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Why Uganda’s Constitutional Court Upheld Anti-Homosexuality Act

A Few Wins for Gays

Constitutional Court judges. Courtesy Photo
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The Constitutional Court in Uganda has upheld the Anti-Homosexuality Act 2023.On May 26, 2023, President Yoweri Kaguta Museveni assented to the Anti-Homosexuality Act 2023 after Parliament passed the piece of legislation.

This prompted gay rights activists suc as lawyers Robert Rutaro and Nicholas Opiyo, law dons Dr Sylvia Tamale and Dr Kabumba Busingye, and journalist Andrew Mwenda to petition the Constitutional Court challenging the law.

The respondents included Attorney General of the Republic of Uganda, and Pastor Martin Ssempa of Makerere Full Gospel Church.

The petitioners argued that the Anti-Homosexuality Act 2023 flouts the rights and freedoms of LGBTQIA people in the country. They further argued that it was wrong to make it a crime for two consenting adults to have sex in private. They argued that doing so would contravene the right to non-discrimination and the right to equality as give. In Articles 20 and 21 (1-2) of the constitution.

Their other argument was that Section 4 of the Anti-Homosexuality Act 2023 which made children criminally liable contravened the rights of the children.”

The petitioners also told court that there had not been enough public consultation and participation. This loophole, they argued, was in total disregard of the provisions of the National Objectives and Principles or the State Policy of the Constitution.

They had also accused the Speaker of Parliament, Anita Annet Among, of expressing bias which is against Article 89(1) and (2) of the Constitution.

They also challenged section 9 and 11(1) as well as 11(2)(d) of the anti gay law which sought to punish anyone who allowed or leased or subleased premises for homosexuality practices or to encourage homosexuality. They said this contravened Articles 20, 28(12) and 44(c) of the Constitution.

THE RULING

Deputy Chief Justice Richard Buteera led a five-judge bench comprising Geoffrey Kiryabwire, Monica Mugenyi, Muzamiru Kibeedi and Christopher Gashirabake.

The petitioners won on this argument. The Constitutional Court unanimously decided to nullify sections 3(2)(c), 9 and 11(1) as well as 11(2)(d) of the Anti-Homosexuality Act 2023 on grounds that it broke provisions of the constitution.

Overall, the Constitutional Court justices (judges) upheld the Anti-Homosexuality Act 2023, relying on at least seven grounds as indicated below:

  1. The legislations and judicial decisions from sister jurisdictions that have decriminalised consensual homosexuality between adults in private space.
  2. The absence of consensus at the global level regarding non-discrimination based sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC). This is reflected in the fact that to date non-discrimination on the basis of the SOGIESC variables has not explicitly found its way into international human rights treaties. Instead, it has been ‘vetoed’ by a bloc of resistant (UN) member states that has prevented the adoption of a binding declaration or similar instrument to strengthen protections for LGBTI human rights.
  1. The conflict in international human rights law between upholding a universal understanding of human rights and respecting the diversity and freedom of human cultures, with no one culture entirely diminishing the dignities of the other.
  2. The conflict between individuals’ right to self-determination, self-perception and bodily autonomy, on the one hand; and the communal or societal right to social, political and cultural self-determination, calling for a delicate balance between individual autonomy and communal interests.
  3. The recent developments in the human rights jurisprudence including the decision of the US Supreme Court in Dobbs v Jackson Women’s Health Organisation, No. 19-1392, 597 U.S. 215 (2022), where the Court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to over-rule the broader right to individual autonomy.
  4. The uniqueness of Uganda’s Constitution which obliges the courts of law to take into account the country’s socio-cultural norms, values and aspirations when resolving any disputes before them.
  5. The Anti-Homosexuality Act being, in general, a reflection of the socio-cultural realities of the Ugandan society, and was passed by an overwhelming majority of the democratically elected representatives of the Ugandan citizen

It should be remembered that Uganda’s Anti-gay law has been labelled as one of the harshest in the world. The US and the World Bank reacted by announcing sanctions against Uganda, including cutting funding for health and development projects. (See Details Here, There and Over There).

In reaction to the same law, the US also cancelled Speaker Anita Among’s visa and issued sanctions against Uganda Prisons boss Johnson Byabashaija. (Read Stories Here, There and Over There).

Additional Reporting: Courtesy

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