Uganda’s Constitutional Court Greenlights Draconian Anti-Homosexuality Act 
Uganda’s Deputy Chief Justice Richard Buteera (centre) delivers the Constitutional Court ruling.

Uganda’s Constitutional Court ruled on Wednesday that the country’s draconian  Anti-Homosexuality Act 2023 complies with the country’s Constitution in all but four aspects. 

“We decline to nullify the Anti-Homosexuality Act 2023 in its entirety neither would we grant a permanent injunction against its enforcement,” Deputy Chief Justice Richard Buteera,  told the Kampala courtroom and a capacity Zoom audience of 500.

The four sections that were struck down by the five-judge panel – 3 (2c), 9, 11 (2d) and 14 – were “inconsistent with right to health, privacy and freedom of religion”, according to the court.

“The nullified sections had criminalised the letting of premises for use for homosexual purposes, the failure by anyone to report acts of homosexuality to the police for appropriate action, and the engagement in acts of homosexuality by anyone which results into the other persons contracting a terminal illness,” according to a statement from the court.

Buteera said that the mandatory reporting to authorities of people suspected of having committed homosexual offences violated individual rights.

While the court has struck down the possibility of landlords being imprisoned for renting premises to homosexuals, it has maintained that prison terms of up to 20 years for journalists “promoting homosexuality” were legitimate.

In delivering the unanimous judgement, Buteera said that constraints on the media aligned with sections of the country’s Communications Act and Anti-Pornography Act, which “aim to uphold societal morals by limiting the use of media to publish or broadcast offensive material”.

The Act’s legitimacy was contested by 22 Ugandan human rights advocates including Member of Parliament Fox Oywelowo Odoi (the only MP to vote against the Act), legal academics Prof. Sylvia Tamale and Rutaro Robert and Bishop James Lubega Banda.

They said that it violated various constitutional rights, including the right to privacy and freedom from discrimination, as well as going against Uganda’s international human rights  commitments.

Frank Mugisha, of Sexual Minorities Uganda and Convening for Equality co-convener, described the ruling as “wrong and  deplorable”, and called on “all governments, UN partners, and multilateral institutions such as the World Bank and the Global Fund to likewise intensify their demand that this law be struck down”.
“This ruling should result in further restrictions to funding for Uganda – no donor should be funding anti-LGBTQ+ hate and human rights violations,” said Mugisha, one of Uganda’s most prominent LGBTQ activists.

Nicholas Opiyo of human rights group Chapter Four Uganda, said his organisation “vehemently disagrees” with the court’s finding and the basis on which it was reached.

“We approached the court expecting it to apply the law in defence of human rights and not rely on public sentiments, and vague cultural values arguments,” said Opiyo.

Life sentence and death penalty

Transgender rights
Protests have been held worldwide in support of the Ugandan LGBTI community as it faces attack.

The Anti-Homosexuality Act introduces “the offence of homosexuality”, with a potential life sentence for a same-sex “sexual act”. It also allows the death penalty for “aggravated homosexuality”, including sex acts with children, disabled people or those drugged against their will, or committed by people living with HIV – actions that are already criminalised by other laws.

Since the Act was passed last May, the World Bank has suspended new loans to Uganda and the US President’s Emergency Plan to Fight AIDS (Pepfar) has declined to advance plans for the country. There has also been widespread condemnation of the law.

Buteera claimed that the Act had been passed “against the backdrop of the recruitment of children into the practice of homosexuality. That is the mischief that Section 11 [dealing with the “promotion of homosexuality”] of the Act seeks to address.”

‘Absence of global consensus’ on LGBTQ rights

The court presented seven points as the basis for its decision, including that “sister jurisdictions” have “decriminalised consensual homosexuality between adults in private space”.

However, it referred to the absence of global consensus “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,” according to the court.

The court also referred to conflicts between “a universal understanding of human rights and respecting the diversity and freedom of human cultures” and 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” on the other.

Finally, it described the Anti-Homosexuality Act as “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 citizens”. 

Win for government

Dr Adrian Jjuukho, Ugandan human rights lawyer and executive director of Human Rights Awareness and Promotion Forum (HRAPF), which was one of the petitioners against the Act, described the ruling as “only intended to please donors in the health sector so that they can continue to provide the funds that are much needed while sacrificing LGBTI persons in the process”.

“The Court has nullified provisions that directly impede health service provision including reporting obligations, and where the victim acquires a terminal illness. This clears the way for health funding but does not actually clear the way for proper service provision,” said Jjuukho, writing on X (Twitter).

In a guarded statement, UNAIDS Regional Director for Eastern and Southern Africa Anne Githuku-Shongwe, said that “evidence shows that criminalizing populations most at risk of HIV, such as the LGBTQ+ communities, obstructs access to life-saving health and HIV services, which undermines public health and the overall HIV response in the country.”

“To achieve the goal of ending the AIDS pandemic by 2030, it is vital to ensure that everyone has equal access to health services without fear,” she added. UNAIDS provided evidence in support of the petitioners on certain clauses via an amicus brief.

Meanwhile, Ugandan feminist lawyer Sunshine Fionah Komusana told Health Policy Watch that “the ruling impacts everyone”.

“With the kind of government we have, I don’t know how anyone would be celebrating, knowing very well the different tags they use to deny people freedom of expression and association.,” said Komusana.

“Anti-human rights groups are gaining ground and before we know it, these kinds of legislation will be feeding into retraction of several other rights. See examples of reintroduction of legislation to legalise female genital mutilation and child marriages in some countries. These legislations harm all of us.”

Hundreds of people have already been arrested and attacked since the Act was introduced last May. In one case, a man was attacked in his home by a group of men one night. He was beaten and some of his property burnt by the mob, which accused him of being a homosexual.

In a similar incident, a lesbian was attacked by two men in her home. She had been evicted by her landlord on the grounds of homosexuality but did not have the resources to move.

International reaction to the court’s ruling will no doubt be keenly watched by countries contemplating their own anti-LGBTQ laws, such as Ghana, Kenya, South Sudan and Tanzania.

In February, ​​Ghana’s Parliament unanimously passed one of the world’s most draconian anti-LGBTIQ Bills which includes a mandatory three-year prison sentence for a person who simply “identifies” as lesbian, gay, bisexual, transgender, intersex or queer”. However, the president has yet to sign it into law.

Image Credits: Alisdare Hickson/Flickr.

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