with notable changes for him to sign it into law and when he fails again and throws the bill back to Parliament, only then Parliament can pass it without his approval.
It important to acknowledge however that every decision bring along serious implications; Vetoing the bill could buy Museveni International pride and praises but may cost him local political popularity which could in turn affect his presidential aspiration in 2016 yet assenting would deny Uganda a lot of advances from liberal democracies and investments that are necessary for us to achieve the set visions 2040 and 60 respectively and brand him negatively across the western world.
Why Museveni should veto the bill:
- 1. The bill would increase penalties for some forms of consensual same-sex conduct between adults, curtail constitutionally protected rights to privacy, family life, and equality, and violate the rights to freedom of association and expression.
- 2. The approved bill establishes life sentences for any form of penetration or sexual stimulation of a person of the same sex, as well as for “aggravated” homosexuality, which would apply to “serial offenders” among others, according to sources present during the parliamentary debate. Article 145 of the current penal code already punishes “carnal knowledge against the order of nature,” a colonial-era term understood to refer to sex between men, with life imprisonment. The new text would extend the punishment to sexual relations between women.
- 3. The bill further criminalizes the so-called “promotion” of homosexuality – an attack on the right to freedom of expression. Human rights groups and other organizations that seek to promote tolerance and put an end to violence on the basis of sexual orientation and gender identity, as well as organizations providing health services to lesbian, gay, bisexual and transgender (LGBT) people, could potentially be shut down, and their directors could face prison sentences.
- 4. The bill if enacted would frustrate efforts to effectively address HIV by driving LGBT people further underground. Government stakeholders admitted to “inadequate knowledge about sizes and population groups which has impacted effective programming” in implementing Uganda’s National HIV and AIDS Strategic Plan.
- 5. Finally, the bill proposes to nullify Uganda’s international human rights obligations in cases in which they contradict the Anti-Homosexuality Bill. As the bill is inconsistent with the right of non-discrimination, among others, it would place Uganda in conflict with its human rights treaty obligations.
Already International donors to Uganda have been outspoken in their criticism of the bill since it was first presented in parliament. It is crucial for these donors to loudly and publicly condemn the bill and communicate their concerns to Museveni, the four organizations said.
“The bill is not about solving actual problems facing Uganda, but about institutionalizing discrimination,” said Roman Baatenburg, press officer at Hivos. “We strongly urge President Museveni to act in the interests of Ugandans by rejecting the bill and focusing on the real problems facing Uganda, such as poverty, corruption, and impunity.”
Can Museveni Veto? No he can’t and here’s why:
So what can Museveni do? To find out, let’s turn to the Ugandan Constitution itself (PDF: 159KB/192 pages) at page 68 (Article 91):
91. Exercise of legislative powers.
(1) Subject to the provisions of this Constitution, the power of Parliament to make laws shall be exercised through bills passed by Parliament and assented to by the President.
(2) A bill passed by Parliament shall, as soon as possible, be presented to the President for assent.
(3) The President shall, within thirty days after a bill is presented to him or her—
(a) Assent to the bill;
(b) Return the bill to Parliament with a request that the bill or a particular provision of it be reconsidered by Parliament; or
(c) Notify the Speaker in writing that he or she refuses to assent to the bill.
(4) Where a bill has been returned to Parliament under clause (3) (b) of this article, Parliament shall reconsider it and if passed again, it shall be presented for a second time to the President for assent.
(5) Where the President returns the same bill twice under clause (3)(b) of this article and the bill is passed for the third time, with the support of at least two-thirds of all members of Parliament, the Speaker shall cause a copy of the bill to be laid before Parliament, and the bill shall become law without the assent of the President.
(6) Where the President—
(a) Refuses to assent to a bill under clause (3) (c) of this article, Parliament may reconsider the bill and if passed, the bill shall be presented to the President for assent;
(b) refuses to assent to a bill which has been reconsidered and passed under paragraph (a) or clause (4) of this article, the Speaker shall, upon the refusal, if the bill was so passed with the support of at least two-thirds of all members of Parliament, cause a copy of the bill to be laid before Parliament, and the bill shall become law without the assent of the President.
(7) Where the President fails to do any of the acts specified in clause (3) of this article within the period prescribed in that clause, the President shall be taken to have assented to the bill and at the expiration of that period, the Speaker shall cause a copy of the bill to be laid before Parliament and the bill shall become law without the assent of the President.
So once the bill is presented to Museveni, he has thirty days to give his assent or send it back to Parliament. If he sends it back to Parliament, then it is up to Parliament to pass it again or modify it before passing it again. Notice here that there is no time period specified in which Parliament is required to act. If Parliament sends to back to the President, he again has the option of giving his assent or send it back to Parliament. But this time, Parliament will have to pass it again with a two-thirds vote.
If Museveni sends the bill back to Parliament, it will provide up to two more opportunities for cooler heads to prevail or for the clock to be run out before the current Parliament expires in 2016.